Need for humanitarian approach

What should constitute a crime and why a criminal should be punished have defied universally acceptable answers. It is not a crime to kill thousands in an undeclared war in Iraq, Kosovo or Chechenya. Yet a 13-year-old boy spent five days in a US jail for writing a scary story about killing classmates. It has generally been a capital offence to kill the sovereign or to try to overthrow him. Yet it is not always so when an overthrown sovereign is killed by the new ruler. On the question of why a crime should invite punishment, the agreement is even less. There are various theories ranging from retribution, reparation and deterrence to exclusion and reformation. In spite of the fact that states, jurists and judges have not fully agreed on any of these while formulating a penal code, they have always decreed and applied punishment.

It is recognised that all systems of punishment have a distinct possibility of error. In Cheshire, England, in 1983, a man named Peter Reyn-Bardt confessed to murdering his wife 23 years earlier when confronted with a skull with hair, brain-tissue and an eyeball, that was found in a peat bog near Peter’s house. Just before the case was sent for trial, the archaeologists at Oxford University came up with the startling revelation that the skull was mummified part of a woman who had died more than 1600 years ago. In various countries, persons who had been awarded the capital punishment were subsequently found to be innocent, in some cases after the sentence had been carried out. On the other hand, in India, a notorious dacoit who was never prosecuted because of procedural wrangles ended up becoming a law maker.

Recognising this dilemma, a humanitarian approach towards the undertrials and convicts had been gaining ground during the last two hundred years. Till late eighteenth century, prison sentences were rare and the prisons held only debtors, prisoners awaiting trial and convicts awaiting execution or transportation. Even execution was a subject of creative thinking and forms like boiling and quartering were common even in “enlightened” countries like Britain. Transportation to the colonies in America and later to Australia evolved apparently as a humanitarian measure but in reality as a measure to force people to go to these uninviting places for settlement. In many cases, the judge offered transportation as an alternative to capital punishment. Daniel Defoe’s “Moll Flanders” offers a graphic account of such working of the British criminal law enforcement during the period called “Enlightenment”.

As long prison sentences became an accepted mode of punishment, philosophers stepped in. Jeremy Bentham designed his Panopticon, which would be a transparent circular prison at the centre of which the supervisors lived and kept a continuous watch on the activities of prisoners in the surrounding rings. Others suggested the “separate” approach where each prisoner was kept isolated from other and had to work in that situation. The “silent” approach demanded that while prisoners worked in a group, all verbal communication was forbidden. These approaches were actually tried out in US prisons. Putting on shakles, subjecting to hard labour and flogging were other forms of disciplinary measures tried in various countries.

Late 18th and early 19th century saw recommendations for prison reforms in various countries. In 1773, John Howard, on taking charge as High Sheriff of Bedfordshire, noticed that jailors were not salaried officers but depended on fees from prisoners. As a result some prisoners were not released even on acquittal by courts because they could not pay their fees. Efforts of Howard resulted in the House of Commons passing a law abolishing these fees in 1774. Elizabeth Fry at the beginning of 19th century recommended for Newgate Prison that there should be separation of the sexes and women prisoners should be supervised by female staff. Edward Lewis Lawes, who was warden in 1920 of Sing Sing State Prison in USA, required all inmates to wear identical uniforms to eliminate distinctions based on the status of the individual outside the prison.

Post Second World War society saw the emergence of humanitarianism with its emphasis on social and psychological causes of crime and the need for reform and rehabilitation of convicts. Several countries abolished death penalty. Life imprisonment ceased to be for life and a liberal parole regimen was gradually introduced. However, it appears that the pendulum swung too far. Visible signs of jail reform, which included introduction of entertainment in the form of radio and TV and improved food and hygiene in some prisons particularly in Europe and USA started causing a reaction among the conservative segments. Murmurs were heard that prisons had become too lavish and that there would be many who would rather be in the prison than on the streets. Here, the reformer and the critic missed an important point each.

In any sane society, the question would not be whether one would like to be in the prison or on the streets. The question would be why one should be in either of these two situations. These have to seen not as comparable alternatives but as two evils which have to be tolerated and minimised till these can be eliminated. What the reformers missed was that crime has its origins mainly in the psyche of man and not in his physical situation. The reforms focused on the physical needs of the prisoners and not so much on the psychological cure and rehabilitation.

These two errors started showing their effect even before the reforms showed any impact in most of the countries. The conditions in many prisons are dismal even today while the cry for harsher treatment of convicts is already gaining pitch. Flogging by cat-o’-nine-tails, was ruled only in 1992 in Barbados as inhuman and degrading. Caning, which is administered by a karate expert wielding a rattan cane is still a legal punishment in Singapore. In China, prisoners are shackled for long periods and torture includes suspension by arms and feet. In 1995, a federal judge in the USA found in a prison in California that naked men were confined in tiny metal cages during extreme cold weather while the wrists and ankles of some were tied together for up to 19 hours at a stretch. In Russia, the prevalence of tuberculosis among prisoners was found to be 40 times higher than the general population. In Lagos alone, more than 500 prisoners died during 1995. The figure was more than 800 for Kenya, that is, one out of every 50 prisoners. It was found that in some of prisons of EI Salvador, there was so much overcrowding that prisoners were forced to sleep in a sitting position.

The situation regarding overcrowding kept on getting worse due to increasing prison populations. Russia and USA had continuously rising prison populations and held more than 550 prisoners per 100,000 population, a figure higher than that for any other country in the world. The USA was also among the frontrunners of the countries, which awarded death penalty with more than 3000, including juveniles, waiting on the death rows. China, of course, led the world on this score. With offences like bicycle theft and political dissent being on the list of capital offences, it is no wonder that close to 2000 prisoners are executed in that country every year.

Given this situation, it is clear that treatment of prisoners is far from humanitarian barring a few pockets here and there. Thus, while the reformers are still struggling with their task, the cry against the so-called comfort being given to prisoners is taking over the field once again. The developments all-over the world during the last few years are alarming.

Let us first consider capital punishment. In Bangladesh, in 1995, buying and selling of women and children became a capital offence. During the same year New York in USA adopted death penalty. In Japan, after a three-year moratorium, several persons were executed in 1994. South Africa has suspended the death penalty in 1990 but resumed it in 1994. (It was declared unconstitutional by a court in 1995). In India, there has been a move to impose death penalty for convicted rapists. Increasing number of countries are adding drug-related crimes to the list of capital offences.

The situation has worsened for other convicts also. The system of chain gangs, where prisoners are tied together by iron chains while they are made to work on road construction projects is being followed by some American states with Alabama re-adopting it in 1995. The introduction of Three-Strikes laws in some states of USA, under which three convictions for felonies would result in a life-sentence has raised apprehensions that prison populations in USA many increase three-fold during the next few years. Iraq recently started the punishment of branding with hot iron and amputation of hands, feet and ears with the pictures of the condition of prisoners before and after this punishment being shown on state television.

These few examples show the success of the forces calling for harsher treatment of the offenders. The human race refuses to learn from history. Even in barbaric times, crime rates were high; even in very poor countries, crime rates can be low. USA, the rich country, had a prison population of 1.8 million in 1998, that is, one out of 150 Americans. That proportion is expected to worsen considerably in the near future. Yet, the U.S. criminal law is becoming cynically harsher every day. In many States of that country, youngsters need curfew passes to go out of their homes during late evening. This month, Meshelle Locke, a 16-year-old girl, as a joke, made a gun with her thumb and index finger and said “bang” to a fellow student in the classroom. She was suspended from school and barely escaped arrest by the police officers who had visited her following this “incident”. This is part of the “zero-tolerance” approach which is being pushed across USA by many including the President.

It will not be long before other countries will follow these examples. While a debate rages in many countries against abortion and in favour of the rights of the unborn, the plight of the living but wayward find less favour. After all, the rationality of human beings includes the capacity to be irrational.

The writer RN Prasher is a retired IAS officer of Haryana cadre | Personal Opinions

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