DETERRENT THEORY OF PUNISHMENT
Authored By Aprajita Priyadarshini
Keywords: Deterrent, Crime, Convicts, Prevention, Severity, Criminal justice system.
Punishments from ages have been the most prominent modes of correction of a person morally. It is believed that a person once punished for an act will deny from doing the same again. As the saying goes, a burnt child dreads the fire. The Criminal Justice System also uses punishments as a means to try reducing the tendency of crime commission in the convicts. There are several theories upon which the Criminal Justice System decides the punishments awarded. One such theory is the Deterrent Theory of Punishment. This article deals with the theory of deterrence, its history and efficiency in minimizing the number of criminals in the Indian context.
Deterrent Theory of Punishment is based on the assumption that the fear of punishment tends to ‘Deter’ the rate of crime amongst people. To deter means to prevent the occurrence of or to discourage someone from doing something by instilling a doubt or fear of the consequences of the action in the minds. Deterrent theory of Punishment in a similar way provides to abstain the wrong-doer from committing the offence again while it also sets the convict as an example to others who have similar criminal tendencies. Punishment here is provided not with the aim of potraying it as a compensatory measure for the wrong done or the damages or injuries inflicted but with the aim of spreading a terror in the masses. It had been rightly said by a Judge, “I don't punish you for stealing the sheep but so that sheep may not be stolen.”
There can be two types of criminal deterrence which are both sub-categorized as specific and general-
Preventive Dimension- Anything which exerts a preventive force against crime can be termed as deterrent. The law enforcement agencies usually look into the preventive effects of the crime control measures. Crime preventive effectiveness is the main interest by whatever means prevention is achieved.
Deterrence Dimension- Control or alteration of present and future criminal behavior which is effected by fear of adverse extrinsic consequences resulting from that behavior. This is mainly the deliberate threat of harm, communicated to the public generally to discourage socially proscribed conducts across the country.
In India, the concept of deterrent punishment has been age old. During the times of the Mughal, severe public punishments like mutilation of limbs or even death sentences were given to people for petty offences like forgery, stealing, burglary, etc. Later during the British Era also, people were publicly prosecuted so that the fear and terror of the British government could be maintained in the people and nobody could dare to raise voices against the British. This was done in those times to spread the terror the reigns and the ruler and the concept still crept into the modern criminal justice system but with a different intent. The punishments today aim at reducing the crimes and also spreading the fear of law and not the ruler.
Several criminologists like Cesare Beccaria and Jeremy Bentham have laid the earliest formulations of criminal deterrence theory in modern practice. According to them, a person commits an offence only after a cost-benefit analysis and will execute his malafide motives only if the potential benefits outweighed the expected or ascertained costs. Under this theory, the law makers were supposed to increase the costs or risks for the potential criminal to such an extent that he had to lose much more than he would have gained after committing the offence. This theory in present times is known as economic model of the rational actor and has been accepted and applied by Jurists in the decision making. It was also said that there must be equal proportion maintained between the offence and punishment to serve the deterrent purpose.
Requisites of Effective Deterrence
For a punishment to effectively have the deterrence effect, the following are the essential requisites-
· Severity- The more severe is the punishment awarded, the lesser is the tendency of a rational man of committing the offence. The punishments which are too severe are suggested to be unjust, but that which are not severe enough will not prove effective in the deterring process. So, the law-makers need to strike a correct balance at the quantum of punishment being awarded and the severity of the offence.
· Certainty- A certain punishment providing machinery is real effective in dissuading the potential criminals from committing any crime. Whenever there has been a crime committed, there must be punishment so that the fear of being caught and punished is inflicted on the minds of the convicts that there is a law structured to act against them.
· Celerity- The mere provision of punishing does not suffice. There must be swift action taken against the offenders. The more swift the punishment is awarded and imposed upon the convicts, more is the deterrence effect.
Deterrence Theory in India
In the Indian context, the Criminal Justice System has been framed very precisely keeping in mind every petty possibility but yet it is much ineffective in the crime control or deterrence. The major reasons being the basic principle upon which our system works- Let ten guilty persons escape but let not an innocent man suffer. If an innocent man is penalized under the deterrence theory, it will be no deterrence but clear victimization.
The justice-delivery system in the country is too slow to act in celerity because of the presumption of an accused as an innocent until proven guilty beyond all doubts, which definitely takes years in India. There are very clear and certain provisions for punishments to be awarded for specific crimes under the Indian Penal Code, 1860 but the procedural mechanism is such lengthy that the fear of these punishments have instead crept out of the minds of the potential criminals.
As regards to the severity of the punishments to be imposed, a more severe punishment is believed to be unjust and nullifies its overall purpose by the offender gaining the public sympathy instead at times. Capital punishments where on one hand has been a demand by major part of the society for heinous crimes, there are several human right violation based views against it on the other hand. Thus a perfect deterrent structure of punishment is nearly impossible in India owing to its societal structure and the large population as a subject to the law.
Death penalty, longer imprisonments, mandatory sentencing, and a plethora of other “get tough” policies have not demonstrated greater deterrent effects of punishment than less severe penalties. Indeed, increases in the severity of punishment, rather than reduce crime, may actually increase it. On the other hand, increases in the certainty of apprehension of offenders’ conviction and punishment have been found to have possible effects on crime reduction. Deterrent theory of punishment cannot be completely effective remedy for curing the crime menace in India. Indian laws will always have to abide by the societal aspects and perfect deterrence with this theory cannot be thus achieved.