TRANSFORMING CRIMINALS: AN IDEAL OF REFORMATIVE THEORY
By: Vanshika Sharma* |
The prison system has become obsolete, requires a lot of changes and needs many reformations. Talking about the condition of prisons in Russia and France, Peter Kropotkin observed, “Prisons are seen as symbols of our hypocrisy regarding rehabilitation, our intolerance for deviants, or our refusal to deal with the root causes of crime such as poverty, discrimination, unemployment, ignorance, over-crowding and so on.” Penology has developed in the world and it is not confined to prison and punishment for crime. Penology encompasses all of the penal systems, including penal theory, sentencing policy and the practice of how offenders are managed within both prisons and the community. Punishment is always seen as a coercive and deterrent means to eradicate crime or diminish the chances but the theories when converted in practice have always opened several questions before us. The reformative or rehabilitative theory of punishment seeks to bring a change in the attitude of the offender so as to rehabilitate him into a law-abiding member of the society. Undoubtedly, modern penologists reaffirm their faith in reformative justice but they strongly feel that it should not be stretched too far.
REFORMATIVE THEORY: A PSYCHOSOCIAL NEED
When we talk about various theories of punishment, for instance, deterrent, retributive and preventive, we often look into the reasons for their support. Since early ancient times, the concept of ‘an eye for an eye and a tooth for a tooth’ prevailed and in some sense, it was justified by retributive theory. Many jurists like Bentham, Beccaria and Salmond supported deterrent theory. According to which, deterrence is the best mechanism for setting examples in society, wherein the ‘free will’ or ‘evil spirit’ of the offender lets him into a severe punishment. Reformative theory condemns all kinds of corporal punishments. The major emphasis of such a view is the rehabilitation of criminals in getting them back in society with a clean and positive mindset. The institution is not necessarily a prison in hard terms but can be termed as a correctional institution for the purpose of correcting the behaviour.
Piper Kerman’s memoir ‘Orange is the New Black’ converted into a famous Netflix series by the same name depicts the needs of inmates. It sends a shiver down the spine when a mentally unstable inmate kept in normal centre asks her mother, “Do I deserve to be here?” had she been in a rehabilitative centre, she could have gained more treatment. The memoir written by an inmate herself narrates the plight of a hogged section of society.
Psychosocial needs are those needs that are determined by the psychological and social well-being of a person. Both criminal and victim need an intersection to fulfil their mental wants. The Victim Offender Conference (VOC) primarily focuses on holding the offender accountable for the crime. The need for accountability on the part of the offender is the most critical need that the victim wants to be met by the administration of justice. Some of the psychosocial needs created by crimes for the victims are the necessity for information about why and what happened; the need for the victim to tell how the crime has impacted him or her, often in the presence of the offender; and empowerment, because victims always feel a loss of control as a result of crimes. On the other hand an offender may speak his reasons whether acceptable or not, and lead to a sort of expiation. There is a need for transformation of shame into positivity and anger into responsibility. In a heartwarming initiative, authorities in the Taloja Jail, Navi Mumbai, are offering inmates a chance to spend time with their children and other loved ones without having a glass or wall separating them. This is part of the ‘gala bhet’ initiative by the State Prison Department.
While advocating the need of reformation one must know the situation in which certain crime occurred. The best example of reformation is seen in the criminal acts by juveniles, first-time offenders and women. The Juvenile Justice (Care and Protection of Children) Act, 2015 provides special provisions for the care, protection, treatment, development & rehabilitation of delinquent’s offenders below age 16 years through welfare boards and observation homes & for the adjudication of justice through juvenile courts. There are several statutes dealing with reformative practice. The Probation of Offenders Act, 1958 carries out a similar object. The Supreme Court observed in Rattan Lal v. State of Punjab 1964 SCR (7) 676 that this Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. In Narotam Singh v. State of Punjab AIR 1978 SC 1542, Hon’ble Justice Krishna Iyer, observed that the law of crimes perverts itself on occasions into the crime of law if narrow legalism overwhelms social justice. This criticism applies to the field of penology as well, and so the finer, more perceptive and sociologically relevant approach to punishment, when a crime has been proved, is to take a holistic, realistic and humanistic size-up action as to promote rehabilitation without offending community conscience.
Prison Ministry India also started a shelter called Jeevodaya for the rehabilitation of girls who have committed crimes. The Child Welfare Committee, established by the state government in every district, can't send the minors to jails, so it sends them to shelters like Jeevodaya. Taloja Jail, Navi Mumbai, Poojapura Central Prison, Thiruvananthapuram, Tihar Jail, New Delhi, Balasore District Jail, Odisha and Central Prison, Kannur are a few notable prisons that are working towards the transformation of inmates through vocational training, polytechnic, education, library, gardening, pottery, bakery etc. These are all aimed towards transformation as an alternative to the rigorous unproductive archaic jail system.
REHABILITATION IS SEEN AS A MERE MORAL DUTY
The reformative view of penology suggests that punishment is only justiciable if it looks to the future and not the past. Undoubtedly, modern penologists affirm their notions on reformative justice but they also believe that this is not majorly applicable. Except for less heinous crimes and criminals, other segments of criminality are far from reformation. The recidivists and hardened criminals do not respond favorably to reformist ideology. It is for this reason that Salmond in his book Jurisprudence observed that though general substitution of reformation for deterrence may seem disastrous, it is necessary in certain cases especially for abnormal and degenerates who have diminished responsibility. Morals can be simply seen as what is considered to be the supreme good. It can be well stated that rehabilitation is a complementary moral ideal in case of regular prisoners. Apparently, the special Acts, which provide for a rehabilitative approach like for juvenile delinquents, are still on the roads of proper implementation then how come a restorative vision be seen in case of degenerates in jails. There are also some contentions that say it is a highly individualistic approach and merely imposes a moral duty without a check on prison authorities. An American Report on Crime and Punishment stated that Prison administrators, who embraced the rehabilitative ideal, have done so because it increased their power over inmates. Further, in the case of India, it is all disciplinary and reformative models, not obligations that are required to be done. For instance, convicts scheduled for vocational training may have very good staff contribution in Prison A but not in B. This is seen as an idealistic and modern approach which is yet to be swallowed in its real essence.
IS REFORMATION THE WAY AHEAD?
Commenting on the aspect of penal justice, Dr. P.K. Sen asserted that the concept of punishment has now radically changed in as much as it is no longer regarded as a reaction of the aggrieved party against the wrongdoer but has become an instrument of social defence for the protection of society against crime. In State Rep. By The Inspector Of Police v. M. Murugesan on 15 January 2020, it was observed that the central aim of the criminal law is to reform the offender and to rehabilitate him in a bid to render him useful to society. We can easily note that crime is wrong which affects or has the potential to affect the society at large. It is not just the victim who suffers but crime has the potential of creating deviance in the whole society. Rehabilitation proves to be a roadmap for transforming the mind and activity of a criminal. He may get his punishment suspended, remitted or condoned. The cross-section of rights of victim and rights of the criminal is very complex. The general exceptions in the Indian Penal Code, 1860; rights of an accused person in the Code of Criminal Procedure, 1973; the Indian Constitutional provisions like Article 20 and 22 and various other general laws focus on the criminal/accused. Under the Constitution, Right to Speedy Trial is an implicit fundamental right under Article 21 but there is still a problem of overcrowding in prisons. The adversarial criminal justice system has seen cases being carried for a long time. One alternative to regular prison is ‘Open Air Jail’ which has not been much successful. Also, in a country like India, there is more focus on penalties rather than their effective implementation. In the modern global scenario, harsh punishment is seen as against human rights. There is also an opinion against a reformative ideology which says that if we think from point of view of the victim it shall be unbearable to justify the sufferance with lesser gravity in punishment to the wrongdoer.
Jail Committee 1919 which is more than a hundred-year-old recommending document, at that time surveyed and suggested reformative ideals but it is not uniformly implemented in the country. With an open-ended view, one can say that we cannot apprehend human behaviour but only understand some things through certain aspects. Every criminal act is not possible to be judged on the same parameter. While some criminals like juvenile, first-timers and women are seen as carrying positive response to reformative techniques but convicts of highly grave criminality like murderers, kidnappers, rapists etc. have turned neutral to series of efforts also. The rehabilitative approach is seen as a more criminal centred model of treatment, while some criticize it to be based on high subjectivity and individualized punishments which results in inequity because punitive schemes lose purpose. Decriminalization and criminalization of certain crimes should be based on the overall impact on society rather than just one particular criminal or victim. It should be accepted that deterrence is needed in heinous crimes but the compartmentalization of criminals on the basis of age, sex, crime type can prove a flag-post towards socially acceptable behaviour. Admitting a murderer with a pickpocketer is mentally affecting! Founder of deterrent theory, Bentham, later believed that offenders must be provided with an opportunity for reformation by the process of rehabilitation. We can add on in the practical point that there ought to be a reformation of current legislative, judicial and administrative machinery. Reformation is capable of bringing social change. It cannot be applied in totality but a shift from ‘theory of punishment’ to ‘theory of wholesome change’ may provide us with ways ahead. Swiping transformation is utopian but efforts are real, there is an urgent need to dust off spider webs in a pile of files; boost to convert a mere morality into obligation and last but not the least, the corroded cages into correctional bars.
* The author is a student at Law College Dehradun, Uttranchal University.