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THEORIES OF JUDGEMENT

Punishment has been viewed from a number of theoretical


perspectives:

.. We have thought it necessary not only to analyze the facts,


but apply those facts to the classical principles of sentencing.
Those classical principles are summed up in four words:
retribution, deterrence, prevention and rehabilitation. Any judge
who comes to sentence ought to always have all those classical
PRINCIPLES in mind and to apply them to the facts of the case to
see which of them has the greatest importance in the case with
which he is dealing. (R v. Sargent (1974) 60 Cr App R 74, CA per
Lawton Lj)

These theories can be put in two groups :


1. Retribution
2. Utilitarianism (deterrence, prevention, rehabilitation)

Retribution
The oldest theory of punishment
Based on the idea that the criminal ought to suffer for his wrongs
and sins
also captured in the term, lex talions (an eye for an eye, a tooth
for a tooth)
(See Leviticus 24:17-24)

Kant advocates that punishment is an end in itself


Retribution is founded on vengeance for the society and
deserved chastisement of the individual

The case for retribution


Criminal must pay for their crime in proportion
Killers must be killed and those who cause suffering must suffer
Deviance must be punished.

THE

CASE AGAINST RETRIBUTION


It adds one evil on another
Punishment is cruel and senseless if it does no good
It legitimizes social hatred and anger.

UTILITARISNISM (looking for a good) REHABLIATION

Based on the principle that the purpose of punishment should be


to reform.

Criminal should be steered away from crime


Punishmnet should aim to transform the offender into a valuable
member of society
Further basis of theory
Stopping crime is achieved through reformation of criminals
Crime is a function and effect of the socio-cultural environment
(nurture)
Education, training and employment may make the criminal
abandon crime
Society should aim at bringing back a wayward member and
compel him/her to respect the values and rules of society.

See

There is hope for reformation in a criminal


Abu v others v The Republic.
Budu v The Republic cited in Darkurugu v R.
Tinieye & Another v R.

The case against rehabilitation/information


A persons character cannot easily be changed
Reformation and change come from acknowledgement of
wrongdoing, deviance or abnormality, leading to a willingness to
change.
UTILITARAINISM DETERRENCE
Funded on the notion that man will be deferred from crime if
punishment is swift, certain and severe.
Founder of the theory Jeremy Bentham
See Apaloo & Ors v the Republic (read crabb J)

Deterrence aims to defer both the individual offender and the


society at large
Specific deterrence to the individual
General deterrence to the society
Punishment must be so severe that no one will dare to commit a
particular crime
CRITIQUE OF DETERRENCE
How do we measure deterrence? How do we determine that
reduction in a particular crime is as a result of the deterrent
punishment?
Evidence from incorrigibility of some category of criminals. E.g.
Hardened criminals.

UTILITARIANISM INCAPACITATION/PROTECTION
Punishment should aim to keep criminals away from society to
protect the latter from the misconduct of the former
Capital punishment for example, frees society forever from the
evil of hardened or wicked criminals
Long prison sentences would keep dangerous elements in society
from preying on the law abiding ones
Incarcerate to incapacitate
Prison may not change future behavior but it forestalls
expression of that behavior in public
CRITIQUE
Incarceration is not the only form of incapacitation
Innocent persons could be marred, scarred and stigmatized for
life
CONSIDERATIONS FOR CHOOSING A BASIS FOR PUNISHMENT

All theoretical approaches are open to a judge


Thw Sentence or punishment will depend on the facts of the case
and the evaluation of the case by the judge.
Cases
Gundea v The Republic
Budu v the Republic
Haruna v the Republic
RESTORATIVE JUSTICE

A new trend in punishment


Seeks to divert punishment as understood in the traditional
criminal justice
Focuses on collective state interest as opposed to individual
interest
Seeks dialogue and peace between the offender and the victim
Focuses on acceptance of guilt by the accused and the
satisfaction of the victim
Usually done through peace-making tribunals, truth commission,
reconciliation commission or both
Proponents argue that restorative justice mends the broken
relationship that crime creates in society
Antagonists ask how restorative justice actually works.
Does restorative justice defeat the ends of criminal justice

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