Do Harsh Punishments Reduce Crimes?

DOES CHOPPING OFF WITH A BIGGER KNIFE CHOPS OFF MORE?

IS THERE ANY RELATIONSHIP BETWEEN THE HARSHNESS OF A PUNISHMENT AND ITS DETERRENCE?

by Tipu Salman Makhdoom
Previously published in All Pakistan Legal Decisions Journal section (PLD 2014 Journal 98), SSRN & Academia

The life of the law has not been logic; it has been experience….

Oliver Wendell Holmes, Jr.

INTRODUCTION:

Punishment, to say the least, is horrible;[1] a conscience and deliberate infringement of rights of a person, on behalf of the society. Just as in a living body—a biological society—a cell loses its individuality and is liable to be eliminated if it starts working against the living system of which it is a part; so does a person loses his individuality in a human society and is liable to infringement of his rights (punishment) if s/he starts working against the political decisions of the society.

The institution of Punishment, however, raises extremely difficult, though very interesting, intellectual and philosophical questions, such as; Should Punishment be inflicted as a means to an end or as an end in itself? If it’s a means (which the author will argue that it is), then what should be its ultimate aim and how should that be achieved?

Starting with the pre-historic conception of Punishment, we will have a bird’s eye view of different dominant arguments about the rationale of Punishment and finally will take a glimpse of utility of various approaches for which punishment is used, concluding which approach are we using and why is it not working in our system?

EVOLUTION OF PUNISHMENT:

Though punishment in general terms is a social term and in popular meanings varies from the wrath of gods to the scolding of a caring parent, its legal meanings are precise and definite. In legal parlance, Punishment can be simply described as a society’s reaction to crime.[2]  Although the concept of crime is also an interesting subject to discover in its own right, we cannot go into such details and will take crime, for the purposes of our present discussion, in its generally accepted legal meanings. While Paton defines crime as a breach of public law,[3]  Salmond considers it to be an act deemed by law to be harmful to society in general.[4] Now turning to punishment, a workable definition of Punishment is “infliction of hard treatment by an authority on a person for his prior failing in some respect (usually an infraction of a rule or command)”.[5]  Not only is there a great confusion regarding the concept of punishment in its various social facets, but the scholars are not agreed even about a legal definition of punishment. Thus, there is a lot of debate about the nature and exact definition of Punishment, especially regarding its murky boundaries with tort. In this scenario, Hart[6] defines Punishment in terms of five elements, viz, infliction of pain on an offender for commission of a crime which pain is intentionally administered by human being under a law.[7]

In addition to above elements, however, achievement of specific objectives, such as revenge or reformation, are also vital aspects of the punishment. Thus confinement of a psychotic person by legal order of an authority, although involves suffering of the confined which can be for inflicting injury to someone and thus breaking law, yet it is done neither as a result of guilt of the psychotic (revenge) nor considering that this will reduce the incidence of psychoses in the community (reformation);[8]  and so is not a punishment.

  Punishment, as crime, is an age old institution. We can safely say that the institutions of crime and punishment are as old as the institution of law, rather the institution of society itself. There has been a gradual evolution of concept of punishment. This evolution has been less entwined with the concept of crime and more with the perspective of intellectuals about society and the place of a citizen in it.

Historically, three types of crimes followed by three types of punishments are found in the non-literate societies. The most serious category of offences, such as treason, would result in death penalty. Death penalty would be justified on the grounds that offender was a pollution for the tribe and his elimination was required for the hygiene of the tribe as well as sacrifice to god. The second category of crimes were injuries inflicted by one family member to a member of another family of the same tribe. Such injuries including murder and theft were considered private injuries and punishment of the offender was the revenge taken by the victim party directly, without the intervention of the tribal society as a whole. Third group of offences were the injuries, including murder & theft, committed by a person against another member of his own family in the tribe. Such offences were punished only through expression of social disgust on the ground that physically punishing the offender will further weaken the victim family. With the rise of Kingship and institution of formal Courts backed by the central authority of State, crime and Punishment became public matters.

However, the basic concept of punishment still remained devoid of any utility. Criminals were mutilated or killed as a punishment, but it was primarily to eliminate him from society or to incapacitate him to commit the crime again or else, simply to mark him so that everyone should know that he is not the man to be trusted.[9]

Another few centuries went by like this; man dealing with crime and punishment according to his mythological view of the world, without thinking through the issue logically. “It was not until the modern period that the clearly punitive reaction to crime-the purposive infliction of pain on the offender because of some assumed value of the pain-became popular.”[10] Now we will take a glance on various aims that different schools of thought are set to achieve through infliction of punishment. Which of these schools of thought is adopted is a decision which makes a whole lot of difference in a system of administration of justice.

MODERN THOUGHT ON THE RATIONALE OF PUNISHMENT:

Generally speaking, there are three dominant reasons justifying punishments viz., retribution, incapacitation and deterrence. Retribution is seen as a means of equalizing the offender with the victim; incapacitation ensures isolation of bad social material from good social material; and deterrence presses psychological impressions on the offender as well as on other potential offenders, persuading them rationally that committing crime would be a bad bet.[11]

Philosophically, however, punishment can be looked at from two aspects. Either it can be regarded as a method of protecting society by reducing the occurrence of criminal behavior, or else as an end in itself.[12] It seems that like in every other field, the combat here too is between idealists[13] and realists.[14] Idealists see a situation or a problem from the point of view of a perfection to be achieved, no matter how difficult or unachievable it may seem. On the other hand, realists see a problem with the sole purpose of solving it within the available and possible resources. Thus, while idealists relate punishment to guilt and moral liability of the offender, which he discharges by undergoing the punishment and the ‘price’ he pays while undergoing punishment, thus enabling the victim feel satisfied, realists bind it to controlling the incidences of crimes in the society.

John Rawls maintains that there are two justifications for inflicting punishment i.e., Retribution and Utilitarian. Retribution entails that punishment is justified on the moral ground that a person who does wrong should suffer in proportion to his wrongdoing.[15] Utilitarian view, on the other hand, holds that punishment is only justified if it effectively promotes the interests of the society. According to Rawls, whether one holds Retributive or Utilitarian view depends on the perspective from which punishment is looked at. Therefore while a Retributionist would ask why “J” was sent to jail, a Utilitarian would ask why do people put other people in jail? Whereas Retributionist will get the answer that “J” committed a crime, was caught, tried and was found guilty in trial which ended him up in the gallows, the answer to the question of a Utilitarian would be very different from the first answer as this question is not trying to understand the nature of an event, but the nature and the underpinnings of a phenomenon; a whole institution. So the Utilitarian answer would be that “J” was sent to jail in order to isolate him so as to protect good people from the bad ones. [16]

The rationale of Retribution[17] is based on three elements. Firstly, that committing a crime amounts to violation of the Social Contract[18] and thus society gets the right to punish the culprit for such a violation. Secondly, that criminal deserves the punishment as he is guilty of an act which is not only wrong but is against the collective good and interests of the society. And thirdly, that punishing the offender is entwined in the very nature of the human being and thus is an essential feature of the society without which the social fabric cannot be maintained.[19] On the other hand, the rationale of Punishment according to Utilitarianism is based on the principle that Punishment is a tool to keep the crimes in the society to the minimum.[20] This implies that criminal is not seen as an enemy to be defeated, in mind, body, and to an extent financially, but simply as a problem to be solved, be it by reformation, incapacitation or elimination. However, utilitarian approach does not limit itself to solving the problem at hand, but takes care of potential offenders too. Thus, in order to discourage offenders from repeating the crime and to check potential criminals from realizing their potential, it uses deterrence as a goal of punishment. What factors of punishment are actually related to its deterrence is the subject that we will explore in the next section.

IS DETERRENCE OF PUNISHMENT RELATED TO ITS HARSHNESS? PAKISTAN SCENARIO:

It has been argued[21] that there are no objective rational criteria for measuring the “just-ness” of a punishment inflicted for a particular crime; neither can it be! The decisions of the legal and the penal institutions of the society, regarding the mode and extent of punishment, are irrational. The decision that a particular act falls in the category of a crime[22] and the consequent decision as to what punishment is to be awarded justly in a particular case, is essentially a moral decision and there being no criteria for taking such decisions, they are made arbitrarily.[23] A latest view on the subject states that “[w]e do not punish on the basis of deliberative probability analysis. Rather, we punish in response to visceral, deeply held, and sometimes difficult-to-explain intuitions. Moreover, the degree of sanction is driven by moral outrage and various cognitive biases, not by scientific calculations of optimal deterrence.”[24] Thus when punishment is seen as retribution, it is taken as an end in itself and all that can be achieved from it is ‘most appropriate revenge.’ Therefore punishment as retribution, although can justify itself on the ground that it promotes a feeling of ‘justness’ in the society generally and especially in the victim, its utility for the general benefit of the society is dubious. It is especially dubious because neither the criteria for its appropriateness nor the effectiveness of its consequences can be measured or planned.  

In Utilitarian perspective, punishment is taken as a means to achieve a higher and nobler goal than merely taking revenge on behalf of the victim. The Utilitarian aim of punishment is prevention and reduction of crime in the society. Arguably, the most effective way to achieve this goal is deterrence. The popular way of increasing deterrence of a crime is by increasing the harshness of its punishment. However, modern studies indicate that relationship of harshness of a punishment with its deterrence is dubious. According to general belief, severity of imprisonment should be directly proportional to its length. However, studies have indicated otherwise. Several studies reveal that longer prison sentences do not reduce chances of repetition of a crime. This can be because most of the jail inmates adopt themselves to prison environment,[25] thus lessening the degree of severity to a considerable effect.[26] It is a popular belief that deterrence can be increased by either of the two modes: by increasing likelihood of punishment or by increasing severity of it. Psychological research indicates that high probability of detection and conviction is much more effective deterrence against a crime, as compared to high degree of harsh punishment.[27]

Conviction rate in Pakistan, along with many third world countries, is low by western standards.[28] The reason, however, is obviously not the lack of harsh punishments; we have plenty of them. In Pakistan, due to low conviction rates, and especially due to the length of intervening span between the commission of offence and conviction, which ranges from few months to few years and sometimes even to decades, conviction is neither seen as an effective deterrence by the culprits, nor as a sufficient retribution by the victims. However, due to untrustworthy political system, incurring frequent regressions due to imposition of recurrent martial laws, people have opted out of the political solution and instead, have picked up a social solution. This social solution, however, has jeopardized our whole system of criminal administration of justice. Instead of deposing true facts of occurrence and focusing their efforts on getting conviction[29], Pakistani victims have started framing their complaints with the aim of getting the occurrence fit in the category of cognizable offences.[30] This inevitably leads to distortions in true facts, which ultimately plays its part in further lowering the conviction rate. Again, instead of focusing their efforts on getting conviction of the offender,[31] victim focuses on maneuvering the investigation in order to ensure that accused is refused bail and he spends longer possible time in jail as an under-trial prisoner; because that is what a Pakistani victim considers the actual punishment that he can get inflicted on his accused. This again distorts the actual facts of the case and plays a significant role in further lowering the conviction rate. In its turn, this further lowered conviction rate, coupled with the time required for getting a criminal convicted, further lowers the public trust in the judicial system, and the snow ball effect continues.

CONCLUSION:

Deciding what act is to fall in crime and how must it be dealt with, is a political question with society holding the sole prerogative of deciding it. But gone are the days when societies would behave as a mob and take foundational social and political decisions on the basis of sophistries of the shallow orators. Modern complex society demands rational decisions on scientific basis. Although there can be instances where increasing harshness of punishment would have proved to be an effective deterrent, this cannot be taken as a rule of thumb. Modern studies suggest that increasing severity of punishment is often ineffective, sometimes even counter-productive, in enhancing its deterrent effect. The effective deterrence is increasing the probability of detection & conviction. But this cannot be achieved unless investigation is conducted efficiently & scientifically and trial procedures are made simpler, fairer and expeditious, which, in turn, will win over the public trust in the system, encouraging them to be fairer in their complaints.

In our society, where investigation is often inefficient and seldom fair, severity of punishment for a crime always generates cautious, narrow and untrustworthy view of the judiciary to the prosecution case. This further explains such a dramatically low conviction rate.

Another vital aspect of the scenario, however, is rampant mis-statements by everyone involved in the trial. This results in extremely low conviction rate, which gets translated into low deterrence. Thus lack of social awareness as to the need of fair trial is also a major contributing factor in over all failure of the system. The realist picture of our system of criminal administration of justice, in so many words, is that in order to take revenge from the culprit, complainant falsely implicates his/her whole family. Culprit falsely denies the charges. Investigation officer does not investigate fairly and places before the court a distorted picture of the case. Then all these liars demand justice from the Courts. And they get what they deserve.[32] Thus in order to curtail crime in our society, focus should be on creating awareness about working of system of criminal administration of justice and increasing probability of detection and conviction rather than increasing harshness of punishment.

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[1] J.M. Coetzee, Disgrace (Vintage, 1999) 219. “What the dog will not be able to work out (not in a month of Sundays! he thinks), what his nose will not tell him, is how one can enter what seems to be an ordinary room and never come out again. Something happens in this room, something unmentionable: here the soul is yanked out of the body; briefly it hangs about in the air, twisting and contorting; then it is sucked away and is gone. It will be beyond him, this room that is not a room but a hole where one leaks out of existence.”

[2] Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 301

[3] David P. Derham, A Text-Book of Jurisprudence by G.W.Paton (Oxford University Press, 1964 reprinted 1967) 317

[4] P.J. Fitzgeral, Salmond on Jurisprudence (Sweet & Maxwell, 1966); Reprinted by National Book Foundation of Pakistan, 92

[5] Joel Feinberg, Doing and Deserving (Princeton, N.J.: Princeton University Press, 1970); from Joel Feinberg & Hyman Gross, Philosophy of Law (Wadsworth Publishing Company, 1991) 635

[6] H.L.A. Hart

[7] H.L.A Hart, Punishment and Responsibility (New York and Oxford: Oxford University Press, 1968); from Joel Feinberg & Hyman Gross, Philosophy of Law (Wadsworth Publishing Company, 1991) 657

[8] Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978) 305

[9] W.L.M. Lee, History of Police in England (London: Methuen, 1901), 10, quoted in Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978), 307-8

“[a] detected criminal was either fined, mutilated, or killed but punishment as we now understand the term, was seldom inflicted, that is to say, the dominant idea was neither to reform the culprit nor to deter others from following in his footsteps. If a man was killed it was either to satisfy the bloodfeud or to remove him out of the way as a wild beast would be destroyed; if a man was mutilated by having his forefinger cut off or branded with a red-hot iron on the brow, it was done not so much to give him pain as to make him less expert in his trade of thieving and to put upon him an indelible mark by which all men should know that he was no longer a man to be trusted; if a fine were levied, it was more with a view to the satisfaction of the recipients of the money or cattle or what not, than with the intention of causing discomfort or loss to the offender.”

[10] Edwin H. Sutherland & Donald R. Cressey, Criminology (J.B. Lippincott Company, 1978), 305-308

[11] Mc Guire, J., Understanding Psychology and Crime: Perspectives on Theory and Action. Maiden head, Berkshire: Open University Press (2004), 171-198. Quoted in; Eilidh Mac Donald, Does Imprisonment as a Punishment Deter Crime? Available at: http://justspeak.org.nz/wp-content/uploads/2012/11/Does-imprisonment-deter-crime.pdf. Accessed on 24th of June, 2014.

[12] P.J. Fitzgeral, Salmond on Jurisprudence (Sweet & Maxwell, 1966); Reprinted by National Book Foundation of Pakistan, 94

[13] “A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.” John Rawls, A Theory of Justice (Oxford University Press, 1971) 3

[14] “Never forget that everything Hitler did in Germany was legal. Martin Luther King, Jr.”

Rosemarie Jarski, A Word from the Wise (Ebury Press, 2006) 290

[15] John Rawls, Two Concepts of Rules, The Philosophical Review, Vol. 64 (1955) pp. 3-13, reprinted in Ethics by Lawrence M. Hinman, University of San Diego, 2

[16] John Rawls, Two Concepts of Rules, The Philosophical Review, Vol. 64 (1955) pp. 3-13, reprinted in Ethics by Lawrence M. Hinman, University of San Diego, 3

[17] It must be seen that the Islamic view of punishment is very different from the Western concept because western concept of punishment is based on a crime which is seen as a secular act of violating a social law. In contrast to western view, Islamic philosophy of punishment is very different as in Islam the concept of crime and sin are intertwined. Thus Islamic philosophy of punishment, although containing tinges of other aspects too, is overwhelmingly based on Deterrence (Zajr). As according to most of the Islamic Jurists, threat of punishment in the After-Life does not sufficiently deter people from committing crimes, which makes punishment in this world a necessity.

Rudolph Peters, Crime and Punishment in Islamic Law—Theory and Practice from Sixteenth to the Twenty-frist century (Cambridge University Press, 2005), 30

[18] The famous theory that society is created through a contract by every member of the society thereby trading part of his liberty for the protection by the society.

[19] Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and Bartlett Publishers, Inc, 2006), 4-5

[20] Joycelyn M. Pollock, Prisons Today and Tomorrow (Jones and Bartlett Publishers, Inc, 2006), 5

[21] J. Charles King, A Rationale for Punishment, Journal of Libertarian Studies ( Spring 1980), 151-165

[22] Miriam H. Baer, Choosing Punishment, Boston University Law Review (2012) Vol.92, 577, 596.

But criminal philosophy has yet to distill, in a concrete and usable fashion, an objective means for identifying the quantum and nature of conduct that “deserves” punishment.

[23] J. Charles King, A Rationale for Punishment, Journal of Libertarian Studies ( Spring 1980), 161

[24] Miriam H. Baer, Choosing Punishment, Boston University Law Review (2012) Vol.92, 588

[25] This is especially relevant in the cases of longer sentences.

[26] Gendreau, P., Goggin, C., & Cullen, F.T. The Effects of Prison Sentences on Recidivism, Department of the Solicitor General Canada (1999), Public Safety Canada.

[27] Gabriel, U. & Oswald, M.E. (2007), Psychological analysis of punishment, D.S. Clark (Ed.), Encyclopedia of Law and society: American and Global Perspectives (pp. 1252-1254), Thousand Oaks: Sage. Also see Policy Backgrounder No. 148, August 17, 1998. Available at: http://www.ncpa.org/pdfs/bg148.pdf. Accessed on: 24th of June, 2014.

[28] Conviction rate in USA is 95% while in Pakistan its merely 5%, ref; The News International (Pakistan’s English language daily Newspaper, Low Conviction rate linked to poor probe, prosecution, Friday, November 22, 2013. However, the USA figures will probably reduce drastically if statistics are confined to serious crime alone.

[29] Due to above stated reasons.

[30] In this category of offences investigating agencies can arrest the accused without first obtaining warrants of arrest from a judicial magistrate.

[31] Again for the above stated reasons.

[32] Statement made by a retired trial judge in an informal meeting with the author.