Proportionality Between Crime And Punishment Philosophy Essay

5448 words (22 pages) Essay

1st Jan 1970 Philosophy Reference this

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The first question which needs to be answered is why punishment is necessary. Punishing the offenders is a primary function of all civil states as because a crime has been defined by Prof. Salmond as an act deemed by law to be harmful for society as a whole although its immediate victim may be an individual. Thus a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim family [1] .

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Punishment can be used as a method of reducing the incidence of criminal behaviour either by deterring the potential offenders or by incapacitating and punishing them from repeating the offence or by reforming them into law-abiding citizens.

Determination of Punishment

The laws only can determine the punishment of crime; and the authority of making penal laws can only reside with the legislator, who represents the whole society united by the social compact. No magistrate then, (as he is one of the society) can, with justice, inflict on any other member of the same society punishment that is not ordained by the laws [2] . If individual is bound to society, society is equally bound to him, by a contract which from its nature equally binds both parties. This implies that for a greater part, the sentencing policy should be determined by the legislator and too much discretion should not be left to the magistrate, probation officers and parole boards in the matter of sentencing. A complete regime of sentencing with elaborate guidelines should be provided with all attendant checks and balances by the legislators so that it should not be left to the whims and caprice of Magistracy to deal with the offender as they like. In India, there is no sentencing legislation till date which could provide any guidance to the magistrates in the matters of sentencing. Further no sentencing guidelines are drawn either by the Supreme Court of India or the High Courts in any of its judgements leaving the magistracy to its own whims and caprice in passing sentences. A case is, therefore, made out in the present work for enacting a full-fledged legislation on sentencing.

PROPORTIONALITY BETWEEN CRIME AND PUNISHMENT

It is not only the common interest of mankind that crimes should not be committed, but also that crimes of every kind should be less frequent. Therefore the means employed by the legislature to prevent crimes should be more powerful in proportion to the gravity of crime as serious crimes are destructive of the public safety and happiness, and as the inducement to commit them are stronger. Therefore there ought to be a fixed portion between crimes and punishments. [3] It is impossible to prevent entirely all the disorders which the passions of mankind cause in society.

Pleasure and pain are the only springs of actions in human beings endowed with sensibility. If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater as often as it is attached with great advantage. Indiscriminate sentencing, therefore, causes more harm than good in any society. Crimes are only to be measured by the injury done to the society. Men, often with the best intention, do the greatest injury to society, and, with the worst, do it the most essential services. (Should the element of mens rea be, therefore, abandoned or be limited in its application from the definitions of offences!)

Some crimes are immediately destructive of society, or its representatives; others attack the private security of the life, property, or honour of individuals; and a third class consists of such actions as are contrary to the laws which relate to the general good of the community. Every crime, even of the most private nature, injures society; but every crime does not threaten its immediate destruction. To these succeed crimes which are destructive of the security of individuals. This security being the principal end of all society, and to which every citizen has an undoubted right, it becomes indispensably necessary, that to these crimes the greatest of punishments should be assigned.

Every member of society has a right to do any thing that is not contrary to laws, without fearing any other inconveniences than those which are the natural consequences of the action itself, is a political dogma, which should be defended by the laws; without which there can be no lawful society, a just recompense for our sacrifice of that universal liberty of action common to all sensible beings, and only limited by our natural power. Attempts, therefore, against the life and liberty of a citizen are crimes of the highest nature.

The severity of punishments ought to be in proportion to the state of the nation. The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal laws. Among a people hardly yet emerged from barbarity, there should be most severe punishment, as strong impressions are required; but, in proportion as the minds of men become softened by their intercourse in society, the severity of punishments should be diminished, if it be intended that the necessary relation between the object and the sensation should be maintained. A punishment may not be an act of violence, of one, or of many, against a private member of society, it should be public, immediate, necessary, the least possible in the case given, proportionate to the crime, and determined by the laws.

‘PUNISHMENT or PREVENTION’/’REFORMATION OR RETRIBUTION’ ?

Social existence of human beings is, therefore, patterned on some norms or laws. Every human society in the world has some kind of rules or norms which govern the conduct of individuals and thereby facilitate an orderly intercourse among them. A human society without such elementary norms will be akin to animal society where the rule “Might is Right” prevails. For a cohesive and integrated society norms or laws are a desideratum.

It is better to prevent crimes than to punish them. This is the fundamental principle of good legislation, which is the art of conducting men to maximum of happiness, and to the minimum of misery. [4] It is impossible to reduce the tumultuous activity of mankind to absolute regularity; for, amidst the various and opposite attractions of pleasure and pain, human laws are not sufficient entirely to prevent disorders in society. To prohibit a number of indifferent actions is not to prevent the crimes which they may produce, but to create new ones. Another method of preventing crimes is, to make the observance of the laws, and not their violations, the interest of the magistrate. As aptly said by Thomas Jefferson, the former American President:- ‘The trouble seems to be that too many people think that law should be enforced, and not enough think it should be observed.’ As rules are natural to human society similarly deviation from such rules is a natural phenomenon. In every human society there exists a certain percentage of individuals who so conducts themselves that deviation from rules ensues. This deviation from established rules causes concern for the society, it is perceived as a harm done to society. The society, therefore, resorts to punishing such deviators so that they should not venture again into conducts leading to deviation. However, the enquiry that comes to the fore here is that what means should be employed by the society in punishing a deviator and how a deviator is to be punished. The answers to both these enquiries will ultimately depend on how the society perceives a deviator – does a deviator in any way different from the rest of the individuals? Is he a born deviator? Is he biologically programmed to undertake only activities leading to deviation? Can he never be brought back into the society? It is important to try to find out answers to all these and other related questions prior to adopting an approach of reformation or retribution.

What are, in general, the proper punishments for crimes? Is the punishment of death penalty really useful, or necessary for the safety or good order of society? Are ‘tortures and torments’ [5] consistent with justice, or do they answer the end proposed by the laws? Which is the best method of preventing crimes? Are the same punishments equally useful at all times? What influence they have on manners?

The Biological Determinism of Lombroso has long been rejected by new socio-psychological researches on crime causation. Criminal is no longer now identified as born criminal; he is in no way identified as different from other normal human beings. According to Thomas Hobbes [6] , the source of every crime is some defect of the understanding, or some error in reasoning, or some sudden force of the passions. Every man who is attained to the use of reason is supposed to know that he ought not to do to another what he would not have done to himself. Whereas on the one hand it is recognised that an offender should be punished corporally so that it has some deterrent effect on him and others; it is also recognised that every efforts should be made in bringing the offender back into the society. With the contemporary awareness on the human rights plane where the liberty of individuals is a cherished virtue and any attempt towards curtailment of the same is looked down upon as an attack on the democratic ideals; much emphasis is now laid on reformation and rehabilitation of the offender. What diminishes the dignity of a human being is pro tanto unjust and so, the soul of criminal justice process is the restoration of a person to his/her spiritual essence. [7] The present study is also a small effort in that direction and, of course, at a macro level.

In the present study a case is made out for reformation and rehabilitation of the offenders; corporal punishment is looked down upon as a necessary evil which should be resorted to only for felonies and not for misdemeanor and even in case of felonies the duration of corporal punishment should be kept at the possible minimum.

Writing in Indian context our colonial penal code, good in parts but oriented on a Draconian thesis and in terrorem strategies, is the product of the genius of Lord Macaulay. [8] Technically, the colonial value system is dead but actively survives after death in our police stations, judicial process, prison practices and even parliamentary products. The law of violence as sanction for good behaviour suffers from genetic disorders. The purpose of sentencing is to restore every human being to his innate dignity and fundamental duty to the community. The remaking of man out of the criminal in the prison is the task of social scientists and humanist engineers because it is an integral part of our tryst with destiny. It is an article of faith that no man is born wicked but he becomes so when Society makes him sick. Society prepares the crime; the criminal commits it. Therefore, the cure of criminality is not to be sought in the genetic code of the delinquent or in treating him as a savage behaviour by whiplash. Nor it is right for some people to pretend, in elitist fashion, that they are good but the others, branded as criminals by the legal system, are irretrievable. Every saint has a past; every sinner has a future. Moreover, crime is a disease and sentencing must have a hospitalisation or out-patient perspective. Criminality is curable deviance. It is thus plain that crime is pathological aberration and the criminal can ordinarily be redeemed; the state has to rehabilitate rather than avenge. [9] The modern trend is to eradicate the cause of crime rather than the criminals by educative, corrective and reformative methods.

Nevertheless, harsh inhumanity is writ large in the sentencing strategy of statutory ‘Macaulism’, which still remains the penal scripture of sadistic jurisprudence. An eye for an eye, will make all men blind and cannot produce the light of justice. If you are to punish a man retributively you must injure him. If you are to reform him, you must improve him and men are not improved by injuries. The science of criminal anthropology goes far in identifying criminal disease and treats many classes of offenders as deserving of medical attention, not traumatic years behind bars. When criminals are sent to prison, the purpose is to transform them into good citizens by physically, intellectually and morally training them so that the offenders, when they return to society, become non-offenders. An incurable criminal is an imaginary animal. The break-through to a crime free society depends, therefore, upon appropriate therapy where victim (offender herein) is treated as a patient but kept under restraint so long as social defence demands it. Correctionalism is the soul of the new penal strategy. Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals, mental and moral, is the key to pathology of delinquency and the therapeutic role of punishment, the whole men is healthy, man and every man is born good. The infliction of harsh and savage punishment is thus a relic of the past and regressive times.

If control measures adopted by the Establishment prove pathological, the State itself becomes a criminal, and its minions, the police and the prosecutor, the judges and the prison warden, become tacit conspirators in the commission of the crime of punishment. Our law of crime is often lawless and penal recipes become iatrogenic. The human essence of justice is not lex talionis but reformative reverence. The whole police or procuratorial effort should be not to secure a conviction and, if possible, a maximum sentence, but to search for the truth by wits, not fists, by detective skill. (Should we not reform the role of our prosecution agencies and turn it more ‘inquisitorial’ than ‘adversarial’!) Fairness during police search for evidence, technology as an aid in unravelling the crime [10] , and a commitment to values as against easy resort to third degree [11] – these will inspire confidence in the court and the community about impartiality of the investigator. The judiciary are a fiduciary of justice. Therefore, the court must not surrender to the adversary system, leaving the forum to mirror the methods of a boxing match (Should we not modify our system of conducting trials!). We still lack the machinery that is necessary. Its treatment is to be adequately adapted to the requirements of the individual (individualised sentencing). It is the writ of the court that puts the citizen behind bars and if accountability is an inalienable concomitant of authority, the court has a duty of oversight of the ‘have not wards’ behind the high walls [12] . The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life. To this end, the institution should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners. Of course, the primary endeavour must be to adopt non-institutional treatment and avoid imprisonment except in serious cases. Many new methods for dealing with offenders may be tried. Community service is one. Working outside during the day and return to prison at night is another. Parole and probation are a third. Transcendental Meditation, is rapidly spreading in India as in the West. The penal system and the sentencing process must become versatile instruments for reform of the individual and social defence. Here again, pre-sentencing exercises become important if the twin goals are to be accomplished. To improve the present system of judicial sentencing, the pre-sentencing report must inform the judge or the sentencing board with opinion of Probation Officers, Sociologists, Psychiatrists and other specialists. There is a need for sentencing research so as to systematize the value and wisdom of the new methodology and personnel for better crucial performance and creative consequence. Judges must have sentencing options if they are to be functionally successful. Courts must have the power to order compensation and damages in appropriate cases, direct psychiatric or other treatment and investigation where necessary, prescribing probation or conditional suspension of imprisonment coupled with the duty to report at meditational centres, healing clinics, training schools or community service stations. They must have responsible freedom to innovate and invent. Judges may insist, in their sentence directions, on prison education and special training of the prisoner as a member of the community. Every step which is necessitous to achieve socialisation of the prisoner, including censure and surgery, must be available to the court. After care for prisoners, as for patients, is sensitively significant. Correction without conviction, probation and parole, obliteration of conviction upon release from prison should be the approach towards sentencing. In U.K., court direction to convicts to do community service is on the increase. Suspended sentences, conditional sentences and probation orders are also popular alternatives to imprisonment. In New Zealand, ‘periodic detention’, which involves part-time imprisonment and work outside, has been given statutory status. Each penal administration must search out creative alternatives congenial to its conditions so that the incidence of imprisonment can be reduced to the greatest degree consistent with the maintenance of public safety. As a policy, we should introduce flexibility of movement of inmates between custodial and non-custodial sentences and of the means by which this may be achieved. As a policy we must consider new sanctions and dispositions available to the courts in sentencing.

Regard for the victim and reparation for his damage are integral to punitive operations and is compensatory State action. To wipe every tear from every eye implies that the victims of crime, sometimes, even dependents of the convict, must be consoled and restored and the wrongdoer made to bear the responsibility for the suffering he has inflicted. The concept of restorative justice could be pressed into service to achieve this objective.

Emphasis should be laid on the release of first time offenders, women, children, sick, old and infirm persons on probation and use of fine and day labour technique should be emphasized.

The intent of punishments is not to torment a sensible being, nor to undo a crime already committed. Can the groans of a tortured wretch recall the time past, or reverse the crime he has committed? The end of punishment, therefore, is no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.

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MILDNESS OF PUNISHMENT

Crimes are more effectually prevented by the certainty than the severity of punishment. The certainty of a small punishment will make a stronger impression than the fear of one more severe, if attended with the hopes of escaping; for it is the nature of mankind to be terrified at the approach of the smallest inevitable evil, whilst hope, the best gift of Heaven has the power of dispelling the apprehension of a greater, especially if supported by examples of impunity. If punishment be very severe, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first. In proportion as punishments become more cruel, the minds of men, as a fluid rises to the same height with that which surrounds it, grow hardened and insensible. A punishment may produce the effect required, if the evil it occasions should exceed the good expected from the crime, including in the calculation the certainty of the punishment; and the privation of the expected advantage. All severity beyond this is superfluous, and therefore, tyrannical. Human nature is limited no less in evil than in good. Excessive barbarity can never be more than temporary, it being impossible that it should be supported by a permanent system of legislation; for if the laws be too cruel, they must be altered, or anarchy and impunity will succeed. [13] It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance; for our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent but momentary impulse. A punishment, to be just, should have only that degree of severity which is sufficient to deter others.

PRINCIPLE OF UTILITY

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think. [14] By utility is meant that property in any object, whereby it tends to produce benefit, advantage, good, or happiness, (all this in the present case comes to the same thing) or (what comes to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered: if that party be the community in general, then the happiness of the community: If a particular individual, then the happiness of that individual. The community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, the sum of the interests of the several members who compose it. It is in vain to talk of the interest of the community, without understanding what is the interest of the individual. A thing is said to promote the interest, or to be for the interest, of an individual, when it tends to add to the sum total of his pleasures: or what comes to the same thing, to diminish the sum total of his pains. An action, then, may be said to be conformable to principle of utility, when the tendency it has to augment the happiness of the community is greater than any it has to diminish it. By the natural constitution of the human frame, on most occasions of their lives men in general embrace this principle, without thinking of it: if not for the ordering of their own actions, yet for the trying of their own actions, as well as of those of other men. The happiness of the individuals, of whom a community is composed, that is their pleasures and their security, is the end and the sole end which the legislator ought to have in view: the sole standard, in conformity to which each individual ought, as far as depends upon the legislator, to be made to fashion his behaviour. The business of government is to promote the happiness of the society, by punishing and rewarding. That part of its business which consists in punishing, is more particularly the subject of penal law. In proportion as an act tends to disturb that happiness, in proportion as the tendency of it is pernicious, will be the demand it creates for punishment.

The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief. But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil. In following cases, therefore, punishment ought not to be inflicted:-

Where it is groundless: where there is no mischief for it to prevent; the act not being mischievous upon the whole;

Where it must be inefficacious: where it cannot act so as to prevent the mischief;

Where it is unprofitable, or too expensive: where the mischief it would produce would be greater than what it prevented;

Where it is needless: where the mischief may be prevented, or cease of itself, without it: that is, at a cheaper rate; [15] 

prevention of crime

Complete prevention of crime is, of course, impracticable, and probably quite impossible. Extirpation of crime might disrupt society, destroy the very semblance of what is now commonly understood by the word society. So long as the human nature remains human, offences would come. [16] The prevailing social order is in accord with nature and providence; it is not accidental. Dependency and crime accompany a progressive civilization; are in a sense natural product of civilization. All partial evil are universal good; all discord are harmony when rightly understood. Social reaction against crime is also natural; it is inevitable for preservation, and it is according to established social order. Opposition to crime is but a phase of the common struggle of all humanity for existence and growth. Only dreamers forecast the prefect state, devoid of both dependency and crime, and idly wait for it. [17] 

Crime – the term – as used in prevention, includes all anti-social conduct prohibited by law with sanctions that commit offenders into custody. For prevention there is no need to maintain distinctions as between a felony and misdemeanour. Such distinctions, so fictitious as they always are, based on punishment measured out for retribution, they are confusing and have no proper place in the study and prescription of a pure prevention. Subjective moral guiltiness of offenders is not revealed by statutory grading of the crimes and cannot be safely judged by any human judgement. The state would profit, if sinful estimate of offenders could be eliminated from the statues and from our attitude as well.

Crime is a mal-adjustment of two prime factors – the man and the circumstances. Between the two, the human character and the outward circumstances, there lies a realm of active operations where crime must be repressed. The process is of adjustment; wherever out of joint we find them, not more, not less, but just improved adjustment; it constitutes both the object aimed at and the true procedure.

Imprisonment is, at best, an evil and should be recognized as an active cause of crime. The arrest itself often proves to be the turning point of a life – the introduction to a criminal career, all the more when with the arrest there is temporary confinement in a station house or jail. The prevailing prison systems and their attitude towards the offenders is such that the hardship they impose and the sufferings they entail, do not act as a cure rather serve to intensify the anti-social instinct. The real first time offenders, may be treated while they are at large, treated without imprisonment in establishments, avoiding thus the serious evils that always attend imprisonments. There may be a possible extension and perfection of the principle of probation with its supervision of offenders to the extent of directing their employment and domestic economy as well as their public behaviour. There should not be developed habitual criminals from truly accidental offenders. Beginning with friendly official admonition without arrest, followed by admonition with probation without imprisonment may be used as techniques towards reformation of first time offenders. Who has not in his life time, may be, in exuberance of adolescence, committed irregularities of behaviour, which, had they been technically considered, strictly marked against him, given serious tone with publicity and perhaps with arrest and committal. First time offender is required to be saved from prison by means of governmental persuasion, admonition and probation and with good official supervision. Such a measure is by no means the whole or main duty of the government towards misdemeanant offender, those found necessary to restrain by imprisonment must be more thoroughly treated when they are first admitted. Short and repeated imprisonments are, or seem almost intended to be, a hardening process to fit young criminals for more hazardous crimes. What could be more just and reasonable than a sentence and form of sentence by which they should be committed and held in necessary control until they are taught or have learned, viz. good self control; wise self direction, with the ability and disposition to support themselves by legitimate pursuits and live within the requirements of the laws.

THEFTS OF WOOD

Where even the pilfering of fallen wood or the gathering of dry wood is included under the heading of theft and punished as severely as the stealing of live growing timber; it was remarked that since the punishment could run to a long term of imprisonment, such severity would lead people who otherwise follow an honest path on to the path of crime. That would happen also because in prison they would be in the company of inveterate thieves; therefore, the gathering or pilfering of dry fallen wood should be punished by a simple police penalty. In order to appropriate growing timber, it has to be forcibly separated from its organic association. Since this is an obvious outrage against the tree, it is, therefore, an obvious outrage against the owner of the tree. Further if felled wood is stolen from a third party, this felled wood is material that has been produced by the owner. Felled wood is wood that has been worked on. The natural connection with property has been replaced by an artificial one. Therefore, anyone who takes away felled wood takes away property. In the case of fallen wood, on the contrary, nothing has been separated from property. It is only what has already been separate

The first question which needs to be answered is why punishment is necessary. Punishing the offenders is a primary function of all civil states as because a crime has been defined by Prof. Salmond as an act deemed by law to be harmful for society as a whole although its immediate victim may be an individual. Thus a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim family [1] .

Punishment can be used as a method of reducing the incidence of criminal behaviour either by deterring the potential offenders or by incapacitating and punishing them from repeating the offence or by reforming them into law-abiding citizens.

Determination of Punishment

The laws only can determine the punishment of crime; and the authority of making penal laws can only reside with the legislator, who represents the whole society united by the social compact. No magistrate then, (as he is one of the society) can, with justice, inflict on any other member of the same society punishment that is not ordained by the laws [2] . If individual is bound to society, society is equally bound to him, by a contract which from its nature equally binds both parties. This implies that for a greater part, the sentencing policy should be determined by the legislator and too much discretion should not be left to the magistrate, probation officers and parole boards in the matter of sentencing. A complete regime of sentencing with elaborate guidelines should be provided with all attendant checks and balances by the legislators so that it should not be left to the whims and caprice of Magistracy to deal with the offender as they like. In India, there is no sentencing legislation till date which could provide any guidance to the magistrates in the matters of sentencing. Further no sentencing guidelines are drawn either by the Supreme Court of India or the High Courts in any of its judgements leaving the magistracy to its own whims and caprice in passing sentences. A case is, therefore, made out in the present work for enacting a full-fledged legislation on sentencing.

PROPORTIONALITY BETWEEN CRIME AND PUNISHMENT

It is not only the common interest of mankind that crimes should not be committed, but also that crimes of every kind should be less frequent. Therefore the means employed by the legislature to prevent crimes should be more powerful in proportion to the gravity of crime as serious crimes are destructive of the public safety and happiness, and as the inducement to commit them are stronger. Therefore there ought to be a fixed portion between crimes and punishments. [3] It is impossible to prevent entirely all the disorders which the passions of mankind cause in society.

Pleasure and pain are the only springs of actions in human beings endowed with sensibility. If an equal punishment be ordained for two crimes that injure society in different degrees, there is nothing to deter men from committing the greater as often as it is attached with great advantage. Indiscriminate sentencing, therefore, causes more harm than good in any society. Crimes are only to be measured by the injury done to the society. Men, often with the best intention, do the greatest injury to society, and, with the worst, do it the most essential services. (Should the element of mens rea be, therefore, abandoned or be limited in its application from the definitions of offences!)

Some crimes are immediately destructive of society, or its representatives; others attack the private security of the life, property, or honour of individuals; and a third class consists of such actions as are contrary to the laws which relate to the general good of the community. Every crime, even of the most private nature, injures society; but every crime does not threaten its immediate destruction. To these succeed crimes which are destructive of the security of individuals. This security being the principal end of all society, and to which every citizen has an undoubted right, it becomes indispensably necessary, that to these crimes the greatest of punishments should be assigned.

Every member of society has a right to do any thing that is not contrary to laws, without fearing any other inconveniences than those which are the natural consequences of the action itself, is a political dogma, which should be defended by the laws; without which there can be no lawful society, a just recompense for our sacrifice of that universal liberty of action common to all sensible beings, and only limited by our natural power. Attempts, therefore, against the life and liberty of a citizen are crimes of the highest nature.

The severity of punishments ought to be in proportion to the state of the nation. The quality of a nation’s civilization can be largely measured by the methods it uses in the enforcement of its criminal laws. Among a people hardly yet emerged from barbarity, there should be most severe punishment, as strong impressions are required; but, in proportion as the minds of men become softened by their intercourse in society, the severity of punishments should be diminished, if it be intended that the necessary relation between the object and the sensation should be maintained. A punishment may not be an act of violence, of one, or of many, against a private member of society, it should be public, immediate, necessary, the least possible in the case given, proportionate to the crime, and determined by the laws.

‘PUNISHMENT or PREVENTION’/’REFORMATION OR RETRIBUTION’ ?

Social existence of human beings is, therefore, patterned on some norms or laws. Every human society in the world has some kind of rules or norms which govern the conduct of individuals and thereby facilitate an orderly intercourse among them. A human society without such elementary norms will be akin to animal society where the rule “Might is Right” prevails. For a cohesive and integrated society norms or laws are a desideratum.

It is better to prevent crimes than to punish them. This is the fundamental principle of good legislation, which is the art of conducting men to maximum of happiness, and to the minimum of misery. [4] It is impossible to reduce the tumultuous activity of mankind to absolute regularity; for, amidst the various and opposite attractions of pleasure and pain, human laws are not sufficient entirely to prevent disorders in society. To prohibit a number of indifferent actions is not to prevent the crimes which they may produce, but to create new ones. Another method of preventing crimes is, to make the observance of the laws, and not their violations, the interest of the magistrate. As aptly said by Thomas Jefferson, the former American President:- ‘The trouble seems to be that too many people think that law should be enforced, and not enough think it should be observed.’ As rules are natural to human society similarly deviation from such rules is a natural phenomenon. In every human society there exists a certain percentage of individuals who so conducts themselves that deviation from rules ensues. This deviation from established rules causes concern for the society, it is perceived as a harm done to society. The society, therefore, resorts to punishing such deviators so that they should not venture again into conducts leading to deviation. However, the enquiry that comes to the fore here is that what means should be employed by the society in punishing a deviator and how a deviator is to be punished. The answers to both these enquiries will ultimately depend on how the society perceives a deviator – does a deviator in any way different from the rest of the individuals? Is he a born deviator? Is he biologically programmed to undertake only activities leading to deviation? Can he never be brought back into the society? It is important to try to find out answers to all these and other related questions prior to adopting an approach of reformation or retribution.

What are, in general, the proper punishments for crimes? Is the punishment of death penalty really useful, or necessary for the safety or good order of society? Are ‘tortures and torments’ [5] consistent with justice, or do they answer the end proposed by the laws? Which is the best method of preventing crimes? Are the same punishments equally useful at all times? What influence they have on manners?

The Biological Determinism of Lombroso has long been rejected by new socio-psychological researches on crime causation. Criminal is no longer now identified as born criminal; he is in no way identified as different from other normal human beings. According to Thomas Hobbes [6] , the source of every crime is some defect of the understanding, or some error in reasoning, or some sudden force of the passions. Every man who is attained to the use of reason is supposed to know that he ought not to do to another what he would not have done to himself. Whereas on the one hand it is recognised that an offender should be punished corporally so that it has some deterrent effect on him and others; it is also recognised that every efforts should be made in bringing the offender back into the society. With the contemporary awareness on the human rights plane where the liberty of individuals is a cherished virtue and any attempt towards curtailment of the same is looked down upon as an attack on the democratic ideals; much emphasis is now laid on reformation and rehabilitation of the offender. What diminishes the dignity of a human being is pro tanto unjust and so, the soul of criminal justice process is the restoration of a person to his/her spiritual essence. [7] The present study is also a small effort in that direction and, of course, at a macro level.

In the present study a case is made out for reformation and rehabilitation of the offenders; corporal punishment is looked down upon as a necessary evil which should be resorted to only for felonies and not for misdemeanor and even in case of felonies the duration of corporal punishment should be kept at the possible minimum.

Writing in Indian context our colonial penal code, good in parts but oriented on a Draconian thesis and in terrorem strategies, is the product of the genius of Lord Macaulay. [8] Technically, the colonial value system is dead but actively survives after death in our police stations, judicial process, prison practices and even parliamentary products. The law of violence as sanction for good behaviour suffers from genetic disorders. The purpose of sentencing is to restore every human being to his innate dignity and fundamental duty to the community. The remaking of man out of the criminal in the prison is the task of social scientists and humanist engineers because it is an integral part of our tryst with destiny. It is an article of faith that no man is born wicked but he becomes so when Society makes him sick. Society prepares the crime; the criminal commits it. Therefore, the cure of criminality is not to be sought in the genetic code of the delinquent or in treating him as a savage behaviour by whiplash. Nor it is right for some people to pretend, in elitist fashion, that they are good but the others, branded as criminals by the legal system, are irretrievable. Every saint has a past; every sinner has a future. Moreover, crime is a disease and sentencing must have a hospitalisation or out-patient perspective. Criminality is curable deviance. It is thus plain that crime is pathological aberration and the criminal can ordinarily be redeemed; the state has to rehabilitate rather than avenge. [9] The modern trend is to eradicate the cause of crime rather than the criminals by educative, corrective and reformative methods.

Nevertheless, harsh inhumanity is writ large in the sentencing strategy of statutory ‘Macaulism’, which still remains the penal scripture of sadistic jurisprudence. An eye for an eye, will make all men blind and cannot produce the light of justice. If you are to punish a man retributively you must injure him. If you are to reform him, you must improve him and men are not improved by injuries. The science of criminal anthropology goes far in identifying criminal disease and treats many classes of offenders as deserving of medical attention, not traumatic years behind bars. When criminals are sent to prison, the purpose is to transform them into good citizens by physically, intellectually and morally training them so that the offenders, when they return to society, become non-offenders. An incurable criminal is an imaginary animal. The break-through to a crime free society depends, therefore, upon appropriate therapy where victim (offender herein) is treated as a patient but kept under restraint so long as social defence demands it. Correctionalism is the soul of the new penal strategy. Progressive criminologists across the world will agree that the Gandhian diagnosis of offenders as patients and his conception of prisons as hospitals, mental and moral, is the key to pathology of delinquency and the therapeutic role of punishment, the whole men is healthy, man and every man is born good. The infliction of harsh and savage punishment is thus a relic of the past and regressive times.

If control measures adopted by the Establishment prove pathological, the State itself becomes a criminal, and its minions, the police and the prosecutor, the judges and the prison warden, become tacit conspirators in the commission of the crime of punishment. Our law of crime is often lawless and penal recipes become iatrogenic. The human essence of justice is not lex talionis but reformative reverence. The whole police or procuratorial effort should be not to secure a conviction and, if possible, a maximum sentence, but to search for the truth by wits, not fists, by detective skill. (Should we not reform the role of our prosecution agencies and turn it more ‘inquisitorial’ than ‘adversarial’!) Fairness during police search for evidence, technology as an aid in unravelling the crime [10] , and a commitment to values as against easy resort to third degree [11] – these will inspire confidence in the court and the community about impartiality of the investigator. The judiciary are a fiduciary of justice. Therefore, the court must not surrender to the adversary system, leaving the forum to mirror the methods of a boxing match (Should we not modify our system of conducting trials!). We still lack the machinery that is necessary. Its treatment is to be adequately adapted to the requirements of the individual (individualised sentencing). It is the writ of the court that puts the citizen behind bars and if accountability is an inalienable concomitant of authority, the court has a duty of oversight of the ‘have not wards’ behind the high walls [12] . The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life. To this end, the institution should utilise all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners. Of course, the primary endeavour must be to adopt non-institutional treatment and avoid imprisonment except in serious cases. Many new methods for dealing with offenders may be tried. Community service is one. Working outside during the day and return to prison at night is another. Parole and probation are a third. Transcendental Meditation, is rapidly spreading in India as in the West. The penal system and the sentencing process must become versatile instruments for reform of the individual and social defence. Here again, pre-sentencing exercises become important if the twin goals are to be accomplished. To improve the present system of judicial sentencing, the pre-sentencing report must inform the judge or the sentencing board with opinion of Probation Officers, Sociologists, Psychiatrists and other specialists. There is a need for sentencing research so as to systematize the value and wisdom of the new methodology and personnel for better crucial performance and creative consequence. Judges must have sentencing options if they are to be functionally successful. Courts must have the power to order compensation and damages in appropriate cases, direct psychiatric or other treatment and investigation where necessary, prescribing probation or conditional suspension of imprisonment coupled with the duty to report at meditational centres, healing clinics, training schools or community service stations. They must have responsible freedom to innovate and invent. Judges may insist, in their sentence directions, on prison education and special training of the prisoner as a member of the community. Every step which is necessitous to achieve socialisation of the prisoner, including censure and surgery, must be available to the court. After care for prisoners, as for patients, is sensitively significant. Correction without conviction, probation and parole, obliteration of conviction upon release from prison should be the approach towards sentencing. In U.K., court direction to convicts to do community service is on the increase. Suspended sentences, conditional sentences and probation orders are also popular alternatives to imprisonment. In New Zealand, ‘periodic detention’, which involves part-time imprisonment and work outside, has been given statutory status. Each penal administration must search out creative alternatives congenial to its conditions so that the incidence of imprisonment can be reduced to the greatest degree consistent with the maintenance of public safety. As a policy, we should introduce flexibility of movement of inmates between custodial and non-custodial sentences and of the means by which this may be achieved. As a policy we must consider new sanctions and dispositions available to the courts in sentencing.

Regard for the victim and reparation for his damage are integral to punitive operations and is compensatory State action. To wipe every tear from every eye implies that the victims of crime, sometimes, even dependents of the convict, must be consoled and restored and the wrongdoer made to bear the responsibility for the suffering he has inflicted. The concept of restorative justice could be pressed into service to achieve this objective.

Emphasis should be laid on the release of first time offenders, women, children, sick, old and infirm persons on probation and use of fine and day labour technique should be emphasized.

The intent of punishments is not to torment a sensible being, nor to undo a crime already committed. Can the groans of a tortured wretch recall the time past, or reverse the crime he has committed? The end of punishment, therefore, is no other than to prevent the criminal from doing further injury to society, and to prevent others from committing the like offence. Such punishments, therefore, and such a mode of inflicting them, ought to be chosen, as will make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal.

MILDNESS OF PUNISHMENT

Crimes are more effectually prevented by the certainty than the severity of punishment. The certainty of a small punishment will make a stronger impression than the fear of one more severe, if attended with the hopes of escaping; for it is the nature of mankind to be terrified at the approach of the smallest inevitable evil, whilst hope, the best gift of Heaven has the power of dispelling the apprehension of a greater, especially if supported by examples of impunity. If punishment be very severe, men are naturally led to the perpetration of other crimes, to avoid the punishment due to the first. In proportion as punishments become more cruel, the minds of men, as a fluid rises to the same height with that which surrounds it, grow hardened and insensible. A punishment may produce the effect required, if the evil it occasions should exceed the good expected from the crime, including in the calculation the certainty of the punishment; and the privation of the expected advantage. All severity beyond this is superfluous, and therefore, tyrannical. Human nature is limited no less in evil than in good. Excessive barbarity can never be more than temporary, it being impossible that it should be supported by a permanent system of legislation; for if the laws be too cruel, they must be altered, or anarchy and impunity will succeed. [13] It is not the intenseness of the pain that has the greatest effect on the mind, but its continuance; for our sensibility is more easily and more powerfully affected by weak but repeated impressions, than by a violent but momentary impulse. A punishment, to be just, should have only that degree of severity which is sufficient to deter others.

PRINCIPLE OF UTILITY

Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think. [14] By utility is meant that property in any object, whereby it tends to produce benefit, advantage, good, or happiness, (all this in the present case comes to the same thing) or (what comes to the same thing) to prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered: if that party be the community in general, then the happiness of the community: If a particular individual, then the happiness of that individual. The community is a fictitious body, composed of the individual persons who are considered as constituting as it were its members. The interest of the community then is, the sum of the interests of the several members who compose it. It is in vain to talk of the interest of the community, without understanding what is the interest of the individual. A thing is said to promote the interest, or to be for the interest, of an individual, when it tends to add to the sum total of his pleasures: or what comes to the same thing, to diminish the sum total of his pains. An action, then, may be said to be conformable to principle of utility, when the tendency it has to augment the happiness of the community is greater than any it has to diminish it. By the natural constitution of the human frame, on most occasions of their lives men in general embrace this principle, without thinking of it: if not for the ordering of their own actions, yet for the trying of their own actions, as well as of those of other men. The happiness of the individuals, of whom a community is composed, that is their pleasures and their security, is the end and the sole end which the legislator ought to have in view: the sole standard, in conformity to which each individual ought, as far as depends upon the legislator, to be made to fashion his behaviour. The business of government is to promote the happiness of the society, by punishing and rewarding. That part of its business which consists in punishing, is more particularly the subject of penal law. In proportion as an act tends to disturb that happiness, in proportion as the tendency of it is pernicious, will be the demand it creates for punishment.

The general object which all laws have, or ought to have, in common, is to augment the total happiness of the community; and therefore, in the first place, to exclude, as far as may be, every thing that tends to subtract from that happiness: in other words, to exclude mischief. But all punishment is mischief: all punishment in itself is evil. Upon the principle of utility, if it ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil. In following cases, therefore, punishment ought not to be inflicted:-

Where it is groundless: where there is no mischief for it to prevent; the act not being mischievous upon the whole;

Where it must be inefficacious: where it cannot act so as to prevent the mischief;

Where it is unprofitable, or too expensive: where the mischief it would produce would be greater than what it prevented;

Where it is needless: where the mischief may be prevented, or cease of itself, without it: that is, at a cheaper rate; [15] 

prevention of crime

Complete prevention of crime is, of course, impracticable, and probably quite impossible. Extirpation of crime might disrupt society, destroy the very semblance of what is now commonly understood by the word society. So long as the human nature remains human, offences would come. [16] The prevailing social order is in accord with nature and providence; it is not accidental. Dependency and crime accompany a progressive civilization; are in a sense natural product of civilization. All partial evil are universal good; all discord are harmony when rightly understood. Social reaction against crime is also natural; it is inevitable for preservation, and it is according to established social order. Opposition to crime is but a phase of the common struggle of all humanity for existence and growth. Only dreamers forecast the prefect state, devoid of both dependency and crime, and idly wait for it. [17] 

Crime – the term – as used in prevention, includes all anti-social conduct prohibited by law with sanctions that commit offenders into custody. For prevention there is no need to maintain distinctions as between a felony and misdemeanour. Such distinctions, so fictitious as they always are, based on punishment measured out for retribution, they are confusing and have no proper place in the study and prescription of a pure prevention. Subjective moral guiltiness of offenders is not revealed by statutory grading of the crimes and cannot be safely judged by any human judgement. The state would profit, if sinful estimate of offenders could be eliminated from the statues and from our attitude as well.

Crime is a mal-adjustment of two prime factors – the man and the circumstances. Between the two, the human character and the outward circumstances, there lies a realm of active operations where crime must be repressed. The process is of adjustment; wherever out of joint we find them, not more, not less, but just improved adjustment; it constitutes both the object aimed at and the true procedure.

Imprisonment is, at best, an evil and should be recognized as an active cause of crime. The arrest itself often proves to be the turning point of a life – the introduction to a criminal career, all the more when with the arrest there is temporary confinement in a station house or jail. The prevailing prison systems and their attitude towards the offenders is such that the hardship they impose and the sufferings they entail, do not act as a cure rather serve to intensify the anti-social instinct. The real first time offenders, may be treated while they are at large, treated without imprisonment in establishments, avoiding thus the serious evils that always attend imprisonments. There may be a possible extension and perfection of the principle of probation with its supervision of offenders to the extent of directing their employment and domestic economy as well as their public behaviour. There should not be developed habitual criminals from truly accidental offenders. Beginning with friendly official admonition without arrest, followed by admonition with probation without imprisonment may be used as techniques towards reformation of first time offenders. Who has not in his life time, may be, in exuberance of adolescence, committed irregularities of behaviour, which, had they been technically considered, strictly marked against him, given serious tone with publicity and perhaps with arrest and committal. First time offender is required to be saved from prison by means of governmental persuasion, admonition and probation and with good official supervision. Such a measure is by no means the whole or main duty of the government towards misdemeanant offender, those found necessary to restrain by imprisonment must be more thoroughly treated when they are first admitted. Short and repeated imprisonments are, or seem almost intended to be, a hardening process to fit young criminals for more hazardous crimes. What could be more just and reasonable than a sentence and form of sentence by which they should be committed and held in necessary control until they are taught or have learned, viz. good self control; wise self direction, with the ability and disposition to support themselves by legitimate pursuits and live within the requirements of the laws.

THEFTS OF WOOD

Where even the pilfering of fallen wood or the gathering of dry wood is included under the heading of theft and punished as severely as the stealing of live growing timber; it was remarked that since the punishment could run to a long term of imprisonment, such severity would lead people who otherwise follow an honest path on to the path of crime. That would happen also because in prison they would be in the company of inveterate thieves; therefore, the gathering or pilfering of dry fallen wood should be punished by a simple police penalty. In order to appropriate growing timber, it has to be forcibly separated from its organic association. Since this is an obvious outrage against the tree, it is, therefore, an obvious outrage against the owner of the tree. Further if felled wood is stolen from a third party, this felled wood is material that has been produced by the owner. Felled wood is wood that has been worked on. The natural connection with property has been replaced by an artificial one. Therefore, anyone who takes away felled wood takes away property. In the case of fallen wood, on the contrary, nothing has been separated from property. It is only what has already been separate

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