The Justification of Punishment

Expiatory

Punishment permits the offender to atone, discharge the guilt and be restored to the community. It is the oldest justification and the one most often omitted from answers.

Strength. It explains why remorse, apology and restitution matter, and why a person who has served a sentence is said to have paid for the offence.

Weakness. It supposes a shared moral and often religious framework, and it says nothing about how much punishment discharges the wrong.

Why no single theory is sufficient

An answer that says "the theories are complementary" gets a little; an answer that says exactly what each one cannot do gets a lot.

Retribution alone requires the state to punish where punishing achieves nothing, and gives no reason to prefer a sentence that prevents further crime to one that does not.

Deterrence alone does not require the person punished to be guilty. This is the objection that decides the argument, and it is worth stating in its strongest form: if deterrence were the whole justification, then a public and convincing punishment of an innocent person would be as good as the punishment of the guilty one, provided nobody discovered the difference.

Prevention alone justifies detaining a dangerous person who has committed no offence at all.

Reformation alone makes the sentence depend on the offender's condition, so the same offence produces one week for one person and ten years for another, and the person who needs no reform must be released at once.

Expiation alone cannot say when the account is settled.

The combined theory, and how it works

The position most modern systems have reached, and the one to write, is that the theories answer different questions and can therefore be combined rather than chosen between. The framework is usually attributed to H. L. A. Hart.

The general justifying aim, the answer to "why have a system of punishment at all", is forward looking: the prevention of crime.

Distribution, the answer to "whom may be punished", is governed by desert: only a person who has committed the offence, and only for it.

Amount, the answer to "how much", is limited by proportionality, within which forward looking considerations may operate.

The elegance of this is that each objection above is answered by a different limb. Punishing the innocent is excluded by the distribution limb even though the aim is deterrence. Disproportionate sentences are excluded by the amount limb even where they would deter. And reformation operates freely below the ceiling desert fixes, which is exactly where probation, parole and remission live.

How an Indian court chooses

Facts. Bachan Singh v. State of Punjab, (1980) 2 SCC 684. The appellant was convicted under section 302 of the Penal Code of three murders and sentenced to death, and the High Court confirmed. On his appeal the question was whether the facts amounted to the special reasons section 354(3) of the Code of Criminal Procedure 1973 requires before a death sentence may be passed, and a Constitution Bench was constituted to decide whether section 302 and section 354(3) were constitutionally valid.

Held. The Court rejected the challenge to both provisions. It laid down that for persons convicted of murder life imprisonment is the rule and the death sentence an exception; that a real and abiding concern for the dignity of human life postulates resistance to taking a life through the instrumentality of the law; and that this ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. The connected matters were remitted to be decided on their merits in the light of those guidelines. Bhagwati J. gave a separate opinion.

Why it matters here, and this is the point of the chapter. Every theory appears and none of them wins.

Retribution survives, because the gravity of the offence is what can carry a case into the rarest category, and because the sentence is fixed by reference to what was done.

Deterrence was argued for the State and was not accepted as a reason making the death penalty necessary in the ordinary case.

Reformation appears as a presumption: life imprisonment is the rule, and the alternative must be unquestionably foreclosed before the maximum is imposed, which is desert operating as a ceiling and not as a command.

And the structure is Hart's. The aim is forward looking, the distribution is by desert, and the amount is capped by proportionality with a presumption against the maximum.

A worked example

A young man with no previous conviction, addicted to a substance, breaks into three houses in a month and steals electronics. He is convicted of housebreaking and theft.

Retributive. The offences are serious, repeated and deliberate. What is deserved is a substantial sentence, and the addiction reduces culpability somewhat without removing it.

Deterrent. Housebreaking is common in the locality, and a visible sentence may reduce it. General deterrence pulls upward, and Bentham's own rule, that certainty matters more than severity, warns against relying on the sentence to do work that detection should do.

Preventive. While confined he cannot break into houses. This pulls upward too, and the theory alone would justify keeping him confined indefinitely, which is why it must be capped.

Reformative. Untreated addiction makes reoffending near certain; treatment makes it much less likely. This pulls towards a supervised sentence with a treatment condition, and if measured by need alone it could exceed what the offences deserve.

Expiatory. Restitution to the three households, and an apology, matter to the victims and to his standing in the community afterwards.

The combined answer. The aim is preventing further burglaries, so the forward looking theories set the direction. Desert fixes the ceiling: he may not be given more than three housebreakings warrant, however useful a longer sentence might be. Within that ceiling the sentence is designed to reform: a term with a treatment condition, supervision on release, and an order for restitution.

Notice that this is precisely what an Indian court does when it applies the pre-sentencing provision the Supreme Court insisted on in Giasuddin, and it is why the theories are set out in a paper on political science rather than left to criminal law.

Distinctions that carry marks

What the justification is NOT

It is not a choice of one theory. Every serious modern account combines them, and an answer that picks one and defends it against all comers has missed what the subject has learned.

Combining them is not vagueness. Hart's framework is precise: different theories answer different questions, and each limb excludes a specific abuse.

"Rarest of rare" is not a theory. It is a sentencing rule that gives effect to a combination of them.

A justification is not an explanation. Why societies punish is a question for sociology; whether they are entitled to is this question, and the two are constantly confused.

Quick revision

1. Five theories: retributive, deterrent, preventive, reformative, expiatory.
2. Each fails alone: retribution punishes where nothing is gained; deterrence would punish the innocent; prevention detains on prediction; reformation measures by need rather than by the act; expiation cannot say when the account is settled.
3. The combined theory, associated with Hart: the general justifying aim is forward looking; distribution is governed by desert, so only the guilty; amount is limited by proportionality, within which forward looking aims operate.
4. Bachan Singh, (1980) 2 SCC 684: sections 302 IPC and 354(3) CrPC upheld; life imprisonment is the rule and death the exception; only in the rarest of rare cases when the alternative option is unquestionably foreclosed.
5. In that case retribution supplies the threshold, deterrence was not accepted as making death necessary, and reformation appears as the presumption in favour of life imprisonment. The structure is Hart's.
6. The practical shape of a sentence: aim forward, cap by desert, design for reform below the cap, and add restitution.

Test yourself

1. Name the five justifications of punishment and give the measure each proposes. Retributive, measured by the offence itself, since punishment is deserved. Deterrent, measured by what is enough to make the prospect unattractive to the offender and to others. Preventive or incapacitative, measured by how long the danger lasts. Reformative, measured by what will change the offender. And expiatory, measured by what discharges the wrong so that the offender may be restored to the community.

2. Show that no single theory is sufficient. Retribution alone requires punishment where nothing whatever is achieved by it. Deterrence alone does not require the person punished to be guilty, since a convincing public punishment of an innocent would deter equally if the difference were not discovered. Prevention alone justifies detaining a dangerous person who has committed no offence. Reformation alone makes the sentence depend on the offender's condition, so the same offence yields a week for one person and ten years for another and the person needing no reform must be released at once. Expiation alone cannot say when the account is settled.

3. Set out the combined theory and explain how it answers the objections. The theories answer different questions, so they combine rather than compete. The general justifying aim, why have punishment at all, is forward looking and is the prevention of crime. Distribution, whom may be punished, is governed by desert, so only a person guilty of the offence and only for it. Amount, how much, is limited by proportionality, and forward looking considerations operate within that ceiling. Punishing the innocent is thereby excluded by the distribution limb even though the aim is deterrence, disproportion by the amount limb even where it would deter, and reformation operates freely below the ceiling, which is where probation, parole and remission live.

4. How does Bachan Singh illustrate the combined theory? A Constitution Bench upheld section 302 of the Penal Code and section 354(3) of the Code of Criminal Procedure while ruling that for murder life imprisonment is the rule and the death sentence an exception, to be imposed only in the rarest of rare cases when the alternative option is unquestionably foreclosed. Retribution supplies the threshold, since the gravity of the offence is what can carry a case into that category. Deterrence was argued and was not accepted as making the death penalty necessary in ordinary cases. Reformation appears as the presumption in favour of life imprisonment. Desert therefore operates as ceiling and threshold rather than as a command, which is Hart's structure applied to sentencing.

5. Apply the theories to a repeat burglar with an untreated addiction. Retribution asks what three deliberate housebreakings deserve, with the addiction reducing culpability without removing it. Deterrence and prevention both pull the sentence upward, prevention indefinitely if left uncapped. Reformation points to a treatment condition and supervision, and if measured by need alone could exceed what the offences deserve. Expiation points to restitution and apology. The combined answer sets prevention as the aim, caps the sentence at what the three offences warrant however useful a longer one might be, designs the sentence within that cap for treatment and supervision, and adds restitution to the households.