Civilized societies do not opt for revenge, but accept justice as a goal, often leaving the objective of deterring crime to the law and order personnel. We rarely spare a minute to think about why we want to punish criminals. If we are to enjoy the benefits of a just democracy, we as citizens must make greater efforts in understanding what we want in the name of justice, and why!
The world is divided into two blocks, one that thinks capital punishment is justified, and the other that does not agree with this view. Both sides have their own arguments, and neither is willing to be convinced by the other. In this debate, a lot of issues are raised, like forgiveness, need for giving the criminal a second chance, inhumanity of taking life from a human being as well as the limitations and inadequacies of our investigators and judicial systems. However, the one issue that may be of greatest relevance for all such discussions is often ignored – the basic purpose of punishing the criminal!
We must be clear in our mind as to why we need to punish criminals – whether it is for seeking justice on behalf of the victim, or whether it is for the purpose of creating deterrence against similar crimes in future against other innocent members of our society.
Some of the oldest theories of justice like those elaborated in the Code of Hammurabi (1750 BC) and some of the oldest scriptures define justice as "an eye for an eye, a tooth for a tooth", a principle often referred to as Lex Talionis. The underlying philosophy in this theory is that a person who commits a crime must be subjected to the same treatment to achieve justice. Here, punishment or retribution is supposed to be a revenge of the society for the sake of justice, since anything otherwise would not be just.
Retributive justice theory treats achievement of justice as the ultimate goal, and punishment is required irrespective of whether it leads to any future benefits for the society or not.
Thus, punishment is not a means, it is an end in itself, and justice requires that this end is achieved.
Another major stream of philosophy tends to look at punishment not as an end in itself, but rather as a means for achieving the final objective of preventing future crimes in the society. The idea is that if a criminal is punished, it will lead to an expectation in the minds of all others that any person who commits crimes will be punished. This creates fear in the mind of those who may also be having thoughts or intentions of committing a similar crime. On the contrary, if the criminal goes unpunished, for whatever reason, then such future offenders may get emboldened and indulge in crimes against other innocent members of society.
The theory of deterrence places much more emphasis on the future benefit for society in terms of reduction of crime, instead of focusing solely on the concept of justice. Here, justice is not an end in itself, but only a means of making the society better off.
Whether punishment is for the purpose of retribution or deterrence, can have a lot of significance for all those involved in making policies and laws related to crime, its detection, investigation and punishment. It can also have a lot of implications for those implementing them as well.
If criminal punishment is for the purpose of retributive justice, then it needs to be established accurately that the person accused of crime had indeed committed it. Hence the maxim, “let hundred guilty be acquitted but one innocent should not be convicted”. It denotes the reluctance of the system to punish a person unless absolutely being sure that he was the one who committed the crime. Inadvertently, it also means that a criminal against whom the evidence is not absolutely incriminating, has a right to be set free, even if he had committed the crime for which he faces the accusation. The biggest danger in this approach is that it can lead to setting the standards of evidence so high that very often they would not be achieved in this imperfect world.
On the other hand, if the purpose of punishment is not just fulfilling an abstract concept of justice, but to ensure future benefits of deterrence against crime, then it becomes more important that a sense of fear is injected in the minds of potential offenders that if they indulge in a crime, they will, in all probability, be punished. Here, the priority is to ensure that crimes do not go unpunished, and potential criminals are not emboldened. A system oriented with this approach would probably prefer the standards of evidence to be practically attainable rather than absolutely perfect.
In the case of deterrent theory of punishment, the focus is more on protecting the rights of the innocent people of the society, who can end up becoming a victim of crime in future and thereby be subjected to gross injustice without any fault of theirs at all. The deterrent theory recognizes that that the only way in which innocent victims of crime can be given justice is by preventing the crime in the first place. For instance, if a person is murdered, no government or police or court can bring him back to life, neither is it possible to fully compensate other victims of serious crimes like gang rape, body mutilation and grievous hurts. Thus, under the deterrent theory, ensuring justice for these numerous innocent people by preventing crimes against them is considered more important than seeking absolute justice for those accused of crimes.
Thus, the deterrent theory warns against letting criminals go scot free because of any technical lacuna, limitations of investigation or impractical standards of evidence, as allowing that to happen in the name of justice for the accused can put the life and liberty of all innocent people in the society at risk of crimes.
On the contrary, the retribution theory of punishment does not look at protecting the future victims, and instead its sole focus of justice is with reference to the person accused of having committing a crime. Not looking at the victims of crime at all is one of the biggest limitations of the retributive justice theory. Following it, society can secure justice for the accused, but it is unable to seek justice for the victims, in particular the potential victims of the future.
If punishment is for deterring future crimes, the goal of the law and order machinery would be to expediently complete the trial and punish the offender at the earliest, while accepting that in this process, there can be a possibility of error. If, on the other hand, justice is an end in itself, then one must be absolutely sure that the accused is the criminal, before imposing the punishment – a preference that would justify long delays in completing trials and even allowing criminals to go unpunished if evidence is not up to the desired levels.
It is not easy to say which of the two approaches is better. In an ideal world, one would want to seek perfect justice for the victims as well as accused, but when this is not possible, then the society may have to decide what is more important for it. Is it more interested in seeking justice for the accused or to ensure justice for the potential victims of the future crimes.
This choice can go a long way in shaping the law and order system as well as the conduct and beliefs of people. It can, in fact, be the deciding factor in controlling crimes in a given society.
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