The Types of Punishments and the Rationale - Essay Example

Punishment can only be adequately understood if it is situated within a wider context of the philosophy behind it By Introduction The task of keeping the society free from criminals has been a major concern for rulers and governments from the beginning of civilisation. The types of punishments and the rationale attached to them reflected the society’s perception of how crime should be dealt with, which changed with time. Inflicting physical pain in full view of public was considered the best form of deterrent punishment in the 18th century England. Confinement as a form of punishment was not very popular. “English courts typically imposed fines or resorted to public and symbolic inflictions such as the pillory or the whipping.” (McGowan, 1998, p.72.). The ultimate punishment was death at the gallows. The punishment was mainly for publicity, to remind of the horrors that awaited wrong-doers and the participation of the victim was only incidental. The method of punishment has evolved over a period of time in line with changes in the ideological and philosophical context of the society and also considering practical aspects. There has been a shift from punishment of the body to punishment of the mind and soul. Confinement of a person as a way of providing time for contemplation, retrospection and repentance and thereby correcting aberrations of the mind is now widely accepted. The rise of imprisonment as a predominant form of punishment is consistent with this philosophy. Rationale for punishment Several theories for the rationale for punishment have been put forward. Many of them regard punishment as the vengeance of the offended against the offender regulated by a higher authority. According to an opinion, “punishment is an evil inflicted upon a wrong doer as a wrongdoer, on behalf and the discretion of the society, in its corporate capacity, of which he is a permanent or temporary member” (Oppenheimer, 1913). The basic predatory instinct of retaliation as a form of defence against future attacks may be seen as a justification for vengeance at the individual level. But, as part of a group, this right to vengeance is surrendered in return for protection at the group level. However the concept of punishment as a form of vengeance is inconsistent with the teachings of most religions and also the values and norms of civilised societies. Members of civilised societies are likely to subscribe to the view that inflicting pain on someone is wrong. But since punishment involves causing pain and suffering deliberately and intentionally, the question arises whether punishment can be justified from a moral stand point. The retributive approach argues that punishment of crime is different from causing pain to innocents and the perpetrator of a crime deserves it. Retribution aims at balancing a wrong through punishment which is strictly proportional to the crime and is administrated by a designated authority impartially. By specifying the authority that can award the punishment and limiting the quantum of punishment, the evil of punishment is supposed to be reduced (Pollock, 2005). The basic assumption is that the society has a right to punish and the criminal deserves to be punished as he has breached the “social contract” (Pollock, 2005). The social contract is supposed to apply to a person by virtue of his belonging to the society and enjoying its protection. It considers efforts at rehabilitation as intrusive, because it tries to change the basic nature of a person against his will. The person is supposed to have done the act wilfully, being well aware the consequences of his actions. The utilitarian approach accepts that punishment is inherently wrong, but justifies it as a necessary evil, if it is for the greater good of the many and if the purpose of punishment is deterrence, incapacitation or rehabilitation. The benefits of punishment must necessarily be more than the evil inflicted on the individual. For the punishment to act as a deterrent, the likely quantum of pain from punishment must slightly exceed the likely pleasure that may be derived from the criminal act. Incapacitation aims at preventing the criminal from repeating the crime by physical confinement or other means. House arrest, electronic bracelets and chemical incapacitation in the case of sexual offenders are some examples (Pollock, 2005). Rehabilitation is based on the assumption that it is possible to reform the criminal by affording him time for introspection to realise that he has done wrong. He can also be given lessons in moral values while serving the sentence. It also aims at equipping the prisoner with necessary skills to earn a living when he completes his tenure in prison, so that he will not be constrained to follow the path of crime for subsistence. Changing nature of punishment Varying forms of brutal punishments were employed all over the world even in the 17th and 18th centuries. Whipping, dismembering and branding were means of torture popularly used. Death was usually inflicted by burning, beheading, hanging or stoning. Electric chair, gas chamber and firing squads were used during later periods. Generally punishments were out of proportion with the crimes and were applied inconsistently. Physical punishments were carried out in public in front of huge crowds. Maximum severity of punishment was imposed irrespective of the severity of the crime. The punishments were meant to offer a horrifying spectacle to the general public, so that none who witnessed the act would ever dare to contemplate a crime. The punishments were also performed ceremoniously to evoke the idea of divine sanction. The power to pardon rested with only the king or the leader and this reinforced his authority. Different systems of punishment could be linked to different social structures (Emsley, 2009). In feudalism, body was the only property available and hence corporal punishments were common. In mercantile system, forced labour was more favoured (Ibid). Corrective detention became more popular in Industrial systems. As societies became more civilised, punishments moved from the body to the mind. Brutal forms of punishment were banned one by one as years passed. Incarceration became the most popular form of punishment. In response to pressure from society, repeated offenders were awarded lengthier terms of imprisonment. In the earlier era prisons were disorderly and maintained very poorly. But social reformers and human rights activists have succeeded in bringing about changes in the living conditions inside prisons. The prison is now seen as a place of retrospection and correction. The mental reformation of the prisoners is sought to be achieved through education and faith. The purpose of imprisonment in the 14th century was custody until physical punishment was inflicted, whereas today custody itself is punishment. The government’s responsibility of keeping the society free of criminals finds expression in the form of long terms of imprisonment for most offences. In the Victorian era, jails were meant to hold persons awaiting trial, felons waiting to be transported overseas or convicted felons to be transferred to prisons to serve lengthy sentences (McConville, 1995). Jails were also used to hold debtors until they could pay off their debts and witnesses whose appearance at trial was in doubt (Ibid). After the Prison Act of 1865, local prisons under the control of counties and borough magistrates were used to detain persons awaiting trial, debtors and death sentenced convicts. The central government prisons were meant to hold convicts sentenced for long confinement. Hulks (disused and decommissioned warships) were used to hold prisoners awaiting transportation to America and later to Australia. Philosophies of Imprisonment Imprisonment as a form of punishment is essentially different from all other forms. It has a devastating effect on the individual. The opportunities for lifetime of earning and savings are lost and freedom is curtailed. Risk of injury from attack by prison officials or inmates is always present. The prison conditions may also lead to serious debilitating illnesses. The loss of self worth and self esteem are mostly irreparable. The question naturally arises whether such an extreme punishment is justifiable under any circumstance. The conservative paradigm assumes that human beings make rational choices out of their free will and therefore are liable to enjoy or suffer the consequence of their actions. So prison life should be harsh and uncomfortable, so that rational people will refrain from committing offences. This establishes the rationale for longer sentences for repeated offences. The liberal view partly shifts the responsibility for behaviour to upbringing, financial background, education and life experiences in general (Pollock, 2005). This essentially calls for a more sympathetic approach towards criminals. So rehabilitation and reform are central to this approach. The radical approach sees economic motives of the ruling class in large scale imprisonment of labour for exploitation. The radical penal lobby provides an alternative voice to the established notions and policies of penology, which it believes is made for the benefit of those in power. “No More Prison,” established by John Moore in January 2006 aims at abolishing prisons on the ground that they have proved to be utter failures (Scott, 2008). Changing nature of crimes Technological innovations have brought about drastic changes in the lifestyle of human beings. Many useful gadgets are available to make difficult tasks simpler. At the same time crime has also become much more complex. New laws are being enacted to deal with crimes related to stealing of identity and personal data over the internet. Here also crimes ranges from offences like sending unsolicited and objectionable messages to serious financial frauds committed by cyber criminals elsewhere in the world. Punishment of such crimes requires close coordination between the owners of websites and countries involved. While modern surveillance systems are capable of detecting physical crimes efficiently, they are not equipped to detect cyber crimes. Stock market scams also pose similar problems as they go undetected until they assume gigantic proportions. Corporate entities defraud their shareholders by manipulating financial statements and overstating expenses. Such financial frauds were not taken seriously until lately. In short the perception of what constitutes a crime today has changed very much from the Victorian concepts. The accent is more on making the systems foolproof and plugging the loopholes rather than finding the culprits. The criminals are indistinguishable from the general public and most likely hold respectable positions in the society, which make it all the more difficult to apprehend them. Prisons of the modern times The rise of human rights movements has greatly changed the general attitude towards prisons and their inmates. Prisons have become cleaner, prisoners are being provided with normal food and given better opportunities to work and earn. Critics argue that prisons no longer provide the negative experience required to deter the criminals from repeating the crimes. However, the civilised society tends to consider crime as an aberration of the mind and would be satisfied with isolating the criminals from the social mainstream. This has resulted in filling up of the prisons with even petty offenders. Consequently, governments are currently facing the problem of overcrowding of prisons. The expenses for maintaining the prisons are also soaring. In fact, there are a considerable number of inmates who are serving lengthy sentences for even petty crimes and they can be sent out on parole without any harm to the society. Conclusion The act of punishment in primitive societies was one of instinctive retaliation to protect self from harm. As individuals became part of groups, they had to obey rules and the prerogative of awarding punishment was surrendered to a higher authority. Corporal punishments were the natural choice to terrify the members into submission. As civilisations grew, punishments took different forms, from mere fines to physical torture. Punishments were justified by their ability to prevent future crimes, incapacitate or reform the criminal. Different schools of thought have put forward different rationale for punishment based on their perception of how much an individual can be held responsible for his actions. Imprisonment as dominant form of punishment emerged when the philosophy of rehabilitation became popular and physical punishment came to be looked upon as brutal by the society over a period of time. Further involvement by social reformers and human rights activists brought about changes in the living conditions inside the prisons. In the modern society the concept of crime itself has acquired new definitions. So the concept of crime and punishment has always been influenced by the philosophies and ideologies of the contemporary society. References Emsley C (2010) Punishment and Reformation in Crime and Society in England, 1750-1900. Harlow: Longman, pp.261-307. Available at:https://books.google.co.in/books?id=FtjbAAAAQBAJ&printsec=frontcover&dq=Punishment+and+Reformation+in+Crime+and+Society+in+England&hl=en&sa=X&ei=4cr1VNG8NMyOuASP04H4DQ&ved=0CBwQ6AEwAA#v=onepage&q=Punishment%20and%20Reformation%20in%20Crime%20and%20Society%20in%20England&f=false McGowen R (1996) “The Well-Ordered Prison: England, 1780-1865” in Morris, N. & Rothman, D.J. (eds) The Oxford History of the Prison: the practice of punishment in Western society pp.71-99, New York: Oxford University Press. McConville S (1995) The Victorian Prison: England, 1865-1965 (excerpt), in Morris, N. & Rothman, D.J. (eds.) The Oxford History of the Prison: The Practice of Punishment in Western Society, 117-138. Oppenheimer H (1913) “The Rationale of Punishment” in Hobhouse, L.T. and Westermark, EA. (eds). Monographs on Sociology, 1. London: The University of London Press. Pollock JM (2005) “Rationale for Imprisonment.” The Philosophy and History of Prisons, ch1Available at: http://www.jblearning.com/samples/0763729043/Chapter_01.pdf Scott D (2008) The History and Aims of Imprisonment in Penology, Sage Course Companion. London. pp68-80 (ebook). Available at: https://books.google.co.in/books?id=I0zZgjsDWJAC&printsec=frontcover&dq=Scott,+D.+%282008%29+The+History+and+Aims+of+Imprisonment+in+Penology&hl=en&sa=X&ei=n8v1VOOlJ9GSuQThhIKYDw&ved=0CCMQ6AEwAQ#v=onepage&q&f=false Read More