CRIMINOLOGY: PHILOSOPHIES OF PUNISHMENT, CORRECTION AND TREATMENT (PART 1)

CRIMINOLOGY: PUL 262

PHILOSOPHIES OF PUNISHMENT, CORRECTION AND TREATMENT

LEARNING OBJECTIVES:

By the end of this lecture, students should be able to:

a. Identify and explain the major philosophical theories of punishment

b. Analyze the evolution from punishment-focused to treatment-oriented approaches

c. Compare retributive, deterrent, and rehabilitative philosophies

d. Evaluate the effectiveness of different philosophical approaches.

INTRODUCTION

The philosophy of punishment represents humanity’s attempt to respond to criminal behavior in a just and effective manner. These philosophical foundations shape criminal justice systems worldwide and determine how societies treat offenders.

There are 5 theories of punishment grouped into Classical Theories of Punishment & Modern Treatment Philosophies.

A. WHAT ARE THE THEORIES OF PUNISHMENT?

Theories of punishments are concepts that determine the type of punishment to be meted out for a specific type of crime. The severity of the crime is considered and the motive is also an important factor while determining the type of punishment meted out.

SIX (6) THEORIES OF PUNISHMENT ARE:

There are 6 (six) theories of Punishment grouped into Classical Theories of Punishment and Modern Treatment Philosophies namely: -

1.Retribution/Retributive Theory (Classical Theory).

2.Deterrence Theory (Classical Theory).

3.Preventive or Incapacitative Theory (Classical Theory).

4.Reformative/Rehabilitation/Rehabilitative Theory (Modern Theory).

5.Restitution/Compensation Theory (Modern Theory).

6.Restorative Theory (Modern Theory).

While the 1st 3 are the Classical Theories of Punishment (because of the era they held sway, the last 3 are the Modern Theories of Punishment).

CLASSICAL THEORIES OF PUNISHMENT

A. RETRIBUTION/RETRIBUTIVE THEORY (JUST DESSERTS)

Retribution is the most ancient justification for punishment; rooted in the principle of "an eye for an eye," it holds that punishment is justified because wrongdoers deserve to suffer consequences proportional to their crimes.

This theory insists that a person deserves punishment as he has done a wrongful deed. Also, this theory signifies that no person shall be arrested unless that person has broken the law. The theory of retribution seeks to exact revenge upon criminals by harming them in exchange for harms caused to their victims. This theory does not necessarily focus on whether or not a particular punishment benefits the community, but are more concerned with ensuring that the punishment causes a sufficient level of misery for the prisoner in proportion to the perceived seriousness of their crimes. This theory is based upon a belief that some kind of moral balance will be achieved by paying back the prisoner for the wrongs they have committed.

Retributive theory looks at the circumstance of the crime committed and decides what type of punishment the accused deserves for his offence. Punishment is imposed in order to relieve the indignant feelings of the public or it could be imposed to mark the level of revulsion with which the public regards the crime. In the retribution theory, there is a notion that every offender must be given what he deserves, the offenders should not be punished more than his offence and a person should be punished only if he has actually committed an offence as defined by law. It may be difficult however to decide what is a fair proportion between a crime and the punishment attached to it. Another challenge this theory faces is to explain exactly how is it that inflicting suffering on the criminals can have in itself a positive value.

Philosophical Foundations:

• Immanuel Kant argued that punishment respects human dignity by treating offenders as rational agents responsible for their actions

• Punishment restores moral balance disrupted by crime

• Society has a duty to punish, regardless of future consequences

In defence of retribution, advocates of the theory advanced the view that if we were to remove the retributive response from our reaction to the criminal, the label criminal would cease to have the meaning commonly associated with it. Hence, retributivist theories argue that in a very real sense, it is the vengeful, retaliatory response of society that gives meaning to the label “criminal”.

Key Principles:

• Punishment is backward-looking, focusing on the offense committed

• Justice requires that offenders pay for their crimes

• Proportionality between crime severity and punishment severity

• Moral desert forms the foundation of punishment

The essential element in retributive theory of punishment are three folds:

(a) The fact that an individual has committed a crime provide enough ground or reason for his punishment

(b) that the pain inflicted on the criminal must be in offence committed and

(c) that punishment is viewed as an end in itself rather than as a means to an end.

The punishments based on the retributive theory of crime address the primitive spirit of vengeance in the offender. These punishments also set an example to society at large that “criminals shall pay for their crime irrespective of the cause for committing the crime.” Retribution theory of punishment is based on the principle of “an eye for an eye.

Conditions where a person is considered as an offender are:

- The penalty given will be equivalent to the grievance caused by the person.

- Performed a crime of certain culpability.

- That similar persons have been imposed for similar offenses.

- That the action performed was by him and he was only responsible for it.

- Also, he had full knowledge of the penalty system and possible consequences.

Contemporary Applications:

• Mandatory minimum sentences

• Three-strikes laws

• Death penalty justifications

• Victim impact statements in sentencing

An example of a punishment based on retributive theory is the death sentence for a murderer.

B. DETERRENT THEORY

The deterrence model was developed within the standpoint of classical school of criminology in the 18th and early 19th centuries. The theory claims that by sentencing criminals to extremely harsh penalties, other people who might be considering criminal activities will be so terrified of the consequences that they will chose not to commit crimes out of fear.

Deterrent theory justifies punishment based on its capacity to prevent future crimes through fear of consequences.

Types of Deterrence:

1. General Deterrence: Punishing offenders to discourage others from committing similar crimes

2. Specific Deterrence: Punishing offenders to prevent them from reoffending

Classical Deterrence Theory (Cesare Beccaria):

• Certainty of punishment more important than severity

• Swift justice increases deterrent effect

• Punishment should be public to maximize general deterrence

• Proportionality prevents excessive punishment

Deterrence theory argues that deterrence from crime is achieved through the fear of imposition of punishment. It claims that potential offenders in the committing, or indeed an offender who has already been punished will refrain from committing crime in future when they remember that punishment will follow in consequences. These include the conditions of celerity, sufficient severity of punishment and certainty of apprehension and punishment. In the absence of these three conditions, there is the likelihood of deterrence failure.

There are two types of deterrence which include specific deterrence and general deterrence.

Specific deterrence relates to those who experience the punishment themselves, that is the actual persons who were deterred. They are deterred from committing the offence again. For example, while a criminal is in prison he will be prevented from committing further crime, even when he is out of prison or another punishment, he will not want to commit the same offence again for the fear of punishment.

General deterrence involves those who did not personally experience the punishment but desist from committing crimes as a result of the punishment meted on another. It deters them from committing crimes by making them realize that they risk suffering the same fate in similar behavior. This was the reasoning of the Supreme Court of New Zealand in the case of R v. Radich when the Apex Court stated at 87 that:

“… one of the main purposes of punishment … is to protect the public from the commission of such crimes by making it clear to the offender and to other persons with similar impulses that, if they yield to them, they will meet (sic) with severe punishment.”

The purpose of a deterrent punishment is to show the futility of the crime committed and send a message to others in society. Deterrence theory aims to prevent crime by making the punishment severe enough to deter potential offenders. An example of deterrent punishments is capital punishments.

The theory of deterrence is based on pleasure-pain principle. People tend to avoid acts that bring pain to them but act more quickly and often on behaviours they consider pleasurable. Therefore, to deter people from crimes as white-collar, we must ensure that offenders get punishment that causes them much pain than what they stand to gain from the proceeds of crime. This is the thrust of the deterrence theory

Hence, deterrence has been the main purpose of punishment and still continues to be so. A practical example of general deterrence in Nigeria is the arresting and killing of Bartholomew Owoh and two others during Buhari/Idiagbon military regime for drug-related Offences, as well as the introduction of the Robbery and Firearms (Special Provisions) Act which mandates the killing of convicted armed robbers (who wounds or uses any personal violence against any person) 8 by hanging the offender by the neck till s/he die or by causing such offender to suffer dead by firing squad as the Governor may so direct.

There is little or no scientific evidence to prove the efficacy of this theory. Presently in Nigeria and in other countries, so many criminals have become so recalcitrant that they are not afraid of the punishment that come with their criminal acts nor are they discouraged by the punishment meted to other criminals.

In some cases, deterrence as a mode of punishment become inevitable as could be seen in the case of The State v. Boliv Osigbemhe & Anor where the accused was convicted for rape and stealing, he pleaded for leniency saying that h dependents would suffer if he went to prison. His counsel also informed the court that he was a first offender and asked for mercy and option of fine. The court stated as follows: “The behaviour of the accused is outrageous and disgraceful and should be seriously deprecated by any decent society and I will be failing in my duty if the accused is not meant to suffer for his barbaric act. It is obvious that his insatiable appetite for sex made him to commit the offence.” In this particular case, specific deterrence must apply because the use of gun, the infliction of injuries when the girls jumped out of the van, deprivation of liberty for considerable time, the breach of trust after assuring the girls of their safety and the fact that series of rapes were involved demanded that the convict be properly punished as deterrent to others who may attempt such crime.

However, many still argue that it is not the fear of punishment that deters criminals from committing crimes. As Oraegbunam et al argue, if the only objective of the Nigerian criminal justice system is to deter criminals, perhaps a more severe punishment should be meted out for all offences committed. This theory does not take into consideration the innocence of an accused person as one need to be punished in order to deter others from committing the same offence. The question then is, has the deterrence theory solved the issue of the Nigerian criminal justice system? The deterrence theory therefore should not stand alone as a means to Criminal Justice; it should therefore be applied with caution.

Modern Deterrence Research:

Rational choice theory applications

Economic models of crime

Empirical studies on deterrent effectiveness

Perceptual deterrence studies

C. PREVENTIVE OR INCAPACITATIVE THEORY OF PUNISHMENT

The preventive or incapacitated theory of punishment prevents crime by physically restraining offenders from committing new offenses. It views punishment as a means of keeping away the criminal offender from the society by locking him away in custodial confinement. This means that punishment takes the form of prison incarceration, and the objective is to prevent the criminal from further victimization of society. Punishment under preventive theory serves the function of protecting society by preventing or incapacitating the criminal from carrying on with his criminal activities. The idea of incapacitation is to prevent or reduce the possibility of future crimes by those convicted of crimes.

This theory considers the need for custodian sentencing as it believes that the offender constitutes further threat to the society. Thus the adoption of preventive punishment is justified on the sole ground that society remains safe as long as the criminal remains locked away in solitary confinement

This theory aims to prevent criminals from committing further offenses by imposing severe penalties such as capital punishment and long-term imprisonment, particularly life sentences. However, a significant challenge arises when it comes to white-collar criminals who may return to benefit from the proceeds of their crimes after serving their sentences. In my perspective, incapacitation may not be the most effective approach to combat white-collar crimes like corruption in public service. Any legal guidelines that allow offenders to delay their criminal cases or enable them to enjoy the gains of their crimes afterward might inadvertently encourage others to engage in corrupt activities, as they may believe they can exploit such guidelines and ultimately benefit from their illicit gains. This situation could potentially lead to a higher rate of repeat offenses, known as recidivism.

Examples of preventive punishments are fines, imprisonments, etc.

FORMS OF INCAPACITATION

An individual can be incapacitated temporarily or permanently.

• Imprisonment (most common)

• Electronic monitoring

• Chemical castration for sex offenders

• Capital punishment (permanent incapacitation)

These punishments are more severe because their purpose is to create fear in the minds of the offenders and disable them from committing such crimes. Preventive theory aims to prevent crime by removing the offender from society, Preventive theory of punishment therefore focuses on:

- Creating fear in the minds of all prospective offenders.

- Disabling the offender from committing any other crime.

- Transforming the offender so that he does not commit such crimes in the future.

Selective vs. Collective Incapacitation:

• Selective: Targeting high-risk, repeat offenders

• Collective: Broad application regardless of individual risk

Lawton, L. J argues that: ‘there are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In those cases the only protection which the public has is that such persons should be locked up for a long period’. The Court of Appeal in R v Adebesin increased the sentences of two armed robbery convicts originally sentenced to 10 and 8 years of imprisonment, extending their sentences to 15 and 12 years, respectively. The basis for this decision was the belief that, for the protection of the public, these convicts needed to be imprisoned for a longer duration than initially determined by the trial court.

However, a fundamental question arises: does this form of incapacitation effectively prevent the offender from engaging in criminal activities while in prison? Although it may safeguard the general public from the convicted individuals, it offers no assurance that these offenders will be prevented from engaging in further wrongdoing, whether against fellow inmates or prison staff, as criminal activities are known to occur within prison walls. Moreover, in cases of temporary incapacitation, there is no guarantee that the individuals will not revert to their previous criminal activities or even engage in more severe offenses. In some states of Nigeria, certain forms of punishment, such as amputation of limbs, are permitted by Sharia Law, with the rationale being incapacitation. Some even advocate for extreme measures, like castration, as a punishment for sex offenders such as rapists, similarly based on the idea of incapacitation. However, it is crucial for the criminal justice system not to resort to such barbaric forms of punishment, such as amputation or castration, in the name of preventing crime.

MODERN TREATMENT PHILOSOPHIES

D. REFORMATIVE/REHABILITATION/REHABILITATIVE THEORY

Rehabilitative Theory focuses on addressing the root causes of criminal behavior to prevent recidivism.

Core Assumptions:

• Criminal behavior results from psychological, social, or economic factors

• Offenders can be “cured” through appropriate intervention

• Society benefits more from reformed offenders than punished ones

• Treatment should be individualized based on criminogenic needs

The rehabilitation theory of punishment gained ascendancy during the course of the 20th century up to the present time. This theory emphasizes that rehabilitation can be used to prevent future criminal behavior by fundamentally changing the personality and motivations of the offender. Unlike deterrence, which focuses on inducing fear of punishment, rehabilitation looks forward and aims to cultivate positive inner motivations within the individual, ultimately leading to their conformity with the law. In the rehabilitative approach, the central goal of sentencing is to achieve the offender's rehabilitation, and it becomes the court's responsibility to identify a suitable form of punishment for this purpose.

The theory in criminology asserts that each offender should be viewed as an individual with unique needs and issues, and that the state must understand these specific factors to effectively address them.

Rehabilitation principles underlie sentences like probation and, to some extent, imprisonment.

Under the rehabilitative theory of punishment, the essential element or focus is treatment. Treatment in the sense of working with the individual in such a way that he will be able after a prolonged programme of training or treatment so called to make a satisfactory adjustment to conventional lifestyle once he is released from official custody. In terms of the rehabilitative theory, punishment ideally should be individualised and should produce the effect of promoting the moral education of the person(s) being punished. Punishment, here play a positive function and is justified on the ground that it helps to facilitate the desired moral damage in the criminal.

While this view of prisons as centres of rehabilitation was popular during the early development of the modern prison system, it is not widely held anymore and has mostly been replaced by theories of deterrence, incapacitation and retribution.

However, this is not supported by empirical evidence and in practice prisons tend to be ineffective at improving the lives of most prisoners. As Morris and Rothman (1995) point out, it is hard to train for freedom in a cage.

The trend all over the world seems to be one of growing emphasis on the rehabilitation, reformation of the criminal offender. Both correctional spokesmen and prison reformers lend their professional voices to the growing call for ideal of rehabilitation and correction rather than punishment as such.

The punishments meted out to offenders according to the reformative theory are based on strengthening the character of the offender so that he does not yield to temptations to commit crimes. The focus is on curing the mental state of the offender. The reformative theory advocates rehabilitative and reformative techniques to transform the offender. The offenders are empowered so that they look for ways of employment or self-employment. These boost their economic status thereby eliminating the prime motive to commit a crime. Rehabilitation theory focuses on reforming offenders so that they can become productive members of society.

From a human rights perspective, the rehabilitation theory raises serious concerns. It implies that even if we were to label a person who committed a crime as a 'patient' rather than a criminal, in practice, they would still be confined to a facility for treatment, whether they like it or not. The treatment's objective is to bring about a transformation in the individual's personality to the extent that they would no longer desire to commit the same offense. The duration of detention is often indefinite, and the release of the offender is uncertain.

In the United States of America, the rehabilitation theory is widely employed in the criminal justice system. With the exception of capital offenses, offenders are not merely incarcerated for punitive purposes. Instead, a range of rehabilitation programs and interventions are offered to offenders, tailored to individual cases, with the goal of facilitating personal growth and reform. For instance, in cases involving individuals convicted of rape who are assessed to have a propensity for reoffending, they may be directed to receive treatment and rehabilitation in a psychiatric hospital. This approach underscores the commitment to addressing the underlying factors contributing to criminal behavior and providing opportunities for offenders to transform and reintegrate into society as law-abiding citizens.

Examples of punishments based on reformative theory are jail, probation, vocational training, etc.

Treatment Modalities:

• Cognitive-behavioral therapy

• Substance abuse treatment

• Educational and vocational programs

• Mental health services

• Life skills training

E. RESTITUTION/COMPENSATION THEORY

Restitution theory typically involves the imposition of a financial or service-based obligation determined by the court, often in response to an individual's criminal act. It, however, does not always involve the payment of money and may involve also the provision of services. The first major concern of restitution therefore is the damage done as a result of the crime committed and the victim, an attempt to make the situation better than before the crime was committed. Unlike punitive measures focused on inflicting pain or discomfort, restitution is regarded as a constructive approach in which the offender contributes to their own reformation and compensates the victim.

Under the Nigerian law, when an individual is convicted of theft or receiving stolen property, the court may order the return of the stolen property to its rightful owner, either with or without payment. However, it is essential that the property is clearly identified during the trial, a task that falls on the prosecution, as the victim is not typically a party to the criminal proceedings. The burden of proof rests on the prosecution to establish the property's identity. The objective of this theory is not just to punish the offender but also to compensate the victim of the crime.

Restitution appears constructive as it forces the offender to compensate the victim(s). This type of approach may be more helpful in controlling white collar crimes in the public sector. This is because prospective offenders know that they stand to gain nothing since the sentence would be to return whatever has been taken back to the victim. This points to forfeiture. To effectively control crime like white-collar crimes in public service, there is need to shift from other sentences that allow the offender to fall back and enjoy the proceeds of crime.

Restitution appears constructive as it forces the offender to compensate the victim(s). This type of approach may be more helpful in controlling white collar crimes in the public sector. This is because prospective offenders know that they stand to gain nothing since the sentence would be to return whatever has been taken back to the victim. This points to forfeiture. To effectively control crime like white-collar crimes in public service, there is need to shift from other sentences that allow the offender to fall back and enjoy the proceeds of crime.

In Nigeria, restitution orders are usually made in bribery and corruption matters involving EFCC and ICPC, where an offender is ordered to refund to the government a certain amount of money. Restitution need not be ordered during sentencing. The Administration of criminal Justice Act, 2015 has made provisions for plea bargaining. The Act provides thus: (s. 270(2)(a)(b), Administration of Criminal Justice Act 2015):

“The prosecution may enter into plea bargaining with the defendant, with the consent of the victim or his representative during or after the presentation of the evidence of the defence provided that (a) the evidence of the prosecution is insufficient to prove the offence charged beyond reasonable doubt (b) where the defendant has agreed to return the proceeds of the crime or make restitution to the victim or his representative”.

A restitution order cannot be made in respect of the property into or for which the one which is the subject matter of the offence has been converted or exchanged. In the case of cash, no such order can be made once the cash has passed into circulation. [ Oraegbunam et al..,.…. Int. J. Innovative Legal & Political Studies 7(3):29-42, 2019 ibid.]

F. RESTORATIVE JUSTICE PHILOSOPHY

Restorative justice emphasizes repairing harm caused by crime through inclusive processes involving victims, offenders, and communities.

Core Principles:

Crime creates harm that must be repaired

Those most affected by crime should participate in response

Offenders have responsibility to make amends

Community healing and victim empowerment

Restorative Practices:

Victim-offender mediation

Family group conferencing

Circle sentencing

Community service programs

Victim impact panels