Punishment is deemed to be the bedrock of criminal law. there is no exact definition of punishment. However, in an attempt to describe it, punishment enatails the infliction of suffering by a deliberate act of the authority of the State on an offender after he has been lawfully convicted for an offence.
INDICES
⦁ Punishment is inflicted on a person found guilty of an offence – This suggests the possibility that it may be inflicted on a person who may not be factually culpable.
⦁ It involves the infliction of some pain or suffering or deprivation – this may take the form of imprisonment, fine, or the imposition of the performance of some service – therefore, a pleasant visitation is anything but punishment.
⦁ It must be inflicted deliberately or intentionally by the authority of the State – so if the pain, suffering, or deprivation is the unintended consequence of the action of the authority of the State, it is no punishment
⦁ Punishment must be meted out to a person by another – so if a person inflicts pain or suffering or some deprivation on himself, it does not qualify as punishment – self-flagellation is no punishment – a self-flagellant is a person who scourges himself as a religious discipline or as a sexual stimulus.
⦁ Punishment is related to the commission of a crime – it cannot be imposed in a vacuum – it must be the consequence of the commission of a crime – therefore punishment cannot be imposed before the commission of a crime.
⦁ Some writers suggest that a feature of punishment is that it symbolizes an expression of disapproval for the violation of a rule.
⦁ from the foregoing, punishment is distinguished from non-punitive penalties like flunking an exam, disqualification, off-side, spot-kick, dismissal etc. – i.e. punishment is a strict and narrow form of penalty
PURPOSE/AIMS OF PUNISHMENT
Punishment is intended to ensure compliance with the criminal law. it is intended to achieve a desired object.
JUSTIFICATION OF PUNISHMENT
⦁ it vindicates the law
⦁ it upholds the majesty of the law
⦁ it encourages us to obey the law.
THEORIES OF PUNISHMENT
There are two main theories; retributive and utilitarian theories of punishment.
RETRIBUTIVE THEORY
There are two themes of this theory; classic retributive theory and proportionality theory.
CLASSIC RETRIBUTIVE THEORY: This theory is based on seeking revenge. It is to the effect that the offender should be paid back in their own coin – lex talionis – the law of retaliation. This theory is modified into:
The Proportionality Theory: This denotes that punishment must fit the crime – i.e. the moral culpability of the offender justifies the punishment. As such, punishment must not be imposed out of proportion to the offence committed. MELFA v THE REPUBLIC APALOO v THE REPUBLIC KWADU v THE REPUBLIC
REASONS WHY RETRIBUTIVISTS PUNISH
The focus of retributivism is on different degrees of punishment for different degrees of crime. A retributivist punishes because the offender deserves it – this is in contrast to utilitarian views that base punishment on the ideal of the greater good of preventing future offences and also in contrast to justifying punishment on the good it does the criminal. Under the retributive theory the consequences of punishment are irrelevant to its justification.
UTILITARIAN THEORIES
This theory is attributed to Jeremy Bentham. It is to the effect that law must ensure to the greatest good for the greatest number of people. It also posits that the moral worth of an action is determined by the outcome – i.e. the end justifies the means.
The utilitarian theories of punishment therefore are to the effect that punishment must be a means to an end – it should not be imposed for its sake – it must serve a purpose – the purpose it serves being the end. Here, the focus is on the beneficial consequences of punishment and not really the suffering visited on the offender.
⦁ Deterrence: Punishment is imposed to communicate to the community that such conduct would not be tolerated thus reducing the incidence of crime. Here, punishment reduces crime through fear by discouraging others from engaging in similar conduct in the future.
HARUNA v THE REPUBLIC
On appeal against a deterrent sentence of eight years imposed on a young man aged 26 by the trial circuit court for the first offence of possessing Indian hemp contrary to sections 47 (1) and 57 (1) of the Pharmacy and Drugs Act, 1961 (Act 64), HELD: that when young men have their first brush with the law, it is essential in the interest of the reformative element in criminal justice that they be not sent to prison unless a prison sentence is a mandatory legal requirement. If a prison sentence is not a mandatory legal requirement, then as a general proposition, unless there are special circumstances calling for a custodial sentence, the court must avoid incarcerating young offenders’.
⦁ General Deterrence: This focusses on the effect of punishment on society at large. They are usually severe and the offender is usually seen as a scape goat. Here, the special circumstances of the offender are often taken into consideration thereby leading to the imposition of harsher sentences than would otherwise have been imposed – for instance, if a person in authority commits a crime or someone who should have known better, like a law enforcement agent, commits a crime, a harsh sentence is often imposed. KWASHIE v THE REPUBLIC, ADU BOAHENE v THE REPUBLIC
⦁ Specific Deterrence: This seeks to discourage the individual offender from repeating the commission of a crime – that is, it seeks to prevent recidivism.
⦁ Prevention: The focus here is removing the individual offender from society to render him physically incapable of committing further crimes.
⦁ Reform and Rehabilitation: This is aimed at assisting the offender to turn a new leaf by adopting a lifestyle different from the criminal one through moral education.
⦁ Atonement and Reparation: Here, the offender is made to compensate the victim for the damage or injury resulting from his criminal conduct.
CRITIQUE OF THE THEORIES
⦁ The retributive theory is criticized for focusing too much on the punishment – it is said that punishment for its sake does no good – that, punishment requires some good to justify it.
⦁ The utilitarians further argue that there is no such thing as just deserts because it is only God who knows what people truly deserve and that by just deserts, we are just playing God.
⦁ Further, the utilitarians argue that we are all guilty – so that if we each got what we truly deserved, we would all be punished – based on scripture – no one is holy, no, not one – judge not, lest thou shall be judge – he that is without sin among you, let him cast a stone at her
⦁ The retributivists would also remark, in practice, all punishment is essentially retributive because it is imposed in response to the commission of a crime and not because it could prevent crime.
⦁ It is also said that punishment itself seldom reforms the criminal and it never deters others.
⦁ The utilitarians would ask the retributivists – are you not being barbaric by inflicting suffereing on an offender, regardless of the consequence? Aren’t you merely punishing for the sake of punishment?
⦁ The retributivists would respond – is it wrong to punish an offender for the sake of punishment – is that not a desirable consequence? The retributivists would in turn ask the utilitarians – if your aim is to achieve desirable consequences by inflicting suffering on the offender, and not because the offender has committed a crime, then why don’t you punish an innocent man, by pretending that he is guilty. To this, the utilitarians would respond, that their focus is on punishment of the morally guilty
From this, it appears that none of the theories is foolproof and as such, it has been suggested that there should be a third justification which will be a dual justification, called Teleological justification (rightness of an act is determined by its end) and Entitling justification (the problem of avoiding injustice to individuals in the pursuit of goals).
Requirements of Criminal Liability
In law, liability (in general) may be
⦁ strict
⦁ absolute
⦁ vicarious, or
⦁ based on fault
Where liability is based on fault, a person’s actions or omissions by themselves would not render him culpable unless he is morally blameworthy for that act or omission
Liability is said to be strict as long as it can be shown that a person’s act or omission has resulted in a particular undesired result. In this case, it is immaterial whether he was at fault or whether he is morally blameworthy – however, he is afforded defences, if any defence is available to him
Liability is absolute where the defendant’s moral blameworthiness is immaterial and he is afforded no defence whatsoever
Vicarious liability involves holding a person responsible for the acts or omissions of another
In criminal law, the general rule is that there cannot be liability without fault or blameworthiness. Before a person is convicted of a crime, the law requires the ascertainment of whether he was at fault or whether he is morally blameworthy.
From this, there are two conditions that must be fulfilled in criminal law before a person’s guilt can be established, namely:
⦁ a physical act (actus reus): that the person has committed a prohibited act
⦁ a requisite mental element (mens rea): that the commission of the prohibited act was accompanied by a prohibited mental state or state of mind.
The two elements must coincide in respect of the same event for the act to amount to a crime – if either element is absent, then the general rule is that no crime has been committed. This finds expression in the Latin maxim actus non facit reum nisi mens sit rea – an act does not make a man a criminal unless the mind be guilty.