Retributive theory of punishment
“An eye for an eye and a tooth for a tooth” just like this quote Retributive theory of punishment means when an offender breaks the law, justice requires that they suffer in return, and that the response to a crime is proportional to the offence. Retributive theory is one of the parts of under theory of punishment and also it is the most ancient justification for punishment. In the retributive theory of punishment, the punishment is seen as a form of ‘payback’ for the crimes one has committed. Mostly retributive justice seeks to punish a person for a crime in a way that is compensatory for the crime. Retributive argue that criminals deserve punishment on account of their wrongdoing. If they deserve punishment, then justice demands we punish. We do injustice if we fail to punish criminals because they then do not receive what they deserve.
Another school of thought of retributive sees punishment as a way to remove the ‘unfair advantage’ that the criminals possess due to commission of the crime. Like a thief benefits from breaking the law by stealing someone’s possession. The punishment meted out should remove the unlawful and unfair advantage.
Here are the conditions where a person is considered as an offender are:
Performed a crime of certain culpability.
That similar persons have been imposed for similar offenses.
That the action performed was by him and he was only responsible for it. Also, he had full knowledge of the penalty system and possible consequences.
Overall objective of punishment.
One of the prime objectives of criminal law is imposition of appropriate, adequate, just and proportionate sentence. Undue sympathy by means of imposing inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law. The object is to protect the society and to deter the criminal in achieving the avowed object to law by imposing appropriate sentence.
Retribution certainly includes elements of deterrence, incapacitation, and rehabilitation, but it also ensures that the guilty will be punished, the innocent protected, and societal balance restored after being disrupted by crime. Retri bution is thus the only appropriate moral justification for punishment. Some of its merits are:
1. In the retributive theory, the punishment awarded is an end in itself in comparison to the forms of punishment in other theory, where the punishment is a means to an end hence the success is not definite unlike in the retributive theory.
2. Retributive punishment is not cruel or barbaric.
3. Retributive is impartial and neutral as it.
4. Acts as a strong deterrent.
5. Helps in giving moral justice to the victim.
6. Instils the feeling of trust within the society, towards the judiciary.
7. The penalty given will be equivalent to the grievance caused by the person.
The requirement of desert required to punish crimes has in itself some difficulties. The very nature of morality being subjective makes it difficult to deliver punishments for crimes. Here are some of the demerits:
1. Retributivists have not given guidelines or principles which makes it more moral than legal.
2. Object of punishment is not only punishing the criminal and not preventing the prospective crime or reformation of the offender.
3. With dealing with amoral crimes. Although most crimes are both illegal and immoral there are crimes like traffic offences and jaywalking which although illegal cannot be said to be immoral. For example, a overspeeding driver on an empty road cannot be said to be doing anything immoral although overspeeding constitutes an illegal act.
4. Retributivists are uncomfortable with mercy and pardons. Sometimes a greater good can be achieved by pardoning a criminal instead of punishing him.
5. Sometimes, may become disproportionate with the seriousness of the crime.
6. Society develops feelings of vengeance and destructive tendencies follow.
7. The State may become autocratic in its functioning, using the punishment to torment people.
In the case of Bachan Singh v. State of Punjab, it was stated that the retributive theory of punishment in the sense of society’s reprobates is not an outmoded concept in context to serious crimes, it was further stated that punishment as an expression of society should adequately reflect what the society feels, hence crimes which are of an outrageous nature have punishments which the offender deserves because the society insists on adequate punishment, it does not matter if the punishment is deterrent or not, it would be a mistake to consider the objects of punishment as preventive, reformative or deterrent.
In conclusion Retributivists would be bad to offer a more severe punishment than needed. The punishment needs to be in proportionality of the desert and gravity of crime. As the famous saying goes that ‘Let go of a hundred guilty, rather to punish an innocent’, we need to understand that inflicting a punishment upon someone changes his mental, physical and social status drastically. It has a very grave impact upon him and his being. Thus, while administering criminal justice, utter carefulness has to be executed, or else the very principles of justice would go for a toss.