Changes in punitive philosophy

Changing attitudes towards punishment may be analysed on the basis of five theoretical paradigms: classicism, positivism, conservatism, strain theory and new
deviancy theory.
Classicists believe in proportionate punishment, i.e., (i) punishment should not be greater than what is ‘deserved’ by the criminal, (ii) amount of punishment should
depend upon achieving defined social purposes, and (iii) punishment should not be imposed merely by assuming that the criminal is dangerous to society.
Thus, criminal act and not the criminal should be the basis of punishment and law should be applied uniformly to all offenders. Punishment must bear down
directly on the responsibilities and calculations of the individual.
Since the purpose of punishment is not to inflict pain or to take vengeance but to make men obey the law, punishment must be made proportional to the actual
social harm it causes, and limited to only that required to deter further criminal acts (Fitzgerald et al., Crime and Society, 1981: 260-61).
In short, the classicist theory of punishment permits neither inappropriate leniency nor undue harshness. Incarceration is to be conceptualised as a time during
which we try to reorient a prisoner to the lawful use of power.
Positivists have rejected punitive action as advocated by classicists and conservatives. They believe that if a criminal is not responsible for his actions, it makes no
sense to punish crime. Instead, we must replace punishment by treatment.
A panel of experts (and not laymen as in jury system) should diagnose the condition of the individual and prescribe appropriate treatment. Diagnosis of the criminal
should be based not so much on what he or she did (the act), not on who he or she is (the actor) but on his or her background (the antecedents).
The thief may cause damage worth five rupees or five thousand rupees but to sentence him proportionately to the impact of the act (as the classicists would) is
meaningless. What is necessary is to see if the vandalism sprang from a deep-seated malaise of socialisation or if it was a mere experimentation of a normal youth.
And once diagnosis is made, the criminal must be treated for as long as is necessary. Sentences should therefore be indeterminate, just as one’s stay in hospital is
indeterminate and based on satisfactory treatment or ‘cure’ rather than on the fixed sentences of the classicists. Rehabilitation rather than punishment must be our priority.
Conservatives are mainly interested in the maintenance of order. To achieve this aim, coercion is a necessity. They believe that laxity in the exertion of authority
undermines social control. Crime will never be eliminated either by the propagation of Reason or by the socialisation process.
A more pragmatic approach is therefore desirable, which means adopting the ‘dual track’ system of punishment. This means that an offender is first judged strictly
on his or her offence as in the classicist theory but such a proportional punishment is then added to or subtracted from by a series of criteria whose concern is order.
This refers to three factors: inscriptive criteria, dangerousness and deterrence. In ‘inscriptive criteria’, the focus is: who is the offender? Is he a person in a position
of responsibility-say a police officer or a bureaucrat or a politician-or an ordinary worker? The severity of punishment should be determined in accordance with his position.
In ‘dangerousness’, the focus is whether a person is a first offender or a recidivist, a habitual or a professional criminal, one who commits crime all alone or as a
member of an organised gang. This will determine danger from him to society. A more dangerous criminal has to be incarcerated longer than strict justice requires.
In ‘deterrence’, the focus is whether punishment to the offender is likely to deter similar offenders. Thus, in maintaining order, proportionate justice may be added
to or subtracted from, preferably at the point of sentencing. The judge’s discretionary role is central here.
We thus find that while classicism insists on focusing on the act of crime and positivism on the antecedents of the criminal, conservatism stresses the actor himself
or herself. Similarly, while classicism talks of deterrence to inhibit the individual’s future transgressions, conservatism insists upon a general deterrence, i.e., deterrence of all
others.
The conservatives, therefore, want that punishment should be expressed as publicly as possible; the classicists want the punishment to be meted out in the privacy
of a prison where the offenders might rationally dwell upon the consequences of their crime; and the positivists want the culprit to be treated in the atmosphere of a therapeutic
unit.
The strain theorists want to alleviate the disjunction between aspiration and opportunities, institutional means and structural goals. They are more interested in
changing the social structure which causes crime than the punishment of the offender.
In other words, they are interested in piecemeal social engineering to provide opportunities to lessen the ‘strain’. Coercion should be minimal. Punishment is
obviously irreconcilable with this approach.
What is necessary is to teach the offenders skills that will allow them most profitably to use their opportunities and demonstrate that many sub cultural ‘solutions’
are of limited use.
New deviance theorists talk of social control giving rise to deviance. For much social control is seen to be irrational and dysfunctional. The prisons do not work;
they have a high recidivism rate.
The stigmatisation of the delinquent leads to his becoming a hardened criminal. The over-reaction of the people in power creates more deviance which further
raises the level of coercive strategies necessary to maintain control.
The key to controlling the crime problem, therefore, lies in the control of reaction against deviance, rather than in structural change. What is needed is
reconstructing the foundations of laws and legal procedures in the society in order to increase the safety of the people and their property, while at the same time increasing the
sense of social justice and the degree of social order.
Our laws and legal practices cause most of the problems of crime and injustice. Therefore, instead of talking of socioeconomic reordering of our society, we should
focus on the responsibilities and failures of legislators and legal authorities to create and administer just laws and legal procedures.
Marxists have altogether a different philosophy. While New Deviancy theorists consider crime as behaviour which violates the interests of the powerful, Marxists
have a different viewpoint. They stand for the ideals of equality, justice and liberty for both the working class as well as the ruling class.
Only when the laws will stand for equality and security of the whole society can the society fulfill the ‘moderating’ function and keep the class conflicts within the
bounds of ‘order’.
According to Marxists, the cause of crime is “disparity between effort and reward”, or “unequal reality of a class society”, or “stress on individual competition”.
Thus, a society which increases its wealth without decreasing its misery will face increasing crimes.
As such, what is needed is removing the conditions in society that give rise to miseries and problems. The solution is not opening up more opportunities but
abolishing the class system altogether, or establishing a classless society, i.e., to create a world where formal and substantive inequalities would disappear.