There are five punishment philosophies in the criminal justice system

KUALA LUMPUR: On 23 August 2022, Datuk Seri Najib Razak was punished and sent to Kajang Prison after the Federal Court upheld his 12-year jail sentence and RM210 million fine for abuse of power, money laundering and criminal breach of trust over SRC International funds amounting to RM42 million.

Around the world there are many types of criminal justice system to maintain law and order and accomplish justice in their area of jurisdiction. For decades, the Malaysian criminal justice system have relied on punishment as the mechanism to reduce crime and recidivism or repeat offenders.

Criminologists find that people obey the law not just because of their moral values but also because they are afraid of being punished. Psychologists believe that being social conditioned while we were growing up as kids that those found making mistakes will be punished is an important part of building a society which seeks to reduce crime and wrongdoing.

The theory of deterrence that has developed by criminologists: Hobbes, Beccaria and Bentham state that the more severe a punishment, the more likely that offenders will desist from criminal acts. A punishment that is not severe enough will not deter criminals from committing crimes. In order to prevent would be criminals from committing crime, therefore, criminal law must focus on penalties to ensure citizens respect the law of a country. Institute of Criminology at the University of Cambridge went further, stating that long-term imprisonment “changes people to the core”.

Another argument would be prisons are ineffective based on recidivist statistics. The U.S. Bureau of Justice Statistics (BJS), states that 67.8% of released state prisoners were arrested for a new crime within three years, and 76.7% were rearrested within five years. Reducing recidivism not only protects society but improves the life quality of former prisoners. This is why it is very important to treat them with effective prison reform while they are incarcerated, However, Norway and Sweden have only about 20 percent recidivism.

The writer is skeptical when former Deputy Prime Minister state that in 2017, the rate of repeated crimes among released convicts in the country stands at 7.6%, the lowest in the Asean region. But even in Singapore, the overall recidivism rate for the 2015 cohort of inmates was 25.9 percent.

Criminologists stated that there are five basic sentencing philosophies that justify why we punish those who break the laws: retribution, incapacitation, rehabilitation, deterrence, and restoration.

Retribution

Firstly, retribution or the concept of “an eye for an eye” is one of oldest punishments representative of a heavy sentence. Retribution is punishment for crimes against the society and depriving offenders of their freedom by making them pay a debt back to society for the crimes they committed. The offender must be punished according to the seriousness of his crime. It is believed that retribution is reasonable justification for criminal punishment of wrongdoers. This theory seeks to punish offenders because they deserved to be punished.

Modern examples of retribution include the widespread practices of imposing fines, as well as enforcing mandatory sentencing policies for certain offenses under the law. As an effective punishment, retribution has been criticized as being overly rigid and limited in its capacity to change societal behavior. However, it still remains popular.

Incapacitation

Secondly, incapacitation focuses on removing and restricting the offender from the society to commit future crime. These days’ prison has become the means by which offenders are isolated from the society so that they can no longer harm members of public or commit crimes. However, some prisons have been described as a school for crime, breeding grounds for crime and to train them to commit heavier or more serious crimes.

The most extreme and severe form of incapacitation is capital punishment. Capital punishment is a legal penalty in Malaysia and Singapore. Capital punishment is often justified through the concept of deterrence, but whether the death sentence actually deters potential offenders is highly contested. What is indisputable is that once put to death an individual is incapable of committing further offenses. Capital punishment is said therefore undeniably “effective” or the “final solution” in terms of its incapacitation. Crimes currently punishable by death in Malaysia include murder, drug trafficking, terrorism, kidnapping and possession of firearms. Last June, the Malaysian government announced that it has agreed to abolish the mandatory death penalty. The death penalty is a symptom of a culture of violence, not a solution to it, said Amnesty International(AI)

Whipping is widely used as a form of legal corporal punishment in Malaysia and Singapore. In Malaysia economic and financial crime cases such as section 409 of the Penal Code, it relates to criminal breach of trust (CBT) by a public servant or agent, which is punishable with a jail term of at least two years or up to 20 years and with whipping, and shall also be liable to a fine. But the AI and United Nations Human Rights Committee have condemned corporal punishment including whipping as cruel, inhumane, degrading punishment and contrary to international human rights law. According to them, it has no place in a modern criminal justice system.

Rehabilitation

Thirdly, rehabilitation programmes are designed to help offenders and covert criminals into law abiding citizens. Rehabilitation programmes provide offenders opportunities to acquire and develop job skills, overcome drug addictions and aggression and somehow to ensure the offender reforms or learns how to deal with challenges they face upon release. Re-education courses are very important and necessary for successful rehabilitation of offenders.

Deterrence

Fourthly, deterrence is intended to prevent future crime. The fear of going to prison is what is hoped will make someone think again before committing the crime. There are two types of deterrence i.e. general deterrence and specific deterrence. The general deterrence seeks to understand how an offender’s punishment can deter others from committing crimes while the specific deterrence analyses how effective punishment can discourage an offender from repeating the crime.

Some school of thoughts believe that if the primary purpose of punishment is to effect physical pain to the offenders, it does not serve any purpose. However, if it makes the offender realize the serious of the offence committed by him, and to repent, it achieves its ultimate goal.

Restoration

Lastly, the country relies on a concept called "restorative justice," a system of criminal justice which focuses on the rehabilitation, repair, transformation of offenders through reconciliation with victims and the community members. It aims to restore the harm caused by crime, take responsibility for their actions rather than punishing them. This restoration justice programme focuses on the victim's perspective that can give a chance to offenders to redeem, enable them to reintegrate into the society and not to repeat the same mistakes. Many studies show that it makes offenders less likely to reoffend.

Prison system in Norway is a unique approach, solely the restriction of liberty, has right to vote and has been considered as the best, most comfortable prison in the world, where the offenders have access to amenities such as private bathroom, refrigerator, televisions and access to outdoor environment with lowest security and friendly guards. It has the lowest recidivism rate in the world. Norway has strong system and institutions. Singapore has one of the worst prison where the prisoners have no bedding and only provided with a straw mat and two blankets.

Punishment in any criminal system exist to serve justice to offenders and protects society. There are many theories and strategies introduced on how to address these issues. Any sentence which is passed to offenders must not only serve as a punishment but also as a reminder to others not to do the same and if possible bring them back to society as a law abiding citizen because ultimately that is what a society wants. There must be efforts in helping them through professional reforming of offenders and rehabilitation process in prison, especially in reducing the rate of recidivists and integrating them in society.

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* Datuk Seri Akhbar Satar – President Malaysian Association of Certified Fraud Examiners

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.