10.3.13

Reforming the criminal

Should criminals be reformed? Just the fact that someone thought it necessary to raise this question is important – that the person has no criminal record himself or an axe to grind should be sufficient.

Unfortunately, while people are quick to brand celebrities activists, the moment a person in the public eye says something that appears to be politically incorrect at a particular time is enough for us to rubbish the message. Rahul Bose – actor, occasional director, rugby player, citizens’ forum wallah – said that rapists ought to be given a second chance and hope for reform.

"... We have to ask ourselves of the five or six of the rapists of the December 16 is there anyone who wants to change, who wants to reform ... Nobody is saying about commuting any sentence, the sentence stands as it is but while it stands can we create a gender warrior among them?"

The gender warrior bit is ridiculous and women do not need such gestures. I also wish he had not used this example; there are many other crimes too. Therefore, I’d like to examine reforms for crimes in general.

But first, a quick look at the comments. They show how utterly superfluous the arguments against him are:

  • What if it were his sister?
 (Those speaking in this manner do not realise how sexist this is.)

  • Why does he not reform himself?
(From what and into what?)

  • He wants attention?
(If so, then they must ask themselves why they do not bother in cases less prominent than the Delhi gangrape.)

  • Does he think he is an authority to speak on everything?
(No. But, are they not applauding civil society for speaking out without any knowledge of the subject?)

If many are agreed that capital punishment is out, then whatever prison term the criminal gets is meant for reform. This is what the government strives for. This is what civilised society needs. And it needs to implement it with as much, if not greater, force than it does in filing cases and ‘letting the law take its course’, for complete justice is not only about arrests, but what happens after.

While we need to understand the trauma of the victim, the mind of the criminal has got to be understood and given an opportunity to correct itself. There may be those with extreme mentally-unstable conditions, but many are ‘normal’ human beings who have gone over the edge due to circumstances, peer pressure, or a bestial streak either executed at a moment in time or across a pattern.

Assume we are putting a person in solitary confinement. What exactly does this achieve? That he (I am aware there are women criminals too, but for the purpose here I’ll stick to one gender) will feel the pain? No. It numbs him. He does not care. He probably is poor, so eating basic meals may not make much of a difference. We hear of instances where they take to reading holy books, and assume this is penance.  By this logic, most the world must have criminal tendencies given the amount of scriptural reading that society thrives on.

It is the lack of reformative spirit that should be addressed.  Do we recall the time when dacoits surrendered under some scheme where they would not be arrested? Some, like Phoolan Devi, took to politics. Others were ignored and probably returned to the villages. The police had been helpless in capturing them, but quite obviously the old form of dacoity did not work that is why they laid down arms.

A prison term does not always work as a deterrent. It is known that the big criminals manage to conduct their business from inside the cells. The jail authorities too need to reform.

As for rape and the cries for castration, even if that job is done will it prevent acid attacks, battering, disfiguring of women, and the increasing incidences of cyber abuse? On the one hand there is talk of change in mindset, and when somebody talks about it there is opposition. The mindset is not just about how criminals or those who justify crimes think, but how they need not think. That locked mind needs the key of reformation.

I had once suggested that a rapist should be made to financially pay for the girl/woman’s upkeep. This is not a payout, like blood money. It is a more proactive means to ensure that the person is not dependent. How would a criminal manage? Not all are rich, and the rich ones get away. This is where the prison term should ensure that he does real work during normal hours, instead of being made to march in line, that keeps him occupied and his earnings are diverted to the victim. This is especially important in the horrific instances of paedophilia.

The fact that we have “repeat cases” tells us that merely putting a person behind bars won’t work. His life behind bars should be an eye-opener. It also does not amount to being let off on good behaviour. This is a moral dimension, best avoided. There is not much bad that can happen inside jails, except perhaps brawls among prisoners.

We have to be pragmatic and accept that crime cannot be wished away. More importantly, what about crimes committed by the keepers of justice? What about undertrial prisoners who are proved to be innocent years later? Who needs to reform here? Do we imagine those who did not get a fair trial will come out reformed for something they did not do? They might well turn out to be avengers for injustice. Our definition of justice cannot be static. These young men are tortured and forced to confess. If we decide to give the benefit of doubt to the legal system (and I do believe it is our best bet), then suppose they see these ‘suspects’ in a humane manner and use reform as punishment it is possible that upon release they will be an asset in helping to prevent crimes. They will see themselves not as victims of the system, but its allies in a purely mutually-beneficial sense.

If people have an issue with this, then we will have to live with the flurry of kangaroo courts, khap panchayat, fatwas, fast-track courts pushed by the media to keep their TRPs ticking. Perhaps, we have got accustomed to these demonic shows so we can forget about demons we can ignore in real life.

© Farzana Versey

6 comments:

  1. Part 1

    Our discourse on crime is flawed.

    Consider.

    A corruption scandal erupts. We demand inquiries, sacking of politicians, ministers & officers concerned. In the bar public opinion, those involved in the scandal are guilty beyond redemption.

    Very reluctantly, the system orders an inquiry. We heave a sigh of relief. And our discourse flips as if a switch was thrown. All those accused of the said crime are now innocent until proved guilty! Being innocent, they may hold office, assume responsible position again, indeed rule over us & supervise the very inquiry into the crimes they are accused of. Since they aren’t guilty until the last possible appeal against conviction is set aside, a legal process that takes anything from 20 to 40 years, they are for all practical purposes back in the very business they should be drummed out of.

    Think of Modi & Salman Khan and you know what I mean. Remember both would not be in business but for our flawed public opinion & not because they can’t be, or have not been, tried in a court of law.

    Where have we gone wrong? Why does our discourse on crime produce such flawed public opinion? What must be done to correct it?

    My point is simple. We have conflated two unrelated things. The first thing is that any & every decent society must deter crime. That is the top-level function. It takes precedence over everything else subject only to the test of “due process.” Nothing, but nothing, must interfere with the business of deterring crime.

    The second issue is that of how to treat convicted criminals. There were times when convicts were tortured in prison. Hard labor still survives as an institution. Hanging persists. We have moved away from such practices to a more enlightened position about crime & criminals but this applies to criminals AFTER they have been convicted & sentenced. It doesn’t in anyway lessen the need to deter crime. It only means that we needn’t be barbaric with people once they are convicted.

    Why is deterring crime so crucial & why must it rank over above all else in our public discourse?

    Here we must distinguish between the 3 to 5% delinquents who for what-so-ever reason turn to crime & the 95 to 97% normal people who in the usual course of business would not resort to criminal activity if there were no chance of getting away. The rather prosaic truth is that most of us would cheat, and it is rational to do so, unless the expected outcome of the act is negative. It is the normal people, those who would never consider crime for fear of getting caught, who need to be deterred from crime. The others would commit them for a variety of reasons anyway.

    (cont)

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  2. Part 2

    How do you deter crime? The only known way of deterring crime is by catching & punishing criminal in a very visible, open & transparent process so that normal people may see and feel that resort to crime doesn’t pay. Yes education helps but that still leaves rational decisions to cheat open which we need to deter. The critical thing here is that the laity need to see & internalize the notion that crime doesn’t pay. It doesn’t matter whether you deter the criminals. It is the normal people on whom deterrence works, not criminals.

    Okay, now when have the 3% criminals in jail and so should be boil them in oil, pull out their nails or hang them? There is no need to. It here that the leftist can feel free to apply their theories of crime & reformation to their heart’s content. For the rest of us it is sufficient that [1] the criminals are caught & convicted and [b] that the punishment is such that if a normal person resorted to the criminal act, he/she would find her life disrupted making any gain from the act not worth the trouble.

    A more enlightened view of crime & criminals makes for more vigorous application of the principle of deterrence, not less. More so because we have foregone the use of horror & terror that public torture once inspired to deter ordinary people from crime.

    The key element missing from our discourse is the visibility of deterrence. No sooner is a crime committed that we launch straight into [a] the presumed innocence of the criminal until proved guilty, and [b] his or her right to be reformed

    through enlightened treatment. This has the effect of channeling public sympathy & opinion in favor of the criminal as opposed to the victim. It denies the victim justice in the bar of public opinion. And it prevents closure in the cases of large-scale criminal activity such as riots.

    The leftists must take responsibility for the unintended consequence of their discourse on crime. Be enlightened about punishment but, hey, we still need to deter normal people from crime. And in the bar of public opinion, our duty lies besides the victim first & foremost, and not beside the criminal.

    Modi is at least partly the unintended consequence of our flawed discourse on crime that vitiates public opinion by tilting it in favor of accused rather than the victims. And in a flawed democracy like ours, criminals can get elected. So getting the discourse & the public option right is as much our responsibility as our obligation to be fair to the 1% of the population who may resort to crime for want of alternative options.

    Don’t forget the 99% for the 1%.

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  3. 1. Ensure the criminal is indicted through a fair and transperent trial.
    2. Allow the victim (or the next of kin) to decide the quantum of punishment. Consultation with the convict (s) should be permitted.

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  4. Sonali,

    Certainly, as would seem the suggestion in your two-part brief, a discussion on reforming *convicted* criminals ought be preceeded by a definition of terms and/or premises on which certain conclusions (in your response, in a court of law) are based. You write:

    >>The rather prosaic truth is that most of us would cheat, and it is rational to do so, unless the expected outcome of the act is negative. It is the normal people, those who would never consider crime for fear of getting caught, who need to be deterred from crime. The others would commit them for a variety of reasons anyway.<<

    I come from a tradition in which (at least on paper) innocence is presumed, with the burden on legal authority to demonstrate to the satisfaction of reason that he or she so charged had means, motive, method, etc. This codified presumption of innocence *necessarily* precludes torture (or any other coercive tactics placing a suspect in any immediate fear for life or limb) in the extraction of a confession/information relative to the crime . . .

    Why jump through all these hoops? Why should legal authority be so circumscribed? For precisely the reasons inferred in Farzana's rhetorical questions:

    >>More importantly, what about crimes committed by the keepers of justice? What about undertrial prisoners who are proved to be innocent years later? Who needs to reform here? Do we imagine those who did not get a fair trial will come out reformed for something they did not do? They might well turn out to be avengers for injustice.<<

    The "rather prosaic truth" is that power corrupts and absolute power corrupts absolutely. Thus power -- authority -- is delegated reluctantly, with whatever governing checks and balances and alerting flags as might be installed so as to reduce its incidence without compromising the utility or good of government. While travesties of justice are unavoidable for myriad reasons (not least because positions of authority become infested with functionaries far from qualified), authority must demonstrate that it is working proactively to maintain the incidences of such travesties at a bare minimum and "make good," i.e. publish and appropriately make amends in those comparatively rare instances where justice is not served.

    Governments that cannot meet that criteria are, tautologically, not governing, with a state of war (vis-a-vis Hobbes) then existing between and among citizenry until, after much mayhem and murder, the facility of law, order and just governance is re-discovered.

    In certain quarters, it's known as "getting religion". :)

    Mark

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  5. Strictly speaking about rape in India, if something like 90% of rapes happen where the victim knows criminal then it seems like breach of trust is a biggest reason for the crime. How can one began to fix the vunerable position the victims are in. There is not going to be a law deterence for it.

    If there is data that show rapist who are convicted keep repeating the crime once free, then reforms become effective.

    Human life has very less value in India, criminals and their reforms take a backseat compared to millions of other issues people cant overcome.

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  6. "Strictly speaking" Anon,

    Fundamentally, in a situation where the victim "knows" the criminal, what's implied is some sort of emotional tie between the two lending to that "trust" -- anything from friendship to kinship. And yet such trust can be betrayed in numerous other ways besides sexual assault.

    You mention "the vulnerable position the victims are in." Perhaps what you refer to is a *material* dependency wherein the victim depends on the criminal for food, clothing, shelter, etc.? Certainly this would seem an near-to-insurmountable problem where the victim would be unable to provide for him/herself should the criminal go to jail. Certainly this is a classic "better the evil you know than the evil you don't know" situation -- and certainly, similarly, as with many confronted by unresponsive governments, things are apt to get worse before they get better . . .

    Coincidentally, I see where the U.S. Vice-President is today poised to launch some sort of domestic violence initiative here in the U.S. . . .

    >>Human life has very less value in India, criminals and their reforms take a backseat compared to millions of other issues people cant overcome.<<

    You know, I've seen and heard this mentioned before, Anon. Is it simply that there are so many of y'all there in India that makes human life so cheap? If so, this then invites the question as to how (or, rather, "why" -- we know "how," lol) it is that there are so many Indians. If it is indeed a matter that Indians don't care about each other the same way they care for themselves, what can be done to *increase* the value of human life there in India so that criminals and their reforms can take a *front seat*?

    Of course, criminals and their reforms haven't exactly got a front seat here in the U.S. either . . .

    Perhaps it's a cultural issue? What do you think, Anon, can whole cultures sort of take a wrong turn like you or I might and then fall off a cliff to be dashed on the rocks below?

    Mark

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