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Introduction:
Man is a social being. They are bound to stay in a cooperative society which is protected by the coercion. Coercion in simple terms can be referred as the state where the concerned authority holds the complete right to punish those individuals who contravenes the rules and the regulations made by the society. In the words of Law, it is summarized as a duress crime. Law is considered as an important aspect of the society to maintain the general safety and ensure the protection of our rights against the illicit acts and abuses by other citizens.
For the enforcement of law in a systematic manner, punishment is needed. Without punishment, the coercion of the law is disabled. In the absence of law and order, a chaotic disorder is created in the society and government is unable to curb the crime rate and secure the basic rights of people. The two concepts of punishment i.e the retributive and the reformative are explained below along with their transformation from the retributive theory to the later one.
RETRIBUTIVE THEORY OF PUNISHMENT:
“The punishment the purpose of which is to satisfy the community’s retaliating the sense of indignation that is provoked by justice.”
Retributive theory of punishment is based on the fact that response to a crime should be proportional to the wrongdoing committed. This type of punishment was performed in the public gallows such as in the middle of the cities and towns in the full view of the public and luring hundreds of onlookers. It was viewed as way of deterrent as criminal scared the public to commit the same type of crime.
James Fitzjames Stephen, an English Victorian judge, is often cited as an advocate of this theory. He expressed his view of punishment as follows:
“ I think it highly desirable that criminals should be hated, and that punishments inflicted upon them should be so contrived as to give expression to that hatred, and to justify it so far as the public provisions of means for expressing and gratifying a healthy, natural sentiment can justify and encourage it.”
Retributive theory treats a criminal with dignity by giving him a chance to expiate his crime through suffering. The merits of retributive theory are as follows:
1. The theory is simple with the concept that punishment is an end in itself.
2. The punishment provided is supposed to be proportionate to the crime done. So, it is neither cruel nor barbaric rather it is civilized.
3. It is said to be impartial and neutral.
4. It is based on the roman doctrine, “poena sous tenere debet actors et non alios” which signifies that punishment if for the guilty not others.
5. Its hallmark lies in its nature of mercy. Once the criminal has paid the debt to the society in the form of punishment, his sin is forgiven and he is admitted back to the mainstream of the society again.
REFORMATIVE THEORY OF PUNISHMENT:
“Punishment the purpose of which is to change the character of the offender.”
During the 18th century, when the other theories of punishment such as the retributive, deterrent and preventive were unable to curb the rate of the crimes in the society, a new theory known as the reformative theory was introduced. The distinct feature of the theory which distinguishes it from others is that it majorly focuses on the criminals rather than the crime committed by him. It focuses on changing the attitude of the wrongdoer in order to rehabilitate the offender as the law-abiding member of the society. Thus, the felon is treated more as a patient rather than a criminal.
TRANSFORMATION OF THE THEORIES OF PUNISHMENT OVER TIME:
· PUBLIC PUNISHMENTS IN THE 16TH AND 17TH CENTURIES
Nearly all the wrongdoers were punished in public in between the 1500’s and 1700’s. The punishments were such that the tramps were flogged back to their homes mercilessly and the small time thieves were being placed in the stocks and the pillories.
· PUBLIC PUNISHMENTS IN THE 18TH AND 19TH CENTURIES
An act was passed in the 1864 which was known as the Royal Commission on the Capital Punishment which concluded that the criminals were no longer allowed to be punished in the public.
DEMERITS:
1. Due to the large gathering of people, this execution act became a hotspot for pick-pocketing. It was difficult for the concerned authority to control this large number of crowds.
2. The execution was viewed more as a form of entertainment rather than a dreadful prosecution. The effect of the deterrence was plummeting in the eyes of the public.
3. The felons after being executed in the public gained more popularity in the public. Due to this, it was considered more of a heroic act.
During the 1900’s, other forms of punishment also ceased. The whipping of the vagrants were carried inside the prisons rather than in the public.
· PUBLIC PUNISHMENTS IN THE 20TH AND 21ST CENTURIES:
The only punishment which is carried out in the public in this century is the community service. In order to make the punishment more visible to the public, high visibility vests were introduced to be worn by the criminals. Other than this, media also serves as a source for the public humiliation. Local and national papers often post images of the wrongdoers in their newspaper.
From dragging the criminals back to their homes and beating them mercilessly to working in community service, the way of punishing has transformed over the centuries.
In the reformative theory, punishment isn’t about reclaiming the offender or harassing or torturing them. Thus, it castigates all forms of the corporal punishments such as the caning or flogging. Unlike the retributive punishment, where giving justice is based on the principle of “eye for an eye” or “tooth for a tooth”, in the reformative the jurisdiction is awarded by the judge after studying the certain factors of the offender such as the character, age and the circumstance under which he/she committed the crime. The upside of obeying this way is that the judge is well aware of the circumstance in which the crime was done so the punishment is given in favor to the circumstance. According to this concept, punishment should be given by taking in consideration that we are opening a new account rather than settling down the old one.
The way of prisonization has also changed over the years with the change in the way of punishment. Let’s see how;
· ATTITUDES TO PRISON BEFORE 19TH CENTURY
Prisons were scarcely used in the 16th and the 17th centuries. In the Tudor times, the houses of corrections were known as the bridewells and their goal was to reform the persistent beggars and correct the unmarried mothers. In addition, there were prisons for debtors too where the person who has taken the debt had to stay in the prison till it’s paid.
During the period between the 1776 and the 1787 (the end of transportation to America and the start of the transportation to Australia), hulks were used as prisons. The conditions of living in these hulks were terrible and nearly quarters of the prisoners died inside the hulks due to the violence or different kinds of diseases.
The observations of the 18th century prisons are given below:
1. No separation of the prisoners on the basis of the genders or the type of crimes done by them
2. Death of prisoners due to illness
3. Corrupted jailers
4. Unsafe prisons due to the lack of employed people in maintaining the security
5. Long duration of prison stay as they couldn’t afford to pay their fees to move out of the prison
· 19TH CENTURY ATTITUDES TO PRISON
After looking at the inhumane and uncivilized prison conditions, Elizabeth fry started pressurizing for reforms in the prison conditions. She held her campaigns in order to improvise the conditions of female prisoners and teach them inmate skills. She also protested for securing the rights and welfare of the prisoners who were being transported.
The protests led to goals act which demanded for;
1. Secure prisons
2. Payment for jailers
3. Separate male and female prisons
4. Visiting doctors for prisons
Thus, in this way reformations were made in the prison system in the 19th century. The separate and silent system were also a part of it where in the separate system, prisoners were separated from one another. Only one prisoner was allowed in one cell and had to work on their respective machine placed in each cell. Similarly, in the silent system, the inmates were asked to do boring tasks together in a complete silent environment. They were forced to sleep on hard beds. Hence, the suicide rate was surging and the reformative system wasn’t working well.
· ATTITUDES TO PRISON IN THE 20TH CENTURY
Transformation was seen in the prison system after the mark of the 20th century. Now, the prisoners had the complete freedom to dress according to their wish, get better food and education. Due to this, the prisoners could be employed as soon as they were released.
According to the reformative theory, punishment should act as a means to educate or reform the lawbreaker himself. Kind treatment to the criminals can be more favorable to their reformation as opposed to the harsh treatments. Forgiveness can act as an important tool to modify the nature of the offender and provide him the scope of repentance. This theory supports the view that, “Crime is created as a result of the conflict between the character of the man and the motive of the criminal.” It believes that crime is equivalent to the disease which cannot be controlled by the act of killing.
The modification in the way of punishment has been a good turning point in the subject of law. The idea of curing the criminals instead of killing them is gaining popularity in the recent times. The reformative theory is believed to be the improvised version of the deterrent theory which failed to take the welfare of criminals in its consideration. But there are certain objections to the reformative theory. One of them is that it simply doesn’t work and has been a quarry to repeated failures. Others are explained below:
The theory demands for better facilities in the prison along with the proper coordination between the discipline and greater effort to mould the criminal’s behavior. These requires huge sum of money which the poor countries are unable to afford.
The rationality of the crime is more inclined towards incentives for the commission of the crime rather than its prevention.
It is a good idea to reform those criminals who have committed petty crimes or have either done it due to the circumstances they were in but it is difficult to mould the hardcore offenders who are highly educated and the professional criminals.
This theory is believed to have overlooked the claims of the victims of the crimes.
The philosophy of the reformative approach that corrupt social environment is responsible for the crime rather than the individual is hard to digest.
There is a saying that, “To err is man”. It simply means that we human beings are naturally prone to make mistakes. Learning from mistakes and rectifying ourselves is in our nature and the criminals are no exception to it. They are also human like us and possess the potentiality to contribute to the society greatly. Therefore, it is important for the criminal justice system to give them the opportunity to rectify themselves and give back to the society. Had the retributive punishment been effective, the crime rate of India would have taken a nosedive by now. But the result we can see is opposite and depressing. Hence there should be a balance between in Retributive and reformative punishment in the justice system where the criminal will get enough opportunity so that they can learn from their misdeeds, rectify themselves and get back to the society.