The Problem of Crime and Punishment: A Humanistic Approach @ HereNow4U

JAIN VISHVA BHARATI UNIVERSITY

Problem

Crime had been a constant irritant for different types of rulers and the social reformers. It is a major social problem and since ages society is trying to minimise it. Letting crime have its own way without attempting to eradicate it by psychologically sound methods cannot benefit society. Crime is a phenomenon, which is of primary concern to every members of society. Crime co-exists with society. Unless the task of social and economic development of the society and the restructuring of its social order is seriously and intelligently taken up and the evil features of the administrative and political system eliminated, the crimes cannot be rooted out. In fact, it is a common notion that criminals are not born but made. Social philosophers and reformers believe that no man is born criminal. Kahlil Gibran sees human nature as basically good, asserting that man does not turn bad unless circumstances go against him. Good and evil are two names for the same thing and are not separated except by a thin line. Man is victimized by his human weakness, his physical and emotional needs and the bad economic and environmental conditions he has to endure which often push him to commit evil deeds ¹. Circumstances and injustices, which a man is unable to tolerate or cope with, make him as such. That’s why reformists are of the opinion that ‘do not hate criminals, hate crimes.² It means that by simply punishing or killing criminals, we cannot eradicate crime in society. And, the various legal systems have failed to eradicate crime in society since the ages because it has confined itself to crime and criminals only.

Man has failed to introduce into its criminal or penal law the truly humanising elements of mercy, compassion and understanding for those who are inclined to commit acts, which are anti-social and harmful to the common interest of society as a whole. The objects of punishment are to bring about reformation of the offender, to prevent him from committing crime again. Punishment cannot work through repressive method, as it does not off the criminal desires. The tendency of modern punishment should be to use old-re-educative methods, which in result will be more meaningful and more capable in reformation and treatment of criminals. None of the criminal is so hardened that he will not respond to the sympathetic, reformative and non-violent approach. After all the history is full of the examples of change in heart. But to adopt this type of trend we have to study thoroughly the causes of crime, then only, we will be able to remove those causes, which give origin to it.

Crime

Crime has always been present in the human society. Its universality and inevitability is recognised by all the major sociologists and philosophers. Emile Durkheim says “There is no society that is not confronted with the problem of criminality. Its form changes the act, thus, characterised are not the same everywhere, but, everywhere and always, there have been men who have behaved in such a way as to draw upon themselves penal repression. To classify crime among the phenomenon of normal sociology is not to say merely that it is inevitable, although regrettable phenomenon, due to incorrigible wickedness of men, it is to affirm that it is a factor in public health, an integral part of all health societies:”.³ Crime means any act or omission, which under the law for the time being in force in the country concerned is made punishable. What may be a sin-a wrongful act morally is not a crime if not so regarded by the law (of the state) for the time being in force. And on the other hand, what may be regarded by the law as a crime may not be morally wrong. Hence, a crime may be defined as an act or omission, sinful or non-sinful, which a society or a State has thought fit to punish under its laws for the time being in force. Various definition of crime have been given by various thinkers. Halsbury defines crime as “an unlawful act or default which is an offence against the public, and which renders to perpetrator of the act or default liable to legal punishment.”⁴ Michael and Alder regard ‘Crime’ as merely “an instance of behaviour prohibited by criminal law.”⁵ Sellin regards crime as deviation from, or breach of a conduct norm. This deviation or breach is punished by society by means of its sanctions.⁶ P.W. Tappan in his article “Who is criminal” gives the definition of crime, “as defined by law, a crime is an intentional violation of the criminal law, committed without defence or excuse, and penalised by the State.”⁷ Thus, crime is an act or omission which the law thinks fit to punish.

There are many factors and causes behind crime such as biological, socio-psychological and economic. In Gandhian view socio-economic factor is most important factor because according to Gandhi man is inherently good.⁸ But, in legal language, the man who violates the provisions of law with the intention of doing so is a criminal and is an anti-social being. He harms individual as well as society. We can say, that the criminal is a mentally morbid or emotionally disturbed person, a maladjusted being, most often a victim of unfavourable circumstances or of lack of cultural and moral education. In some cases, he acts like an untamed animal, and is out to assault even with a dangerous weapon, on the slightest provocation. To sum up, there are two fundamental approaches to explanation of crime; first is individualistic or subjective and second is environmental or objective approach. Individualistic approach lays emphasis on the personality of the criminal. It considers crime as a product or expression of the individual constitution. The environmental approach takes into consideration the physical and social conditions which produce criminogenic influences on certain type of people called criminals. It considers crime as a product or expression of society.

Punishment

The concept of punishment is an old one. If a person has deliberately done the wrong action as a result of his own free will, he will be considered guilty and is liable to punishment. The justification for inflicting punishment on an individual lies in this, that he has deliberately done that wrong, knowing the nature as well as the consequences thereof. Kant ⁹ says that punishment is an end in itself. He has held punishment of criminals, guilty of the violation of moral law, as imperative. Hegel ¹⁰ has justified punishment as necessary to annual the injury to the society produced by crime. Punishment, according to him, is a logical compliment to crime. Rechless ¹¹ remarks that it is the redress that the commonwealth takes against an offending member. According to Westermarek, “punishment is limited to such suffering as is inflicted upon the offender in definite way, or in the name of, the society of which he is a permanent or temporary member.¹² Thus, punishment has been considered as a means of social control to maintain some degree of social equilibrium and to induce conformity to the established rules of society.

The history of punishment for the eradication of crime, starts with the rule of the jungle resulting in ‘deterrent’ theory. The ancient logic was that if a man kills, he in turn should be killed. Historically, punishment was harsh and corporal punishment was predominant. In the classical age, penalties were prescribed by various religious moral codes. The code of Hummurabi, Hebrew codes, Manu Samhita, the Talmud, all laid down principles of responsibility for crimes, private vengeance and the avoidance of such vengeance by provision of holy refuges for the offender.¹³ In the Mediaeval age private vengeance continued, but evidence was necessary for trials. Reformation involved religious redemption, which could be obtained by paying a debt to society or through spiritual penance through the performance of various difficult rituals. The modern penology recognises the need for changing the anti-social attitudes into social attitudes but as yet punishment as a vengeance or a deterrent has not been given up. However, the greatest achievement is this, that this has been recognised clearly that man’s personality is not separated from his social environment and the objects of punishment are to bring about reformation of the offender, to prevent him from committing crime again. Punishment cannot work through repressive method, as it does not root off the criminal desires.

Theories of Punishment

The primary objective of punishment is to protect society from crimes and criminals. The existing justification of punishment, some of them ancient and some of them more recent in origin are

retribution,
deterrence, and
reformation.

As a theory of punishment retribution is the oldest justification of punishment. This theory of punishment holds that the aim of punishment is to make the offender suffer what his victim has suffered, and so this theory appears to justify the law of “an eye for an eye and a tooth for a tooth.” In Hummurabi’s code (1875 B.C.) it was provided, “If a man has caused the loss of patrician’s eye, his eye one shall cause to be lost. If he has shattered a patrician’s limb, one shall shatter his limb. If a man has made the tooth of a man that is his equal fallout, one shall make his tooth fallout.¹⁴ Retribution considers punishment a means of restoring the social balance existing before the perpetration of the crime. But, it in itself is not a remedy for the mischief of the offence, but an aggravation of it. Punishment need not be an end itself but should be an instrument for the attainment of social welfare.

According to the theory of deterrent punishment, the aim of punishment should be to deter others from committing similar offences in future. Again the punishment to be inflicted on the criminal should be such as to make him an example for others and such exemplary punishment shall always check others from doing the same kind of wrong. One of the serious objections levelled against this theory is that it uses the offender as means to the good of others. To punish a man in order to convey a lesson to others is unethical and inhuman. Secondly, this fact has been overlooked that the criminal behaviour is largely emotional and many crimes are committed in a moment of excitement without a thought for the future penalty. Thirdly, the real weakness of the deterrent theory is that if the only purpose of punishment is to deter people from wrongdoing, it does not really matter whether the person punished is innocent or guilty.¹⁵

According to the theory of reformative punishment, the aim of punishment should be to reform the character of the offender. The value of punishment lays in educating the offender so as to bring him to a normal place of his life. Thus, the purpose of punishment should be to change the values of criminals and modify deviant behaviours patterns. The need for reformation was felt long before by Pope Clement XI, who was of the opinion that, it is insufficient to restrain the wicked by punishment, unless you render them virtuous by corrective discipline.”¹⁶

The Humanistic Approach

The house of correction in England and the early prison system in America were supposed to teach offenders a lesson and correct their shortcomings. But, later on with the advancement of civilization, reformative view was adopted. Reformatories were established with a programme of work education, recreation, and religious services with the purpose of rehabilitating the offender and preparing him for his entrance back into law-abiding society. Criminals are treated as patients. In the Gandhian philosophy criminals are treated as a sick man, as a diseased man. According to Gandhi “Sinner is equal to the saint in the eye of God. A saint who considers himself superior to sinner forfeits his sainthood and becomes worse than sinner who, unlike the proved saint, know not what he is doing”.¹⁷

Gandhian theory of crime and punishment was based on the unity of non-violence. Voluntary and unconditional surrender of the chambal bandits at the instance of Acharya Vinoba and his followers in 1960 was indeed a social miracle.¹⁸ It was small in its dimensions but great in its significance and hidden potentialities. It proved beyond doubt the desirability and efficacy of the non-violent approach in solving even sociological problems of administration, of justice, of maintance of law and order and of dealing with crime.

Following Gandhi and Vinobha, Jay Prakash Narayan in 1972, made an experiment of non-violent approach to the solution of the problem of crime, by persuading successfully the chambal valley dacoits to self-surrender.¹⁹ Thus, a spiritual change of heart was also made possible even in hardened criminals by this method. On J.P.’s plea for the adoption of a policy of reconciliation and liberal treatment for surrendering dacoits, an open jail was established at Mungawali in Guna District of Madhya Pradesh. This Jail is unique among the modern jail. According to J.P. “This experiment has much deeper and wider sociological significance than other similar projects undertaken earlier in India in imitation of correctional practices prevailing in most western and other Asian countries.”²⁰

The humanistic or non-violent approach consisted on treating the person or persons concerned with real love, sympathy and understanding. Gandhi employed this method many times and on most occasions he succeeded. His experiments in the application of truth and non-violence to problems in the social, economic, political and legal fields are a great legacy to Indian people in particular and the whole of mankind in general. He did view crime in a unique manner, in the context of the toil surroundings. Similarly this concept of punishment was humanistic one, largely premised on the aim of reform and rehabilitation of the criminals. The influence of his humanistic philosophy is very much evident on various legislative acts and judicial decisions. The humanistic theory of dealing with crime and criminals aims at sympathy, love and compassion and it emphasizes on the abolition of avarices, greed and non-possession of wealth and also advocates for non-violent approach to the solution of the problem of crime and criminals. In fact, the totality of the penology must be directed towards modifying the offender’s behavioural patterns with the different technique and methodology. Meditation can play a role of beacon light towards this direction.

Preksha Meditation programme has been conducted inside some jails in Rajasthan State. The objective of programme was to apply the technique for the normalization and minimization of aggressive and deviant behaviour of the inmates of the prison. The hypothesis was that the accumulation of stress in nervous system, increased due to the abnormal flow of the chemical from the glands and due to the prison environment causes fatigue and produce physiological and psychological disorders such as anxiety, tension, depression, irritability, worry, high blood pressure, insomnia, headache, confusion and consequently stress mounts in which mistakes and maladaptive behaviour become unavoidable. Since stress is now medically understood as a major contributor to disease, it should also be recognised as a major factor in crime. And for its cure many physician and psychiatrists as a preventive measure of crime and delinquency have prescribed preksha Meditation technique.

The elimination of stress and the culturing of orderly thinking is a positive development towards crime prevention. The results of Preksha Meditation are highly encouraging. Participating inmates exhibit increased interest in vocational and educational pursuits, while prison staff experienced a significant decrease in disciplinary problem among inmates. These responses are exactly opposite to criminal patterns of behaviour.

There is a great need of change in attitudes and values of individuals and society, if we wish to have an effective crime prevention programme. Education has an important role to play in moulding of character, hence, the elements of values files non-violence, peace, human right, environmental ethics, conflict-resolution etc. should be inculcated in our educational curriculum of elementary to higher education. There are some values and virtues in our culture, which may certainly lead us to constructive, cooperative social behaviour. The need is to re-introduce and promote those values in the society, which are primarily responsible for the formation of our social behavioural patterns. The promotion of higher values of human life in our society is the need of the day and it can be considered as an effective measure of crime prevention programme. But first of all, we are to organise a fresh value system in our communities, through which we can educate and make the persons understand the importance of moral life and responsible social behaviour, which shall ultimately lessen the antisocial and immoral behaviour. Perhaps the most basic change needed in the interest of crime prevention would be the incorporation in our culture a genuinely humanistic, holistic and non-violent approach that sees criminals as victim and not an offender of the society.

References:

Khalil Gibran Reader, Khalil Gibran, p. 75.
Ramjee Singh, Gandhi Vichar, p. 275-276.
Cited by Sidique Ahmad in his “Criminology, Problems and perspective, p. 1.
Cited by K.S. Pillai, Principle of Criminology, p. 17.
Michael and Adler, Crime, Law and Social Science, p. 20.
Sellin, Culture, Conflict and Crime, pp 32-33.
Gwayann Nettler, Explaining Crime, p. 13
Thakur Rajbahadur Singh, Gandhiji ki Suktiyan p. 78.
Bryan Magee, The Great Philosophers, p. 171
Allen W. Wood, Hegel’s Ethical Thought, pp 108-110.
Walter C. Reckless, The Crime Problem, p. 487.
E. Westermarek, The Origing and Development of the Moral Ideas, vol. I.
D. R. Bhandari, Problem of Crime and Punishment and Justice, p. 109
Ibid, p. 117.
William Lillie, An Introduction to Ethics, p. 281
E. Harry Barness and Negley K. Teeters, New Horizons in Criminology, p. 475.
Thakur Rajbahadur Singh, Gandhi Ji ki Suktiyas p. 101
Prabash Joshi, Anupam Mishra; Sharvan Kumar, Chambal ki Bandooken; Gandhi ke Charan Mein, p. 2-3.
Ibid, pp. 102-106.
Ibid, pp 125-127.