What is Humanitarian theory of punishment?

Humanitarian theory of punishment

According to this theory (Radzinowicz and Wolfgang, Crime and Justice, Vol. II, 1971: 43-48), punishment should be therapeutic. To punish a criminal because he deserves it, and as much as he deserves, is mere revenge and, therefore, barbarous and immoral.

It is maintained that the only legitimate motives for punishing are to mend the criminal and the need to deter others by example. This doctrine accepts the view that all crime is more or less pathological and criminal needs to be healed and cured.

The theory appears to be logical but then the question, as already pointed out in earlier pages, is: how to cure? Will the ‘cure’ process for the criminal be as compulsory as punishment was considered earlier? Is depriving a criminal the rights of a human being a correct cure? The humanitarian theory talks of ‘justice’.

But how to decide what is just or unjust? Furthermore, can the question of justice ignore the questions whether the ‘course of cure’ adopted will really reform the criminal and whether it is likely to deter others?

We talk of a deterrent method, not of whether it is just, but of whether it will deter. Similarly, we talk of treatment method not of whether it is just or not, but of whether it will correct and resocialise the criminal.

Who will fix the ‘right’ sentence? A judge who at present awards punishment is a person who is trained in what is law and deciding whether a law has been violated or not; if yes, what is the punishment prescribed for that violation? He is surely not a ‘social doctor’ or a ‘social engineer’ to know that the ‘punishment’ awarded by him will definitely cure the criminal.

Can a penologist judge that? How is a penologist trained? Is he a psychiatrist or a psychotherapist or a sociologist or a jurist? The fact is that he is not an expert. We all may say as men “this punishment is unjust; it is disproportionate to the criminal’s crime”, but it will be only our subjective opinion.

The humanitarian theory talks of the ‘use’ of the criminal. This means that if a criminal is put in jail, he should not be released till it is felt that he has been ‘cured’.

On the other hand, if his term of imprisonment is long and it is felt that he has been ‘cured’ in a short period; he should not be kept in prison any more. This in simple words means substituting ‘definite sentence’ system by “indeterminate or indefinite sentence” system.

And who is to judge the ‘cure’? It is not the experts in moral theology or even in psychotherapy but only those ordinary judges who inflicted sentence. Will this be logical? Where lays the difference between ‘cure’ and ‘punishment’ then? Let us not be deceived by a name. Who cares whether this is called ‘punishment’ or not?

The ‘cure’ includes most of the elements in ‘punishment’-shame, deprivation of freedom, bondage, and work imposed by others, and so forth. This is not criticising humanitarian philosophy. It is only the logic of position. To be punished for an action which others think ‘wrong’ is to be ‘cured’ against one’s willed.

Even if the ‘treatment’ is painful, even if it is life-long, even if it is fatal, it cannot be called ‘punishment’; it has to be described as ‘therapeutic’. The humanitarian theory of punishment, therefore, cannot be called precise, specific or a new approach to crime and criminals.

Lewis (see, Radzonowicz, Crime and Justice, Vol. II: 47) has, therefore, suggested that it is essential to oppose the humanitarian theory of punishment, root and branch. It carries on its front a semblance of mercy which is wholly false.