DOES
CHOPPING OFF WITH A BIGGER KNIFE CHOPS OFF MORE?
IS
THERE ANY RELATIONSHIP BETWEEN THE HARSHNESS OF A PUNISHMENT AND ITS DETERRENCE?
by Tipu Salman Makhdoom
Previously published in All Pakistan Legal Decisions Journal section (PLD 2014 Journal 98), SSRN & Academia
Previously published in All Pakistan Legal Decisions Journal section (PLD 2014 Journal 98), SSRN & Academia
The
life of the law has not been logic; it has been experience….
Oliver
Wendell Holmes, Jr.
INTRODUCTION:
Punishment, to say the least, is horrible;[1] a conscience and
deliberate infringement of rights of a person, on behalf of the society. Just
as in a living body—a biological society—a cell loses its individuality and is
liable to be eliminated if it starts working against the living system of which
it is a part; so does a person loses his individuality in a human society and
is liable to infringement of his rights (punishment) if s/he starts working against
the political decisions of the society.
The institution of Punishment, however, raises
extremely difficult, though very interesting, intellectual and philosophical
questions, such as; Should Punishment be inflicted as a means to an end or as
an end in itself? If it’s a means (which the author will argue that it is),
then what should be its ultimate aim and how should that be achieved?
Starting with the pre-historic conception of
Punishment, we will have a bird’s eye view of different dominant arguments
about the rationale of Punishment and finally will take a glimpse of utility of
various approaches for which punishment is used, concluding which approach are
we using and why is it not working in our system?
EVOLUTION OF PUNISHMENT:
Though punishment in general terms is a social
term and in popular meanings varies from the wrath of gods to the scolding of a
caring parent, its legal meanings are precise and definite. In legal parlance, Punishment
can be simply described as a society’s reaction to crime.[2] Although the concept of crime is also an
interesting subject to discover in its own right, we cannot go into such
details and will take crime, for the purposes of our present discussion, in its
generally accepted legal meanings. While Paton defines crime as a breach of
public law,[3]
Salmond considers it to be an act deemed
by law to be harmful to society in general.[4] Now turning to punishment,
a workable definition of Punishment is “infliction of hard treatment by an
authority on a person for his prior failing in some respect (usually an
infraction of a rule or command)”.[5] Not only is there a great confusion regarding
the concept of punishment in its various social facets, but the scholars are
not agreed even about a legal definition of punishment. Thus, there is a lot of
debate about the nature and exact definition of Punishment, especially
regarding its murky boundaries with tort. In this scenario, Hart[6] defines Punishment in
terms of five elements, viz, infliction of pain on an offender for commission
of a crime which pain is intentionally administered by human being under a law.[7]
In addition to above elements, however,
achievement of specific objectives, such as revenge or reformation, are also
vital aspects of the punishment. Thus confinement of a psychotic person by
legal order of an authority, although involves suffering of the confined which
can be for inflicting injury to someone and thus breaking law, yet it is done
neither as a result of guilt of the psychotic (revenge) nor considering that
this will reduce the incidence of psychoses in the community (reformation);[8] and so is not a punishment.
Punishment, as crime, is an age old
institution. We can safely say that the institutions of crime and punishment
are as old as the institution of law, rather the institution of society itself.
There has been a gradual evolution of concept of punishment. This evolution has
been less entwined with the concept of crime and more with the perspective of
intellectuals about society and the place of a citizen in it.
Historically, three types of crimes followed by
three types of punishments are found in the non-literate societies. The most
serious category of offences, such as treason, would result in death penalty.
Death penalty would be justified on the grounds that offender was a pollution
for the tribe and his elimination was required for the hygiene of the tribe as
well as sacrifice to god. The second category of crimes were injuries inflicted
by one family member to a member of another family of the same tribe. Such
injuries including murder and theft were considered private injuries and
punishment of the offender was the revenge taken by the victim party directly,
without the intervention of the tribal society as a whole. Third group of
offences were the injuries, including murder & theft, committed by a person
against another member of his own family in the tribe. Such offences were
punished only through expression of social disgust on the ground that
physically punishing the offender will further weaken the victim family. With
the rise of Kingship and institution of formal Courts backed by the central
authority of State, crime and Punishment became public matters.
However, the basic concept of punishment still
remained devoid of any utility. Criminals were mutilated or killed as a
punishment, but it was primarily to eliminate him from society or to incapacitate
him to commit the crime again or else, simply to mark him so that everyone
should know that he is not the man to be trusted.[9]
Another few centuries went by like this; man
dealing with crime and punishment according to his mythological view of the
world, without thinking through the issue logically. “It was not until the
modern period that the clearly punitive reaction to crime-the purposive
infliction of pain on the offender because of some assumed value of the
pain-became popular.”[10] Now we will take a glance
on various aims that different schools of thought are set to achieve through
infliction of punishment. Which of these schools of thought is adopted is a
decision which makes a whole lot of difference in a system of administration of
justice.
MODERN THOUGHT ON THE RATIONALE OF
PUNISHMENT:
Generally speaking, there are three dominant
reasons justifying punishments viz., retribution, incapacitation and
deterrence. Retribution is seen as a means of equalizing the offender with the
victim; incapacitation ensures isolation of bad social material from good
social material; and deterrence presses psychological impressions on the
offender as well as on other potential offenders, persuading them rationally
that committing crime would be a bad bet.[11]
Philosophically, however, punishment can be looked
at from two aspects. Either it can be regarded as a method of protecting
society by reducing the occurrence of criminal behavior, or else as an end in
itself.[12] It seems that like in
every other field, the combat here too is between idealists[13] and realists.[14] Idealists see a situation
or a problem from the point of view of a perfection to be achieved, no matter
how difficult or unachievable it may seem. On the other hand, realists see a
problem with the sole purpose of solving it within the available and possible
resources. Thus, while idealists relate punishment to guilt and moral liability
of the offender, which he discharges by undergoing the punishment and the
‘price’ he pays while undergoing punishment, thus enabling the victim feel
satisfied, realists bind it to controlling the incidences of crimes in the
society.
John Rawls maintains that there are two justifications
for inflicting punishment i.e., Retribution and Utilitarian. Retribution
entails that punishment is justified on the moral ground that a person who does
wrong should suffer in proportion to his wrongdoing.[15] Utilitarian view, on the
other hand, holds that punishment is only justified if it effectively promotes
the interests of the society. According to Rawls, whether one holds Retributive
or Utilitarian view depends on the perspective from which punishment is looked
at. Therefore while a Retributionist would ask why “J” was sent to jail, a
Utilitarian would ask why do people put other people in jail? Whereas Retributionist
will get the answer that “J” committed a crime, was caught, tried and was found
guilty in trial which ended him up in the gallows, the answer to the question
of a Utilitarian would be very different from the first answer as this question
is not trying to understand the nature of an event, but the nature and the
underpinnings of a phenomenon; a whole institution. So the Utilitarian answer
would be that “J” was sent to jail in order to isolate him so as to protect
good people from the bad ones. [16]
The rationale of Retribution[17] is based on three
elements. Firstly, that committing a crime amounts to violation of the Social
Contract[18]
and thus society gets the right to punish the culprit for such a violation. Secondly,
that criminal deserves the punishment as he is guilty of an act which is not
only wrong but is against the collective good and interests of the society. And
thirdly, that punishing the offender is entwined in the very nature of the human
being and thus is an essential feature of the society without which the social
fabric cannot be maintained.[19] On the other hand, the
rationale of Punishment according to Utilitarianism is based on the principle
that Punishment is a tool to keep the crimes in the society to the minimum.[20] This implies that
criminal is not seen as an enemy to be defeated, in mind, body, and to an
extent financially, but simply as a problem to be solved, be it by reformation,
incapacitation or elimination. However, utilitarian approach does not limit
itself to solving the problem at hand, but takes care of potential offenders
too. Thus, in order to discourage offenders from repeating the crime and to check
potential criminals from realizing their potential, it uses deterrence as a
goal of punishment. What factors of punishment are actually related to its
deterrence is the subject that we will explore in the next section.
IS DETERRENCE OF PUNISHMENT RELATED TO
ITS HARSHNESS? PAKISTAN SCENARIO:
It has been argued[21] that there are no
objective rational criteria for measuring the “just-ness” of a punishment
inflicted for a particular crime; neither can it be! The decisions of the legal
and the penal institutions of the society, regarding the mode and extent of
punishment, are irrational. The decision that a particular act falls in the
category of a crime[22] and the consequent
decision as to what punishment is to be awarded justly in a particular case, is
essentially a moral decision and there being no criteria for taking such
decisions, they are made arbitrarily.[23] A latest view on the
subject states that “[w]e do not punish on the basis of deliberative
probability analysis. Rather, we punish in response to visceral, deeply held,
and sometimes difficult-to-explain intuitions. Moreover, the degree of sanction
is driven by moral outrage and various cognitive biases, not by scientific
calculations of optimal deterrence.”[24] Thus when punishment is
seen as retribution, it is taken as an end in itself and all that can be
achieved from it is ‘most appropriate revenge.’ Therefore punishment as
retribution, although can justify itself on the ground that it promotes a
feeling of ‘justness’ in the society generally and especially in the victim,
its utility for the general benefit of the society is dubious. It is especially
dubious because neither the criteria for its appropriateness nor the
effectiveness of its consequences can be measured or planned.
In Utilitarian perspective, punishment is taken as
a means to achieve a higher and nobler goal than merely taking revenge on
behalf of the victim. The Utilitarian aim of punishment is prevention and
reduction of crime in the society. Arguably, the most effective way to achieve
this goal is deterrence. The popular way of increasing deterrence of a crime is
by increasing the harshness of its punishment. However, modern studies indicate
that relationship of harshness of a punishment with its deterrence is dubious. According
to general belief, severity of imprisonment should be directly proportional to
its length. However, studies have indicated otherwise. Several studies reveal
that longer prison sentences do not reduce chances of repetition of a crime.
This can be because most of the jail inmates adopt themselves to prison
environment,[25]
thus lessening the degree of severity to a considerable effect.[26] It is a popular belief
that deterrence can be increased by either of the two modes: by increasing
likelihood of punishment or by increasing severity of it. Psychological
research indicates that high probability of detection and conviction is much
more effective deterrence against a crime, as compared to high degree of harsh
punishment.[27]
Conviction rate in Pakistan, along with many third
world countries, is low by western standards.[28] The reason, however, is obviously
not the lack of harsh punishments; we have plenty of them. In Pakistan, due to
low conviction rates, and especially due to the length of intervening span
between the commission of offence and conviction, which ranges from few months
to few years and sometimes even to decades, conviction is neither seen as an
effective deterrence by the culprits, nor as a sufficient retribution by the
victims. However, due to untrustworthy political system, incurring frequent regressions
due to imposition of recurrent martial laws, people have opted out of the
political solution and instead, have picked up a social solution. This social
solution, however, has jeopardized our whole system of criminal administration
of justice. Instead of deposing true facts of occurrence and focusing their
efforts on getting conviction[29], Pakistani victims have
started framing their complaints with the aim of getting the occurrence fit in
the category of cognizable offences.[30] This inevitably leads to
distortions in true facts, which ultimately plays its part in further lowering
the conviction rate. Again, instead of focusing their efforts on getting
conviction of the offender,[31] victim focuses on maneuvering
the investigation in order to ensure that accused is refused bail and he spends
longer possible time in jail as an under-trial prisoner; because that is what a
Pakistani victim considers the actual punishment that he can get inflicted on
his accused. This again distorts the actual facts of the case and plays a
significant role in further lowering the conviction rate. In its turn, this
further lowered conviction rate, coupled with the time required for getting a
criminal convicted, further lowers the public trust in the judicial system, and
the snow ball effect continues.
CONCLUSION:
Deciding what act is to fall in crime and how must
it be dealt with, is a political question with society holding the sole
prerogative of deciding it. But gone are the days when societies would behave
as a mob and take foundational social and political decisions on the basis of
sophistries of the shallow orators. Modern complex society demands rational
decisions on scientific basis. Although there can be instances where increasing
harshness of punishment would have proved to be an effective deterrent, this
cannot be taken as a rule of thumb. Modern studies suggest that increasing
severity of punishment is often ineffective, sometimes even counter-productive,
in enhancing its deterrent effect. The effective deterrence is increasing the
probability of detection & conviction. But this cannot be achieved unless
investigation is conducted efficiently & scientifically and trial
procedures are made simpler, fairer and expeditious, which, in turn, will win
over the public trust in the system, encouraging them to be fairer in their
complaints.
In our society, where investigation is often
inefficient and seldom fair, severity of punishment for a crime always generates
cautious, narrow and untrustworthy view of the judiciary to the prosecution
case. This further explains such a dramatically low conviction rate.
Another vital aspect of the scenario, however, is
rampant mis-statements by everyone involved in the trial. This results in
extremely low conviction rate, which gets translated into low deterrence. Thus
lack of social awareness as to the need of fair trial is also a major
contributing factor in over all failure of the system. The realist picture of
our system of criminal administration of justice, in so many words, is that in
order to take revenge from the culprit, complainant falsely implicates his/her
whole family. Culprit falsely denies the charges. Investigation officer does
not investigate fairly and places before the court a distorted picture of the
case. Then all these liars demand justice from the Courts. And they get what
they deserve.[32]
Thus in order to curtail crime in our society, focus should be on creating
awareness about working of system of criminal administration of justice and
increasing probability of detection and conviction rather than increasing
harshness of punishment.
[1] J.M. Coetzee, Disgrace (Vintage, 1999) 219. “What the dog
will not be able to work out (not in a month of Sundays! he thinks), what his
nose will not tell him, is how one can enter what seems to be an ordinary room
and never come out again. Something happens in this room, something
unmentionable: here the soul is yanked out of the body; briefly it hangs about
in the air, twisting and contorting; then it is sucked away and is gone. It
will be beyond him, this room that is not a room but a hole where one leaks out
of existence.”
[2] Edwin H. Sutherland & Donald R. Cressey, Criminology
(J.B. Lippincott Company, 1978) 301
[3] David P. Derham, A Text-Book of Jurisprudence by G.W.Paton
(Oxford University Press, 1964 reprinted 1967) 317
[4] P.J. Fitzgeral, Salmond on Jurisprudence (Sweet & Maxwell,
1966); Reprinted by National Book Foundation of Pakistan, 92
[5] Joel Feinberg, Doing and Deserving (Princeton, N.J.:
Princeton University Press, 1970); from Joel Feinberg & Hyman Gross,
Philosophy of Law (Wadsworth Publishing Company, 1991) 635
[6] H.L.A. Hart
[7] H.L.A Hart, Punishment and Responsibility (New York and
Oxford: Oxford University Press, 1968); from Joel Feinberg & Hyman Gross,
Philosophy of Law (Wadsworth Publishing Company, 1991) 657
[8] Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B.
Lippincott Company, 1978) 305
[9] W.L.M. Lee, History of Police in England (London: Methuen,
1901), 10, quoted in Edwin H. Sutherland & Donald R. Cressey, Criminology
(J.B. Lippincott Company, 1978), 307-8
“[a] detected criminal was either
fined, mutilated, or killed but punishment as we now understand the term, was
seldom inflicted, that is to say, the dominant idea was neither to reform the
culprit nor to deter others from following in his footsteps. If a man was
killed it was either to satisfy the bloodfeud or to remove him out of the way
as a wild beast would be destroyed; if a man was mutilated by having his
forefinger cut off or branded with a red-hot iron on the brow, it was done not
so much to give him pain as to make him less expert in his trade of thieving
and to put upon him an indelible mark by which all men should know that he was
no longer a man to be trusted; if a fine were levied, it was more with a view
to the satisfaction of the recipients of the money or cattle or what not, than
with the intention of causing discomfort or loss to the offender.”
[10] Edwin H. Sutherland & Donald R. Cressey, Criminology
(J.B. Lippincott Company, 1978), 305-308
[11] Mc Guire, J., Understanding Psychology and Crime: Perspectives on
Theory and Action. Maiden head, Berkshire: Open University Press (2004),
171-198. Quoted in; Eilidh Mac Donald, Does Imprisonment as a Punishment Deter
Crime? Available at: http://justspeak.org.nz/wp-content/uploads/2012/11/Does-imprisonment-deter-crime.pdf. Accessed on 24th of June, 2014.
[12] P.J. Fitzgeral, Salmond on Jurisprudence (Sweet &
Maxwell, 1966); Reprinted by National Book Foundation of Pakistan, 94
[13] “A theory however elegant and economical must be rejected or
revised if it is untrue; likewise laws and institutions no matter how efficient
and well-arranged must be reformed or abolished if they are unjust.” John
Rawls, A Theory of Justice (Oxford University Press, 1971) 3
[14] “Never forget that everything Hitler did in Germany was legal.
Martin Luther King, Jr.”
Rosemarie Jarski, A Word from the Wise
(Ebury Press, 2006) 290
[15] John Rawls, Two Concepts of Rules, The Philosophical
Review, Vol. 64 (1955) pp. 3-13, reprinted in Ethics by Lawrence M. Hinman,
University of San Diego, 2
[16] John Rawls, Two Concepts of Rules, The Philosophical
Review, Vol. 64 (1955) pp. 3-13, reprinted in Ethics by Lawrence M. Hinman,
University of San Diego, 3
[17] It must be seen that the Islamic view of punishment is very
different from the Western concept because western concept of punishment is
based on a crime which is seen as a secular act of violating a social law. In
contrast to western view, Islamic philosophy of punishment is very different as
in Islam the concept of crime and sin are intertwined. Thus Islamic philosophy
of punishment, although containing tinges of other aspects too, is
overwhelmingly based on Deterrence (Zajr). As according to most of the Islamic
Jurists, threat of punishment in the After-Life does not sufficiently deter
people from committing crimes, which makes punishment in this world a
necessity.
Rudolph Peters, Crime and Punishment
in Islamic Law—Theory and Practice from Sixteenth to the Twenty-frist century
(Cambridge University Press, 2005), 30
[18] The famous theory that society is created through a contract by
every member of the society thereby trading part of his liberty for the
protection by the society.
[19] Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and
Bartlett Publishers, Inc, 2006), 4-5
[20] Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and
Bartlett Publishers, Inc, 2006), 5
[21] J. Charles King, A Rationale for Punishment, Journal of Libertarian
Studies ( Spring 1980), 151-165
[22] Miriam H. Baer, Choosing Punishment, Boston University Law Review
(2012) Vol.92, 577, 596.
But criminal philosophy has yet to
distill, in a concrete and usable fashion, an objective means for identifying
the quantum and nature of conduct that “deserves” punishment.
[23] J. Charles King, A Rationale for Punishment, Journal of
Libertarian Studies ( Spring 1980), 161
[24] Miriam H. Baer, Choosing Punishment, Boston University Law Review
(2012) Vol.92, 588
[25] This is especially relevant in the cases of longer sentences.
[26] Gendreau, P., Goggin, C., & Cullen, F.T. The Effects of
Prison Sentences on Recidivism, Department of the Solicitor General Canada
(1999), Public Safety Canada.
[27] Gabriel, U. & Oswald, M.E. (2007), Psychological analysis of
punishment, D.S. Clark (Ed.), Encyclopedia of Law and society: American and
Global Perspectives (pp. 1252-1254), Thousand Oaks: Sage. Also see Policy
Backgrounder No. 148, August 17, 1998. Available at: http://www.ncpa.org/pdfs/bg148.pdf. Accessed on: 24th of June, 2014.
[28] Conviction rate in USA is 95% while in Pakistan its merely 5%,
ref; The News International (Pakistan’s English language daily Newspaper, Low
Conviction rate linked to poor probe, prosecution, Friday, November 22,
2013. However, the USA figures will probably reduce drastically if statistics
are confined to serious crime alone.
[29] Due to above stated reasons.
[30] In this category of offences investigating agencies can arrest the
accused without first obtaining warrants of arrest from a judicial magistrate.
[31] Again for the above stated reasons.
[32] Statement made by a retired trial judge in an informal meeting
with the author.
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