The DPP’s decision to recommend that the 15-year-old who committed the act of arson that resulted in the death of 20 youths at the Mahdia Secondary School Girls Dorm be charged for murder has raised the question of the wisdom of that choice. While in this specific instance the age of the arsonist – she is a minor of fifteen – is the concern, it also raises the utility of punishment for crimes writ large. This is an issue that has troubled Western society, especially after the European Enlightenment.
Back in 1850, the Times asked, “Do we lock up a man to make him better, / or prevent his getting worse -/ to keep him from doing more mischief, / or solely as a retribution for the mischief he has done? On these points there would be no securing any unanimity of purpose.” That is still the position, especially with social scientists, who look at empirical evidence to declare that imprisonment is futile without addressing social problems such as unemployment, homelessness, poverty, discrimination, inadequate health care, and unequal education (Selke 1993).
The Encyclopaedia Britannica has a useful summary of “Penology”, which “concerns itself with the philosophy and practice of society in its efforts to repress criminal activities. The principal aims of penal science are: to bring to light the ethical bases of punishment, along with the motives and purposes of society in inflicting it; to make a comparative study of penal laws and procedures through history and between nations; and, finally, to evaluate the social consequences of the policies in force at a given time.
Modern penology dates from the publication of Cesare Beccaria’s pamphlet on “Crimes and Punishments” in 1764. This represented a school of doctrine born of the new humanitarian impulse of the 18th century, with which Jean-Jacques Rousseau, Voltaire and Montesquieu in France, and Jeremy Bentham in England were associated. This – afterwards known as the classical school – assumed every criminal act to be a deliberate choice determined by a calculation of the prospective pleasures and pains of the act contemplated. All that was needed to overcome the criminal purpose was to provide for each and every crime a penalty adequate to overbalance its assumed advantages. Excessive penalties such as death were unnecessary, and therefore unjust.
The classical school was followed, a generation later, by the “neoclassical school” of the revolutionary period in France, which modified Beccaria’s rigorous doctrine by insisting on the recognition of varying degrees of moral — and therefore of legal — responsibility, as in the case of children and the insane, as well as of mitigating circumstances in general. The doctrine of the “individualization of punishment” — that is to say: of the punishment of the individual, rather than of the crime committed by him, which is of commanding importance in present-day penology — is only a development of this fundamental principle of the neoclassical school.
This normal historical development of penology was interrupted during the last quarter of the 19th century by the widespread acceptance of the theory of crime and its treatment, promulgated by Cesare Lombroso and his disciples. This, at first known as the Italian, or continental, school of criminology, was later named the positive school, so called because it pursued the positive methods of modern science. Its fundamental doctrine was that the criminal was doomed by his inherited traits to a criminal career, and was therefore a wholly irresponsible actor. Society must, of course, protect itself against him, but to punish him as if he were a free moral agent was as irrational as it was unethical.
Although the enthusiasm for the doctrines of the positive school waned, and the alleged facts on which they were based were largely discredited, it nevertheless left a valuable legacy of influence. To it must be given much of the credit for the present active tendency to make the mental study of the criminal an essential part of his diagnosis, a fact that has given the psychologist, and particularly the psychiatrist, a leading place in the development of modern penological theory.”
