CRSS 321 PENOLOGY

Introduction

Penology, also called Penal Science, is the division of criminology concerned with the philosophy and
practice of social efforts to repress criminal activities. Penology comes from the Latin word poena which
means punishment and it is concerned with an in-depth examination of the formal institutions of criminal
justice such as police, courts and corrections. It is concerned with the process devised and adopted for
punishment, prevention of crime and treatment of prisoners.

Sentencing and punishment are currently increasing profile policy issues. They have generated debate and
proposals for new procedures, criteria, social life. This is a policy area that is also complex and issues of
criminal justice practice and the administration are continually with the public domain. The modern society
has attempted to address the problem of increased crime by building more and more prisons but the futility
of incarceration is apparent, calling for renewed debate on how best to counter this. Sentencing and
punishment are by no means mere academic matters. Policy and practice impact on actual and
potential victims of crime if they fail to prevent or limit reoffending.

The main function of penology is to prevent criminal offences by setting a standard bar of giving huge
punishment. Another major function of penology is to look after the criminal’s mind when he is in prison
to avoid further crimes.

It can therefore be said that Penology is concerned with the punishment and treatment of offenders

PUNISHMENT OF OFFENDERS

Introduction

The punishment of wrong-doers is as old as wrong-doing and as old as society itself. Wherever
human beings have lived, there has always been a behavior that is socially approved and considered
good and proper by the majority of the people; similarly, there has always been aspects of social
behavior that hurt the interests and the feelings of the members of the same group. In most human
societies today there are rules that have been codified and set out as laws whose main purpose is
the maintenance of order among human beings; the violation of these laws calls for societal
reaction.

Punishment is therefore one of the many devices to which society resorts to restore harmony or to
repair the damage done by violation of the law.

The Concept of Punishment

Punishment is about deliberately causing somebody else harm and suffering, perhaps in response to an
illegal act. It also implies that somebody has the right or the legitimate power to create human suffering.
For a given penal sanction to be understood as a state punishment, it must arise through a person’s illegal
wrongdoing, it must be painful to the offender and it must be imposed only by state officials who have
been given the power to punish in that given society. Following this reasoning, any suffering that is meted
out in response to a ‘crime’ by non-authorized personnel, i.e. vigilantes, must be condemned as illegitimate.

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Essential Elements of Punishment
Punishment is the infliction by the state of consequences normally considered unpleasant, on a person in
response to his having been convicted of a crime‖ (Snarr, 1992: 53). The important elements of punishment,
according to Hart, are the following:
1. It must involve pain or other consequences normally considered unpleasant;
2. It must be administered for some offence against legal rules;
3. It must be administered to an actual or supposed offender for his offence;
4. Persons other than the offender must intestinally administer it;
5. It must be imposed and administered by an authority constituted by a legal system
against which the offence is committed

The Purposes/philosophies of Punishment

Punishment serves numerous social-control functions, but it is usually justified on the principles of
retribution, incapacitation, deterrence, rehabilitation, and/or restoration. Punishment has five recognized
purposes: deterrence, incapacitation, rehabilitation, retribution, and restitution

Deterrence
Deterrence prevents future crime by frightening the defendant or the public. There are two types of
deterrence; specific and general deterrence
Specific and General Deterrence
The two types of deterrence are specific and general deterrence. Specific deterrence applies to an
individual defendant. When the government punishes an individual defendant, he or she is theoretically less
likely to commit another crime because of fear of another similar or worse punishment. General deterrence
applies to the public at large. When the public learns of an individual defendant’s punishment, the public is
theoretically less likely to commit a crime because of fear of the punishment the defendant experienced.
When the public learns, for example, that an individual defendant was severely punished by a sentence of
life in prison or the death penalty, this knowledge can inspire a deep fear of criminal prosecution.

Incapacitation prevents future crime by removing the defendant from society. Examples of incapacitation
are incarceration, house arrest, or execution pursuant to the death penalty.

Reform and rehabilitation; The terms ‘reform’ and ‘rehabilitation’, although often used
interchangeably, in fact mean very different things. Reform ultimately means the changing of the offender.
The aim of reformative punishment is to alter the individual by attempting to re-educate, teach, train or
instill a new morality. The transformation of the offender would have been necessary even if he or she had
not committed the particular act for which he or she is currently incarcerated, because the offender’s
immorality, irresponsibility or lack of respectability is rooted in either cultural deprivation or individual
weakness. The offender is in need of moral education, in the form of work, religion, schooling or vocational
training.

Rehabilitation, by contrast, does not attempt to change the offender, but rather to restore the individual to
that state in which he or she was before the crime was committed. It is assumed that the individual has, in
some way, been changed through the ‘crime’ he or she has committed, or that the ‘crime’ occurred because
of the offender’s mental, physical or moral degradation. This suggests that treatment is most important and

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that, just like medicine, if the problems could be correctly diagnosed, we would be able to cure the offender
and, ultimately, society of problematic behavior. This idea is linked to the medical model, and the
importance of forensic psychology, psychiatry, and medical experts.

According to Philip Bean (1981), the key strengths to the rehabilitation argument are that:

 it treats people as individuals and attempts to deal with the actual person and context of the crime;
 it promotes individual responsibilities;
 it places emphasis on the personal lives of the offenders, focusing on offender motivations and
possible processes that can be invoked to challenge offending or to help someone to cope with life;
 it allows for flexibility and new ways of responding to offending behavior, such as developing
constructive sentences. In this sense, something good comes from the ‘evil of punishment’.

Retribution: Talk of retribution is often linked with talk of ‘justice’. The argument is that we get what we
deserve. Retribution, in its various forms, is rooted in the principle that, if we harm another human being,
we ourselves deserve to be harmed. The retributive approach to punishment has the advantage of focusing
on an offender’s guilt and thus equating the punishment to a wrong that has been done. It also argues for
proportionality, in that lesser crimes should be punished in a lesser way and greater crimes, more harshly.
Retributive punishments are a public statement that the behaviour punished is wrong and should not be
engaged in. It shows that society disapproves of such behaviours. By punishing past crimes, we are
demonstrating that the behaviour is wrong by denouncing them.

In recent times, retribution has been popularized through the arguments of ‘just deserts’. This perspective
has been championed in the work of Andrew von Hirsch (1976). In Doing Justice, von Hirsch argued that
punishment should be commensurate to the seriousness of the offence. Just deserts, however, should not be
seen as an all-encompassing justification for punishment; rather it is linked to sentencing and is
called a ‘distributive justification’. This means that it is involved in justifying the distribution or the meeting
out of punishments.

Restitution it prevents future crime by punishing the defendant financially. Restitution is when the court
orders the criminal defendant to pay the victim for any harm and resembles a civil litigation damages award.
Restitution can be for physical injuries, loss of property or money, and rarely, emotional distress. It can also
be a fine that covers some of the costs of the criminal prosecution and punishment.
Protection: The correctional system is also supposed to protect the rest of the society from criminals. This
includes the policing of streets as well imprisonment of criminals. By keeping criminals in prison, they are
not in a position to harm the public at large with additional criminal acts. Sometimes imprisonment protects
the criminal from harm that could be mated to them by the general public.

History of Punishment
In order to assess the adequacy of modern penal systems, it is necessary to probe into the origin and
evolution of the system of punishment from the earliest time.

Early Stages

In primitive societies men shared with animals the emotion of resentment at injury. The sense of fear and
ignorance led to barbarous method of treatment of offenders. The concept of law and order was not yet

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known. Consequently, the common methods of settling disputes were through personal vengeance such as
dual blood feuds and reparation etc. As pointed out by Prof. Gillin, “in these days’ punishment was
retribution and vengeance. This obviously led to exploitation of the weak by the stronger which resulted
into complete chaos. The life and property were most insecure and always exposed to dangers. At times
even the family members of victim or his clan settled disputes with the offender or his family.

The cases of property damages were generally settled by compelling the offender to pay compensation to
the injured. This remedy was, however rarely, used for personal injuries. With the advance of civilization,
the sense or respect mutual rights and duties developed among people which eventually led to the evolution
of law. Later, the state came into existence and took to itself the task of maintaining law and order in the
community by punishing the law-breakers. The state also sought to redress the grievances of victims who
were injured by the wrongful acts of criminals. Thus, the sovereign used punishment as a substitute for a
personal vengeance through retribution. In early days, the popular modes of punishment were exile,
banishment and outlawry. These methods acted as an effective deterrent in maintenance of the law and
order within the community. Prof. Maitland has pointed that four main forms of punishments Viz.,
outlawry, blood feuds, wite and loss of life or limbs were commonly used in early English society.

Medieval Period

The medieval period in the history of human civilization witnessed an era of religious predominance in the
western world. The tenets of religion had great influence on the administration of justice and penal policy.
Crime began to be identified within sin and violence was detested. Ecclesiastical punishments were mixed
up with the religions notions of cleansing of the souls for the reformation of criminal. Ordeal by fire and
water were commonly used to establish the guilt or innocence of the accused. Thus, the genesis of the
punishments now lay in supernatural forces. It was generally believed that an offender by his criminal
behaviour invoked the wrath the God which entailed his punishment. Offender’s guilt could be washed off
by penance, remorse or expiation which by itself was a sufficient punishment to mitigate his wrong. This
finally led to the evolution of solitary confinement as means of penance by putting the wrongdoer in
isolation.

With the advance of science and knowledge in social discipline, there has been a wave of renaissance and
reformation throughout the European continent. The Declaration of Right of Man in France in 1787 marked
an end of draconic punishments and the beginning of the methodical system of punishment founded on
sound principle that right to punish is limited by the law of necessity. This brought about radical changes
in the administration of criminal justice. In result, penology began to develop as an independent branch of
criminal science` with new treatments methods of punishments for the reformation of inmates. A scientific
approach to crime and criminals has shown beyond doubt that torturous punishment tends to run offenders
more dangerous and aggressive towards society. Alternatively, their rehabilitation through the method of
reformation is considered more useful. With this end in view, the modern judicial tread is to incorporate
correctional methods in the penal programme so as to bring rehabilitation of inmate in the community.

During medieval period, the condition of prison was awfully bad and prisoners were virtually living a life
of hell on earth. Deterrence was the cardinal rule of justice which meant considerable torture and harassment
to offenders. Punishment was used as a means of inflicting pain on the offenders. The theory of vengeance
which is otherwise known as lex–talionis (poetic–penalties) was nothing but a perverted from of retributive

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method of punish. It was founded on the principle on ‘eye –for-an-eye and a tooth for a tooth’. The agencies
implementing this punishment adopted a very attitude towards the offenders.

Modern or Contemporary Penology

With new criminological developments, particularly in the field of penology, it was generally realized that
punishment must be in proportion to the gravity of the offence. It was further suggested that the reformation
of criminal rather than his expulsion from society was more purposeful for his rehabilitation. With this aim
in view, the modern penologist focused their attention on individualization of offender through treatments
methods. Today, old barbarous methods of punishment such as mutilation, branding, hanging, burning,
stoning, flogging, amputation, starving the criminal to death or subjection him to pillory are poetic
punishment, etc. are completely abandoned. Pillory was a method of corporal punishment under which the
offender was subjected to public ridicule by exposing him to punishment in public places. Different poetic
punishments were provided for different crimes. Thus, cutting off hands for theft, taking off tongue for the
offence of perjury, emasculation for rape shaving off the head of a woman in case she committed a sex –
crime or whipping her in public street and similar other modes were common forms substituted new forms
of penal sanctions for the old methods of sentencing.

The present modes of punishment commonly include imposition of monetary fines, segregation of the
offender temporality or permanently through imprisonment or internment or compensation by way
of damages from the wrongdoer in case of civil injury. Undoubtedly, it goes to the credit of eminent
criminologist. Notably Beccaria Garofalo, Ferri. Tarde. Bentham and others who formulated sound
principles of penology and made all efforts to ensure rehabilitation of the offender so as to make him a
useful member of society once again. Garofaro strongly recommended ‘transportation’ or ‘banishment’ of
certain types of offenders who had to be segregated from society. Modern penal systems, however, limit
the punishment of transportation within the homeland so that potentiality of prisoners is utilized within the
country itself. Of late, open jail are being intensively used for long timers so that they can live hood while
in the institution.

It was Beccaria who pioneered classical view of penology, raised voice against cruel and brutal punishments
and advocate equalized treatment for all criminals for similar offences. He reiterated that it was not the
personality of offender but his antecedents, family backgrounds and circumstances, which had to be taken
into consideration while determining his guilt and punishment. This, in other words, meant greater emphasis
on the act’ (crime) rather than the criminal. He was equally opposed to the discretionary power of the court
and argued that the function of determining appropriate makes alone. The system of trial by jury is
essentially an outcome of the classical thinking which treated ‘act’ and not the individual as the object of
punishment. The function of judge/magistrate (or jury) is to determine the question of fact, i.e whether the
crime has been committed by the offender or not, and also to decide the guilt or innocence of the accused
in accordance with the established principles of law. The central theme of penal policy advocated by
adherents of classical schools was equality of punishment for similar offences.

As a reaction to classical view, neo-classics voiced their criticism against equality of punishment on the
ground that it did not respond well with the requirements of certain categories of criminals such as minors,
idiots, mentally depraved offenders or those commuting crime under extenuating circumstances. The
adherents of neo-classical school, therefore, suggested that punishment should be awarded in varying
degrees depending on the mental condition and intent of the criminal. Thus, it was for the first time that an

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attempt was made to shift the emphasis from ‘crime’ to criminal’. The greatest contribution of this school
in the field of penology lies in the fact that it emphasized the need for individualized punishment. This
finally led to classification of criminals into different categories according to the genesis of their criminality.
The object was to make the reformative methods of punishments more effective. Commenting on this
change, Dr. P.K. Sen rightly observed that punishment is now divested of its retaliatory characteristic and
is converted into a treatment method for bringing about reformation of the offender.

Among modern penologists the names Raffaele Garofalo and Enrico Ferri deserve a special mention.
Garofalo was an eminent criminologist of Italy who held a special mention. Garofalo was an eminent
criminologist of Italy who held distinguished positions as a judge, a professor of law as also a criminal
justice and treatment of offenders. Out of his vast experience as a magistrate, he suggested that insane
criminals should be treated leniently. In his opinion, vengeance had only a theoretical basis for penal
sanctions. Curiously enough, Garofalo was a critic of reformative theory of punishment and believed that
it hardly served any useful purpose in cases of recidivists and hardened criminals. He also rejected deterrent
punishment since it failed to determine the exact quantum of punishment for a given offence under varying
social circumstances. He, however, agreed with Beccaria that retention of punishment is necessary for
recognition of individual rights and social co-existence.

Ferri was yet another Italian penologist who supported positive school of criminology. He asserted that
punishments were necessary for the protection of society because crimes in society are inevitable. In his
opinion, punishment was a social deterrent. Since society has to defend itself against aggressors, it has a
right to punish the offenders. He strongly commended compensation as an effective sanction against crimes,
particularly those relating to property. Ferri believed that dumping the prisoners in prison cells throughout
their term of sentence served no useful purpose. It was wholly unproductive process. He therefore suggested
that inmates should be utilized to work on agriculture farms or construction sites and thus engaged as labour
during working hours. This, in his view was the best interest of the inmates should be utilized to work on
agricultural farms or construction sites and thus engaged as labour during working hours. This, in his view
was in the best interest of inmates as well as the state. He preferred inderminate sentence to a fixed term of
institutionalized sentence and recommended clinical treatment of insane criminals

Essential of an Ideal Penal System

From the foregoing discussion, it may be generalized that efficacy of a penal system is to be assessed in the
light of its impact on society in general and the criminal in particular. Punishments of offenders though
necessarily arduous, is inevitable in the interest of the community at large, therefore, every civilized nation
must have a definite penal programme. An ideal penal system must essentially consist of the following
elements:

1. A rational penal policy should aim at protecting the society from crimes and reclaim criminals by
removing imperfection in the penal law of the country. Greater emphasis should be on prevention
rather than cure. Necessary steps should be taken to ensure that people do not get opportunity to
commit crime rather than trying to reform them after they have indulged into criminality. The law
must provide scope for adjustment of punishment according to variations in culpability.
2. Bentham, the great English law reformer commented that penal policy must be in conformity with
the principle of hedonism, that is, the utilitarian doctrine of pain and pleasure. The pleasure derived
from criminal act must not outweigh the pain inflicted by way of punishments; otherwise the

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 punishment is bound to lose its significance. That apart, punishment to be effective should be
proportionate to the gravity of the offence.
3. It is an accepted fact that delay defeats justice. Inordinate delay in sentencing negates its deterrent
effect. It is therefore, desired that punishment must follow the crime. elimination of delay in
awarding punishment is perhaps the most fundamental requirement of an ideal penal programme.
It must be noted that inordinate delay in proposal of cases by courts is causing untold miseries to
poor litigants particularly in Kenya as a result of which people are losing faith in these institutions
of justice.
4. Punishment connotes society’s disapprobation for a particular human conduct and penal sanctions
act as a threat to the aggressor to refrain from commuting such forbidden acts of violence. Thus the
ultimate object of punishment is to protect society against law-breakers. as Beccaria puts it, the
purpose of punishment is to make crime an ill-bargain for the offender.
5. Experience has shown that the principle of equal punishment for similar offences does not prove
effective for all types of criminals. The young and the first offenders must be treated differently
than the recidivist’s lies in the fact that the effect of punishment varies from criminal to criminal
depending on his age, sex, intellect, mental depravity, responsive attitude and social circumstances.
It is for the reason that classification of criminals onto different categories is deemed necessary so
that they could be reformed through inadequate correctional measures
6. It is significant to note that efficacy of punishment essentially depends on the proper functioning
of agencies which administer criminal justice. These agencies must command respect among the
public. Everyone including the criminal himself should feel convinced that justice shall be done to
him. Disproportionate and unduly harsh punishment shall make the members of community feel
that there life is unsafe and insecure in the hands of criminal law administrators and their distrust
for the law and penal institution shall jeopardize the cause of criminal justice. Unfortunately, the
position in Kenya in this regard is hardly satisfactory. Particularly, the functioning of the justice
system needs improvement so that people can regain their lost faith in these unjust institutions of
law and justice.
7. Reformation of criminals should be object of punishments while individualization the method of
it. Thus, reformation in cases of juveniles, first offenders and women offenders and deterrence for
hardened criminals and recidivists should be the ultimate object of penal policy. The punishment
to be efficacious must include the combination of deterrence, prevention and reformation so that it
prevents a future wrong besides bringing a change in the attitude of the offender through
reformative measures during the period of his incarceration.
8. While appreciating the need for reformative approach towards criminals, a word of coition as to
the extent to which the principle is to be applied, seems necessary. It is generally observed that in
their enthusiasm to reform the criminal’s authorities associated with the penal institutions such as
prisons and reformatories convert these institutions into an earthly paradise providing all sorts of
comforts as inmates. Consequently, inmates often take the institution as an easy resort to spend
their life comfortably without shouldering any responsibilities. This obviously defeats the very
object of reformation. It is therefore, desired that life in these institutions must involve certain
degree of hardship and rigour so that the inmate is always reminded of his better experiences of
institutional life after his release. This will help in keeping him away from repetition of criminal
acts. The penal system should be designed so as to ensure that offenders improve by suffering for

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 their offences. Unfortunately, in Kenya the trend of judicial sentencing is towards excessive
preformation with the results punishment is losing its effect and there is steep rise crime rate
9. Modern penologists are opposed to retention to capital punishment on humanitarian grounds. They
argue that killing of man is inhumane. That apart, if an innocent person is executed due to the
erroneous justice, that will do irreparable harm. Some argue that putting an offender to death
virtually amount to a cold-blooded murder which serves no useful purpose. The real object of
punishment being reformation and not destruction of criminal, death sentence hardly serves any
purpose. Thus, enlightened view is averse to the retention of capital punishment since it is grossly
unjust and against the principles of humanity
It must however, be pointed out that despite growing disinclination for awarding death penalty,
there is a growing reluctance to abolish it. This is so because of a general feeling that threat of
infliction of death sentence itself proves as an effective deterrent. Therefore/the ideal policy is to
retain capital punishment in the statute book to be used in ‘rarest of rare’ cases. It is true that the
test of ‘rarest of rare cases’ has not been acceptable to many because of the fact that what may
appear to be a rarest of our case to one judge may not necessarily appear to be so to another judge.
When a court awards death sentence by choosing between it and any other alternative punishment
permissible under the law, then the reason for doing so must be recorded by the courts.
10. Punishments should include both compensation as well as imprisonment. As a matter of general
policy, it would be ideal to prescribe repetition or payment of compensation for offences relating
to property while penal sentence with or without fine may be awarded for crimes against person.
11. The efficacy of punishment by and large depends on its impartiality. The penal policy should,
therefore, be completely free from considerations as to the caste, creed, religion or status of the
offender. It would be pertinent as to the caste, creed, religion or status of the offender. It would be
pertinent to note in this context that the failure of criminal justice during Moghutruia in India was
due to the discriminatory nature of the muslim law on crimes and evidence. Thus, no
Mohhammedan was equivalent to two Hindus and evidentiary value to two female witnesses was
equivalent to one male witness under the Muslim law. A thief could be convicted only on the
evidence of two men. This simply depicts irrationality of the Muslim criminal law (then) and the
bias which it carried against Hindus and women.
12. As a sound principle of criminal justice, it is for the legislature to prescribe maximum limit of
punishments form every offence in the penal code without laying down any minimum limit. This
will enable law courts to award punishment according to the requirements of individual offender
thus infusing an element of discretion in judicial sentencing which is sine que non for individualized
treatment model.
13. The system of solitary confinement has now become obsolete and outdated. It is discarded because
it is torturous and imposes excessive suffering to the offender. Modern penologist treats solitary
confinements as method of putting offenders to death without bloodshed. Confining convicts in
isolated prison-cells without any work makes them idle and aggressive criminals after they return
to society as more dangerous and aggressive criminals after their release. The torture of solitude
and isolation is too painful that it completely destroys the personality of the offender and he turns
hostile and indifferent to the community.
14. Punishments should always serve as a measure of social defense. This, in other words, means that
elimination of incorrigibles and rehabilitation of corrigible should be the ultimate object of penal

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 justice. An ideal penal policy should have enough elasticity so as to mold itself with the changing
needs of time and place.
The above generations with regard to the punishments applies suggest that no single theory whether
deterrent, preventive, retributive or reformative can help in eliminating crime and criminals from society.
It is only through an effective combination of two or more of these theories that an ideal penal programme
can be drawn to compact crimes. Some socialist countries have explicitly mentioned in their criminal codes
the aims of sentencing the offender. This is indeed a welcome step which other countries should take
wholesomely when formulating their penal policy.

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