PUNISHMENT

Reading List
Books:
Mensa-Bonsu, HJAN The General Part of Criminal Law A
Ghanaian Casebook Vol I Chapt 2

Cases:
Abu & Ors v R [1980] GLR 294
Tinieye & Anor v Republic [1980] GLR 565
Darkurugu v R [1989 90] 1 GLR 302
Apaloo & Ors v R [1975] 1 GLR 156
Haruna v The Republic [1980] GLR 189
Gundaa v Republic [1989 90] 2 GLR 50
Addo v The Republic [1974] 1 GLR 254
 Lecture Outline
Lecture Objectives
Definition of Punishment
Key elements
Theories of Punishment
Retributive theory
Utilitarian theory
Reformation/Rehabilitation
Deterrence
Incapacitation/Protection
Restorative Justice
 Lecture Objectives
To understand punishment and its role in
criminal law
To know and understand the role of punishment
in furthering the ends of criminal justice
To know the various theories underlying crime
and critically assess their utility and application
in any given case
 Definition of Punishment
Punishment is one of the essential and defining
elements of criminal law.
Recall Conduct is defined as criminal or regulated by
the criminal law if attracts penal consequences, i.e.
punishment.
What therefore is punishment? Akin to crime, it
also remains a complex concept to define.
Mensa-Bonsu writes at page 88:
Punishment has been defined as a phenomenon that
entails the infliction of suffering or some other
unpleasant consequence by an agency in a position of
authority on an offender for an offence, i.e. the doing of
a prohibited act.
 Definition of Punishment
Alf Ross (cited in Mensa-Bonsu, p93 96) also defines
crime as follows:
In accordance with these amendments, the concept of
punishment could be defined in terms of four components.
Punishment is that social response which: (1) occurs where there
is a violation of a legal rule; (2) is imposed and carried out by
authorised persons on behalf of the legal order to which the
violated rule belongs; (3) involves suffering or at least
consequences normally considered unpleasant; (4) expresses
disapproval of the violator
Can punishment be distinguished from mere penalties?
The key distinguishing characteristic is the reprobative
element in punishment (or the punitive intent). See Joel
Feinberg, The Expressive Function of Punishment (in
Mensa-Bonsu, p97 106)
 Theories of Punishment
Punishment has been viewed from a number of
theoretical perspectives:
We have thought it necessary not only to analyse the facts,
but to apply those facts to the classical principles of sentencing.
Those classical principles are summed up in four words:
retribution, deterrence, prevention and rehabilitation. Any
judge who comes to sentence ought always to have those four
classical principles in mind and to apply them to the facts of the
case to see which of them has the greatest importance in the case
with which he is dealing. (R v Seargent (1974) 60 Cr App R
74, CA per Lawton LJ)

These theories can be put into two main groups:

Retribution
Utilitarianism (deterrence, prevention, rehabilitation)
 Retribution
The oldest theory of punishment
Based on the idea that the criminal ought to suffer
for his wrongs or sins
Also captured in the term, lex talionis (An eye for
an eye, a tooth for a tooth)
When one man strikes another and kills him, he shall be put
to death. Whoever strikes a beast and kills it shall make
restitution, life for life. When one man injures and disfigures
his fellow countryman, it shall be done to him as he has done;
fracture for fracture, eye for eye, tooth for tooth, the injury
and disfigurement that he has inflicted upon another shall in
turn be inflicted upon him. Leviticus 24:17-22
A key proponent of this theory is Immanuel Kant
 Retribution
Kant advocates that punishment is an end in itself
Retribution is founded on vengeance for the
society and deserved chastisement of the
individual

The case for retribution

Criminals must pay for their crime in proportion
Killers must be killed and those who cause suffering
must suffer
Deviance must be punished
 Retribution

The case against retribution

It adds one evil on another
Punishment is cruel and senseless if it does no good
It legitimizes social hatred and anger
Utilitarianism - Rehabilitation
Based on the principle that the purpose of punishment
should be to reform
Criminals should be steered away from crime
Punishment should aim to transform the offender into a
valuable member of society

Further basis of the theory

Stopping crime is achieved through reformation of criminals
Crime is a function and effect of the socio-cultural environment
(nurture)
Education, training and employment may make the criminal
abandon crime
Society should aim at bringing back a wayward member and
compel him/her to respect the values and rules of the society.
Utilitarianism - Rehabilitation
There is hope for reformation in a criminal
See Abu & Ors v The Republic
Badu v The Republic cited in Darkurugu v The Republic
Tinieye & Anor v The Republic

The case against rehabilitation/reformation

A persons character cannot easily be changed
Reformation and change come from acknowledgement
of wrongdoing, deviance or abnormality, leading to a
willingness to change
 Utilitarianism - Deterrence
Founded on the notion that man will be deterred from
crime if punishment is swift, certain and severe
Founder of the theory Jeremy Bentham

See Apaloo & Ors v The Republic

Deterrence aims to deter both the individual offender and

the society at large
Specific deterrence to the individual
General deterrence to the society

Punishment must be so severe that no-one will dare to

commit a particular crime again
 Utilitarianism - Deterrence
Critique of deterrence
How do we measure deterrence? How do we determine
that reduction in a particular crime is as a result of the
deterrent punishment?
Evidence from incorrigibility of some category of
criminals. E.g. hardened criminals
Utilitarianism Incapacitation/Protection

Punishment should aim to keep criminals away from

society to protect the latter from the misconduct of
the former
Capital punishment for example, frees society forever
from the evil of hardened or wicked criminals
Long prison sentences would keep dangerous
elements in society from preying on the law-abiding
ones
Incarcerate to incapacitate
Prison may not change future behaviour but it
forestalls expression of that behaviour in public
Utilitarianism Incapacitation/Protection

Critique:
Incarceration is not the only form of incapacitation
Innocent persons could be marred, scarred and
stigmatised for life
Considerations for choosing a basis for
punishment

All theoretical approaches are open to a judge

The sentence or punishment will depend on the
facts of the case and the evaluation of the case by
the judge
Gundaa v The Republic
Badu v The Republic
Haruna v The Republic
 Restorative Justice
A new trend in punishment
Seeks to divert punishment as understood in the
traditional criminal justice system
Focuses on collective state interest as opposed to
individual interest
Seeks dialogue and peace between the offender and the
victim
Focuses on acceptance of guilt by the accused and the
satisfaction of the victim
Usually done through peace-making tribunals, truth
commissions, reconciliation commissions or both
 Restorative Justice
Proponents argue that restorative justice mends the
broken relationship that crime creates in society

Antagonists ask how restorative justice actually

works.

Does restorative justice defeat the ends of criminal

justice?