PUNISHMENT AND IT’S THEORIES (By- Ankit Kumar Singh)
PUNISHMENT AND IT’S THEORIES
Authored By- Ankit Kumar Singh
INTRODUCTION
From the
start, the degree of punishment for a specific crime could never be interpreted
by the decision givers. There were always conflicts regarding what and to what
extent punishment can be given for a crime committed. The initial stage of
punishment was based on the common theory i.e.“an eye for an eye”. The
learned men believed that justice can only be achieved if the degree of
punishment is same as the degree of the pain caused. With changing times, the
concept of punishment evolved into something different. The period after this
believed that the wrongdoer should go through some inhumanly treatments and if
the god finds the wrongdoer worthy enough to be saved, the god will himself
come to the rescue of the person. With
the advent of British era, the thinking of the people changed and strict laws
regarding different types of crimes came into existence. Immediately after
this, the concept of reformation was introduced in India. Reformation in the
most basic sense means the act of making a change in a person’s behavior by
introducing certain positive traits and making him see the better picture of
his future. Soon after this the never-ending debate of Punishment vs
Reformation started between different scholars and academicians. The questions
like “Will the people stay safe if these offenders are welcomed again in the
society ” , “What kind of danger will they bring with them”, “ Can they ever be
trusted” etc. haven’t been answered till date.
Scholars and academicians have given different views on the idea of
reformation. Some of them have supported this practice by stating that
reformation in offenders develops guilt of the crime committed and helps them
to cope up with their after prison life.
Despite all the criticism of this practice, many scholars were of the
view that reformation not only changes the view of the offenders but also helps
them to co-exist with the other beings of the society. The process of
reformation as stated by scholars is an important aspect of punishment. They
believed in the idea of people learning from their parents. For example – A parent with strong beliefs and a strong
character is likely to exhibit the same qualities to his child, which is likely
to pick the same beliefs as that of his parent. In the same way, when the
offenders are shown kindness and are taught to differentiate between right and
wrong, they will exhibit the same behavior in the
society
they will live in. The basic idea behind this type of practice was attacking
the root of the problem instead of removing out the problem from a particular
situation. Scholars who supported reformation wanted to study about the
behaviors of the offenders and what motivates them to commit an offence. They
always believed that reformation was the only way that could change the fate of
the prison population and reducing the number of crimes.
Punishment And Its Theories
Dr
Walter Reckless defined punishment as “
The redress that the common wealth takes against an offending member”. H.L.A heart, Mr. Bean and Prof. Flew[1]
provided the world with 5 elements of punishment: (a) It must be an unpleasant
experience with some kind of pain (b) It is given because an offence has been
committed against the existing rules of society (c) The intention to commit a
crime is important (d) the punishment should be imposed by a legal authority
with the power to impose that punishment ( e) it must be an actual or supposed
offender
The word
Punishment is commonly described as imposition of either a sentence or a
penalty in relation to a wrong committed by the person. The Punishment imposed
is according to the degree of the crime committed and the punishment is
prescribed by the strict set of laws decided by the government. However , these
laws did not exist before. The concept of punishment is taken from the Code of Hammurabi[2]and
it is strictly based on the principle of lex
talionis . The principle states that the punishment should resemble the
type of crime committed. With changing
times, the punishment given was according to the power of god. People believed
that the offender will be saved by god if he is worthy to be saved. After this
time came the British era, which introduced some positive reforms into the
society. The topic of punishment has been into various debates from a long
period of time. Many academicians and scholars have given different views and
theories in relation to concept of punishment. Till date, there are 4 theories
accepted worldwide which are : (a) Deterrent ( b) Preventive (c) Retributive
(d) Reformative.
· Deterrent
In
common words, deterrent means “to detest or discourage”.The basic principle behind this mode of punishment was
to stop offenders from committing a crime. The working of theory was through
creating fear in minds of people by imposing a kind of punishment for a certain
offence which will lead the offender to think twice before committing a certain
crime. It was based on the fact that by setting an example, it becomes easy to
discipline people in the society. Scholars like Salmon believed that this theory
is important for reducing the crime in the society and by giving a warning
crime rates can be reduced. However, critics of this theory were of the view
that imposing hard punishments to set out an example to others will not work,
as the criminals or offenders commit a crime because they are not scared of the
law or the aftermath of the crime committed.
For
example – In earlier times, the punishment for small offences like stealing was
death or being pushed into fire. Although this created a fear but did not in
any way stop the criminals from committing that offence. Deterrence theory
further got divided into :- (a) Individual deterrence and (b) General
deterrence.
Individual
deterrence is focused on one individual. This type of deterrence deals with
stopping one individual to commit a certain crime. For example – cutting the
hands of the thief to prevent him committing a further crime.
General
Deterrence was based on the principle that punishing an individual who has
committed the crime will set out an example to all those people who are likely
to commit offence in the future.
· Preventive
This
theory is based on the principle of preventing a crime instead of giving strict
punishment against the crime. It is based on the concept of removing the
offender from the society. This theory prohibits the offender from committing
an offence. This theory has been criticized on various points. One of the most
important criticism this theory has faced is, the practice of removing the
offender has led to more crimes. The offender is put into jail with the already
existing criminals which lead him to committing more crimes. Like in the case
of Child offenders, the practice of putting them in jail with the already
existing offenders have directly put them under the influence of habitual
offenders. The preventive theory suggests imprisonment is the best form of
punishment and this is the only way when reoccurrence of a
crime
can be avoided. However, critics have given a different view and suggested an
alternative to preventive theory is needed.
· Retributive theory
Retributive
theory is the oldest theory. It is simply based on the fact that the degree of
punishment should be equal or similar to the amount of the pain caused while
the offence was committed. The gravity of the punishment should be the same as
the gravity of the crime. This theory is complete opposite of Deterrent theory.
This theory focused on personal justice. Supporters of this theory suggests
that mere removing them or seeing the end goal is not important, the pain
caused should be felt by the offender as well. For example: If a murder has
happened in a society, the appropriate punishment for that murdered would be to
get murdered by the victim’s family. The supporters believed in the act of
vengeance. They believed that
appropriate punishment is only limited to the hurt caused by the offender. It
was thought that this type of punishment could bring out guilt and shame which
the other theories cannot. They also believed that merely detention and
imprisonment is not enough, as even the victim will not be satisfied with the
punishment and will look for alternate ways to get justice on his own. The
whole concept was based on individual revenge and did not take society as a
whole into consideration. With the evolution of people’s minds, this theory was
not considered wise and people were made to see the never ending circle which
this type of practice brought.
· Reformative theory
With the
changing times, developments were seen
in the field of criminology as well. There were some scholars in the society
who believed that any crime committed by an offender is a product of his
environment. They specifically believed that if their social, psychological,
and physical backgrounds are studied thoroughly, crime can be prevented to a
certain extent. This theory believes a criminal can be reformed , the offender
can be made into a just human being, if the root of the problem of him/her
becoming a criminal is solved. Reformative theory suggested that even if an
offender commits a crime because of certain problems, they are still human and
should be treated as per one. Throwing them or imprisoning them won’t make a
difference instead will increase the prison burden. The ultimate goal of
prisons should be to reform and to rehabilitate the prisoner instead of keeping
them locked away for prevention of crimes.[3]
Reformation And Need For Reformation
Black’s
Law Dictionary defines reformation as “The
act of bringing back a criminal to such a sense of justice, so that he may live
in a society without any detriment to it”
Reformation
in most basic sense means the act of reforming i.e. changing the ideologies and
beliefs of a criminal in order to bring him back into the society as a reformed
individual. The topic of reformation has been in a never ending debate since it
was introduced. From discussing the pros of introducing reformation in
different parts of the world to discussing the cons of reformation, the
scholars have always kept reformation under strict scrutiny. Some scholars believed
that if an offender has killed some other person, taking his life is not
justified. There are ample reasons which have led to offender acting in such a
way and committing a particular crime. They believed that all aspects of an
offender’s life should be studied before sentencing him to a punishment for any
of the crimes committed by him. Merely sentencing him to imprisonment will take
him out of the problematic situation but the problem will still exist. They
also emphasized on the fact that constitution of every country provides every
living person some basic set of rights which are not only limited to
non-offenders. It was initially
believed that punishment is mainly given to offenders to reform their ideas about
the society. The scholars believed that prisons are only providing a preventive
measure to avoid a crime but in no way are solving the root cause of the
problem of the offenders. The Honorable Courts have given their view in
2 different cases on the topic of reformation vs punishment.
In the case of State of MP vs G.
Singh,[4]
the Supreme Court stated that the law established in the society regulates the
interest of the society and it is also responsible for protecting the security
of the people living in the society. The judges in this case also stated that
this can only be achieved if the criminal justice system is working properly.
With the changing times, the law also has to evolve, the old laws cannot exist
for the crimes happening today. The fault in the system of law would only lead
to disturbance in the social order Therefore, the law should be able to meet
challenges as per the present times. It also stated that the punishment given
to an individual should be as per the factual matrix. The punishment should be
strict enough where the facts and circumstances demands the punishment should
be strict. And if the situation demands that the person should be given a less
stricter punishment, then the law should be able to judge accordingly. The
judges also stated that undue sympathy will only deter the basics of the judiciary i.e. providing
justice to everybody. The intensity of
the crime,
against
whom the crime is committed, the intention behind the crime etc everything
should be considered by the judiciary.
Similarly in the case of T.K Gopal
vs State of Karnataka[5], The supreme Court differentiated
between the 3 approaches towards the crime. It stated that the first approach
i.e. punitive approach talks about inflicting punishment on the offender. The
second approach ie. Therapeutic approach which talks understanding the reasons
of the offender for committing the crime. The third approach i.e. Preventive
approach talked about the imprisonment in order to avoid a crime. The court in
this case stated that therapeutic approach is an effective method of punishment
as it not only punishes the criminal, but it also helps to reform the criminal
and helps him to realize his guilt. The court stated that no matter the degree
of crime, the offender is a human being and is entitled to all the basic human
rights, human dignity and human sympathy.
The
need for reformation has been constantly in question since the increase in
prison population worldwide. Reformation
not only provides the prisoners with a hope for their future but is also
focused on improving the faults in the criminal justice system.
· Reducing the prison population
Reformation
works towards reducing the prison population. The offenders who are reformed
are at a lower chance of becoming habitual offenders. These offenders are
provided with employment opportunities and are given basic education which
helps them to choose a different path in their lives, ultimately reducing the
prison population.
· Reducing prison violence
Giving
reformation to the inmates of the prison changes the attitude of the prisoners.
The process of reformation is not only teaching them skills or educating them
but also providing them with moral values of society. This in turn helps
reducing prison violence in prisons.
· Reducing recidivism
The
reformation process also teaches skills so that offender does not resort to
criminal practices for his survival. For example : Teaching an offender machine
repairs so that once he is released, he can look for job in the same field and
make a living out of that. Most cases of crime are due to shortage of money
even for basic food and clothing, providing them with
skills
and education helps them expanding their basic job opportunities.
Providing
reformation provides countless benefits to the prisoners as well as the society
they will live after their reformation.
Reformation And Punishment
Under The Criminal Justice System Under India And Usa
INDIA
If we
look at the time Mughals era, we can see that idea behind giving punishment was
not reformation but to deter the offender from committing the crime. The
concept of reformation was foreign to the people, they only believed in
punishing the person accused and knowing the reasons for committing such act
was immaterial. The punishments which were common during those times were : -
branding, death penalty, whipping, flogging etc. Prisons were considered to be
the places where torture took place with the offenders.
With the
onset of British, prison reforms came to be known in India. Various ideas were
presented in order to improve the conditions of the prisons which lacked even
the basic amenities. Revolutionary changes were introduced which changed the
course of punishment in India. Around the year 1836, jail enquiry committees[6]
pointed out the insanitary conditions of the prisons. They elaborated this by
saying, that most of the deaths in prisons were happening because of the
inhumane living conditions in Indian prisons. Due to reports of enquiry
committee , Prisons Act 1894 was enacted. It not only regulated the prisons but
provided better accommodation of prisoners and also abolished whipping as
punishment. Dr. WC reckless, who was a member of technical experts in United Nations on crime
prevention of treatment of offenders gave some recommendation to reform the
Indian Prisons in the year 1951: -
·
Each
State should have a home department which should include correctional measures
·
Probation
and Parole should be followed more
·
Manuals
which keep records of the jails should be revised accordingly.
Furthermore,
if we look at the concept of reformation in India, after prison reformation
came into existence, the concept of reformation. Academicians and scholars
started studying the reasons for which the crime was committed. In addition to
this, they started developing skills so as to motivate the offenders to change
into law abiding citizens. Some of the practices which they developed to help
the prisoners were :
·
Giving
education to that they can get a job
·
Teaching
out skills in different fields
·
Social
education was also given so as to help them cohabit in the society.
The
concept of prisons in India is that of open prisons. Indian prisoners are given
an opportunity to make a living in prison itself. They are given all the
necessary tools along with the necessary skills to make money which can be
given to them once they are released.
In the
case of Ramamurthy vs State of Karnataka [7],
the Supreme Court held that :-
The
concept of open Air prisons creates certain problems related to administration
but for the good of society as well as prisoners, it is a very good
development. The idea behind imprisonment is not to just detain the prisoners
but to make them a good human being. This cannot happen if the society keeps on
ignoring them, making it impossible to accept them in a society. They should
see the prisoners as reformed citizens and not some petty criminals.
In
addition to this practice of probation was introduced :- Probation in extremely
basic term means that “I prove my worth”. Probation happens when the
probationer lives in a society and his lifestyle is regulated by Courts. There
is some authority which supervises the probationer commonly known as probation
officer. This idea gave the basic foundation for Probation of Offenders Act.
The
Supreme Court in the case of Ramji Missar vs state of Bihar,[8]highlighting
the purpose of the Act was to mainly stop youthful offenders from turning into
hardcore criminals. This can happen when young offenders are imprisoned with
mature offenders which ultimately leads them getting influenced. Modern
jurisprudence of Criminal states that “Nobody is born a criminal and it happens
due to the factors surrounding him/her .” This was further elaborated by saying
that such practices are used for offenders with less serious offences as they
can be reformed without imprisonment.
The
development of prisons and reformation happened because of various
recommendations given by various committees some of which are as follows :-
·
Mulla
Committee
In the
year 1980, a committee on Jail Reform was set up under the guardianship of Justice A.N. Mulla. The main
objective of this committee was to critically analyze the laws, rules ,
regulations with the main aim of protecting society and rehabilitating
offenders. Further to constitute an All India Service called as the Indian
Prisons and Correctional Service for recruitment of Prison authorities.
·
Krishna
Iyer Committee
In the year 1987, this committee mainly worked
for the benefit of women. They studied the conditions of women prisoners and
recommended induction of more women in police force with the idea of tacking
women and child offenders.
India
has come a long way since independence in terms of giving punishment and
reformation and has developed with changing times.
USA
United
states have worked towards development of reformation with the main motive of
reducing the prison population and punishments. Although most of the
punishments were based on the theory of deterrence. A new revolution in 1700
came which changed the course of punishment and reformation. The first ever
prison known as the Old Newgate Prison, [9]located
in Connecticut was actually the first official prison in United states. If we
look at the structure of this prison, it can be easily seen that prisons were used
to torture. The prisoners were kept underground and were put to hard labor. An
American medical doctor known as Benjamin Rush became motivating people for
prison reforms. In the year 1787, a group of reformers met together for a group
of prison reform group came to known as Philadelphia Society for Alleviating
the Miseries of Public Prisons ( which was later named as the Pennsylvania
Prison Society) which was mainly established to introduce prison reforms in
India. This Society mainly contributed
in the development of reforms in Walnut street jail. They introduced a wing
wherein, education services, basic medical attention and gave access to work
related activities.
One of
the most important cases in US which completely defied the theory of reformation
or prisoners was Ruffin vs Commonwealth (1871). This case dealt with the
concept of hands off doctrine. The supreme court noted that the prisoner is the
slave of the state while serving his or her sentence. The hands off doctrine
meant that the Supreme Court did not interfere in the matters of prison and
left all the powers in the hands of prison authorities.
In the
year 1870 , reformers met again and established National Prison Association
(NPA) [10]This
organization not only focused on administration of prisons but also helped in
Reformation. A man by the name Zebulon Brockway who was a warden highlighted
that prisons are supposed to individual reformation centers. During his time ,
the first ever practice of giving less punish`1ent to
first time offenders came into existence.
During their time in prisons, they were monitored and if possibility of
reformation seen, they were helped to go into the society as law abiding
citizens.
In the
year 1930, Federal Bureau of Prisons( BOP) was established by Congress in the
year 1930. It became an organization which looked after inmates with the help
of its employees. They not only provided facilities but focused on reforming
the prisoners as well.
Comparison As To Which
System Is Better
Analyzing both the
systems of India and USA, the best prison system exists in India. Since it is
based on the concept of open prisons. It not only punished but allows the
prisoners to develop skills and education because of which they further can be
rehabilitated in the society. On the other hand, American prisons despite being
reforming the offenders did not follow the concept of open air prisons. US has
two types of imprisonment centers : - Jails and prisons. Jails are for short
term inmates which are usually operated by Local County or City. Prisons are
for offenders who have committed serious offences and their punishment is above
1 year. Another feature is that these jails do not provide any type of
rehabilitation or reformative practices. Whereas, if we look at India, the prisons
allow the offenders to even take exams from inside and all types of reformative
and rehabilitated practices are allowed. In American prisons and jails, medical
help is not given much attention which remains the same with India. However, in
terms of helping them out to flourish, Indian prisons provide the prisoners
with work and even salaries are paid in order to motivate them to earn and then
make a living. But, if you look at the American system, they do not provide any
such facilities. Once an offender goes into jail or prison, it becomes
exceedingly difficult for him to manage things out once he is released. This is
solely the reason why America has the highest number of repeated offenders
compares to any other country.
Conclusion And Suggestions
The concept of punishment
and reformation is not a new concept and has been into existence since a long
time. The idea behind punishment started from the concept of retribution which
dealt with the idea of giving back the same treatment a victim has faced. This
meant that if an offender has committed a murder, then the victim should in
return kill the offender. Although widely followed this idea was highly
criticized. Scholars believed that one should start analyzing the behaviors of
the offenders so as to what motivates them to commit a certain crime. This
concept led to development of Reformation and completely changed the fate of
prisons, prisoners and people who were just victims of circumstance. The
practice of reformation not only encouraged the reformation of prisoners but
also focused on making the prisons a better place. They wanted to completely
abolish the name and reputation given to earlier prisons commonly called as the
“torture place”. They started analyzing
the behavior patterns and noticed that offenders were not given opportunity to
represent themselves and the reason why they committed crimes due to absence of
even basic amenities. So when they arrested the offenders, a new chance was given to learn new set of
skills and education so that when the offenders go into the society, they can
live a normal life like any other citizen without the fear of being labelled.
This led to the birth of reformation in many countries. If we see today, a
number of countries follow reformation as a part of their punishment. USA and
India have the largest prisons and these countries to an extent follow
reformation. Despite this, there are some circumstances where countries lack at
their level. For example – In India, reformation is highly followed but after
being released the stigma still exists. Giving them skills and education will
not help if they are not provided jobs and means to live. This will increase
the possibility of re-offenders. Furthermore, reformation should also be in the
living style of prisoners. Despite such practice being in existence from so
many years, there is overcrowding in prisons and it often leads to problems for
the prisoners. In addition to this, mental reformation is as important as other
forms of reformation. Counselling sessions should be held regularly for people
in prisons and not only in India but all over the country. Once a chance is
given to these prisoners , to express themselves as to what motivated them to
commit a crime , they are likely to mend their ways. Even smallest of changes
can help this practice to grow even further and make prisons a better place in
comparison to present inhumane situation.
[1]The Limits of Criminal Law: A
Comparative Analysis of Approaches to Legal Theorizing, By Carl Constantin
Lauterwein
[2]Sverdlik, Steven,
"Punishment and Reform" (2012). Philosophy Research. 1. https://scholar.smu.edu/hum_sci_philosophy_research/1
[3] The Limits of Criminal Law: A
Comparative Analysis of Approaches to Legal Theorizing, By Carl Constantin
Lauterwein
[7] 2003 (1) ACR 337 (SC)
Ramamurthy v. State of Karnataka