Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Retribution
In primitive days punishment of the transgressor was carried out in the form of
personal vengeance. Since there were no written laws and no courts, the victim of a
crime was allowed to obtain his redress in the way he saw fit. Oftentimes, the retaliatory
act resulted to infliction of greater injury or loss than the original crime, so that the latter
victim was perforce afforded his revere. Punishment therefore became unending
vendetta between the offender and the victim. Later, an attempt was made to limit the
retaliation to the degree of injury inflicted, thus the philosophy of an eye for an eye
evolved. During this period nearly all offenses that are now included in criminal codes
as public crimes, were considered private offenses for which the victims were allowed
their redress through personal vengeance.
There were a few offenses, however, which were regarded as crimes committed
against the native gods. People being then superstitious, believed that any catastrophe
that befell the group was a retaliation of an offended god. In order to appease the
offended god, the social group or clan demanded that the supposed offended be
banished or put to death. Witchcraft was considered a public crime and person
suspected of being a witch was tortured, banished or put to death.
Expiation or Atonement
This theory or justification of punishment was also advocated during the prehistoric days. A sort of common understanding and sympathetic feeling developed in the
group. An offense committed by a member against another member of the same clan or
group aroused the condemnation of the whole group against the offending
member.
The group would therefore demand that the offender be punished. When
punishment is exacted visibly or publicly for the purpose of appeasing the social group,
the element of expiation is present. Expiation is therefore, group vengeance as
distinguish from retribution which is personal vengeance. Punishing the offender
gives the community a sense of its moral superiority, an assurance that virtue is
rewarded after all. Hostile action against the offender brings about cohesiveness in
society. Corporal punishment in most modern countries has been abolished and the
application of punishment has tended to be withdrawn from the public eye. Some
segments of society, however, still cling to the belief wrong doing or in order that
punishment be punishment.
Deterrence
It is commonly believed that punishment gives a lesson to the offender; that it
shows other what would happen if they violate the law; and that punishment holds crime
in check. This is the essence of deterrence as a justification for punishment.
Cesare Beccaria, an exponent of the Classical School of Criminology and whose
writings at the end of the 18th century renovated the punitive justice system of Europe,
contended that the intent of punishment should not be to torture the criminal or to undo
the crime (expiation) but to prevent others from committing a like offense. He
advocated the theory that a punishment should have only that degree of severity which
is sufficient to deter others. It is doubtful if punishment is as the proponents think. In one
New England state during the 18th Century, theft was punishable by whipping the
offender in the public plaza. The purpose of whipping the thief within the public view was
to deter others from committing the same offense. Public whipping, however, did not
diminish the incidence of the theft in that state.
In England during the 18th century, pick pocketing was one of fifty offenses
punishable by hanging. The offender was hanged on a Sunday afternoon in order to
draw the largest number of spectators. The hanging would be preceded by a brass
band playing in the morning until in the afternoon. On this occasion, thousands of
spectators would mill their way in the crowd to obtain better view of the victim at the
condemned man was executed. On this same occasion professional pick pocketers
were busy plying their trade in the crowd. The multitude that came to view the hanging
were there to see how the offenders withstood their fate, how callous they were, and
how they would react to the jeers and chastisement of the crowd. In some instances
punishment undoubtedly has a deterring effect. For the great mass of infractions of the
law, however, the fear of punishment does not enter into the causation.
The conception of deterrence presumes that the person thinks before he acts
and that all he has to do is to think of the consequences and then he will be deterred .
Actually this is not so because offenders commit crimes without the fear of punishment
uppermost in their minds. There are certain types of offenders who could not be
deterred by the fear of punishment, namely, the behavior of the moment type involved in
crimes of anger and passion; and the type of offender whose antisocial behavior is
connected with his personality pattern and is part of his approach to life as exemplified
by the psychopathic offender and the neurotic offender.
There is no doubt, however, that some types of offenders, particularly first
offenders, can be stigmatized by the lightest form of punishment. To others more inured
in crime; going in and out of penal institutions does not deter.
Protection
Protection as a justification of punishment came after prisons, were fully
established. People believe that by putting the offender in prison, society is protected
from his further criminal depredation. If this were so, vicious and society is protected
from his further criminal depredation. If this were so, vicious and dangerous criminals
should be made to serve long terms of imprisonment. Recidivism and habitual
delinquency laws are expected to attain this end.
How effective is protection as justification of punishment? Or how effective is
imprisonment as a means of protecting the community against crime?
According to statistics, the prison population of the Federal Bureau of Prisons
and the Correctional Departments of Minnesotta and Washington DC represent a very
insignificant portion (only 3.5%) of the whole criminal population. Ninety-six and five
tenth percent (96.5%) of crimes reported to the police remain at large. These figures do
not include crimes not reported to the police, the volume of which is unknown.
Therefore, from these data we can conclude that imprisonment cannot protect society
from crime. Even if all convicted offenders were kept in prison for life, still the 96.5%
who are at large will continue to plague society. Also, imprisonment as an end of
punishment is not tenable because prisoners are released within a short period of
confinement. Statistics show that their average stay inside prison is from three to five
years, after which they are again ready to commit further crimes.
Reformation
This is the latest justification of punishment. Under this theory, society can best
be protected from crime if the purpose of imprisonment is to reform or
rehabilitate the prisoner. Advocates of this theory contend that since punishment does
not deter; in as much as imprisonment does not protect society from further commission
of crimes because the greater portion of the criminal population is at large; and because
prisoners stay in prison for a short time, from 3 to 5 years only, societys interest can
best be served by helping the prisoner become a law-abiding and productive citizen
upon his return to the community by making him undergo an intensive program of
rehabilitation in prison.
Theoretically, imprisonment for reformation is sound, but practically, rehabilitation
is difficult to achieve. Some prisoners are reformed, but about 50% get relapses. Failure
to reform prisoners may be due to poor administration of the reformatory program, or it
may lie in the make-up of the criminal population.
Probation, which is a substitute for imprisonment, and parole which an early
release from prison, are intended to reform the offender. A new concept of correctional
administration has developed, thus reformation and rehabilitation are now thought of as
treatment. Treatment through institutional programs and through probation and parole
services is the modern version of reformation and rehabilitation.
Limitations of Punishment
Punishment has certain limitations on the offender, in spite of the aboveenumerated justifications, are:
1. Punishment makes the criminal cautious about concealing his criminal activities
2. Stigmatizes him and isolates him from society; makes him a martyr or a hero;
and develops in him an antisocial grudge and a strong resentment of authority.
3. Punishment on the other hand does not deter; does not repair damage to society;
or reconstruct the personality of the offender.
Trends of Punishment
The principal trends of punishment are in the development of exemptions,
pardon, and communications; the decline in the severity of punishment; the growth of
imprisonment and its modifications; good time allowances; indeterminate sentences;
suspended sentence and probation, conditional release, parole, short sentences, and
fines.
Exemptions of Punishment
The basis for exemptions is usually social. In Europe, Kings and Rulers in
ancient and early modern society could do no wrong. Upper classmen were often
times exempted from criminal liability for offences, which caused the commoner long
imprisonment or death penalty.
Most countries today do not punish offenders for absence of mens rea, that
is absence of a guilty mind or lack of criminal intent. The right of sanctuary was
practiced in the early Christian era. The benefit of clergy was originally given to clerics
who did not wear ecclesiastical robes from being tried by lay courts but only by
ecclesiastical courts. Latter the privilege was extended to anyone who could read and
write. Age of the offender was another basis for exemption from criminal responsible.
Under juvenile delinquents are not legally classified as criminals.
The mental condition of the offender is another basis for exemption from
criminal responsibility. The MNaghtan case of England (1843) held the opinion that an
offender is to be considered sane and responsible until is proven that he was insane at
the act was committed, and therefore, could not have known right from wrong. This
doctrine holds true in every progressive country today. Reformist would want the
criminal insane, such as the criminal psychopaths and criminal neurotics, handled by
special laws and procedures in courts and to provide specialized mental institutions for
their care. There is now a move that in cases where the plea is no responsibility
because of insanity or mental disturbance, juries should be concerned only with the
problems of establishing guilt and that a panel of experts appointed by the courts;
should determine the disposition to be made of the case.
WHAT IS PENOLOGY?
PENOLOGY defined:
- The study of punishment for crime or of criminal offenders. It includes the study
of control and prevention of crime through punishment of criminal offenders.
- The term is derived from the Latin word POENA which means pain or
suffering.
- Penology is otherwise known as Penal Science. It is actually a division of
criminology that deals with prison management and the treatment of offenders, and
concerned itself with the philosophy and practice of society in its effort to repress
criminal activities. (Classical Doctrine Influence)
- Penology has stood in the past and, for the most part, still stands for the policy
of inflicting punishment on the offender as a consequence of his wrongdoing.
WHAT IS PENAL MANAGEMENT?
It refers to the manner or practice of managing or controlling places of
confinement as jails or prisons.
WHAT IS CORRECTION?
CORRECTION defined:
- A branch of the Criminal Justice System concerned with the custody,
supervision and rehabilitation of criminal offenders. (Positivist-italian doctrine
influence)
- It is that field of criminal justice administration which utilizes the body of
knowledge and practices of the government and the society in general involving the
processes of handling individuals who have been convicted of offenses for purposes of
crime prevention and control.
- It is the study of jail/prison management and administration as well as the
rehabilitation and reformation of criminals.
- It is a generic term that includes all government agencies, facilities, programs,
procedures, personnel, and techniques concerned with the investigation, intake,
custody, confinement, supervision, or treatment of alleged offenders.
Correction as a Process:
- Refers to the reorientation of the criminal offender to prevent him or her from
repeating his deviant or delinquent actions without the necessity of taking punitive
actions but rather the introduction of individual measures of reformation.
CORRECTIONAL ADMINISTRATION the study and practice of a system
management of jails or prisons and other institution concerned with the custody,
treatment and rehabilitation of criminal offenders.
Correction and the Criminal Justice System
The Criminal Justice System is the machinery of any government in the control
and prevention of crimes and criminality. It is composed of the pillars of justice such as:
the Law Enforcement Pillar (Police), the Prosecution Pillar, the Court Pillar, the
Correction Pillar, and the Community Pillar.
Correction as one of the pillars of Criminal Justice System is considered as the
weakest pillar. This is because of its failure to deter individuals in committing crimes as
well as the reformation of inmates. This is evident in the increasing number of inmates
in jails or prisons. Hence, the need of prison management is necessary to rehabilitate
inmates and transform them to become law-abiding citizens after their release.
Correction is the fourth pillar of the criminal justice system. This pillar takes over
once the accused, after having been found guilty, is meted out the penalty for the crime
he committed. He can apply for probation or he could be turned over to a noninstitutional or institutional agency or facility
for custodial treatment and rehabilitation. The offender could avail of the benefits of
parole or executive clemency once he has served the minimum period of his sentence.
When the penalty is imprisonment, the sentence is carried out either in the
municipal, provincial or national penitentiary depending on the length of the sentence
meted out.
THE PRIMITIVE ERA
Demonological vs. Divine will theories
Lacks of Codified Laws, thus law enforcement were based barbaric practices.
Lack of Criminal Justice System Criminals
Are judged through Trial by Ordeals
Punishment were based on the words of kings/emperors/elders/chieftains
2
3
4
5
6
7
8
Disadvantages
1 It was unfair It treated all men as mere digits without regard to difference in
individual natures and circumstances.
2 It was unjust It made first offenders and recidivists equally punished.
3 It did not individualize punishment.
4 It was the magna carta of the professional criminal in that he knew what was
coming to him and could calculate the risk.
5 It considered only the injury caused, not the state of the mind and nature of the
criminal.
The Neo-Classical School of Penology it maintained that while the classical
doctrine is correct in general, it should be modified in certain details. Since children and
lunatics cannot calculate the differences of pleasures from pain, they should not be
regarded as criminals; hence they should be free from punishment.
Influenced by the French Revolution and the Quakers of the New England
states, the Neo-Classical School, was advocated at the beginning of the 19th century.
The French Code of 1819, the principles of the classical school remained intact but the
system of defined and variable punishments was modified. The judge was given
direction in certain crimes to vary punishment between the maximum and the maximum
fixed by the law. Under the Code the judge could not admit extenuating circumstances.
The Classical Theory remained intact in its theory that every person equally free
and therefore equally responsible. Since the publication of the French Code of 1819,
the struggle has been to individualize the punishment by setting up varying degrees of
responsibility. The Neo-Classical School admitted extenuating circumstances in the
criminal himself. It admits too that minors are incapable of committing crime because
they have not reached the age of responsibility. And it also admits that certain adults are
incapable of committing crimes because of their conditions they are not free to choose.
The Italian or Positivist School of Penology - the school that denied individual
responsibility and reflected non-punitive reactions to crime and criminality. It adheres
that crimes, as any other act, is a natural phenomenon. Criminals are considered as
sick individuals who need to be treated by treatment programs rather than punitive
actions against them.
Cesare Lomrosos The Criminal in Relation to Anthropology, Jurisprudence,
and Psychiatry was published 100 years from the publication of Beccarias book,
Crime and Punishment. Lombroso, in his book, sought to explain crime in terms of the
physical make-up of the criminal, thus the vicious soldier was distinguished from the
honest soldier by the extent to which the former was tattooed and by the decency of the
designs. In studying the insane, the patient, not the disease, should be the object of
attention.
Enrico Ferri was born in Italy in 1856. Ferri advocated the Theory of
Imputability and the Denial of the Free Will in 1878. Ferri contributed to the emphasis of
the social factors such as
1 Physical factors, including geographical, climate, temperature, etc.
2 The anthropological factors including psychological factors
3 The social factors, including economics and political factors as well as age, sex,
education, religion.
Rafaele Garofalo was born in Naples in 1852, from parents of Spanish origins.
Garofalo thinks that crime can be understood only as it is studied by scientific methods.
The criminal is not a free moral agent, but is the product of his own traits and his
circumstances.
Results if the Italian School
1 Emphasis shifted from legal; metaphysical and juristic abstraction to a scientific
of the criminal and the conditions under which he commits crime.
2 Treatment began to be based from study of the criminal.
3 The old purpose of punishment was changed
4 Retribution was eliminated.
5 Deterrent effect theory modified does not apply to those who could not foresee
consequences.
6 Rehabilitation re-emphasized but applied with discrimination to certain classes.
7 Protection of society is open to be the primary purpose of treatment.
8 Prevention of crime by early treatment of juveniles
Basically, these laws adopted the Roman Law principles (Coquia, Principles of Roman
Law, 1996).
Mostly tribal traditions, customs and practices influenced laws during the PreSpanish Philippines. There were also laws that were written which includes:
a. The Code of Kalantiao (promulgated in 1433) the most extensive and severe
law that prescribes harsh punishment.
b
b. The Maragtas Code (by Datu Sumakwel)
c c. Sikatuna Law
2.
3.
4.
5.
6.
7.
8.