Now before jumping to the conclusion related to the death penalty and its legitimacy, first let us look at what are the alternatives available according to other theories of punishment. The ‘retributive theory of punishment’ is based on the principle of an eye for an eye and a tooth for a tooth. This emphasizes the retribution which must be given to the victim or his family members. So, this establishes that the punishment enforced should be directly proportional to the crime committed. However, this theory has its limitations, because the basis itself of this theory is vengeance, which is not in conformity with civil society. For example, if a person causes the death of another person while exercising his right to private defense, even then he will be subjected to the death penalty according to this theory.
The ‘preventive theory of punishment’ rests on the principle of preventing the crime rather than avenging it. Looking at punishments from a more humane perspective it rests on the fact that the need of a punishment for a crime arises out of mere social needs, i.e., while sending the criminals to the prisons the society is, in turn, trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements. For example, an owner of the land puts a notice that ‘trespassers’ would be prosecuted. He does not want an actual trespasser and to have the trouble and expense of setting the law in motion against him. He hopes that the threat would render any such action unnecessary; his aim is not to punish trespass but to prevent it. But if trespass still takes place, he undertakes a prosecution.
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Thus the instrument which he devised originally consists of a general warning and not any particular convictions. Thus it is quite clear by the illustration that the law aims at providing general threats but not convictions at the beginning itself. However, if really a crime has to be prevented, then why not take a stringent step ab initio?
The ‘reformative theory of punishment’ is based on the complete reformation of the criminal. This reformation is specifically related to the psychological and social aspect too. This theory can be seen as the most humane of all theories of punishment. The thought of not looking to criminals as inhuman is the base of this theory. It puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crimes.
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The approach to this theory is quite novel. However, the strict implementation of this theory in practicality is a bit of a question mark. The reason behind this is that though it may sound very modern and open-minded that the reformation of the mindset of the criminal is of utmost importance, but is that the only thing which is important for the criminal justice system of any country? The answer is a clear ‘no’. Though the reformation of the criminal is also important, this does not mean that it should be at the cost of justice. The victim’s interest is of paramount importance too. One cannot turn a blind eye to the fact that just for a more humane sounding objective, a lesser punishment cannot be meted out to the offender.
Thus, as most of the criminal justice systems have found out over a period that no one particular approach is perfect, a combination of these approaches continues to exist in several countries of the world. Some of the contemporary scholars and jurists are of the view that the death penalty as a means of punishment for achieving a reduced rate of crime in society has failed. The same section proposes the theory that death sentence should be abolished in all the criminal justice systems of the world. However, I tend to disagree with that line of thinking. There is no certainty that even if a nation abolishes the death penalty, it may help in achieving a reduced rate of crime in the society.
On the contrary, there is a strong possibility that this may incentivize the criminals even further to commit crimes as they would be assured that the maximum punishment that can be meted out to them is life imprisonment and that there is no provision in the law which may cut short their life. Imagine there is no provision for a death penalty in India during the trial of the horrendous Mumbai attacks in 2008. Would that be justice done to the police personnel and civilians killed in the attacks? Imagine the same situation arising at the time of pronouncing the sentence for the Nirbhaya gangrape case. Would that be justice meted out to her and her family?
Therefore, it may seem a fancied idea to abolish capital punishment, but there are more chances of the criminal justice system getting more criminal friendly than society friendly if it is done so. Unless there is a strong case of making the community safer by dramatically changing the criminal justice system, the idea of death penalty abolition must not be implemented for the larger good of the public in general.
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