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DEFINITIONS
Criminology is a combination of two Latin words:
Crimen crime
Logus or logy science
Edwin Sutherland
Criminology is the body of knowledge regarding crime as a social
phenomenon. It includes within its scope the processes of making laws,
breaking laws and reacting towards the breaking of law. (From the above
definition it is apparent that criminology is a combination of how the society
defines and deals with crime within a social and legal context).
Donald Taft
Criminology may be divided into two branches:
1. general
2. specific
Webster
Criminology is the scientific study of crime as a social phenomenon or of
criminals and their behaviors and family conditions.
Criminology can thus be said to be and academic discipline that employs
scientific methodology to study crime, its major forms, its reasons for
existence or causation and how the criminal justice system can respond to
crime. In its narrower sense, criminology looks at criminal behavior of
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individuals in society and how they come to be perceived as such i.e. Their
social, cultural and economic background. In a wider sense, it looks at how
the criminal is dealt with e.g. how he is punished and therefore includes
penology.
IMPORTANCE OF CRIMINOLOGY
I. The most significant purpose of criminology is its concern for crime
and criminals. There is a basic assumption that no one is born a
criminal. (Check out the Lombroso theory). Reformation is therefore
treated as the ultimate object of punishment while individualization
i.e. according individualized understanding and treatment is the
preferred method for such reformation.
II. It is important for lawyers(when dealing with criminal clients it helps
to understand their mind set and particular circumstances for purposes
of giving proper legal advise as well as for pursuing a logical line of
defense), judicial officers(for purposes of awarding appropriate
sentencing, it is important for a judicial officer to not only understand
the offender, but the society/communitys perceptions and emotions
on given offences), law enforcement officers(for purposes of
investigations, prosecutions, surveillance and crime prevention, for
those holding criminals such as prison officers), social workers,
psychologists, etc to understand the criminal more.
III. It enhances official understanding of criminals, offenders, the types
and prevalence of offences committed, generally or specifically by a
class of people or in certain localities. This kind of understanding
supported by data is important for crime detection and control. The
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government is enabled to plan better in terms of allocation of
resources towards fighting different types of crimes.
IV. The ultimate object of criminology is to render a crimeless society.
(This is of course a very remote possibility especially considering how
crimes are created and the fact that sometimes very legitimate
behavior i.e. changaa drinking is criminalized).
IS CRIMINOLOGY A SCIENCE
Proponents of the view that criminology is not a science base their argument
on the standards of quality and validity of what can be classified as science.
To this end they argue that the validity of a science is based on two concepts:
I. Stability i.e. it must be firmly established with unlikelihood of
ad hoc and unpredictable changes
II. Homogeneity, i.e. the quality of being alike all of the same type.
Since crime is not stable, nor is it homogenous, i.e. not all actions amounting
to a crime in one jurisdiction will amount to crime in all jurisdictions, it is
therefore concluded by the said proponents that criminology cannot be a
science.
THOSE AGAINST
George Wilber
He argued that anti-social behavior in society cannot be scientifically
interpreted. According to him, general propositions of universal validity are
the essence of a science. Such propositions can only be made regarding
stable and homogenous units. Crime is not a stable homogenous unit but
varies from place to place and from time to time. What may be regarded as
a crime in one jurisdiction may not be a crime in another e.g. abortion,
euthanasia, etc.
Max Weber
A German criminologist.
He argued that criminology as a branch of sociology merely researches into
components of human behavior without providing for solutions unlike
normal sciences. Thus by offering an analysis of criminal acts without
puritive answers it merely exposes a situation without a solution and thus
cannot be called a science. (What about penology which offers solutions,
and arguments for rehabilitation and reintegration into society,
decriminalization, which are advanced by criminologists, it is therefore not
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entirely true that criminology does not offer solutions in any case do all
sciences offer puritive solutions).
Herman Manheim
He belongs to the school that argues that criminology is not a science as it
has no techniques and methods of its own, and that it borrows heavily from
others e.g. medicine, psychology etc. He argues that so far criminology has
developed no scientific methodology of its own; its techniques of research
are on the whole identical with those used in other social sciences.
Ellenburger
In response to Manheims arguments; His response is that: - Even amongst
the natural sciences there are some like botany and zoology which deal with
the study of facts which are not strictly unique and individual and which do
not deal with general phenomena. Criminology is based on other social
sciences just like medicine is based on anatomy, physiology, physics,
chemistry etc. Neither medicine nor criminology is purely theoretical. They
have a meaning which derives from their practical application. The
justification for medicine lies in the therapeutics and public health and that
of criminology in penal reform, penology and prevention of crime.
Kenny
He defined a crime as a wrong whose sanction is punitive and which is in no
way remissible by any private person but is remissible by the Crown.
Keeton
Defined a crime as an undesirable act which the state finds most convenient
to correct by the institution of proceedings for the infliction of a penalty
rather than leaving the remedy to the discretion of the injured person.
Sutherland
He defines criminal behavior as behavior which is in violation of criminal
law. No matter what the degree of immorality, reprehensibility, or indecency
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of an act, it is not a crime unless it is prohibited by criminal law. Professor
Sutherland further mentions seven attributes of a crime.
a. Before a behavior can be called a crime there must be certain
external consequences or harm. A crime has a harmful impact
on social interest.
b. The external consequences or harm shall be strictly forbidden.
Anti-social behavior is not a crime unless forbidden by law.
c. There must be intention.
d. Mens rea (a guilty mind) must be present
e. There must be fusion or concurrence of mens rea and intention
f. There must be a causal relationship between the legally
forbidden harm and the misconduct
g. There must a legally prescribed punishment.
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There can be no crime without law. No one is held criminally liable unless
he has done an act which is expressly forbidden under existing law. Thus,
crimes must be very specific. They cannot be assumed by way of analogy.
The conduct that is sought to be prohibited must be clearly provided for and
the punishment for it provided. (The only offence that is not clearly defined
in the statutes is contempt of court (on the face of it), but nonetheless a
remedy is provided).
The principle specifically provides against retroactivity or retrospectively.
Meaning that; conduct that has already occurred cannot be affected by the
passing of a statute making the activity criminal. Therefore laws applying to
crime cannot apply backwards.
b. Nulla Poena Sine Lege
There is no liability under criminal law for omissions. Thus moral wrongs
are not legal wrongs and are therefore not punishable.
c. Nullum Crimen Sine Poena
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mind incapable of understanding what he is doing or knowing that the ought
not to do the act or make the omission. Where one is found guilty of an
offence but proves that at the time of the commission or omission they were
suffering from insanity; the accused will then be found to be guilty but
insane and detained at the pleasure of the President, (see section 166 of the
Criminal Procedure Code, CAP 75, Laws of Kenya, which makes elaborate
provisions for the defense of insanity).
2. Mistake or ignorance of the law
Ignorance of the law is no defense to a criminal charge. It is presumed that
all citizens know the law.
3. Intoxication
Intoxication does not constitute a defense to any criminal charge unless the
intoxication was such that the person did not know that such act or omission
was wrong or did not know what he was doing. (Note that intoxication itself
can constitute a crime, e.g. drunken driving).
4. Compulsion
A person is not criminally responsible for an act or omission if it was done
or omitted due to threats on the part of the offender to kill him or do him
grievous bodily harm if he refuses to do the act or make the omission.
Threats of future injury do not excuse offense. Section 16 of the Kenyan
Penal Code states as follows:
A person is not criminally responsible for an offence if it is committed by
two or more offenders, and if the act is done or omitted only because during
the whole of the time in which it is being done or omitted the person is
compelled to do or omit to do the act by threats on the part of the other
offender or offenders instantly to kill him or to him grievous bodily harm if
he refuses; but threats of future injury do not excuse any offence, nor do any
threats excuse the causing of or the attempt to cause death.
Section 19 states as follows:
A married woman is not free from criminal responsibility for doing or
omitting to do an act merely because the act or omission takes place in the
presence of her husband; but, on a charge against a wife for any offence
other than treason or murder, it shall be good defense to prove that the
offense was committed in the presence of, and under the coercion of, the
husband.
5. Necessity
This defense is applicable is from an objective standpoint the accused
can be said to have acted reasonably and proportionately in order to
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avoid a threat of death or serious injury. (R v Dudley and Stephens
QBD (1881 -5) All ER 61. The two accused with a third man and the
deceased, a 17 year old boy, were cast away in an open boat, 1,600
miles from land. When they had been eight days without food and six
days without water, the accused killed the boy, who was weak and
unable to resist but did not assent to being killed. The men fed upon
his body and blood for four days when they were picked up by a
passing vessel. At the trial for murder, the jury found by a special
verdict that if the men had not fed upon they boy they would probably
not have survived the four days; that the boy was likely to have died
first; that at the time of the act there was no reasonable prospect of
relief; that it appeared to the accused that there was every probability
that they would die of starvation unless one of the castaways was
killed; that there was no appreciable chance of saving life except by
killing; but there was no greater necessity for killing the boy than any
of the three men. On reference of this decision to the QBD, the
accused was found guilty of murder. Various arguments were made
which in effect seems to be that necessity should not involve the taking
of an innocent life, which does not threaten one in order to save ones
own life.
To preserve ones life is generally speaking, a duty, but it may be the
plainest and the highest duty to sacrifice it. War is full of instances in which
it is a mans duty not live, but to die..It is not correct, therefore, to say that
there is any absolute and unqualified necessity to preserve ones life.
It is not needful to point out the awful danger of admitting the principle
which has been contended for. Who is to be judge of this sort of necessity?
By what measure is the comparative value of lives to be measured? Is it to
be strength or intellect, or what? It is plain that the principle leaves to him
who is to profit by it to determine the necessity which will justify him in
deliberately taking anothers life to save his own. In this case the weakest,
the youngest, the most unresisting was chosen. Was it more necessary to kill
him than one of the grown men? The answer be, No.
So spake the Fiend; and with necessity,
The tyrants plea, excused his devilish deeds.
It is not suggested that in this particular case the deeds were devilish; but
it is quite plain that such a principle, once admitted, might be made the
legal cloke for unbridled passion and atrocious crime. There is no path safe
for judges to tread but to ascertain the law to the best of their ability, and to
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declare it according to their judgment, and if in any case the law appears to
be too severe on individuals, to leave it to the Sovereign to exercise that
prerogative of mercy which the Constitution has entrusted to the hands
fittest to dispense it. It must not be supposed that, in refusing to admit
temptation to be an excuse for a crime, it is forgotten how terrible the
temptation was, how awful the suffering, how hard in such trials to keep the
judgment straight and the conduct pure. We are often compelled to set up
standards we cannot reach ourselves, and to lay down rules which we could
not ourselves satisfy. But a man has no right to declare temptation to be an
excuse, though he might himself have yielded to it, nor allow compassion for
the criminal to change or weaken in any manner the legal definition of the
crime. It is therefore, our duty to declare that the prisoners act in this case
was willful murder; that the facts as stated in the verdict are no legal
justification of the homicide; and to say that, in our unanimous opinion, they
are, upon this special verdict guilty of murder. (They were then sentenced to
death. However, the sentence was subsequently commuted to one of 6
months imprisonment without hard labour).
6. Self Defense
A person in defending himself can use such force as is necessary but the
means of defense must be comparable with the means or degree of force
being used against him. Excessive force is not justifiable. The Kenyan
Criminal Procedure Code deals with use of force under Section 23 (which
deals with arrest); this issue is also dealt with under Section 18 of the Penal
Code.
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VARIOUS SCHOOLS OF CRIMINOLOGY/THEORIES OF CRIME
AND CAUSATION
Various scholars have attempted to explain the causation of crime and
criminal behavior. Each school of criminology explains crime in its own
manner and suggests punishment and measures to suit its ideology. Each
school represents the social attitude of people towards crime in a given time.
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Naturalistic School
The proponents of this school argued that crime must be explained through
the use of ideas and interpretations of objects and events and their
interrelation with the existing world. Thus, there is no place for other
worldly powers or spirits. No matter how unsatisfactory, the explanation
must rest on what is known or assumed to be true of the physical and
material world. This approach is ancient as well as modern.
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punishment as a mode of inflicting pain,
humiliation and disgrace on the offender so as to
create fear in him and thus control his behavior.
4. The proponents of this school of thought
considered crime prevention more important
than the punishment for it. They therefore
stressed the need for a well-established system of
criminal justice.
5. The classical criminologists supported the right
of the state to punish offenders in the interest of
public security. Keeping in view the hedonistic
principle of pain and pleasure they pointed out
that individualization was to be the basis of
punishment. The punishment was to be meted
out keeping in view the pleasure derived by the
criminal from the crime and the pain caused to
the victim there from. They however advanced
the theory of equalization of justice i.e. Equal
punishment for the same offence.
6. They further believed that criminal law was
primarily based on positive sanctions. They
were against arbitrary use of power by judges
and abhorred torturous punishments.
The greatest achievement of the classical school is the fact that it shifted
emphasis from myths and concentrated on the personality of the offender in
order to determine his guilt and punishment. In other words, Beccaria was
the first criminologist to shift the emphasis from crime to criminals.
Nonetheless, the classical school has the following shortcomings:
Firstly, it proceeded on an abstract presumption of free will and relied
solely on the criminal act without devoting any attention to the state of
mind of the criminal;
It also erred in prescribing equal punishment for similar offences thus
making no distinction between first offenders and habitual offenders.
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with those of other offenders. This reasoning was based on the argument
that such persons are incapable or partially incapable of distinguishing right
from wrong.
The Neo-Classical theory can be summarized as follows:
1. They approached the study of criminology on scientific lines by
recognizing that certain extenuating situations or mental disorders
deprive the criminal of his normal capacity to control his conduct. In
so doing they represent a reaction against the severity of the classical
view of equal punishment for the same offence.
2. They were the first school to point out the distinction between a first
offender and a recidivist.
3. They started on the premise and assumption that man acts on reason
of intelligence and is therefore responsible for his own conduct. But
those lacking normal intelligence or suffering some mental depravity
are not responsible for their conduct as they do not possess the
capacity of distinguishing between good or bad and should therefore
be treated differently from other offenders.
4. Although they recommend lenient treatment for irresponsible or
mentally deprived criminals on account of their incapacity to resist
criminal tendency, they unanimously believed that all criminals
whether responsible or irresponsible must be kept away from society.
5. The distinction between responsibility sanity and insanity as
suggested by the neo-classical school paved way for the formation of
the different correctional institutions such as parole, probation etc in
the criminal justice system. Through this school therefore attention of
criminologists was drawn to the facts that all crimes have a cause.
6. This school adopted a subjective approach to criminology and
concentrated their attention on conditions under which an individual
commits crime.
7. The origin of the jury system and the assessor system is essentially the
result of the reaction of the neo-classical approach towards the
treatment of offenders.
The main shortcoming of the neo-classical school is that their theory
presumes that the criminal whether responsible or irresponsible is a menace
to society and therefore needs to be eliminated from it. Their primary
concern is therefore to protect society from crime and criminals.
Positive Criminology
This school presumes that mans behavior is determined by factors outside
his control. These factors are either biological or cultural.
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Those who argue that the factors are biological believe that mans social
organization has developed as a result of his biological evolution and hence
social evolution is subsequent and not primary. On the other hand positivists
who base their theory on cultural factors; argue that mans behavior despite
his identification with the world of biology is always related to and
somehow reflects the characteristics of the social world in which he lives.
Positivists thinking thus relies heavily o philosophy, biology, sociology and
history among other disciplines. Criminology is therefore understood as an
analysis of criminal behavior through scientific study of the physical, social
and cultural characteristics of the criminal.
Critical Criminology
This is a framework based on critical thinking, employing a variety of
disciplines which include political science, economics, sociology and
philosophy. Its proponents are not preoccupied with the question of whether
mans behavior is free or determined. They are concerned with the process
by which man creates the social world in which he lives.
Critical criminologists would for example maintain that the phenomenon of
crime is socially constructed when a society defines certain actions and
people as criminal. Any of a wide variety of people and actions may, at one
time or another, be the subject of these definitions.
Thus crimes and criminals are not independent phenomena that can be
identified and studied objectively by the social scientist. Crime and
criminals exist only to the extent that they are defined as such by society.
The critical criminologist therefore studies the processes by which particular
people and actions become criminal at particular times and places.
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THE ANTROPOLOGICAL SCHOOL/THE ITALIAN SCHOOL OF
CRIMINOLOGY
This is one of the earliest positivist schools of thinking.
With the advance of time and the development of scientific research during
the nineteenth century certain doctors in Europe were successful in
establishing that it was neither the free-will(Classical) of the offender nor
his innate depravity nor evil spirits that actuated the offender to commit
crime. The real cause of crime lay in the anthropological features of the
criminal. Some proponents of this theory tried to demonstrate the organic
functioning of the brain and established a co-relationship between
criminality and the structure and functioning of brain.
The main proponents of this theory are three Italian criminologists:
Cesare Lombroso
Raffaele Garofolo
Enrico Ferri
Cesare Lombroso
He is referred to as the father of the Italian school of criminology. He was
an Italian psychiatrist who was a physician in the army. Lombroso turned
attention from crime to criminals. During his period of service in the army
he was able to observe those army personnel who were trouble-makers.
From his experience he concluded that the criminals were a distinct
anthropological type possessing definite physical characteristics.
According to him, the criminal was a biological throw-back to an earlier
evolutionary stage a man more primitive and savage than his non-criminal
counterparts. His theory was based on the view that the physical
characteristics of the criminal were an important causation for his criminal
behavior. The theory was largely based on degeneracy. This degeneracy
was atavistic i.e. the criminal was inferior in his development to normal
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man and resembled lower or ape-like animals. Lombroso was therefore, of
the view that criminals were born criminal.
He arrived at his conclusions, based on a study of 833 Italian criminals
mainly drawn from the army.
From his research, he concluded that born criminals had the following
characteristics:
1. They had a deviation in head size and shape;
2. Their faces were not symmetrical;
3. They would have excessive dimensions of the jaw and cheek bones;
4. They would have eye defects and peculiarity;
5. They had ears of unusual size very small or standing out from the
head as do those of chimpanzees;
6. the nose would be twisted and upturned. For thieves, the nose would
be flat, beak-like for murderers or with the tip rising like a peak;
7. The lips would be fleshy and swollen;
8. The dentition would be abnormal;
9. The chin would be receding or excessively long or excessively flat as
in apes;
10.Abundance and variety of wrinkles;
11.Anomalies of the hair marked by characteristics of the hair of the
opposite sex;
12.Defects of the thorax too many or too few ribs
13.Inversion of sex characteristics in the pelvic region;
14.Excessive length of the arm;
15.Too many or too few fingers or toes.
Of the 833 criminal people studied, 21 percent had one or more of such
anomalies, 43% had five or more. A person with five or more was
described/classified as a criminal. As such Lombroso adopted an objective
and empirical approach to the study of criminals through his anthropological
experiments.
In further research, he classified criminals as follows:
1. The Born Criminal
In his opinion, these were criminals who could not refrain from
engaging in criminality. The environment had no relevance
whatsoever to the crimes committed by these offenders. He therefore,
considered these criminals to be beyond reformation;
2. Insane Criminals
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The second category of criminals were insane criminals who resorted
to criminality on account of certain mental disorders or insanity.
3. Crimes of Passion
The third category are those who commit crime in a state of passion or
due to inferiority complex;
4. Atavistic Criminals
The atavistic category are those who commit crime due to alcohol or
when they get the opportunity.
Charles Goring
He was an English criminologist who carried out research on the
psychology of criminals. He agreed with Lombrosos statistical and
inductive method and supported the latters view that criminals were
often mentally depraved. He also commended Lombroso for his
assertion that the centre point of penology was neither crime nor
punishment but the individual.
He critiqued Lombrosos worked based on the following issues;
There is no such thing as a physical criminal type. In his opinion,
the whole of Lombrosos enterprise was conducted with the
intention of stamping a pre-conceived idea with the hallmark of
science;
One cannot declare people criminal merely by their physical
characteristics. The use of the word criminal should be restricted
to a legal framework which prohibits certain conduct and which
finds those guilty of such conduct criminal and punishes them as
such;
Even if specific differences did exist between the criminal and the
non-criminal, this does not mean that the criminal is abnormal but
rather the differences evidence a selected class of normal men
whose qualities may present extreme degrees from the normal
average.
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E.A. Hooton
He studied 17,000 individuals of whom 14,000 were criminals drawn from
across 10 states of the United States of America. His conclusions were quite
similar to Lombrosos.
According to him crime is the result of the impact of the environment upon
low grade human organisms. It therefore follows that the elimination of
crime can only be effected the expiation of the physically, mentally and
morally unfit or their complete segregation.
The study concluded that big tended to be murderers and robbers. Tall
heavy men are killers and also commit forgery and fraud. Undersized men
are thieves and burglars; short heavy persons commit assault, rape and other
sex crimes. Men of mediocre physique have no specialty and commit
several offences.
Conclusion
1. In 19 out of 33 measurements, there was a significant difference
between criminals and civilians;
2. Criminals are inferior to civilians in nearly all their body
characteristics;
3. Physical inferiority is significant as it is associated with mental
inferiority;
4. Tattooing is more common among criminals than civilians;
5. Thin lips and compressed jaw angles are common in criminals;
6. The ear of the criminal tends to be rolled or small
7. Criminals have low sloping foreheads, thin necks and sloping
shoulders.
He was criticized on the following grounds:
Most of the people he studied were recidivists i.e. they fell back
to crime.
He ignored other important differences between criminals and
civilians apart from physical characteristics.
While he accepted that genetic make-up may influence
behavior, he never actually clarified how this genetic make-up
would actually influence the criminal.
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Enrico Ferri (1856 1929)
He was a student of Lombroso, though he challenged Lombrosos views on
criminality. Through his research, Ferri proved that mere biological reasons
were not enough to account for criminality. IN his opinion, there were other
factors that influenced crime such as psychological, sociological, economic
and emotional factors. For this reason Ferri is referred to as the founder of
criminal sociology.
Ferri described a criminal as an agent of outside forces. During Mussolinis
regime Ferri prepared a Penal Code for Italy. In it he proposed that for the
reformation, prevention and rehabilitation of criminals the following social
needs had to be considered; free trade, abolition of monopolies, better street
lighting, birth control, freedom of marriage and divorce, public recreation,
better economic conditions of the public, improvement of laws and abolition
of certain taxes. However, Ferri emphasized that punishment is still
important for the alleviation of crime and in some cases useful for
reformation.
Ferri classified criminals into the following categories:
1. Insane criminals inclined to crime due to congenital factors;
2. Born criminals - commit crimes out of impulse, anger, or excessive
zeal;
3. Occasional or habitual criminals influenced by social factors around
them and the need to satisfy certain needs within the social
environment;
He categorized the factors that lead to criminal behavior as follows;
Physical race, climate, geographical location, seasonal effects,
temperature;
Anthropological age, sex, organic and psychological conditions;
Social population density, custom, religion, organization of
government, economic and industrial conditions.
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(honesty). Lack of pity causes crime against persons while lack of probity
leads to crime against property.
He categorized criminals as such:
1. Endemic criminals e.g. murderers, they commit crime in their own
locality and are mainly influenced by passion.
2. Criminal deficient in probity i.e. honesty e.g. thieves
3. Criminals influenced by lust lascivious criminals
4. Violent criminals affected by environmental influences such as
prejudices of honor, politics and religion
Garofolos main contribution was his concentration on the idea of motive as
an important causation of crime. An understanding of motive was the first
step to changing the criminal and alleviating criminal behavior in society.
He suggested three means of eliminating crime:
1. Death for those whose acts grow out of permanent psychological
anomaly which renders the subject for ever incapable of a social life.
2. Partial elimination including lengthy or life time imprisonment and
transportation for those fit only for the life of nomadic hordes or
primitive tribes. He also suggested mild isolation for young and more
hopeful offenders.
3. Repatriation for those who commit their under exceptional
circumstances not likely to occur again.
Garofolo was however, not very optimistic about reformation of
offenders from the experience in the criminal justice system. He
therefore, strongly emphasized and pleaded for elimination of habitual
offenders were incapable of social adaptation as a measure of social
defense.
Modern positivism does not strictly adhere to Lombroso, Ferri, or
Garafolos arguments. It however emphasizes the application of
scientific methods to the study of criminal behavior, the criminal himself,
his environment and other causative factors in an attempt to determine
the causes of crime and its elimination of reduction in society.
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punishment. This paved way for modern penology to emphasize
individualization as a method reformation;
Exponents abandoned the retributive mode of punishment.
Reformatory modes were to be used on different classes of
criminals;
Only those criminals that were incapable of reformation were to be
eliminated;
While deciding a case a judge should not only consider the law but
the circumstantial conditions of the accused.
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4. A person becomes delinquent because of an excess of
definitions favorable to violation of law over definitions
unfavorable to violation of law.
5. The chance that a person will participate in systematic criminal
behavior is determined roughly by the frequency and
consistency of his contacts with other persons of a criminal
behavior.
6. Cultural conflict is the underlying cause of differential
behavior. This is common in areas where society is composed
of people of different races, ethnic groups, habits and cultures.
7. Social disorganization is the basic cause of systematic criminal
behavior.
Criticism
1. Sutherlands theory does not attempt to explain the origin of crime. It
relies on an existing criminal group that influences a normal person to
engage in criminal activities.
2. The theory cannot apply uniformly to all kinds of offenders e.g. rural
and urban based offenders, white and blue-collar criminals. It cannot
apply evenly to perpetrators of individual crimes e.g. crimes of
passion, occasional and incidental offenders or those pushed to
criminal conduct by factors outside their control e.g. Genetic make
up, mental imbalance etc.
3. It has also been argued that contrary to Sutherlands theory, criminal
or delinquent behavior is not learned. It comes naturally. It is non-
criminal behavior that is learned.
4. The theory fails to recognize that there may be an element of free will
in human behavior and leaves little if any room for the introduction of
new knowledge i.e. it acts as a conclusive study, yet it is generally
accepted that there must be an element of the unknown.
5. The theory fails to recognize biological and psychological factors. It
is argued that biological differences in human personality also
account for criminality in the individual.
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the obvious fact that not every one in contact with criminality adopts or
follows the criminal pattern. (page 194).
The response has been that this criticism fails to take into account the words
differential and excess, these words refer to both criminal and anticriminal
associations and had to do with counteracting forces. Melvin L DeFleur and
Richard Quinney (A Reformation of Sutherlands Differential Association
Theory and Strategy for Empirical Verification: (Journal of Research in
Crime and Delinquency, January 1966). They discovered that the sixth
assertion of the theory says that persons become criminals because of
exposure to an overabundance of criminal associations, in comparison with
anti-criminal associations.
They restated the theory as follows:
Overt criminal behavior has as its necessary and sufficient conditions a set
of criminal motivations, attitudes, and techniques, the learning of which
takes place when there is exposure to criminal norms in excess of exposure
to corresponding anticriminal norms during symbolilc interaction in primary
groups.
Hence it is erroneous to argue state or imply that the theory is invalid
because a category of persons such as policemen, prison workers or
criminologists have had extensive association with criminal behavior
patterns yet they are not criminals.
Secondly, in response to the criticism that the theory says that persons
become criminals through association with criminals is not the correct
position. The theory it is posited is concerned with ratios of patterns of
behavior , no matter what the character of the person presenting them.
Accordingly if a mother teaches her son that honesty is the best policy, but
also teaches him that it is alright to steal a loaf of bread when you are
starving, she is presenting the son with an anticriminal behavior pattern and
a criminal behavior pattern, even if she herself is honest, non criminal and
even anticriminal. In other words one can learn criminal behavior patterns
from persons who are not criminals and anti criminal behavior patterns from
hoods, professional crooks, habitual offenders and gangsters.
Thirdly, there was criticism based on the use of the word systematic as
opposed to general criminal behavior, in subsequent publications Sutherland
deleted the offending word.
Fourthly, in response to the criticism that the theory does not explain why
people have the associations that they have, it is stated that this is a highly
relevant research problem and when viewed as a principle that attempts to
account for variations in crime rates it does deal in a general way with
23
differential opportunities for association with an excess of criminal behavior
patterns.
Lastly the responses can be seen in the context of on going research, ie the
theory could only be realistically be expected to deal with facts or norms that
were known and available at its conception, criticisms form a good basis for
new research taking into account various developments.
24
child has a drunken unemployed father and an immoral mother, is mentally
deficient, is taken out of school at an early age and put to work in a factory,
and lives in a crowded home in a bad neighborhood, nearly every factor in
his environment may seem to militate against him.
All the statement may seem to infer that each and every factor is of equal
importance, adherents of this approach, ordinarily argue that either the
presence of one or two important factors or seven or eight minor factors will
cause delinquency.
Cyril Burt
A British scholar who using this multiple approach in a study (London:
University of London Press, 1944, at p 600), found 170 conditions, every
one of which was considered as conducive to delinquency. (Sutherland calls
this the inevitable consequence of such crass empiricism.)
Crime is not assignable to one universal source but rather to a wide variety
of reasons which is best explained by a multiple causation approach.
Others have argued that the multiple causation or multiple factor theory is
more illuminating and more in accord with the variety of people involved in
crime the variety in behavior and mentality of the people concerned. The
approach recognizes that behavior is conditioned by natural, biological,
social cultural and economic influences.
Criticism
Albert Cohen (Harvard, 1951)
1. There has been confusion of explanation by means of a single factor
and explanation by a single theory or system of theory applicable in
all cases. A single theory does not explain crime in terms of a single
factor and is often concerned with a number of variables. A variable
is a characteristic or aspect such as velocity or income with respect to
which something may vary. We make statements of fact in terms of
the values of these variables, e.g. The crime rate is high among
persons with incomes of less than $2,000. per year. The pertinent
variable here is income and its value is $2,000. but neither a
statement of one fact (single factor) nor a series of such statements
(multiple factors) about crime is a theoretical explanation of crime. A
theoretical explanation, a single theory organizes and relates the
variables; it is an abstract statement of how the known variations in
the values of one variable are related to known variations in the values
of other variables. A test the theory is how well it accounts for all the
variations in the values of the variables.
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2. Factors are not only confused with causes but each factor is also
assumed to contain within itself a capacity to produced crime, a fixed
amount of crime producing power. Thus one factor is not always
considered powerful enough to produce crime in individual cases
several factors must conspire to do so.
3. evil causes -evil fallacy this fallacy is that evil results (crime) must
have evil precedents (broken homes, psychopathic personality etc). so
that when we explain crime or other social problem we tend to merely
catalog a series of sordid and ugly circumstances which any decent
citizen would deplore and attribute causal power to those
circumstances. In criminology, this fallacious procedure might stem
from a desire to eradicate crime without changing other existing
conditions which we cherish and esteem; that is criminologists tend to
identify with the existing social order and seek causes of crime in
factors which might be eliminated without changing social
conditions which they hold dear, or which may be safely deplored
without hurting any ones feelings.
CATEGORIES OF CRIME
26
They are considered to be the custodians of the law and destiny of the
nation. The most common offence that they indulge in is in the
misappropriation of public funds/resources, with the aid of third parties e.g.
contractors, suppliers, employment of unqualified persons, over-
employment, payment of salaries and other benefits to non-existent workers
(ghost workers).
Corruption
Grand corruption has bedeviled many governments and since the year
2000 the UN was already in a process of dealing with corruption within
public institutions. In the year 2000 it established and ad hoc committee
to look into an effective international legal instrument to fight against
corruption. The efforts were carried out under the International Office
for Drugs Control and Crime Prevention. This culminated into the
United Nations Convention against corruption held in Merida Mexico in
2003.
The key characteristics of this Convention are in the following articles:
Article 5
Stresses the importance of the critical issues of transparency anc
accountability in national legal institutions.
Article 9
Focuses on public procurement and calls upon the public authorities to
take necessary steps to establish appropriate systems of the procurement
based on transparency, competition and objective criteria in decision
making that are effective inter alia, in preventing corruption.
Article 10, highlights the issue of secrecy in public administration and
calls for the action to secure greater freedom of information.
Article 11, subsequently call on government to safeguard the integrity
and independence of the Judiciary by preventing opportunities for
bribery.
Article 12 expressly, raises the issue of corporate governance by calling
for strengthening regulatory and legal action to curb private sector
corruption.
Article 15/16
Decry the bribery of national and foreign governance officials and call
for action to stop such practice.
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Article 33
Underscores the need to protect people who report acts of corruption.
Article 43
Stresses the need for co-operation to curb corruption and calls for the
strengthening actions.
Article 51
Provides for the return of assets to countries of origin as a fundamental
principal of the Convention.
The new Anti-Corruption and Economic CrimesAct and the Kenya
Public Servants Ethics Act both of 2003 deal with corruption which has
become the number one white collar crime in Kenya.
It is now generally accepted that corruption has a negative impact on
society. Globally institutions such as the World Bank, IMF and the UN
have conducted studies that show evidence that corruption tends to affect
the poor more severely therefore making them poorer with time. It
hinders economic development, reduces social services and diverts
investments in infrastructure and social services.
At the social level, corruption erodes the principles of democratic
governance resulting in abuse of human rights, political and social
instability etc.
Clearly even though corruption has always been an offence under the
Corruption Act, concerted efforts that can be seen now are singly as a
result of international interventions, by aid granting institutions and
countries. During the cold war aid politics were largely characterized by
loyalty and countries that were loyal to the capitalist west or communist
east did not have to show proper accountability of funds received from
the so called donors as long as they were loyal. Most of these countries
from the developing world having just emerged from colonialism were
often propped up to the detriment of political and economic governance.
The end of the cold war brought new dynamics into play and pressure for
aid to the newly liberated eastern bloc. Having overthrown their
dictators thereby increasing democratic space, they brought in a new pre-
requisite into aid, that of democratic governance. It was no longer
tenable for the aid giving countries to rely on ideological loyalty, nor to
be praising and welcoming new democratic leaders in the former Soviet
Union, while supporting despots in other developing countries.
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In this new order, it was necessary to create legal frameworks of
international nature to ensure that international trade is not captured by a
few criminal elements through corruption. So whereas, at the local
level corruption directly results in poverty, at the international level it
leads to unfair competition or lack of it, it increases the cost of doing
business and distorts the picture of use of aid and international loans, and
may also lead to difficulty in repayment, in poor countries governments
may resort to the increase of taxes, and overtaxed populations do not over
political or economic stability which is required for trade to thrive.
High level corruption involves public officials who use their decision
making positions to subvert justice for economic or political gain.
Private sector represents the demand component of corruption.
Corruption networks sometimes operate in a similar fashion to organized
crime.
29
the following crimes; pay offs to conceal crime generally, or evidence
specifically, cover ups, brutality to offenders etc.
4. Business men/Corporate Bodies
ORGANIZED CRIME
With the advancement of time and technology criminal behavior has also
become more advanced. Organized criminals embrace criminality as a
profession to earn their livelihood. In so doing they organize themselves
into criminal gangs/outfits and carry out their anti-social activities with skill
and efficiency for profit or personal gain or in pursuance of certain political
ideals. Sutherland and Cressy refer to it as an organization of vices. At its
best, organized crime becomes and economy within an economy or
government within government.
The chief characteristics of organized crime are:
A hierarchical order
In organized crime there is a definite order or arrangement in the
control and functions of the daily activities.
Authority of the controlling group
The top management controls the whole organization and all
Activities.
Treatment given to outsiders
Outsiders are not tolerated under any circumstances and will be
eliminated even on suspicion of having edged in.
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Method of conducting crime
Each organization has a standardized method of committing crime as
well as definite rules of criminal conduct. It has its own laws,
customs and techniques. Before a particular crime is conducted, its
details are carefully worked out and looked into. This is a policy
matter which is the responsibility of the top management. After the
policy has been laid down, the actual job of carrying it out is given to
a few people in the organization. In this coordinated manner, the
criminal act is carried out.
Essential outsiders
In every criminal organization, there are persons who do not directly
participate in crime activities but who give protection to members of
the gang, some such outsiders, are advocates, politicians. Protection
may also be induced through corruption from law enforcement
officials e.g. police officers, state lawyers and judicial officers.
Organized crime has been compared to a multi national corporation.
It deals with:
1. Predatory crimes hijacking, business, racketeering, terrorism,
2. demand oriented crimes criminal activities which are highly
desired by some sections of the community e.g. gambling,
narcotics, prostitution(adult and child), slavery
3. the penetration of legitimate business by organized crime e.g.
trade unions, state corporations
JUVENILE DELINQUENCY
This is a situation where a minor revolts/rebels against authority and breaks
laws and regulations as laid down by society, the state or the family. The
causes of juvenile delinquency are:
1. parental discord
2. unhappy home backgrounds
3. wrong parental attitudes
4. poverty
5. industrialization
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3. It is the major avenue for the transformation of values, knowledge and
culture.
According to Professor Sutherland, the types of families and homes leading
to delinquency can be categorized as follows:
Where other members of the family are criminally inclined,
alcoholic or immoral
Absence of one or both parents through death, divorce,
separation or desertion
Lack of parental control through ignorance or other factors, lack
of awareness or knowledge on parental techniques
Racial or religious differences including differences in the
standards of living
Economic problems such as unemployment, insufficient income
which sometimes forces one or both parents to be absent from
home.
Statistics indicated that where one or more members of a family are
criminal, especially the parents, the young ones are likely to become
delinquent. Other factors include psychology, and other emotional stresses
within the family. These may arise out of favoritism, rejection, rigidity and
harshness of the parents and hardships.
Slawson
His study revealed that 54% of the studied delinquents had run away
from home due to emotional stress and psychological stress within the
family. A girl who finds no affection at home compensates for it with
relationships. If she does not find affection within them she may
engage in illicit activities including prostitutions.
The rates of delinquency tend to be higher in families with combined
older brothers with younger brothers and sisters. Girls with older
brothers and sisters register higher rates of crime than those with older
sisters and no brothers.
Juvenile delinquency may be influenced by the environment e.g.
poverty
Films, videos, TV programmes, and other literature
School environment
Cowie
He conducted a study on delinquent girls. He concluded that girls and
women offend the law much less frequently as do boys and men. When they
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do so, by and large, the delinquency does not take the form of aggressive
and socially destructive qualities as that of males. A few girls who fall into
delinquency have certain characteristics:
1. they would be physically impaired
2. oversize
3. lumpish
4. uncouth
5. graceless
Roscoe Pound
Juvenile court brought individualized judging. It recognizes the special
circumstances of a particular juvenile. It is a legal tribunal where the law
and science especially that of medicine and others dealing with human
behavior biology, sociology and psychology worked side by side with the
sole aim of remedying and to a degree presenting delinquency rather than
punishing it.
Coupled with the development of the juvenile court there was a movement
to provide a separated institution for the young offenders e.g. borstal homes,
juvenile remands, approved schools, and probation centers etc.
Patterson
According to him; there is no leper in the world so contagious as the
hardened offender and the accustomed prisoner. Any newcomer to prison
should be kept away from him. Still more urgent is that the newcomer who
is in no way a criminal should never cross his path and certainly should not
consult with him on a daily basis.
RECIDIVISM
This connotes persistent indulgence in crime. These are offenders who are
jailed, released, re-arrested and re-sentenced. These offenders have a long
criminal record, have been frequent inmates of penal or correctional
institutions and show scant regard for institutional adjustment.
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Causes of Recidivism
According to Professor Sutherland, the main causes of recidivism are:
I. the social psychology of the offender;
II. inadequacy of the reformative techniques.
On the first point, he was of the view that urbanized regions are more
conducive to recidivism than rural areas. Factors such as higher cost of
living; slums and congestion offer sufficient opportunities for offenders to
commit crime unnoticed for years. Criminality therefore becomes a habit
and they eventually become recidivists.
Some penologists argue that continued isolation of an inmate from normal
society due to a long stay in prison renders him unfit for normal life release.
He therefore prefers the routine prison life to which he is accustomed.
The prisoner may also suffer from inferiority complex, feeling that law
abiding members of society look at him with suspicion and distrust.
According to Prof Sutherland, reformative measures are also inadequate.
Probation, parole and short term sentences have become inefficient. It is
argued that short- term sentences and other minor punishment means the
incessant coming and going of habitual delinquents.
PENOLOGY
Penology is the study of punishment and the treatment of offenders. It
concerns itself with the events that follow after the conviction of the
offender. There is a close relationship between criminology and crime.
Criminology focuses on the causes of crime and delinquency. The objective
is a better understanding of crime and criminality with the goal of crime
prevention. Knowledge of the factors that cause crime helps the state, state
agencies, social workers, law enforcement officials to eliminate to some
degree the said conducive factors.
34
Penology is concerned with crime prevention and control. It focuses on the
response of society to delinquent and criminal acts. The response includes
within its scope legal and extra legal procedures for handling delinquents
and criminal offenders as well as the methods dvised for the prevention and
control of delinquency and crime.
For us to react positively and effectively to criminal acts, we should be able
to understand the causes of the acts, (i.e. through the understanding of
criminology). It would help in determining the most effective methods and
procedures for handling and treating offenders as well as preventing crime in
general.
The causes of crime must be understaood in order to deal effectively with
crime and criminals. For example where acts are done maliciously, the
offender should be handled or treated harshly or severely, e.g. in the case of
murder, robbery with violence and rape. In cases of acts done out of
desperation such as stealing to feed ones children the offender should be
treated more humanely and leniently.
35
(sociological, positivist, etc) lay emphasis on reformation and re-
socialization of the offender.
36
that the other members are merely assuming secondary liability if the fails to
pay either in part or as a whole. It is considered by the wrongdoers kitha dn
kin a matter of family pride that none of their members legal obligations be
allowed to remain outstanding in relation to the wronged family. (Elias T O
Traditional Forms of Public Participation in Social Defence: International
Review of Criminal Policy, No 27 1969, 18-24 at page 19.
As a result of this very communal and collective governance system, there
was little distinction between civil and criminal cases. Both criminal and
civil cases were dealt with in pretty much the same manner. The law was
therefore dominated by the idea of compensation to counter-balance and
restore equilibrium in society. Cases such as murder, assault and rape were
redressed by compensation. Payment of fines or costs to the elders
concerned in the settling of disputes whether criminal or civil was the
accepted practice in African societies. African customary law focused on
reconciliation as means of restoring the social balance upset by the criminal
act. However, there were violent punishments in some instances, depending
on the nature and gravity of offences e.g. corporal punishment, mutilation,
torture, flogging, banishment, and execution.
Traditional societies employed the following modes of dealing crime and
criminals:
1. Reconciliation between the offender, the victim and their families
2. Restitution of stolen or misappropriated property
3. Compensation to the victim or his family by the offender or his family
4. Compensation paid to the community as a whole, mainly through
elders or chiefs by way of fines or costs
5. Corporal punishment for serious offenders or for persons not
amenable to fines owing to poverty
6. Capital punishment was reserved for serious offences such as
witchcraft
7. Social ostracism public ridicule sometimes an offender would be
tied up to restrict movement
8. Religious sanctions to protect the community from the hostility of the
gods, spirits, e.g. through the offering of sacrifices
9. Expulsion of the offender from the community in serious cases
which did not warrant execution outlawing
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a person of a crime unless that offence is defined and its penalty prescribed
in written law.
Thomas Hobbes
He defines punishment as an evil afflicted by a public authority on him that
has done or omitted that which is adjudged by the same authority to be a
transgression of the law; to the end that the will of men may thereby be
disposed to obedience.
Wolf Middendorff
He defines punishment as an unpleasant consequence which penal law
prescribes for socially undesired human conduct and which courts impose
according to the laws of penal procedure.
Westmark
According to him a person is said to be punishment when some pain is
afflicted on him. That pain may take the form of imprisonment, fines,
forfeiture of property or some other restriction or detriment imposed by
society as a mark of its disapproval of the act or omission of the individual
punished.
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Sutherland and Cressy
Two essential ideas contained in the concept of punishment as an instrument
of public justice;
1. It is inflicted by the group in its coporate capacity upon one who is
regarded as a member of the same group. The loss of status which
often follows crime is not punishment, except in so far as it is
administered by the group in its corporate capacity.
2. Punishment involves pain or suffering produced by design and
justified by some value that the suffering is assumed to have. This is
the conventional conception as used in criminal law. If the suffering
is merely accidental, to be avoided if possible, it is not punishment.
Grunhut
According to him, three components must be present if punishment is to act
as a reasonable means of checking crime:
I. Speedy and inescapable detection and prosecution
II. After punishment, the offender must have a chance for a fresh start.
Thus punishment should not import any stigma on the offender.
III. The state which claims the right of punishment must uphold superior
values.
Parker
He defines punishment as follows:
1. It must involve pain or some other consequence normally considered
unpleasant
2. It must be for an offence against legal rules
3. it must be imposed on an actual offender for his offence
4. it must be properly administered by human beings other than the
offender
5. there must be a spirit of reform behind the punishment
6. it must be imposed and administered by an authority constituted by a
legal system against which the offence is committed
7. It must be imposed for the dominant purpose of preventing offences
against legal rules.
The study of treatment of offenders initially focused exclusively on
punishment and excluded other ways of dealing with offenders. However,
modern approaches to criminology focus on the role of society and social
pressures on the making of criminal offenders. Penologists have thereby
been forced to look beyond punishment.
39
Where did the right to punish spring from? The right to punish is vested in
the state or public authority. Lawful punishment is afflicted by the state.
Where does the state derive the power to punish?
According to Hobbes, before the emergence of the entity of the state, every
man had a right to everything and to do whatever he thought necessary for
his own preservation, including hurting, maiming or killing other human
beings. Man was at this time a free agent.
The emergence of the family unit led to communalism. Family and clan
units got together and worked as a group to protect their interests and rights.
From communalism, society moved to the state. With the establishment of
the state acceded some of his rights to the state. He however retained the
right to self defence. The states right to punish is not grounded on any gift
or concession by the citizens. The citizenry abandoned the right to punish in
order to strengthen the hand of the sovereign. According to Hobbes for
anything to be properly called a punishment it must possess certain qualities
and any other act lacking these qualities but inflicting pain would be an act
of hostility.
It therefore follows that:
a. Private revenge and injuries inflicted by private men are not legally
speaking punishment. They are not sanctioned by a public authority.
They do not stem from the state.
b. Social ostracism where society ostracizes, ignores or neglects an
offender this does not amount to punishment.
c. The act of punishment must be preceded by public condemnation as
judged by a public authority. This disqualifies mob justice as
punishment on the basis that the public condemnation of the offender
is not judged by a public authority. It is lacking in state approval.
d. Punishment must be styled by a legitimate public authority. It must
be pronounced by the appropriate public authority and meted out by
the appropriate authority. Punishment inflicted by means of usurped
authority or power or by a judge who has no authority is an act of
hostility because the person condemned and the society in general
have not delegated authority to these people.
e. Punishment must have a justification or end. Any punishment that ha
no possibility of rectifying the delinquent or has no deterrence value
on the offender is an act of hostility.
f. Divine punishment i.e. from nature or God is legally speaking not
punishment, because it is not inflicted by authority of man.
g. Punishment must fit the crime. If the harm inflicted is less than the
benefit or contentment that naturally flows from the crime committed,
40
then the harm on the offender does not amount to punishment. Where
the harm is less than the crime, the offender would enjoy some
residual benefit.
h. Punishment should not exceed that which is prescribed.
i. Harm inflicted for an act done before there was a law forbidding it is
not punishment because there is no transgression of the law. Thus,
criminal law does not apply retrogressively.
THEORIES OF PUNISHMENT
Philosophers and penologists have over the years advanced diverse
explanations or justifications for punishment.
According to Sir Rupert Cross, (The English Sentencing System, 1981,
Butterworths, 3rd Edition), at page 120)
In many ways it is a pity that the word theories ever came to be employed
to describe the moral justifications of the practice of punishing with varying
degrees of severity..As punishment entails the deliberate infliction
of pain, it certainly needs to be justified morally, but the use of the word
theory is unfortunate for at least two reasons. In the first place, it suggests
that one theory must be right to the exclusion of all others whereas, as will
appear shortly, it may well be the case that neither retributive theories
standing alone nor utilitarian theories standing alone can provide an
adequate answer to any major questions that are commonly raised with
regards to punishment. The second objection to the use of the expression
theories of punishment is that it tends to produce interminable and
inconclusive discussions concerning the correctness of any one of them
There is no consensus on which explanations or theory best justifies
punishment in society. The historical approach to crime and criminals has
undergone tremendous change.
According to Gerhard Muller, punishment has undergone four distinct eras:
a. Era of retribution revenge, repression, rejection
b. Utilitarian era rehabilitation, reintegration,
c. Era of humanism
d. Era of nihilism nothing works as expected
Earlier penologist and criminologists advocated for punishment with the sole
aim of inflicting pain on the offender. The proponents of the retributive
theory sought only to punish the offender. It was hoped that by inflicting
pain on the offender as repressive means allowed or stipulated both the
offender and the entire society in general would be deterred. However, this
41
proved to be untrue. Retributive punishment did not yield the desired effect.
It was argued that such punishment was inhuman, barbaric and tended to
focus on the offence committed rather than the offender.
These criticisms of the retributive theory led to a new approach to
punishment. Punishment began to be seen as that which should not only be
retributive but also produce a desired effect upon both the offender and the
society in general. This saw the evolution of utilitarian theories markedly
those of reformation, incapacitation or restraint and reintegration.
Focus shifted from the offence to the offender. It was argued that the
offenders did not necessarily have a criminal mind but that other factors led
to criminality. These included social, economic and even political factors.
In order to rid society of crime it was therefore necessary to address such
other factors that influenced criminality. Punishment was therefore viewed
as a curative measure. Thus, in addition to the other retributive forms of
punishment capital and corporal there also evolved prisons which were
intended for the solitary confinement of offenders. While in that condition
prisoners were likely to meditate on their evil ways and change to better
persons who were likely to reintegrate into society once their prison terms
were over.
With time, however, prisons, which were intended to remedy the defects of
retributive forms of punishment changed for the worse. They became
harbors for vice. Living conditions became inhuman. Offenders once out of
prison were worse off. They became embittered against society and tended
to revert back to crime. There was therefore need for the evolution of yet
other forms of punishment that catered for the changing needs of society.
Penologist today therefore advocate for non-custodial remedies such as
probation, parole, discharge, community service orders, fines etc that seek to
punish, rehabilitate and heal the offender in such a way that he will not
revert to crime.
They argue that capital punishment and corporal punishment are inhuman
and barbaric and ought to be abolished while prison sentences should be
maintained for serious offences only.
RETRIBUTION
This is the most ancient method for dealing with offenders dating to the pre-
classical period. It is retributive and revengeful in nature. This approach to
punishment rests on the idea that a person whose conduct appears to have
caused social harm should be held responsible for the harm. It is right that
the wicked be punished. The punishments therefore tended to be more
inhuman and sadistic. They usually consisted of banishment, mutilation of
42
limbs, whipping, flogging branding, various forms of torture and death.
There was usually no attempt to relate the nature of punishment to either the
offence or the offender. In earlier times penal law allowed the infliction of
greater injury on an offender that that which he inflicted on his victim.
Later, penologists called for more humane treatment of offenders anad the
older approaches were replaced by codes that advocated for nothing more
than eye for an eye and a tooth for a tooth. Its proponents argue that
punishment for wrongdoing is intrinsic in value. It is just notwithstanding
any other benefits e.g. crime prevention. To them punishment should not be
for any other purpose than restoring the moral balance that is disturbed by
the crime. The imbalance would remain if the criminal goes scot-free.
Punishing him would give satisfaction to the victim and society.
According to Emmanuel Kant, the full moral balance is restored when the
offender is punished and the victim compensated. In his view, punishment is
a reward, compensation a kind of annulment to a crime.
The basis of retribution seems to be societal revenge. An offender should be
made to suffer not so much because it is good for him but because he
deserves to suffer. According to Kant, punishment must always be inflicted
upon the offender for the sole reason that he committed a crime.
According to Sir James Stephen, it is highly desirable that criminals should
be hated, that punishment should be so contrived as to give expression to
that hatred, and to justify it. To these penologists punishment should fit the
crime and the offender should get what he justly deserves.
There are two components to the retributive theory:
Vindication
This is the sense of the societys claim to amend for the harm done or for the
outraged feelings. In its crudest form the first kind of vindication justifies
punishment on the ground that it tends to satisfy the victims need for
vengeance. More refined notions are the satisfaction of the victims sense of
justice or the satisfaction of the feelings of resentment of the victim, his
friends, as well as others who are aware of the crime.
Bentham (Principles of Morals and Legislation)
A kind of collateral end, which it (punishment) has a natural tendency to
answer is that of affording a pleasure or satisfaction to the party injured,
where there is one, and in general, to parties whose ill will whether on a self
regarding account, or on account of sympathy or antipathy has been excited
by the offence. This purpose, as far as it can be answered gratis, is a
beneficial one. But no punishment ought to be allotted merely to this
purpose, because (setting aside its effects in the way of control) no such
43
pleasure is ever produced by punishment as can be equivalent to the pain.
The punishment, however, which is allotted by other purposes, ought as far
as it can be done without expense to be accommodated to this. Satisfaction
thus administered to a party injured in the shape of a dis-social pleasure amy
be styled a vindicative satisfaction or compensation.
Court of Appeal
This Court is quite satisfied that this is not a deterrent sentence. It is a
sentence which is fully merited, in a the opinion of this Court, as punishment
for very grave offences, and as expressing the revulsion for the public to the
whole circumstances of the case.
FAIRNESS
This component emanates from the belief that there is a sense in which the
criminal gains advantage over the law abiding citizen every time he commits
an offence.
This is especially so in cases of successful acquisitive crimes. In other cases
it may also be argued that the law abiding citizen may have derived some
satisfaction from committing the offence but they abstained especially where
similar opportunities may have been available to them. Punishment in this
case serves to demonstrate to the offender as well the law abiding citizen
44
that threats of the law will take effect, and that taking advantage of the self
restraint of others cannot be done with impunity.
The question of fairness, is viewed as a matter between the state and the
offender, the trend has therefore been that punishment of serious crimes
should not be determined by the wishes of a particular victim. It therefore
follows that if the sole aim of punishment was just vindication for the
victims injury, then punishment ought not to be metted out where the victim
forgives the offender. In general the courts therefore consider the victims
attitude irrelevant to accused punishment because the accused has to be
punished for flouting the law.
PROPORTIONALITY
Whereas, vindication and fairness provide partial answers to the question of
why punish. Proportionality attempts to address the issue of how much
45
punishment should be inflicted. The general answer is that it be as much as
is deserved for the offence no more no less. How is this to measured. Is it in
reference to quantity of punishment and moral deserts of the offender.
Sentencers generally think in terms of a complex notion which they will
frequently describe as the gravity of the offence. Such a definition may
reasonably include wickedness and the extent that punishment is measured
proportionately to the wickedness implicit in the definition of the offence, or
indicated by particular circumstances. Gravity may also include reference to
the amount of harm done by the offender and the extent that such harm was
inflicted intentionally or negligently. Whereas, these may fall within the
ambit of moral desert, gravity is sometimes measured by other
considerations which have feature social rather than moral significance.
Example is the alarm caused by a particular category of offence, i.e. burglary
and handling are not morally worse sentences than theft, but the maximum
sentences are higher each case.
Criticism of this exercise of attempting to come up with the retributive
theory in this regard is that an attempt to inflict pain commensurate to the
crime is a futile endeavor to equate incommensurables. In other words what
is the sense of taking about proportionality of fine to term of imprisonment
to assault or theft.
Hegel in the Philosophy of Right has tried to justify and explain this
approach. His point was that though they may differ greatly in form, crime
and punishment resemble each other in that they each a species of injury.
the universal feeling of nations and individuals about crime is and has
been that it deserves punishment, that as the criminal has done, so should it
be done to him
But a great difficulty has been introduced into the idea of retribution by the
category of equality.
.is easy enough from this point of view to exhibit the retributive
character of punishment as an absurdity (theft for theft, robbery for robbery,
an eye for an eye, a tooth for a tooth then you can go on to suppose that the
criminal has only one eye or no teeth).Value, as the inner quality of things
which in their outward existence are specifically different from one another
in every way, is a category which has appeared already, in connection with
contracts, and also in connection with injuries that subject of civil suits.In
crime, as that which is characterized at bottom by the infinite aspect of the
deed, the purely external specific character vanishes all the more obviously,
and equality remains the fundamental regulator or the essential thing, to wit
the deserts of the criminal, though not for the specific external form which
the payment of those deserts may take. It is only in respect of that form that
46
there is plain inequality between theft and robbery on the one hand, and
fines, imprisonment, e.t.c on the other. In respect of their value, however,
i.e. in respect of their universal property of being injuries, they are
comparable.
Even if crime and punishment are each regarded as species of injury, there
remains the question of the feasibility of measuring proportionality between
them in terms of magnitude of a fine or the duration of a prison sentence.
The procedure would entirely be unfeasible if its object were thought of as
the production of a precisely correct sentence for each offence in isolation
from all others. But it is perfectly feasible if the object is recognized as the
attempt to equate the size of a fine or length of prison term to the gravity of
the particular category of offences with other categories (theft and murder0
and the gravity of the circumstances under which the offence was committed
with offences of same category ( rape where the victim is viewed to have
acted to some extent as a temptress as contrasted with rape in which the
victim was waylaid and subjected to great violence.
47
prison for three years for doing that seems to this Court to be beyond
reason.
Salmon LJ
No doubt there are crimes against property which, in exceptional
circumstances, enable justice to be tempered by mercy and first offenders to
be treated with extreme leniency. But crimes of violence are altogether
different in kind. These appellants were members of a gang which in brutal
and cowardly fashion, set on a man standing alone, and proceeded to kick
him as he lay unconscious..In such circumstances the appellant would, or
should have been sentenced to long terms of imprisonmentThey are all
young with no previous convictions. Even so in circumstances such as these
to impose the most derisory fines of 20 and 25 is a travesty of the proper
administration of justice.
The retributive theory is grounded on a number of assumptions;
a) That the culpability or responsibility for the an offence is
punished and it is hoped that the penalty given produces
equivalent satisfaction to the aggrieved party,
b) That the punishment is similar or as close as possible to the
injury occasioned on the victim;
c) That the criminal is punished because he was fully responsible
and he committed the offence with full knowledge;
d) That the criminal has benefited from the crime.
48
or immoral acts. Circumstances may have an effect on the person e.g.
poverty, age, state of mind.
c) The victim may not be interested in revenge. Thus revenge may not
achieve Kants moral balance.
d) There being no foolproof method of determining those who are guilty,
vengeful punishment may be directed at the innocent.
UTILITARIAN THEORIES
The underlying assumption of these theories is that crime must be prevented
as economically in terms of the suffering of the offender as possible.
DETERRENCE
This is the preventive effect that actual or threatened punishment has on an
offender or potential offender in a given society. It is an ancient theory.
John Salmond believes that punishment must be deterrent. The main aim of
criminal law should be to make the wrongdoer an example and warning to
all who are like-minded.
William the Conqueror of England is reported to have decreed that no one
shall be killed or hung for misdeed but rather that his eyes be plucked out
and his feet, hands and testicles cut off so that whatever part of his body
remains will be a living sign to all of his crime and iniquity.
There is a close connection between deterrence and retributive forms of
punishment. Retributive punishment is believed to have some deterrent
value. Deterrence is meant to reduce crime and for this reason some
49
penologists argue that the harsher or more horrid the punishment the more
effective the deterrence.
Cesare Beccaria the Italian criminologist argued against the severity of
punishment saying that punishment was not to provide a social revenge on
the criminal and it was not the severity but the certainty and expedition in
punishment that secured the best results for deterrence.
Deterrence is at two distinct levels individual and general
Individual deterrence
The idea here is that the offender should be given such an unpleasant time
that through the fear of a repetition of punishment he will never repeat his
conduct. There are limiting factors however. The retribution theory insists
that punishment should not be disproportionate to the offenders deserts, the
utilitarian insists that the punishment must be no more than is necessary to
achieve its deterrent effect, sheer expediency on the other hand insists that
the punishment shall not be such as to make the offender an object public
sympathy. Rev Sydney Smith (1771 -1845) whose views on punishment
were notoriously harsh was aware of these limitations and stated thus:
When we recommend severity, we recommend, of course, that degree of
severity which will not excite compassion for the sufferer and lessen the
horror of the crime. That is why we do not recommend torture and
amputation of limbs. Cited in the The Modern Approach to Criminal Law
by Radzinowcz and Turner at page 40.
The current penological view is that one sentence of imprisonment is enough
for the majority of offenders: It is widely viewed by conjecture that the first
prison sentence is the most traumatic. The initial impact of prison life is
therefore thought to be a powerful individual deterrent.
At a personal level punishment serves as a lesson and warning to the
offender himself. It removes him from the environment where he would
commit crime (restrains him).
GENERAL DETERRENCE
When reliance is placed on general deterrence, the aim of punishment is
thought of as the discouragement of like minded persons from committing
offence by the threat of punishment and the example of the punishment of
the offender.
At a general level, it deters other like minded persons from committing
similar offences. This theory is illustrated in the case of R vs Atma Singh s/o
Sharda Singh 1943 E.A.C.A 69
The appellant an elderly Sikh man appealed against conviction and sentence
on the charge of causing grievous bodily harm to his wife. The brief facts
50
were that the appellants wife had been enticed by another man, upon which
she left their matrimonial home in Mombasa, to live with her new man in
Nairobi. The appellant followed her there and managed to take her back to
Mombasa, and thereupon cut off her nose and ears. He was tried and
sentenced to 7 years imprisonment with hard labour. On appeal the sentence
was affirmed. Describing the assault as barbaric and therefore one that
needed punishment that would lead to deterrence, the judges further stated
that for purposes of deterrence a lesser sentence would be misunderstood.
In R vs Mudanya Kazengwa 1979 KLR 48, the accused an Inspector of Weights
was charged with Corruption c/s 3 of the then Prevention of Corruption Act.
The facts were that he corruptly received Kshs 600 as inducement not to
prosecute a man for hoarding tea. Under the section the offence carried a
maximum penalty of seven years imprisonment or a fine of Kshs 10,000 or
both for first offenders. He pleaded guilty and was sentenced to a fine of
Kshs 5,000 or 6 months imprisonment. The magistrate based the sentence
on various mitigating factors including;
c) the accused was likely to loose his job
d) the accused had a family to support
e) he was repentant and apologetic
On appeal it was held that the sentence meted out by the lower court could
serve to encourage the commission of the offence. The sentence was set
aside and replaced with one of 4 years imprisonment.
Salmon J
If a young man such as the appellant is given six months suspended
sentence, back he goes whence he came and the news spreads like wildfire
amongst all students. Well, this is not a bad way of trying to get money
because if it comes off you will just be sent home again. On the other hand,
if it is known among potential offenders in the Lebanon and elsewhere that,
if they are caught attempting to smuggle drugs into this country, they will be
51
severely dealt with, there may be a remarkable lack of enthusiasm for
enterprises of this kind and great difficulties put in the way of people who
run this filthy trade.
There is however, growing skepticism about the deterrent effect of either the
threat or example of punishment. There are difficulties of conducting
satisfactory research into the deterrent effect of particular sentencing
policies. A survey of young men carried out by Willcock and Stokes in
1968, suggested that most people overate their chances of detection and rank
fear of what others will think above fear of punishment as a deterrent.
Courts however, continue to find usefulness for general deterrence in
sentencing.
52
confused with a purely deterrent effect. A man who abstains from crime just
because he is deterred abstains through fear of suffering and not because he
thinks it wicked; a man who abstains because the condemnation of the crime
by society and the state has brought its wickedness home to him abstains
from moral motives and not merely from the fear of unpleasant
consequences to himself.
The negative version of this theory is that failure to punish a crime
adequately will depreciate its seriousness. This could partly explain the
remarks made by judges in the cases that we have already looked at.
In this regard the theory has both retributive and utilitarian features
DISABLEMENT/INCAPACITATION/PREVENTION
This theory is connected to the deterrence theory. It is founded on the
assumption that the isolation or incapacitation of an offender renders him
incapable of committing crime and rids society of evil. Incarceration or
imprisonment of offenders isolates them from the rest of society and from
53
the circumstances that led him to crime. The death penalty also disables by
permanently incapacitating the offender. Its main avenue for operation is the
prison and related institutions.
The application is best illustrated in the case of Ndurugo s/o Karuga vs Republic
1950 EACA 50 where the accused was charged with the offence of stealing
one cow. He was sentenced to 10 years imprisonment with hard labor. He
appealed against both conviction and sentence. The conviction was upheld
but sentence was reduced to 5 years. In the opinion of the appeal judges, the
accused if let loose would commit more serious offences as he had 21
previous convictions. The sentence was thus intended to disable or
incapacitate him to ensure security to the communitys property.
The theory has several weaknesses;
a) It merely postpones crime
b) It is based on the prison system with all its weaknesses
c) It presupposes that no crime occurs in prison
d) It encourages longer and unnecessary punishment
REFORMATIVE/REHABILITATIVE APPROACH
There are two aspects to the reformative approach;
a) that reform can come through the punishment itself, the pain of
punishment is therefore expected to have reformative merits on its
own. Sir Rupert Cross remarks that this view is unfashionable and
that nothing can be said about it beyond observing that solitary
confinement is an example from former times, the theory being that
suffering the loss of liberty in solitude would induce remorse,
repentance and reform.
b) The idea of reform as concomitant to punishment. This is the
prevailing theory for sentences such as probation where reform is at
the forefront to the extent that probation in many quarters is not
viewed as punishment at all, but merely as a measure of rehabilitation.
54
to produce the desired effect or result. Arguments in favour of reformation
include:
a) reforming the criminal provides the state with opportunity
to control crime in future;
b) the reformation process is also deterrent and thus an
effective condemnation of crime
c) it creates resources for the state for training the offender
prison etc
d) it enables the criminal to stay within society probation ,
parole, discharge etc provide s the best opportunity for re-
socialization of the offender
55
for individual responsibility and to increase the problems he must face when
he returns to society (Length of Prison Sentences, para. 10).
It is therefore rare to find a situation where courts would impose a term of
imprisonment primarily for reformative purposes. It is generally believed
that the best method for securing reform is through non custodial sentences.
The dilemma that judicial officers face is usually that of conflicts between
the issue of general deterrence and reform and between reform and
retribution and reform. This is because whereas, reform or rehabilitation
focuses primarily on the offender i.e. it is mostly for the good of the
offender, general deterrence and retribution focus on the offence, which is
viewed as a violation against the society as a whole and which therefore
requires punitive action. So it may be argued that in many cases, the maxim,
punish the offender rather than the offence is only sound up to a point.
And that there are many cases where the rights of the offender or the
protection of the public require that the sentence should be concentrated on
the offender.
In some instances, for example the courts may allow a longer prison
sentence where there are facilities for the treatment of the offender, and it
has been established that the treatment or therapy requires a minimum time
frame which would then become a threshold for the minimum length of
sentence. But even this notion is not that well settled.
Two English cases demonstrate the difficulties;
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also brought the suspended sentence fully into operation, partly in hope of
curing Moylans alcoholism. The Court of Appeal held that this was wrong
and activated the suspended sentence for 6 months only.
In our judgment, in cases of dishonesty where there is, as it were, a
background of alcoholism in respect of the accused, the Court must first
determine what are the limits of a proper sentence in respect the the offences
charged. Within these limits it may be perfectly proper to increase the
sentence in order to enable a cure to be undertaken whilst the accused is in
prison. But on the authority of Ford, it is clear that it is not correct to
increase above that within the appropriate range of the offence itself merely
in order to provide an opportunity of cure.
It is interesting to note that whereas, prisons are increasingly wishing
themselves to be viewed as reformative and rehabilitative institutions, there
judicial thought and practice is clearly not taking the same track and
especially for run-off-the mill type offences.
The challenges are even more evident in cases where the offences are
intrinsically serious but are committed by relatively youthful offenders with
previously relatively good conduct. Such offenders would normally lay
claim to reformative and rehabilitative rather than punitive measures.
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A case in point where the English Court of Appeal discussed these issues
extensively is
Lawton LJ
What ought the proper penalty to be? We have thought it necessary not only
to analyze the facts, but to apply to those facts 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 always to have those four 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 which he is dealing.
I will start with retribution. The Old Testament concept of an eye for an eye
and a tooth for a tooth no longer plays any part in our criminal law. There
is , however, another aspect of retribution which is frequently overlooked: it
is that society, through the courts, must show its abhorrence of particular
types of crime, and the only way in which the courts can show this is by the
sentences they pass. The courts do not have to reflect public opinion. On
the other hand courts must not disregard it. Perhaps the main duty of the
court is to lead public opinion. Anyone who surveys the crime scene at the
present time must be alive to the appalling problem of violence. Society, we
are satisfied, expects the courts to deal with violence. The weapons which
the courts have at their disposal for do so are few. We are satisfied that in
most cases fines are not sufficient punishment for senseless violence. The
time has come, in the opinion of this Court, when those who indulge in the
kind of violence with which we are concerned in this case must expect
custodial sentences.
But we are also satisfied that, although society expects the courts to impose
punishment for violence which really hurts, it does not expect the courts to
go on hurting for a long time, which is what this sentence is likely to do. We
agree with the trial judge that the kind of violence which occurred in this
case called for a custodial sentence. This young man has had a custodial
sentence. Despite his good character, despite the excellent background from
which he comes, very deservedly he has had the humiliation of hearing
58
prison gates closing behind him. We take the view that for men of good
character the very fact that prison gates have closed is the main punishment.
It does not necessarily follow that they should remain closed for a long time.
I now turn to the element of deterrence, because it seems to us the trial judge
probably passed this sentence as a deterrent one. There are two aspects of
deterrence: deterrence of the offender and deterrence of likely offenders.
Experience has shown over the years that deterrence of the offender is not a
very useful approach, because those who have their wits about them usually
find the closing of prison gates an experience which they do not want again.
If they do not leran that lesson, there is likely to be a high degree of
recidivism anyway. So far as deterrence of others is concerned, it is the
experience of courts that deterrent sentences are of little value in respect of
offences which are committed on the spur of the moment, either in hot blood
or in drink or both. Deterrent sentences may very well be of considerable
value where crime is premeditated. Burglars, rovers and users of firearms
and weapons may very well be put off by deterrent sentences. We think it
unlikely that deterrence would be of any value in this case.
We come now to the element of prevention. Unfortunately it is one of the
facts of life that there are some offenders for whom neither deterrence nor
rehabilitation works. They will go on committing crimes as long as they are
able to do so. In such cases the only protection which the public has is that
such persons should be locked up for a long period. This case does not call
for a preventive sentence.
Finally, there is the principle of rehabilitation. Some 20 to 25 years ago
there was a view abroad, held by many people in executive authority, that
short sentences were of little value, because there was not enough time to
give in prison the benefit of training. That view is no longer held as firmly
as it was. This young man does not want prison training. It is not going to
do him any good. It is his memory of the clanging of prison gates which is
likely to keep him from crime in the future.
A number of considerations from what we have discussed in the various
principles or justifications for punishment arise from the passage;
1) In giving regard to public opinion when considering
sentence, Lord Justice Lawton draws attention to the
denunciatory aspect of punishment and treats as
retribution, in similar fashion to Sir James Stephen
(Liberty, Equality and Fraternity (London, 1874), pg
162-2, writing that common crimes are punished; for
the sake of gratifying the feeling of hatred, - call it
revenge, resentment, or call it what you will which
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the contemplation of such conduct excites in healthily
constituted minds.
2) Although there is a clear link between retribution and
denunciation, this justification seems justified to keep
an approximate correspondence between the degree of
popular abhorrence for certain offences and the level
of the sentence is important in order to reinforce
public attitudes towards those offences.
3) He places little faith in individual deterrence as a
reason for making a particular sentence more severe
than it might be on retributive grounds; he argues that
general deterrence may be more justifiable in certain
cases. His arguments seem to be more concerned with
practical utility rather than theoretical considerations.
So that it may be more practical to aim at deterring
premeditated/planned crimes than those that are
impulsive ones. One may argue that for purposes of
prevention of crime it might be more effective to have
a system that imposes high penalties for all offending,
planned or impulsive, than to have one that reserves
higher penalties only for the planned ones. The
question would then be whether the extra amount of
crime reduction gained by treating the two types of
offences in a similar is justified for the imposition of
extra suffering on those committing impulsive crimes,
the utilitarian would not be persuaded, nor would
retributivist who regard such impulsive crimes as less
wicked than premeditated offences
The sentence was considered too long and reduced to 8 months
imprisonment. Clearly the court must have considered this to be appropriate
for one who had not been to prison before and therefore individually
deterrent as well as appropriately retributive in view of the impulsive nature
of the violence.
SENTENCING IN KENYA
The Kenyan Penal Code provides under Section 24 for the following forms
of punishment.
a) Death
b) Imprisonment
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c) Detention under the Detention Camps Act
d) Corporal Punishment
e) Fine
f) Forfeiture
g) Payment of compensation
h) Security to keep the peace and to be of good behaviour
i) Any other punishment provided by this Code or any other Act
DEATH
The prevalence of the death penalty has varied a great deal in different
societies. In the medieval period the most common techniques for the
carrying out of the death penalty was by burning, boiling in oil, breaking at
the wheel, the iron coffin, drowning and impaling. In Switzerland impaling
and immuring were practiced until about 1400 and death by drowning until
about 1600. The last case of burning at the stakes in Berlin was in 1786. In
ancient Rome the death penalty was inflicted on slaves and other non-
citizens for various offences.
In England in the early 1700s the death penalty was frequently inflicted for
religious offences, but most of the later inflictions were for offences against
property and in some instances for very trivial offences.
It is reported for example that in 1814, three boys aged, eight, nine and
eleven were sentenced to death for stealing a pair of shoes. Other offences
for which the death penalty was applied in addition to theft, were, poaching,
pick-pocketing etc. During the early part of these periods, the corpse was
gibbeted, that is remained hanging in chains, and was sometimes soaked in
tar so that it would remain for a long time as a warning to evil doers.
Some attempts were made by reformists to at least do away with the more
gruesome methods of carrying out of capital punishment for the offence of
treason; In 1814, one of these reformers Romilly tried in vain to substitute
simple hanging as society reaction to treason in place of the penalty of
hanging, cutting down alive, disemboweling, cutting off the head and
quartering the body.
During the course of the last century there has been a distinct movement
away from the death penalty, a number of countries have abolished entirely
whereas in others the offences for which the death penalty is mandatory has
been limited mostly to murder.
61
The other trend has been to have a permissive as opposed to mandatory
death penalties. This where courts and juries have been given powers to
decide whether one found guilty of a capital offence must be executed.
In countries like the US where some states have retained capital punishment,
the manner of execution has also been modified to make less prolonged and
less brutal i.e. the introduction of the electric chair, lethal injection as more
civilized and swifter ways of execution.
In Africa, the application of the death penalty also varied from place to
place:
a) Pre-colonial Kikuyu customs provided for burning of murderers and
those who stole habitually
b) Banyankore death penalty was reserved for premeditated homicide
and pre-marital pregnancy
c) Basoga stealing ripe bananas would result in unripe bananas being
inserted into the offenders rectum until some internal organ ruptured
and he would bleed to death
d) Kingdom of Benin burning alive
e) Buganda adulteresses could be put to death.
EXCEPTIONS
Under Section 211 of the Penal Code,
Where a woman convicted of an offence punishable with death is found in
accordance with the provisions of Section 212 of the PC to be pregnant, the
sentence to be passed on her shall be of imprisonment for life instead of
death sentence.
Section 212,
The woman herself can allege that she is pregnant or the court which
convicts may order that the question of her pregnancy be determined, it shall
be determined by the trial judge.
Evidence may be laid by the woman herself or the republic, and such
evidence must be proved affirmatively to the satisfaction of the judge that
the woman is indeed pregnant. It the woman is dissatisfied with the judges
finding, and then she can appeal to the court of appeal.
62
Section 25 (2)
Sentence of death shall not be pronounced on or recorded against any
person convicted of an offence if it appears to the court that at the time when
the offence was committed he was under the age of eighteen years, but in
lieu thereof the court shall sentence such person to be detained during the
Presidents pleasure, and if so sentenced he shall be liable to be detained in
such place and under such conditions as the President may direct, and whilst
so detained shall be deemed to be in legal custody.
25(3)
When a person has been sentenced to be detained during the Presidents
pleasure under subsection (2), the presiding judge shall forward to the
President a copy of the notes of evidence taken on trial, with a report in
writing signed by him containing any recommendations or observations on
the case he may think fit to make.
Under LN 579/1963 this power is delegated to the Minister and to the
Permanent Secretary of the Ministry for the time being responsible for
prisons.
Section 166 of the Criminal Procedure Code
Where it is shown that at the time of committing a capital offence the
offender was insane then he shall be detained at the Presidents pleasure.
Manner of Execution
Under Section 69 of the Prisons Act it is provided as follows;
When any person is sentenced to death, he shall be hanged by the neck until
he is dead and the sentence shall be carried out in such manner as the
Commissioner shall direct.
The death sentence wherever it is provided for in Kenya is a mandatory
sentence. Once the court finds one guilty of a capital offence, there is no
option of any other sentence except for the exceptions discussed above.
There is no discretion granted to the court.
The courts have found particular difficulties with the application of the law
with regard to robbery with violence.
Definition of robbery
Section 295 of the Penal Code
Any person who steals anything, and, at or immediately before or
immediately after the time of stealing it, uses or threatens to use actual
violence to any person or property in order to obtain or retain the thing
stolen or to prevent or overcome resistance to its being stolen or retained, is
guilty of a felony termed robbery.
Section 296 (1)
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Any person who commits the felony of robbery is liable to imprisonment for
fourteen years together with corporal punishment not exceeding twenty-
eight strokes.
296(2)
If the offender is armed with any dangerous or offensive weapon or
instrument, or is in company with one or more other person or persons, or if,
at or immediately before or immediately after the time of the robbery, he
wounds, beats, strikes or uses any other personal violence to any person, he
shall be sentenced to death.
Subordinate courts have tended to consider the degree of violence and
gravity of injuries against the victim to determine whether or not one is
guilty under Section 296(2). For example, where the offender is in the
company of others, they are armed, but do not use the arms to injure the
victims. The Court of Appeal has on the other hand been very insistent that
the offence is sufficiently proved once those ingredients exist and it is
immaterial that no actual harm was caused.
Justification for the Death Penalty
1. It is argued that it is deterrent. It disables the accused completely in
that he would never be in a position to commit a similar offence or
any other offence for that matter. It deters others, some proponents of
this view suggest that it would be even more effective if carried out in
public. (This is the mode preferred by successful coup plotters in
Africa of the 60s, 70s and 80s).
2. In the majority of cases, those who are sentenced to death are those
who are beyond the hope of rehabilitation such that imprisonment
would be a waste of taxpayers money. It is argued that execution is
less costly.
3. It is more humane to hang a person than to imprison them for life
4. Without the death penalty, society would return to lynching, even for
petty offenders
5. The death penalty is sanctioned by the Lord. Genesis 9 v 6 Whoever
sheds human blood, by man shall his blood be shed, for in the image
of God made He man. Exodus 21 v 13 The punishment shall be life
for life.
Case against
1. Death is a not a punishment at for the victim does not live to learn to
avoid wrong doing.
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2. Studies have shown that the death penalty does not have a unique
capacity to deter. Thus, its deterrent value is overrated and cannot
justify its retention.
3. It is contrary to the highest ideals of civilized communities, it is cruel,
inhuman, unkind, degrading
4. For Christians, it contravenes the commandment Thou shall not kill
5. Society cannot get rid of murderers by being a murderer itself
6. It is irrevocable there is a real risk of executing innocent persons
7. Hanging is hangover from the barbaric past
8. It is exploited by oppressive regimes to repress and stamp out
opponents
9. It is inflicted mostly on the weak in society the most vulnerable
members of society i.e. the poor who are least able to access legal
representation.
IMPRISONMENT
This is the most common form of punishment after fines. The Penal Code
provides for maximum sentences, but the regime of minimum sentences was
done away with.
The courts as a result of the amendments to those sections that previously
carried minimum sentences now have total discretion with regard to penal
offences to award any duration from 1 day to the prescribed maximum.
However, a court whose jurisdiction is limited can only sentence up to a
maximum of their jurisdictional limit, i.e. a Resident Magistrates maximum
sentencing jurisdiction is 7 years, so if they try an offence such as simple
robbery whose maximum sentence is 14 years, such a resident magistrate
can only sentence up to 7 years.
It is a generally accepted principle of sentencing that in awarding sentences
regard should be had that the maximum sentences are reserved for the worst
cases, i.e. those cases that are exceptionally heinous.
This principle was recognized in the UK as early as 1932, by the Dove
Wilson Report on Persistent Offenders
In order that there may be a proper grading of sentences to fit the many
degrees of gravity presented by the various cases which fall within the same
legal category, it is necessary that the maximum sentence authorized by law
should be reserved for the rare offences which are exceptionally heinous,
that sentences approaching the legal maximum should be reserved for
offences falling within the next degree of gravity, and so on, with the result
that ordinary offences (such as form the great majority of cases coming
before the Courts) the heaviest sentence which the Court feels justified in
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imposing is usually far below the maximum sentence authorized by law for
the category of offence in question.
REMISSION
Section 46(1) of the Prisons Act provides that convicted criminal prisoners
sentenced to imprisonment, whether by one sentence or consecutive
sentences for a period not exceeding one month, may be industry and good
conduct earn a remission of one-third of the sentence or sentences.
Remission is therefore discretionary based on good conduct and industry and
is not available;
1. a prisoner serving a sentence of less than one month
2. a prisoner sentenced to one month imprisonment
3. a prisoner detained during the Presidents pleasure
Remission can be denied on the following grounds;
1. The interests of the prisoners own reformation and rehabilitation
2. that the Minister in charge of internal security considers that in the
interests of public security or public order not to release the prisoner
Remission can be lost as a result of its forfeiture for an offence against
prison discipline.
Remission cannot be earned for the following periods;
1. any period spent in hospital through the prisoners own fault, or while
malingering
2. any period during which the prisoner is undergoing solitary
confinement as a punishment
Not withstanding all these stipulation, the Minister in charge of Prisons, on
the recommendation of the Commissioner, may grant a further remission on
the grounds of exceptional merit, permanent ill health or other special
grounds.
The Commissioner also has powers to restore forfeited remission in whole or
in part.
It should be noted that remission is intended to be an incentive for the
offender to reform within prison, this evidenced by the provision of Section
46 (2) of the Act to the effect that; For purposes of giving effect to the
provisions of subsection (1) of this section, each prisoner on admission shall
be credited with the full amount of remission to which he would be entitled
at the end of his sentence if he lost no remission of sentence.
PAROLE
Under Section 49 of the Prisons Act provision is made that Within three
months of the date upon which a prisoner serving sentence of or not
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exceeding four years is due for release, the Commissioner may allow such
prisoner to be absent from prison on parole for such length of time and upon
such conditions as the Commissioner may specify.
The Commissioner has powers to recall a prisoner who is on parole at any
time.
Form 3
Parole Licence and Conditions
Specifies, that the licence will indicate the place to which the parolee will
proceed, and that they shall not move from that address without consent of
the Commissioner,
Further there is a condition that they shall abstain from any violation of the
law and will not associate with persons of bad character,
They are required to carry the licence and to produce it if required by a
prison or police officer
It further specifies the Prison to which the parolee may report in case they
require advise or assistance.
The conditions have to be explained to the parolee in the presence of a
prison officer who has to certify so, the parolee is also required to sign or
mark the licence signifying that it has been explained and they have
understood.
There is provision for affixing the parolees photograph and fingerprints.
It is noteworthy that not much has been done with a view to exploiting these
provisions especially in line with the more developed jurisdictions where
parole is used extensively to enable long term prisoners the opportunity to
shorten the lengths of their sentences. This is an area that calls for
considerable reform measures.
Under Section 47, of the Prisons Act, the Commissioner has the following
powers;
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Make an order, to be known as a compulsory supervision order, providing
for the compulsory supervision of the prisoner for any period not exceeding
one year.
The prescribed form is form 2 under the Act. It contains the details of the
offender under supervision, with specifics of who the offender is to report to
in any case.
The Commissioner also has powers to vary the supervisory order whenever
he considers it necessary to free a person under the order should be freed
from liability therein.
PRESIDENTIAL PARDON
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a. Pardon to a convicted person either
conditionally or unconditionally
b. Grant a respite from the execution of a
sentence or punishment either indefinitely or
for a specific period
c. Substitute a less severe form of punishment.
FINES
This is the most common type of punishment
and it is usually meted out for minor offences.
In some cases the Penal Code or the Statutes
make specific provision for fines, together with
the either the minimum or the maximum
amounts, and in some cases they will specify
whether it is to be additional or in substitution
for imprisonment.
DISCHARGE
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COMPENSATION
RESTITUTION
Where there is any property involved in the cause of trial, at the end of the
trial the court can make an order for the release of the property to the rightful
owner.
These Orders came into effect with the enactment of the Community Service
Orders Act, No 10 of 1998. It replaced the Extra Mural Penal Employment
which was provided for under Section 68 of the Prisons Act.
Whereas, the EMPE had been meant to reduce congestion in prisons and
provide a mechanism for enabling rehabilitation of the offender within the
community; there was a lot of dissatisfaction with its application and
implementation. Under EMPE anyone who was liable for imprisonment for
a term not exceeding 6 months could be placed on EMPE, each locality had
designated EMPE centers which were invariably local administrative
officers e.g. DO, and Chiefs officers as well as the courts themselves. The
offenders were supervised by Prisons officers, and they were meant to carry
out work of a public nature. It was served between 8 am 12 noon.
Complaints against the systems included;
It did not lead to decongestion of Prisons, since the cut off of 6
months left out a lot of petty offenders
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It was misused by the administrators to service their own private
works
Some of the work carried out was mundane and had no impact for
public expenditure
The timing of when it could be served ran counter to the idea that one
could serve and still continue working, i.e. there was no flexibility, so
offenders would still loose their jobs as a result of carrying out the
punishment
There was disquiet with the idea that whereas, this was intended to be
a community based rehabilitation programme; supervision was carried
out by uniformed personnel.
The court may, subject to this Act, make a community service order
requiring the offender to perform community service
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exceeding the term of imprisonment for which the court would have
sentenced the offender.
The court shall not make an order unless the offender is present in
court, and there are adequate arrangements for the execution of the
order
Where a report exists, the court must be satisfied that the offender
is a person suitable to perform community service.
IMPLEMENTATION
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Two persons with training and experience in the criminal justice
system, one in teaching of the law, and the other a magistrate of
first class, both to be appointed by the Chief Justice
Five members appointed by the Minister out of a list of 7 nominees
by the National Committee, two of whom shall be representatives
of NGOs involved in social welfare work registered under the
NGO Co-ordination Act,
National Coordinator
The Committee has powers to co-opt not more than 3 persons
whose assistance or advice it requires or considers necessary, in the
discharge of its functions, for a period that they deem fit.
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CHALLENGES
These orders are yet to have the desired effect, prisons still
complain of congestion, meanwhile the national committee
keeps release huge figures of those supposedly under CSO.
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of sentence is meant to rehabilitate the offender within a
communal set up.
PROBATION OF OFFENDERS
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to a large extent on the availability of attendant services
such as counseling and skills development for the offenders.
SENTENCING POLICY
In the first place the sentences meted out are limited to the
Penal Code at Section 24. Further the court should only
impose sentences that are within its jurisdiction. There are
three key principles of sentencing:
Gravity of the offence
The presence of mitigating factors;
Equality or proportionality in awarding sentences
GRAVITY
Social danger
Battams (1979) 1 Cr App R 16
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Cantley J
It is often said, and rightly said, that there would not be so
many thieves if there were no receivers. Professional
thieves do not steal good merely for there own
consumption; they steal them for disposal and it is essential
to the success of criminality that there should be receivers,
big receivers and small receivers, like this appellant who
will dispose of their goods unobtrusively in various
markets:
Alarm
This is in respect to the victims of the crime, so for example
burglary is deemed to be more serious than common theft.
Historically, burglary in the UK could only be committed in
respect of dwelling houses at night. It was considered that
such acts would therefore.
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The same can be said of robbery or theft where weapons are
carried, displayed or used against the victim, the sense of
alarm is definitely higher, than an ordinary theft.
Social disapproval
The maximum sentence provided by statute is sometimes a
reflection of the social disapproval that goes with a
particular offence. Lately in Kenya we have the example of
defilement, which previously carried a maximum of 14
years, but after public outcry and pressure, it was increased
to life imprisonment. In fact most sexual offences are
rooted in social disapproval, as they usually go against
social norms.
Wickedness
This has to do with the willful factor including malice with
regard to the offender; this implies the wicked intent of the
offender, who is then viewed as more serious threat to the
society, than an offender who unintentionally or in the heat
of the moment commits a crime.
Proportionality
In general, this would mean that taking offences generally
the courts should with the use of statutory provisions be
guided, by awarding sentences comparatively with what the
highest awards are, i.e. offences that carry life
imprisonment should be a factor, so that other offences that
do not carry this should be awarded sentences that are
below those normally awarded to the life carrying offences.
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