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Deterrent Punishments

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Deterrent Punishments

How the purpose can be achieved?

In simple connotation, the concept of ‘deterrence of punishment’ means ‘threat of punishment’. Undeniably, deterrence is a ‘must’ factor for the maintenance of an effective criminal justice system, and for the preservation of society because without maintaining a certain level of deterrence of punishments, society may become a gangland in which the consequences of crime bother no one. Prof. John Salmond, a prominent jurist, has rightly said, “Punishment is before all things deterrent, and the chief end of the law of crime is to make the evil-doer an example and a warning to all who are like-minded with him.”
Types of deterrence with regard to its subjects
In criminal jurisprudence, deterrence is mainly of two types: specific deterrence and general deterrence. It is specific when it is aimed at the offender, and general when the subject is evil-minded strata of society. In almost every society, there are three classifications: the first is composed of upright and law-abiding persons who commit no crime; the second comprises those persons who are usually or habitually involved in criminal activities; the third consists of the persons who are in-between the first two categories, but is at risk of falling in the category of criminals. A good deterrent policy is the one that provides appropriate punishment for the offender falling in the second category, and also provides a sufficient threat of punishment for the persons in the third category who have a tendency of falling in the second category but, simultaneously, it does not terrorize the law-abiding citizens – the first category.
Essential elements of deterrence: how will it work effectively
There are three basic elements of a deterrent policy: severity, certainty and celerity. These elements must co-exist in a criminal justice system for bringing in the desired results. Each of the above elements also represents primary and secondary roles of three basic pillars of the state – the legislature, the executive and the judicature – effective performance of each is necessary for achieving the ultimate goal of the law of crime, i.e. prevention of crime. Each element is discussed below:
i. Severity of Punishment: Primary Role of the Legislature
The severity of punishment is to be fixed primarily by the legislature. Each crime must have a punishment prescribed proportionate to its intensity and nature. One principle, which is by now widely recognized and mostly followed in the modern world, is that the punishment must not be brutal in nature. It must not be revenge-driven. It should be just and it must not be in violation of human dignity, which is protected – without any exception – by the Constitution of Pakistan, 1973. In the primitive world, some extremely brutal punishments were recognized. For instance, in the Roman legal system, crucifixion was employed as a means of execution; in the Dark Ages of England, hanging, drawing and quartering was a grisly penalty for treason; hanging at crossroads was widely followed in many parts of the world. One may remember that less than a century ago, the corpus of Mussolini was hanged in the Piazzale Loreto and was fired at. All the above-mentioned punishments were brutal or revenge-driven; therefore, these are rejected for a modern criminal justice system.
In our criminal law, punishments, ranging from death penalty to fine, are already provided. The death penalty, and that too to be executed in a legal manner, is the severest of punishments provided in Pakistan Penal Code (PPC). Offenses like murder, rape and terrorism are punishable with death penalty. What else could be more severe than the capital punishment? So, any addition in the manner of execution of the death penalty is a violation of the dignity principle of the constitution. Furthermore, life imprisonment, too, is not a less severe punishment. We may imagine its intensity by thinking that the offender would have to remain behind the bars for the rest of his life. There is a general misconception that life imprisonment is equivalent to twenty-five years in prison. To erase such misconception, it is clarified that imprisonment for life means serving all remaining life in jail. Therefore, we may conclude, in this regard, that the maximum level of acceptable severity of punishments is provided by the legislature; yet the severity of punishment alone is of no use until it is certainly implemented.
ii. Certainty of being caught and punished – primary role of the Executive
As discussed above, increasing the severity of punishment does little to deter crime but increasing the certainty of being caught and punished provides assured deterrence. Research establishes that the high chance of being caught is a way more effective deterrent than even a draconian punishment. How certainty of punishment can be assured is a million-dollar question. Here the Executive’s primary role of policing comes into play. It is the primary duty of the police to prevent the commission of offenses, and if an offense has been committed, the duty is to detect and bring the offenders to book. The proactive role of the police not only prevents crime but also casts fear of being caught in the minds of the prospective criminals. However, the post-crime actions of the police make a real difference. A prompt response, apprehension of the culprit and the collection of irrebuttable evidence in a flawless manner, on the one hand, helps to bring the active-offender to book; and, on the other, enhances the serious potential threat of being caught and punished in the minds of the other would-be criminals hidden in society.
This is the actual point from where the problems of our criminal justice system arise. Our proactive policing does not meet even the minimum modern standards. In the post-crime role of the police, the fractionally low ratio of conviction reflects that our policing system is an utter failure. We often confuse the fear of the police with the fear of punishment: the first is in direct contravention to the modern concept of policing, which encourages a friendly attitude towards the law-abiding citizens and a just attitude towards the criminals; whereas, the latter is the desired destination of almost every criminal justice system. Therefore, it is quite obvious that for increasing the certainty of being caught and punished among the evil-minded strata of society, complete overhauling of our policing system is a must.
iii. Celerity in proceedings – primary role of the Judicature
The proceedings initiated by the police are always concluded by the judicature. The latter, as a neutral player between the accused and the state, supervises the legal process of investigation and also conducts the trial of the accused for determining the veracity of the charges. For casting an effective deterrent effect of punishments, it is mandatory that every stage of investigation and trial must not only be well organized but also be made transparent and swift. In the developed countries, we may observe, these legal processes are conducted diligently, with accuracy and without unnecessary delay; the outcome is enhanced deterrent effect.
Now, have a glimpse of situation at home. Delay and technicalities are the hallmarks of our judicial system. It takes years to conduct a trial and to punish a wrongdoer. It would be a nominal number of victims who are sure that, in the end, they will be served justice. Sorry to narrate but where the victims are not confident that justice would be done, how could the culprits be deterred in this system from the consequences of crime. There is a famous saying, equally well-known among the legal fraternity and civil society that ‘Justice delayed is justice denied’. The delayed justice is the most prominent among the reasons which have ripped the entire fabric of our system. Therefore, to combat the menace of crime, we have to ensure that post-crime legal proceedings are completed in a transparent manner and within a reasonable time, and punishment is inflicted upon the culprits and sound a warning for other like-minded people.
Before parting with this writing, I want every reader to assume for a moment that, in our country, not even a single offense goes without being punished and that all the culprits are punished according to the law, which already provides severe punishment; would not that be a deterrent sight for the others? Solution lies in ensuring certainty and celerity.

The writer is a former Civil Judge-cum-Judicial Magistrate and holds an LL.M (Criminology) degree.

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