Report No. 35
Topic Number 23
Conclusion regarding object-Deterrent object strongest justification-retributive object how relevant
294. Aspect of punishment as a deterrent.-
For the present purpose, it is not necessary to enter into a detailed discussion of the various aspects of punishment as a deterrent. Punishment, in general, seeks to control future events in "three ways". It seeks-
(a) to stop the offender from offending again; (Particular deterrence);
(b) to deter other potential offenders; (General deterrence); and
(c) to protect the society from the persistent offender1. (Protection).
It has been also pointed out2, with reference to (a) above, that whether the punishment aims at deterring the offender or at reforming him, the real object is to check his criminal career.
As has been observed3, to some extent it is one of the objectives of practically every sentence to fix a penalty which will deter others from committing a like offence or a penalty which will at any rate not have an anti-deterrent effect. "In general, the courts proceed on the assumption that this will be achieved by fixing .a sentence proportionate to the offender's culpability, but occasionally the need to deter others is regarded as so pressing that it becomes the dominant consideration and the court passes a sentence which is specially designed to be exemplary".
Where a court imposes a sentence to protect the society from an individual offender, it is still concerned with future events, but in a somewhat different way. "It is not so much seeking to control future events in order to prevent them from taking another course. Its decision involves not a prognosis of the effect of the sentence but a prognosis of the effect of not giving the sentence4".
Lastly, in the case of capital punishment unlike in the case of other punishment, there is the object of eliminating the offender. This appears to be a special form of particular prevention, the offender being totally and permanently eliminated.
1. Cf. Report of the Interdepartmental Committee on the Business of the Criminal Court, (1961), Cmd. 1289 (Streatfield Committee), p. 79, para. 271.
2. Report of the Interdepartmental Committee on the Business of the Criminal Courts, (1961), Cmd. 1289, p. 79, para. 272.
3. Report of the Interdepartmental Committee on the Business of the Criminal Courts, (1961), Cmd. 1289, p. 81, para. 280.
4. Report of the Interdepartmental Committee on the Business of the Criminal Courts, (1961) Cmd. 1289, p. 82, para. 284.
295. Deterrent object important.-
We feel that the deterrent object of capital punishment is the most important object. Indeed, it would seem to constitute its strongest justification. Even if all the other objects were to be kept aside, the deterrent object would, by itself, furnish a rational basis for its retention. We are aware that there is nothing new in this approach; those who have studied the subject are fully conscious of the controversy that has centered round the deterrent object of the capital punishment, the amount of research devoted to it, (particularly in the shape of statistics) and the volume of literature on this aspect.
296. We would point out, that the chief object not only of capital punishment, but of all punishments, is deterrent, or what has been called "general prevention". In the language of Bentham1, "If we could consider an offence which has been committed as an isolated fact, the like of which would never recur, punishment would be useless- But when we consider that an unpunished crime leaves the path open not only to the same delinquent, but also to those who may have the same motives and opportunities for entering upon it, we perceive that the punishment inflicted on the individual becomes a source of security to all.
Punishment is elevated to the first rank of benefits, when it is regarded not as an act of wrath or vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety." Capital Punishment is no exception to this rule.
1. Bentham's Rationale of Punishment, 20, cited in Halsbury, 3rd Edn., Vol. 10, p. 487, para. 889 and foot-note (k).
297. This is not, however, to rule out the retributive object totally. Misunderstanding is caused by certain misconceptions about the retributive object. If it is taken to mean the primitive concept of "eye for an eye", that is, retribution in the literal sense, it is open to criticism. But, in a refined sense, as expressing public indignation at a shocking crime, it exists in reality, though not as the chief end of capital punishment. It can better be described as "reprobation" or "the emphatic denunciation by the community of a crime.1". An abhorrent crime deserves severe and abhorrent punishment.
1. Cf. Lord Denning, cited in R.C. Report, p. 18, para. 53.
298. The retributive object is reflected in practice in a different aspect-what may be called the "negative" one. Where the circumstances of a crime are such that they excite not a sense of shock, but a feeling of pity, the "reprobation" if offset by the "extenuating" circumstances. The extenuating circumstances are regarded as justifying the lesser punishment:This demonstrates negatively the retributive object.
Here, the negative aspect helps in the individualisation of punishment. A subdued sympathy takes the place of reprobation; public feeling sides itself in favour of the offender; the law bows down to this feeling "whether through the court or through the exercise of the prerogative of mercy, or by express provision in some cases.1". These observations, trite though they may seem, appear to be necessary, since the question of object of punishment is a fundamental one, and no misunderstanding in that field should be allowed to obscure the discussion2.
1. For example, section 300, Exception 5, Indian Penal Code.
2. Discussion relating to arguments for abolition may also be seen.
299. What we have said above can be substantiated by pointing out, that even in many countries1 where death sentence for murder has been abolished, it has been retained for treason. One reason for this seems to be the feeling that treason is such a serious crime that it must receive adequate condemnation.
1. E.g., England, and New Zealand.
300. Cruel Murders.-
Even after all the arguments advanced to support the abolition of capital punishment are taken into account, there does remain a residuum of cases where it is absolutely impossible to enlist any sympathy on the side of the criminal, or to postulate any mental abnormality on his part, or to assert that the deterrent effect is counter-balanced by any external factors, i.e., factors other than the will and determination of the criminal. As Stephen said, there are, in the world, "a considerable number of extremely wicked people, disposed, when opportunity offers, to get what they want by force or fraud, with complete indifference to the interests of others, and in ways which are inconsistent with the existence of civilized society. Such persons, I think, ought in extreme eases to be destroyed1".
"To allow such persons to live would be like leaving wolves alive in a civilized country2".
1. Stephen History of Criminal Law of England, (1883), Vol. 2, p. 91.
2. Stephen History of Criminal Law of England, (1883), Vol. 2, p. 92.
301. As was observed in one American case1: To permit a man of dangerous criminal tendencies to be in a position where he can give indulgence to such propensities would be a folly which no community should suffer itself to commit, any more than it should allow a wild animal to range at will in the city streets. If, therefore, there is danger that a defendant may again commit crime, society should restrain his liberty until such danger be past, and, in cases similar to the present, if reasonably necessary for that purpose, to terminate his life. Admittedly, restraint by imprisonment can be as wholly effectual as execution,ancl there are, from time to time, cases where imprisonment may not be sufficient for the protection of society.
It is on this ground that it is pertinent to take testimony in regard to the history of a defendant and of the circumstances attending his commission of crime. If his record shows that he is of a dangerous type, or that he habitually commits grave crimes, or that he has a homicidal tendency, or that he is hopelessly depraved, or that he has a savage nature, or that he has committed murder under circumstances of such atrocity and inhuman brutality as to make his continued existence one of likely danger to society, then in my opinion, the sentence of death is both justifiable and advisable.
The community may not be safe with such a man in existence even though he be serving a term of life imprisonment; he may again commit murder within the prison walls, or may escape and again make innocent victims, his prey, or may even, by cunning simulation of repentance, obtain a pardon from governmental authorities.
1. Commonwealth v. Ritter, Court of Oyer and Terminer, Philadelphia (1930) per Stem J. (later Chief Justice of the Pennsylvania Supreme Court) see Paulsen & Kadish Criminal Law and its Processes, (1962), pp. 57 and 60.
302. In such cases there is no chance of reformation, no scope for expiation, and every reason for employing the punishment provided by law as a terror to others similarly inclined. It is for the general good that the criminals of this type should not remain of society.