PUNISHMENT (from punish, from OF.. Fr. punir, from Lat. pun ire, ponirc, to punish. from iurna, punishment. expiation. pain. from Gk. /mini'. punishment; connected with Gk. Skt. ci, to avenge). Pain or suf fering inflicted because of some misdeed. In criminal law the word punishment is used to designate the penalty inflicted by the State upon a person for el /nnnitting a criminal offence. The earliest forms of punishment were those which carried with them the idea of vengeance and were inflicted with the desire to do harm to him who had previously done harm. 3.1ore re cently. however, the idea of retribution has made Way for the theories of prevention and reforma tion. The former of these theories insists that the State shall inflict upon a criminal only such punishment as will keep him from further wrong-doing and deter others from criminal acts. The latter theory regards the reformation of the criminal as the only legitimate design of punish ment and maintains that when this is accom plished further punishment should cease. None of these three theories—of retribution, prevens tion, or reformation—holds absolute sway in our criminal codes. Generally there are traces of all three', although the tendency of recent develop ment has been in the direction of reforming the criminal.
In the early history of society the infliction of punishment for crime was left in the hands of the person wronged, or his kin, clan, or tribe. The punishments inflicted were usually char acterized by cruelty and were out of proportion to the offense committed. Indignities were fre quently inflicted upon the body of a criminal after death. When, moreover, certain standards concerning the degree. of offense came generally to be accepted, the punishment for the same of fense varied according to the social rank of the injured party. In the course of time a- system of fines was substituted for physical punishment. By the payment of a fine to the injured person or to his family, the offender was made free from liability to further punishment.
With the increasing complexity of society and the development of the idea of the State. the right to punish was taken away from the offended party and vested in the State. Crimes came to be considered as offenses against the State, the social order. and punishment is now regarded as an act of social defense calculated to establish the inviolability of the law and to deter those who may be criminally inclined from overstep ping the limits of legally permissible conduct.
Punishment, in criminal law, possesses four characteristics. First, it represents, objectively, some pain o• damage inflicted upon an offender. Whether the person punished conceives the pun ishment as a pain o• damage does not matter. Secondly. punishment is imposed by government as the representative of legal order in society. Thirdly, it is determined and carried out as a consequence of judicial procedure and decision. Fourthly, it aims at some definite purpose, whether this purpose be the maintenance of order, retribution, or reformation. Punishments are
of varying nature; they may involve encroach ment upon the life or physical integrity, on the personal liberty, on the property, or on the rights and privileges of an offender. To the first of these classes belong capital punishment and such generally obsolete puniAhments as the cutting off of tongue o• hands. In the second class we find deportation, imprisonment, and compulsory labor. The third class includes fines and the confiscation or destruction, by the State, of an offender's property. As punishments of the fourth class. the criminal is often deprived of political or civil rights belonging to citizenship, such as the elec toral franchise, capacity to testify in courts of justice, or to hold office. Forms of punishment formerly in vogue, but now discarded among civ ilized nations generally, are mentioned TORTURE.
Some of the qualities which 'ideal' punish ments should possess, to correspond to modern ethical standards, are the following: (a) Moral ity. Punishments should not stunt o• destroy the moral sense of the culprit or of those wit nessing the punishment. (b) Equality. Punish ments should represent a damage o• pain of equal importance or intensity to different offenders committing the same crime. This condition is difficult to fulfill, for the imposition of different punishments for one and the same crime seems to be a violation of democratic principles, while a fixed fine of say $100 for a specific offense represents a much severer punishment for a poor man than for a man of wealth. (c) Personality. The evil effects of punishment should be confined to the offender alone, and not extend to innocent persons. (d) Elasticity. The punishment should be such that it can be varied to suit the various degrees of guilt. (e) Commensurability. The diverse punishments of the criminal code must be of such a kind that they may be compared with one another, and thus permit the judge to ehooae among several penalties that which cm•re sponds in severity to the gravity of the offense. (f) Reparability. It should be possible. in ease of judicial error to repair the injury done to a person unjustly condemned.
Sometimes the laws prescribe a definite penalty for a specific offense, and the judge then has no choice. Usually, however, he is permitted to elect several penalties which the law per mits for a given misdemeanor; he may choose, for example, between "a fine of from $1 to $100 o• imprisonment for a period not less than three days or more than three months." Theoretically the nature and method of punishment might he left entirely to the discretion of the judge; but this system is unknown in practice.
BIBLIOGRAPHY. Beccaria, Crimes and PunishBibliography. Beccaria, Crimes and Punish- ments; Maine, Ancient Law; Proal, Le crime et la peine (Paris, 1892) ; Wines, Punishment and Ref or mat loot (New Io•k. 1895). See PENOLOGY; CRIMINOLOGY; CAPITAL PUNISHMENT.