Essay on current debate on punishment
The current discussion among philosophers on punishment is concerned with three aspects: object, justification, and methods of punishment. Some philosophers describe the object of punishment as ‘coercive conformity’. Suppose a boy of fifteen is charged with using abusive language and holding out threats in anonymous phone calls to a girl.
The lower court finds him guilty but releases him on probation for ‘treatment’. The case is then referred to the High Court which adjudges him ‘criminal’ and awards him rigorous imprisonment for two years.
Here the object of ‘punishment’ is surely “coercive conformity to rules” which is a legal consequence of declaring him a criminal, because his conduct is viewed as a threat to the community.
For achieving conformity to social norms, the methods of punishment are no longer traditional (like flogging, mutilation, etc.) but “a wide variety of deprivations”, including the trial process itself. This indicates change in public sentiment, change in punitive philosophy, progress in science, and the advent of law-enforcement agencies (the police and the courts).
In the recent past, we have witnessed divergence of opinion among the political rulers and the judges on the issue of violation of social norms. What was considered by the political rulers as ‘aberration’ is considered a ‘serious law violation’ by the courts for which they have started giving radical judgments for the benefit/welfare/interests of the people.
Some of the judgments of the courts on ‘punishment’ are, however, criticised by the legislators as attempts to deprive the ruling elites of the privileges they enjoy. Some people connected with the correction of criminals also find in these adjudications a veiled threat to the rehabilitative ideal.
A concern for responsibility in criminal law and for the principles of legality makes it vital that clear objectives of punishment be prescribed by legislators. If there is no punishment for the violation of social norms and if punishment is not accompanied with some moral responsibility, the general preventive goal will fall outside the definition of punishment.
As regards the methods of punishment, perhaps Jerome Hall’s definition of punishment is too narrow by reason of its inclusion of ‘pain’. Today, there are many explicitly punitive sanctions which are neither painful nor disvaluing. For example, some correctional institutions run a series of rehabilitative programmes for inmates which are in part or whole required of them.
Could such activities be properly classified under the criteria of traditionally given definition of punishment by scholars like Hall? It would seem not. The definition of punishment has, therefore, to be broad enough to include even new methods of correction and reformation, if at all ‘reformation’ aims at seeking conformity to norms in future.
It is at this point in the debate that we discover that one’s definition and methods of punishment depend on one’s approach to the goals and objects justifying punishment. Rudolph Gerber and Patrick McAnany (see, Radzinowicz, op. cit., 127) have rightly said that if one justifies punishment solely on grounds of individual’s (criminal’s) rehabilitation.
It is evident that criticising the essential characteristics as involving pain or even deprivation is hardly sensible. No wonder, we have not been able to formulate a broader definition of punishment which may satisfy new aspirations and goals of punishment.
No doubt the goal has shifted from pain-infliction to humanitarianism to the reform of the criminal. Science today has become the means, replacing religion and moral exhortations, whereby anti-social men are turned into social men. But the figures on recidivism indicate that not even science is able to meet the need of reformation.
We may thus point out that the present debate on goals and methods of punishment continues to be an on-going process. One school totally rejects the traditional goals of retribution and deterrence as the goals of penal system and opts for a rehabilitatiortist approach to punishment.
On the other hand, there is a rejuvenation of retribution and deterrence as ideals of punishment. At one time, utilitarianism appears to be a popular approach while at other time, retributive need and concern for morality are given importance in criminal punishment. The discussion thus talks of the need for multiple purposes in penal system.