Deterrent versus Preventive Theory of Punishment

In an examination hall a student is caught copying from a phone. The principal can expel him and announce it at the morning assembly, so that the whole college, and the student himself, learns that cheating does not pay. Or he can take away the phone and seat the student under the invigilator's eye, so that he simply cannot copy again, whatever he thinks about it. The first response is deterrent: it works through fear on the minds of the student and of everyone watching. The second is preventive: it removes the capacity to repeat the offence. Most punishments do both, which is why the theories are confused. Note 27 sets out all the theories; this note separates these two and distinguishes preventive punishment from preventive detention.

1. The Common Ground

The deterrent and preventive theories belong to the same family. Both are utilitarian: punishment is an evil justified only by the reduction of future crime it produces. Both reject the retributive view that punishment is deserved for its own sake (Kant, Hegel; Note 27), and both treat the protection of society as the aim of criminal justice (Note 26). The difference lies in the mechanism. Deterrence operates on the will: it gives the potential offender a reason not to offend. Prevention operates on the opportunity: it takes away the possibility of offending, whatever the offender's will. A deterred man could offend but dare not; a disabled man dare, but cannot.

2. The Deterrent Theory

The deterrent theory holds that punishment is justified because the suffering it inflicts discourages crime. The offender is punished not so much because of what he did as so that others will not do the same. Bentham, in An Introduction to the Principles of Morals and Legislation (1789), laid the foundation: 'all punishment in itself is evil', since it is itself a pain, and on the principle of utility it ought to be admitted only in so far as it promises to exclude some greater evil. A punishment that outweighs the expected profit of the crime will deter the rational offender, and Bentham treated general prevention by example as the chief end of punishment.

Salmond placed deterrence at the head of the purposes of criminal justice. In his words, 'punishment is before all things deterrent, and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him'. The other ends, preventive, reformative and retributive, he treated as secondary and subordinate to it.

General and special deterrence

General deterrence is addressed to the public at large: the punishment of one is a lesson to all. Special (individual or particular) deterrence is addressed to the offender himself: having tasted punishment, he will fear it next time. The two can pull apart: a remorseful first offender needs no special deterrence, yet a court may still impose a stiff sentence to deter others, and there the theory is most exposed to the charge of using a person merely as a means.

Severity and certainty

Early deterrence thinking assumed that the harsher the penalty, the stronger the deterrent, and the eighteenth-century English code punished scores of property offences with death. Beccaria, in On Crimes and Punishments (Dei delitti e delle pene, 1764), turned the argument around. The certainty of punishment, even if moderate, makes a stronger impression than the fear of a terrible punishment joined to the hope of escaping it; punishment must follow the crime promptly; it must be proportionate to the harm done; and it must be fixed by law, not left to the whim of judges. Excessive severity defeats itself: it hardens the public and tempts juries to acquit. Modern criminology largely agrees that the probability of being caught matters more than the length of the sentence.

3. The Preventive Theory

The preventive theory, sometimes called the theory of disablement or incapacitation, justifies punishment by its power to stop this offender from offending again, by taking away the means or the opportunity. It does not rely on the offender's fear or his reasoning: a man in prison cannot burgle houses, whatever he thinks about prison. Salmond described this as the second end of punishment, after deterrence. Paley (Principles of Moral and Political Philosophy, 1785) is the name examiners attach to the theory, since he held that the proper end of human punishment is not the satisfaction of justice but the prevention of crime; but his idea of prevention was wide enough to include deterrence. Bentham too counted incapacitation among the ways punishment prevents crime, alongside reformation and intimidation.

The theory is strongest where the offender is dangerous and likely to repeat, such as the habitual burglar or the drunk driver; its moral anchor is weaker, because it looks at what the offender may do, not at what he did.

4. Preventive Punishment and Preventive Detention

Examiners like to equate the preventive theory of punishment with preventive detention. They differ. Preventive punishment follows a conviction for an offence already committed. Preventive detention is not punishment at all: it detains a person without trial, on the subjective satisfaction of the executive, to stop him acting prejudicially to public order, the security of the State or essential supplies. No offence need be proved.

The Constitution recognises the distinction. Art. 22(1) and (2) protect a person arrested for an offence; Art. 22(3) excludes a person detained under a law of preventive detention from those protections, and Art. 22(4) to (7) substitute a different set of safeguards: no detention beyond three months without the opinion of an Advisory Board, communication of the grounds of detention, and the earliest opportunity to make a representation. The National Security Act 1980 and COFEPOSA 1974 are such laws, and A.K. Gopalan v State of Madras (1950) was a challenge to detention under the Preventive Detention Act 1950 (Note 45).

5. Deterrence in Indian Sentencing

Indian courts have never adopted a single theory (Note 27), but deterrence is the dominant voice when they justify severe sentences for grave crimes, and the legislature often speaks the same language: after the Delhi gang rape of 2012 the Criminal Law (Amendment) Act 2013 raised punishments for sexual offences, and the Criminal Law (Amendment) Act 2018 introduced the death penalty for the rape of a girl under twelve, a provision carried into the BNS.

Deterrence is nevertheless bounded. Bachan Singh v State of Punjab (1980, 4:1) upheld the death penalty for murder partly because its deterrent value could not be disproved, relying on the Law Commission's 35th Report (1967), which had favoured retention; but it made life imprisonment the rule and death the exception, for the rarest of rare cases only, after weighing the circumstances of the criminal as well as the crime. Mithu v State of Punjab (1983) struck down the mandatory death sentence, since a penalty fixed in advance for deterrent effect ignores the individual case. The Law Commission's 262nd Report (2015) found no proof that death deters better than life imprisonment and recommended abolition except for terrorism-related offences and waging war. Deterrence justifies severity in Indian law, but never severity without individualisation.

6. The Two Compared

7. Criticisms and Overlap

Against deterrence. First, the Kantian objection: to punish one person more heavily in order to frighten others treats him merely as a means, and in logic the theory could justify punishing an innocent person if the public believed him guilty. Second, it assumes a calculating offender, yet many crimes are committed in passion, under drink or in the belief that one will not be caught. Third, severity without certainty does little, as Beccaria saw: a system that convicts a small fraction of offenders deters poorly however harsh its penalties.

Against prevention. First, it looks to what the offender might do, which invites long detention on a prediction rather than proof. Second, disablement lasts only as long as the measure: the released prisoner is no less dangerous than before, and prison may make him more so by schooling him in crime. Third, taken alone it would justify very long detention for any persistent offender, however petty, which offends proportionality.

Overlap. A single sentence usually serves both ends. Imprisonment deters the public, deters the prisoner from returning and disables him while inside; the death penalty is claimed both as the supreme deterrent and as final incapacitation. The two theories are best seen as two functions of the same act, which modern sentencing combines with desert (proportion as a ceiling) and reform (Note 27). A licence suspension is mainly preventive; an exemplary sentence publicised in the press mainly deterrent.

8. Frequently Asked Questions

Q. What is the difference between general and special deterrence?
A. General deterrence uses the offender's punishment as a warning to the public at large. Special deterrence aims to discourage the offender himself from offending again by making him fear a repetition of the punishment.

Q. Why is preventive detention not punishment?
A. Because it rests on no conviction and punishes no past act. It detains a person on the executive's satisfaction to stop future prejudicial conduct, subject to the special safeguards of Art. 22(4) to (7).

See also: Note 27 (theories of punishment), Note 26 (administration of justice), Note 37 (legal sanctions), Note 45 (fundamental rights), Note 84 (civil versus criminal liability), Note 114 (civil law versus criminal law).