This article is written by Mrinal Mukul, a law student at O.P. Jindal Global University, Haryana. This article seeks to elucidate the various aspects of deterrent theory of punishment and show how effective it is in stopping heinous crimes.
It has been published by Rachit Garg.
In our day-to-day life, we see so many criminal cases happening in our society. But what is the solution to this? How can we control such crimes in our society? For such reasons, the deterrent theory comes into place, because it explains how we can create fear among people before they commit heinous crimes.
In the deterrent theory of punishment, the word ‘deterrent’ means to abstain from any wrongdoing. The main goal of this theory is to deter criminals from attempting to commit a crime or repeating the same crime in the future. Deterring crime by creating fear is the main goal. Simply put, according to the theory, if someone commits a crime, they will be punished with a severe sentence; people will be aware of such punishments, and because of this fear in people’s minds, people will stop committing any crime or wrongdoing.
The article deals with the importance of deterrent theory in our society and its effect on law obedience.
What is the deterrent theory of punishment
The result of any crime is punishment. The primary purpose of punishment is to reform criminals and turn them into good-hearted people and make them law-abiding citizens.
The deterrent theory of punishment is utilitarian in nature. To understand better, for example: ‘This person is punished not only because he has committed an illegal act but also to ensure that no crime will be committed again.’ By making potential criminals aware that crime is not worthwhile, the deterrent theory hopes to control the crime rate in society.
The term ‘deterrent’ has many meanings. Deterrent can be understood as discouragement, which attempts to stop evil minds from taking wrong and illegal paths. Out of the five doctrines of criminal jurisprudence, that is, deterrent, retaliation, prevention, reformation, and expiatory theories; this theory establishes the dire consequences, i.e., punitive actions against the wrongdoer to curb the menace. Such actions also deter criminals from committing the crime the next time.
In 2013, an article by Daniel S. Nagin, “Deterrence in the Twenty-First Century,” very vividly explains some of the main points of deterrent theory, which can be summarised as the fear of being caught is far worse than severe punishment. When the justice system has shown the power to catch criminals, this alone can become a dreadful psychosis in the hearts of other criminals. Strategies used by police officers, such as sentinels and hotspot policing, are really effective in overcoming the threat. The behaviour of criminals is more likely to be affected if they see uniformed police with handcuffs and guns rather than the strict penal provisions on paper.
It can be seen that the punishment of the death penalty has not been very effective in deterring society’s most heinous crimes over the years. In the face of the increasing number of rape cases over the past few decades, it is very frustrating that crime has not been completely stopped. Some socially rational thinkers might argue that crime has been stopped to some extent. However, in a civilised society like ours, where we talk about internationalism, social networks at our fingertips, and advances in modern high-tech science and whatnot, will there be a place for a crime where the very basic rights of human existence are denied to the better half of society? The continuous worry about the increased rate of crimes disallows a fearless living to the weaker (yet stronger) sex of the society.
There is no end to this, but the legal system is incessantly improving its laws, policies, procedures, and interpretations to curb crime and make our society more civilised and decent. After all, it is only when society is civilised then the laws on humans will reflect.
Types of deterrence
There are two types of deterrence: –
This type of deterrence acts on a specific individual. The idea of specific deterrence is that when a perpetrator is severely punished for his misconduct, he will not be tempted to commit similar crimes in the future. For example, if an armed robber is sentenced to 8 years in prison, the specific deterrence makes it less likely that he will commit another armed robbery when he is eventually released. However, research shows that the effectiveness of specific deterrents varies from situation to situation.
General deterrence is designed to deter the public from committing the same crimes as those already convicted of such offences. General deterrence is more focused on teaching lessons to the public and not just individuals accused of a crime. The idea is that if an individual is severely punished, the public will see the severe punishment and be dissuaded from engaging in the same or similar activities. A good example is the death penalty. When a criminal is sentenced to death for a crime, such a sentence prevents the public from committing the same or similar crimes.
Deterrent theory in context of jurisprudence
The concept of deterrent theory can be simplified by the work of philosophers such as Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), and Jeremy Bentham (1748-1832). These social contract thinkers give the basis of modern deterrence in criminology.
In the words of Hobbes, he thought that people generally pursue their own self-interests, such as material interests, social reputation, etc., and make enemies regardless of whether they harm others in the process. This often leads to conflict and resistance as people are determined to pursue their own interests. To elude this, people agree to let go of their egocentricity until everyone is doing the same thing. This is called the “social contract.” According to social contract theory, individuals are punished for breaking the law, and a deterrent is a reason for upholding the agreement between the state and the people in the form of a social contract.
Cesare Beccaria believed that when discussing punishment, in order to have a deterrent effect or deterrent value, the proportion of crime and punishment should be equal. He followed Hobbes and other 18th-century enlightenment writers by arguing that laws should be judged on their propensity to afford “the greatest happiness shared by the greatest number.” Since people are usually selfish, they will not commit crimes if the cost of committing crimes outweighs the benefits of engaging in undesirable acts. If the sole purpose of punishment is to prevent crime in society, Beccaria argues, “the punishment is unjust when it is more severe than what is necessary to achieve deterrence.” Excessive strictness will not reduce crime; in other words, it only increases crime. In Beccaria’s view, prompt and definitive punishment is the best way to prevent and control crime; punishment for any other reason is capricious, redundant, and repressive.
Jeremy Bentham, a contemporary of Beccaria, was one of the most prominent intellectuals of the 18th century. Bentham believed that morality is what promotes “the greatest happiness of the greatest number,” a common expression of Beccaria. In Bentham’s view, the duty of the state is to “promote the happiness of society by punishing and rewarding.” Like Beccaria in Italy, Bentham was concerned about arbitrary punishment and barbarism found in the criminal codes of his time in England. He asserts that all punishments are inherently evil unless the punishment is to avoid a greater evil or to control the criminal’s behaviour. Simply put, the law’s purpose is to increase people’s happiness and reduce the community’s suffering. Penalties that exceed those necessary to deter illegal conduct are unreasonable.
Components of the deterrent theory
Severity indicates the degree of punishment. To prevent any crime, criminal law must emphasise punishment to encourage citizens to obey the law. The severity of punishments has long been considered a key factor in deterring criminal behaviour. As a result, the legislature relies on the use of harsh sanctions to deter crime. However, until the 1960s, few studies examined the deterrent effect of harsh penalties. Preliminary research supports the theory that harsh punishments can deter crime. Multiple studies examining homicide rates have found that the severity of penalties for homicide acts as a deterrent. When the examination expanded beyond homicide, it was a different scenario altogether. The severity of the sentence had a positive impact on crimes such as rape, battery, theft, robbery, and burglary. That is, the severity of the punishment did not deter crime. If anything, it would have the opposite effect. Severe penalties can be used for other valuable purposes in criminal justice policy. They can incapacitate certain people and prevent them from committing crimes for a certain period of time; they can publicly condemn certain actions; or they may provide an opportunity to provide rehabilitative treatment. However, some studies have found that harsh penalties rarely, if ever, have a deterrent effect. In essence, severity includes making a punishment harsh enough that an audience will be fearful of receiving it. If punishment is too brutal, the crowd may “cry foul” and dissent; if it’s too lenient, it may not prevent test cheats and pirates from perpetrating their misdeeds.
The certainty of punishment is often considered more important than the severity of the punishment. Research shows that certainty is a far greater deterrent than severity. In terms of certainty, subjective certainty is more important than objective certainty. That is, one’s belief about whether punishment is likely is more important than the fact that punishment is, or is not, actually likely. This subjective belief may come from the public, but more often, it comes from personal experience or anecdotal information from others in the community.
Perceptions of risk can also be influenced by substance use, the presence of peers, and other situations that affect a person’s emotional responses. As with severity, increasing the certainty of punishment appears to lead to diminishing returns. As Becker points out, there is a balance in terms of certainty. Raising the probability of arrests and convictions to 100% would have huge societal costs, including paying for a vast police force and giving up personal privacy and freedom.
The punishment for any crime must be swift to deter the crime. Celerity, the speed at which a person is punished for breaking the law, has received the least attention in the literature. Research suggests that the speed of punishment may not be a deterrent effect. At least one study showed that individuals prefer to get their punishment over as early as possible. If this is correct, delayed punishment may be seen as a worse consequence than immediate punishment.
In conclusion, economic models of deterrents suggest that most crimes are committed by rational people who consider whether the crime is worth the risk of possible punishment. The theory holds that more people will commit crimes without the threat of punishment. Scholars argue that increasing criminal certainty is more effective than increasing penalties for transgressions.
Therefore, deterrent theorists argue that if punishment is severe, certain, and prompt, a rational person will weigh the pros and cons before committing a crime. Due to this, the person will be deterred from committing a crime and violating a law.
Deterrent theory in India
Capital punishment and deterrent theory in India
The Supreme Court in State of Karnataka v. Sharanappa Basanagouda Aregoudar (2002) rightly stated that:
“The sentence imposed by the court should act as a deterrent on potential offenders and should be commensurate with the seriousness of the crime. Of course, when it comes to sentencing, courts have the discretion to assess a broad and diverse range of facts that may be relevant for fixing the quantum of sentence, but that discretion must be exercised with due regard to the wider interests of society, and needless to say, passing of sentence is probably the most public face of the criminal justice system. Courts have been reminded of the need to have punishments having a deterrent effect, especially for certain categories of crimes.”
For example, in the case relating to Section 364A, the Supreme Court ruled that in cases involving kidnapping for ransom, “although kidnapping did not result in the victim’s death, the crime required a deterrent punishment. Given the kidnapping of young children for ransom, the legislature, in its wisdom, provided for stringent sentences.” On the other hand, action must be taken as harshly as possible, and the courts are obliged. Protecting society and deterring perpetrators are the express goals of the law and must be addressed by imposing appropriate penalties. The court, at first instance, shall consider all relevant facts and circumstances affecting the sentencing and proceed to impose a sentence according to the seriousness of the offence.
There is no denying that “punishments should be made according to the gravity of the crime,” as the Supreme Court observed in State of M.P v. [email protected] Balram (2005). Such an approach is important to establish that a civilised society does not revert to the days of “eye for an eye and tooth for a tooth.” The lack of just punishment may prompt victims or their loved ones to seek retaliation, and that is exactly what is being sought to be prevented by the criminal justice system we have adopted. This philosophy is embedded in our law and jurisprudence, and it is the duty of the judiciary to take this into account, the court recalled. The Supreme Court has repeatedly stated that the sentence must be commensurate with the crime and that it is the court’s responsibility to impose an appropriate sentence based on the extent of the crime and the desirability of imposing such punishment.
Amid the chorus of reform measures, the Supreme Court emphasised “deterrent.” For example, in State of Madhya Pradesh v. Munna Choubey & Anr. (2005), the Supreme Court found that imposing sentences without regard to their impact on social order may actually be futile in many cases. The social impact of crime, such as crimes against women, fraud, kidnapping, embezzlement of public funds, treason, and other crimes of moral corruption, or crimes that have a major impact on social order and public interests, cannot be ignored, and per se require exemplary treatment. Any stance that imposes meagre penalties or over-benevolent view because of a lapse of time in respect of such offences will be counterproductive in the long run and against societal interests that need to be cared for and strengthened by a string of deterrents inbuilt in the sentencing system.
The social dimension in relation to deterrent theory in India
According to the deterrent theory, people are punished with the view of conveying a ‘message’ to the rest of society that “it is wrong to act in certain ways, and if a person behaves in one of these ways and does not obey the law, society will punish him/her accordingly. The manifestation of social disapproval is punishment.” It is believed that conveying the message ‘creates a conscious and unconscious suppression of criminal behaviour.’ In the long run, this has led to the widespread perception of ‘habitual obedience’ at large to the laws that prescribe certain acts by way of meting out punishments. However, many people argue that it is debatable how far punishment acts as a deterrent among the people in any given society.
For instance, in Shashi Nayar v. Union of India and Ors (1991), one of the arguments put forth against the death penalty because it violates Article 21 of the Indian Constitution, the death penalty does not serve a social purpose, and the barbaric penalty of death should not be given to anyone because it has no deterrent effect. It has been argued that the growing number of cases, despite strict criminal law provisions, indicates the failure of the deterrent theory.
In the current distress of despair and chaos, if deterrent punishments are not restored, the country will be in chaos, and criminals will be released, endangering the lives of thousands of innocent people across the country. Despite all the resources at its command, it will be difficult for the state to protect or safeguard the life and liberty of all citizens if criminals are let loose, and deterrent punishment is either removed or mitigated.
As a result, there is disagreement about the necessity and effectiveness of the theory. However, in the primacy of punishment in legal thought, the goal remains the protection of society, and other goals are often secondary in nature when sentences are being decided.
Drawbacks of deterrent theory
The deterrent theory failed because the victims in cases of murder, rape, etc., were helpless and the accused were not reported. Deterrent theory can only deter those who are not determined enough to act on their beliefs. Despite all kinds of deterrents, criminal minds still act on a whim at times. Penalties and sanctions have simply become mere obstacles that criminals have to overcome. This is clearly not what the Indian criminal justice system needs. Despite the harsh penalties and fines, the number of criminal cases has been increasing.
Some major drawbacks are:
- Punishment does not create fear in the criminal’s mind once the punishment is over.
- This type of punishment does not create fear in the hardened offenders’ minds.
- Arouse sympathy in the minds of the public for criminals.
Example of the deterrent theory of punishment: rape cases continued to rise after the Nirbhaya verdict in Mukesh & Anr v. State For Nct Of Delhi & Onr (2017).
According to the deterrent theory, the main goal is ‘to deter crime by inciting fear or setting an example for society. Now, the death penalty is a severe punishment. In the Nirbhaya case, the court sentenced four criminals to death for gang rape. Although this is a good example for future criminals who would consider committing crimes such as rape in the future. So, according to this theory, crimes like rape should not have happened after the Nirbhaya verdict. But they are still happening. Rape cases in our society are increasing every day.
The Nirbhaya gang-rape judgment was seen as justice for ‘India’s daughter,’ even though the decision came after several years. But it seems to go further, as rapes continue unabated, more specifically from early 2020 to 2022. So we can simply see that even harsh punishment does not improve anything. ‘The death penalty doesn’t stop rape’ – that’s the real message we get.
Relation between preventive theory and deterrent theory of punishment
According to Justice Holmes, in the preventive theory of punishment, crime is deterred by disabling the offender, which is an objective that is also evident in the theory of deterrent. Many utilitarians, such as Bentham, Austin, and Mill, support the preventive theory because of its humanising capacity. The two theories are closely related because some form of deterrence prevents future crimes and ensures that those who have committed crimes do not engage in bad behaviour again. The development of penal systems is a product of prevention theory, which aims to prevent offenders from committing similar or different crimes. It focuses on more humane ways of punishing people, but in contrast to the deterrence theory, it states that the death penalty is a very severe form of punishment, and no one has the right to take the life of another.
According to prevention theory, incarceration is the best way to prevent crime; it could effectively help disable criminals from repeating the offence. Since the death penalty is also part of a preventive theory, it is safe to say that it is another part of deterrence. One focuses on deterring society as a whole, while the other prevents offenders from committing crimes. One person cannot be punished to prevent others from committing the same crime. The deterrence theory states that sometimes the effect of punishment makes the offender see that he is not being used for the benefit of others. It works on the fact that individuals are punished only if the punishment serves as a boon for society. In other words, it will be successful when there is no harm to society by preventing future criminal prospects.
The preventive theory explains how its goal is to prevent crime, not just avenge it. Its main goal is to protect society from criminals by keeping the offenders in jail, thereby eliminating the potential danger caused by their presence. Under the deterrent theory, it focuses on establishing a criminal discipline that prevents any person from committing offences in the future.
Under the deterrent theory of punishment, the basic premise is that punishment should be such that it deters the criminal from committing the crime. Most importantly, it impacts people’s minds that if they do illegal activity, there will be severe consequences to it. All in all, this deters the minds of people from committing such crimes. In most instances, people who believe they will be caught are less likely to commit crimes, that is, an appropriate level of punishment coupled with a high likelihood of being caught will likely deter some potential criminals.
In essence, the punishment so imposed prevents others from committing the crime. One of the criticisms of deterrent theory is that it treats individuals as means rather than the ends. However, how far the deterrent theory has been successful is still a debate in achieving the purpose it is believed to serve. At the end of the day, only time will tell how effective the deterrent theory of punishment is in maintaining a society free from all crimes.
Frequently Asked Questions (FAQs)
Why is the death penalty not a deterrent?
If we take the example of the death penalty, then there is no proof that the death penalty deters criminals. People still commit crimes. However, people generally believe that if crimes are punished severely, it should prevent them from committing those crimes.
Why does capital punishment have a deterrent effect?
There is no practical evidence that the death penalty deters crime more effectively than long-term imprisonment. Countries that still award the death penalty do not have lower crime or murder rates than countries without such laws.
Does the theory of deterrence provide justice?
The main objective of the theory is to deter individuals from committing crimes, whether generally or specifically. It is to stop people from committing potential crimes; punishment is awarded to the individual who commits crimes. Justice will be served if the punishment is commensurate with the crime committed.
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