THEORIES AND TYPES OF PUNISHMENT

The essence of this unit is to acquaint you with the theories and types of punishment. If the court finds the accused person who was standing trial before it to be guilty of the offence for which he is being charged the court will then decide on the type of punishment to visit on the accused persons depending however on the provision of the law. This unit is treated thus:

1.0 INTRODUCTION

The essence of punishment in a criminal trial is to subject the accused to some form of deprivation in as much the same way as it will also satisfy the aspiration of the complainant. The punishment to be meted out by the court is not at the whims and caprices to the court. The court itself is guided by certain principles while awarding punishments which are treated in this topic. The court will also look at the sanction provision of the enactment which creates the offence in question.

2.0 OBJECTIVES

At the end of this unit, you should be able to:

1. state theories of punishment explain the principles behind the theories explain the notion that liability can only lie against the accused give the reasons for the various theories explain the viability or otherwise of the theories.

3.0 MAIN CONTENT

3.1 Retribution (Fair Deserts)

Under this heading the punishing authority looks back at the circumstances of the crime committed and decides what type of punishment the accused deserves for his conduct, having regard to his responsibility for the crime. This approach involves retribution or the wreaking of vengeances and infliction of injuries by society on behalf of their injured individual, on the wickedness of the offender.


Therefore, punishment is imposed in order to relieve the indignant feelings of the public or it could be imposed to mark the level of revulsion with which the public regards the crime. The purpose of capital punishment contains the notion of extra punishment which is also implicit in hard labour as distinct from ordinary imprisonment. This stems from the feelings that a more wicked man should suffer more severe pain.


The effect of retribution, may be that the offender by undergoing punishment is offered a chance to expiate (make amends for) his wickedness, to relieve his conscience and to pay for what he has done. Since retribution is essentially a non-utilitarian principle, it cannot be disapproved but only accepted or rejected as a matter of emotional preference.

In retributive (backward-looking) punishment there is the underlying and universal notion that punishment must be just and fair – which means that the offender should not be punished more than his offence deserves. It may be difficult to decide what is a fair proportion between a crime and the punishment attached to it, taking into consideration all the circumstances of a case but there is an assumption that there exists general notions in given community of what is just desert (appropriate punishment).


The principle of fair desert is that a person should be punished only if he has actually committed an offence as defined by law (thereby emphasizing judicial precedent) and offences of unequal culpability should be treated differently.


See the case of Maizako v. Superintendent General of Police (1960) WRNLR 188. In that case, the sentence of one accused was upheld because he had a record of burglary, but that of the other was reduced because he had no previous conviction. Similarly, in Enahoro v. R (1965) NMLR 25 at 283, the court reduced sentence imposed on lieutenant (assistant) because it was heavier that that imposed on the leader.
Thus, the significance of the just desert notion lies in the fact that it acts as a check on the principles of deterrence (which are forward looking principles) or reform. It may well be added that a punishment may be justified by the aims it hopes to achieve, but it can also be fair and imposed on conduct, in such manner which the citizen has a responsible ground of knowing such conduct to be criminal.

3.2 The Notion (Idea) of Responsibility

Closely related and germane to the principle of retribution is the notion of responsibility or culpability. This is also because a man deserves punishment only to the degree which he was responsible for his criminal acts. For e.g. if a person who was suffering from insanity kills another, we do not hang him in return, instead he may be ordered to be put in an asylum for observation and that does not amount to paying him back for killing another, but it is designed to protect other persons from possible future attacks.


The notion of responsibility can be said to arise at three different stages in a criminal trial. First, the court would decide the straight forward factual issue whether the accused did act or make the omission with which he is charged. Here, doing the act or making the omission conjures the accused person’s responsibility.


The second stage of the trial is used to describe the finding that not only did the accused do the act or make the omission with which he is charged but also that in the eyes of the law, he is responsible for it. The third stage is that of sentence. Here punishment may be mitigated (lessened or reduced) on the ground that his responsibility though proved, was not very great and at this stage, there are degrees of responsibility.


Sometimes, at the third stage (during punishment), there may be diminished responsibility as when a man steals to feed his starving children, he may receive an acquittal, usually at the discretion of the court. But please bear in mind that you cannot be availed of responsibility, if upon a charge for murder you are pleading provocation. Because the concept of responsibility rests on a reasonable amount of freedom of choice and capacity to regulate one’s conduct.


A number of controversies have arisen as to the standards of responsibility to be adopted (see Okonkwo and Naish’s opinion). See the opinion of Professor Brett in his book “An Inquiry into Criminal Guilt” pt. 42 at 101.

Further, on the standards of responsibility, Lord Coleridge C. J handed down a dictum which though leading was also flexible. For that dictum, see the case of R. v. Duiley and Stephens (1884) 14 QBD 273 at 288. On the whole, it is argued that, it is safer to anchor the standard of responsibility on the standard of an ordinary man. When the standard of responsibility commensurate reasonably well with the standard of the ordinary man, then this ensures that we can plan our lives so as to avoid liability if we are involved in breach of law by genuine mistake or accident. See section 25 and 24 of the Criminal Code respectively

3.3 Utilitarian Objects of Punishment

The point must be recognized that utilitarian principles of punishment are essentially forward-looking. It is forward looking because punishment is imposed with an eye to its future results, the basic aim being to prevent further crime.


There are about four utilitarian principles and to the analysis of these, we now turn.

3.4 Disablement

This is a principle which seeks to disable the offender through the imposition of capital punishment or imprisonment for life. The principle seems to be saying that the more willing is the danger a crime is thought to present, the more willing is the society that the offender be shut off for a considerable time. Thus in R. v. Adebesin (1940) 6 WACA 197. On appeal sentences imposed after a conviction for armed robbery and burglary, the Court of Appeal increased the sentences of the two accused persons of 10 years and 8 years imprisonment respectively to 15 years and 12 years. The court said that for the protection of the public, the offenders should be sent to prison for even longer terms than those imposed by the trial judge.

3.5 Deterrence

This is regarded as the most potent and vibrant principle of punishment and it takes two forms. In the first form punishment may be imposed in order to deter the particular accused from offending again or in the second form, it may be imposed with the more general view of deterring the public from doing what the accused did. The court adopted the more general view in the case of State v. Okechukwu (1965) 9 EALR 91 at 94. In the case, Nkemena J. imposing a sentence of nine years in a case of manslaughter by a medical quack said this type of offence is very common nowadays and a deterrent sentence is called for in this case.

Ignorant persons should not be allowed to experiment with the lives of others”.

It is a truism that the general theory of deterrence runs counter to the notion of fair deserts (earlier examined) than it appears. That more favoured judicial approach by the court. Regarding the issue whether deterrence as a utilitarian object of punishment really has the deterrent capacity or the capacity to deter, it may be said that, there is concrete fact that some criminals who actually commit crimes are not deterred by fear of punishment which explains why heinous crimes like robbery are on the increase in spite of the deterrent punishment attached to it. Deterrent punishments are most often imposed on offenders who are believed to be professional criminals but career criminals are not likely to be deterred by it.  It is thus argued that it is not the fear of punishment that deters a calculating criminal from crime, so much as the fear of detection.

Okonkwo and Naish submit that the principle of deterrence does not play  any  useful  part  in  punishment  and  so  should  be  applied  with caution.

3.6 Rehabilitation or Form

The essence of this method of punishment is not to punish an offender by imposing some unpleasantness upon him but rather to prevent him from offending again by transforming his attitude so that he himself will voluntarily refrain from offending again.

The most notable method of rehabilitation is probation. Here, the only unpleasantness imposed on the offender is to place him under the supervision of a probation officer, though he is otherwise free to pursue his normal life. The essence of the rehabilitation principle is to build up the offender’s personal sense of responsibility.


The principle of rehabilitation designed to protect the society and it is applied most frequently to those offenders who are regarded not to present a very grave threat to the community but on the contrary for whom there is the greatest hope of rehabilitation e.g. juveniles.

3.7 Educative Principle

Closely related to both the deterrent and rehabilitative aspects of punishment  is  the  educative  aspect. The  essence  of  this  type  of punishment is to educate people out of a certain way of behaviour which is prevalent.  Thus the mere fact that a part of the community denounces

a particular conduct so strongly as to render it liable to punishment will not only deter others from committing it; it will also make them come to see  that  such  conduct  is  wrong. For  example,  slavery,  when  first prohibited was commonplace in many areas in Nigeria but at present slavery is relatively a rare occurrence because of the community’s attitude towards the practice.

4.0 CONCLUSION

In this unit, we exposed the fact that punishment is to serve 3 purposes:

Rehabilitation

Reformation and education of the offender.

The tripod on which justice is hung i.e. justice to the victim, justice to the accused and justice to the society was also held in a delicate balance by the various themes and types of punishment as exposed by the unit. The effort here is to show that punishment serves a correctional role in out legal system.

5.0 SUMMARY

The essence of punishment is to subject the accused person to some
measure of deprivation. These are some underlying principles associated with punishment.
A man deserves punishment only to the degree which he was responsible for his criminal act. The utilitarian principle is essentially forward looking because the punishment it imposes is designed to achieve future results. In disablement, capital punishment is imposed in order to disable the accused from offending again. The essence of deterrence is to deter the offender and attune him to the path of proper conduct. Rehabilitation is designed to transform the attitude of the offender.

6.0 TUTOR-MARKED ASSIGNMENT

1. Why is it necessary to study the various theories of punishment?
2.  Critically examine the notion of responsibility in the theories of punishment.
3. Is capital punishment a desideratum in our legal system?