Abstract
Reformative theory is also identified with various names such as rehabilitative, therapeutic, clinical, treatment, curative or medical model of punishment. This theory treats the criminals as a patients, sick, helpless or like a child. The judge stands to the criminal in the position of the doctor who selects his/her remedy after diagnosing the disease and the resources of the patient organizations. According to modern penal jurisprudence, criminals are the patients who should be sent to moral hospitals for social and psychological treatment. It believes criminals as a patient must be kept far from the society i.e. in isolation or quarantined for certain period of time for the good of society and for the good of the criminals through proper diagnosis and reformation. It is based on the idea that; prisons should be converted into reformed homes where criminals are kept in isolation or quarantine. The theme and aim of this theory of punishment is to care, reform, correction, improvement, rehabilitate, resocialization, re-educate, diagnosis, treatment and reshaping or moulding the criminal or delinquent behavior, anti-social character, personality and social malfunction of the criminals for the prevention of future offences and recidivism. It helps to socialize criminals in the normal social relation and facilitate them to go back in the mainstream of society. For this proper schooling, psycho-social treatment, psychiatric therapy, counselling, vocational trainings, workshops, other behavior modification techniques, prison education i.e. religious and moral education, skill development programs etc. should be given to the criminals for reforming them. This theory aims to transform the criminals into good, law-abiding, civilized, productive, useful, and responsible members of the society who will no longer desires to victimize the public and the entire society.
- Initial Outlook
Punishment is one of the primary purposes of criminal justice system. ‘Criminology is the comprehensive study of crime, including its causes and prevention, as well as its punishment, rehabilitation, and management of the criminal justice system’.[1] ‘According to different schools of criminological and penological thought, there are four main aims of punishment, namely, retribution, prevention, deterrence and reformation’[2]. The object of punishment differs depending upon the theory it is based. ‘Punishment can protect society by deterring potential offenders by preventing the actual offender from committing further offences and by reforming and turning him/her into a law-abiding citizen’[3]. ‘Punishment is an expression of social values as well as an instrumental means to a clinical penological end’[4]. ‘Punishment is based on rehabilitation, have altogether started focusing on the accused, be that in viewing him/her as sick or diseased or in prescribing therapeutic methodologies and have entirely forgotten that victim’s instinct of revenge forms an equally important reason and justification to punish’.[5] ‘The object of punishment is no longer revenge; it is only to protect society. The law does not seek a victim but to reform the offender and set an example’[6]. This theory says that the object of punishment should be reformatory; the offender should be reformed from all possible means. ‘The reformative theory is reaction to the deterrent theory, which has failed to take into consideration of the welfare of criminal. The real objection to reformation is simply that it does not work’[7]. The reformative theory is, in a large measure, a reaction to the conservative approach to the question of punishment.
‘It can however be safely stated that in these modern times, the essential end of punishment is neither to torment offenders nor to undo a crime already committed. It is rather, to prevent offenders from doing further harm to society and to prevent others from committing crimes. Punishment is thus looked upon as an educative process and the types of punishments selected and how they are imposed should always receive serious consideration so as to make the greatest impact and the most enduring impression upon all members of the society, while inflicting the least amount of pain and suffering on the body and mind of the offender’[8]. ‘Punishment may have a rehabilitatory purpose. According to this purpose the punishment intends to rehabilitate the offender and bring him/her back into normal social relations. Thus, due to this view the purpose is not permanently to identify the offender as a criminal but to treat him/her in order to understand social relations between human beings and their positive role in the society’[9] as a responsible member of the society.
There are several issues in reformative theory of punishment but in this research paper the author has taken some questions as; why reformative punishment at all and what is its rationality? Is there any legal provision relating to reformative theory of punishment in Nepal? Is the reformative theory of punishment objective in Nepal? This research writing in intended to clarify on these statement of the questions. Basing on these research questions the objective of this article is to elucidate the clear picture of jurisprudential aspect of reformative theory of punishment, its philosophy and exceptions. This article explores the Nepalese legal provisions relating to the reformative theory and its efficacy in the application in Nepal. In this research paper the author has adopted qualitative, doctrinal and analytical research methodology and content analysis as a tool of research. Constitution and other laws are used as primary sources of data. Other information and knowledge have been collected and utilized from secondary literature sources such as published research works, authorized books, journals articles and relevant websites. After collecting the data and literatures they are descriptively analyzed and analytically explained.
- Jurisprudential Concept and Theme of Reformative Theory of Punishment: Penological Foundation
Reformative theory is also known as rehabilitative, therapeutic, clinical, treatment, curative or medical model of punishment. This theory is youngest theory of recent origin. Literally, reformation means the process of betterment, improvement, correction of any mistake or error and making change for the better condition or affairs. In penology, ‘reform ultimately means the changing of the offender. The aim of reformative punishment is to alter the individual by attempting to proper treatment, re-educate, teach, train or instil a new morality. The offender is in need of moral education, in the form of work, religion, social rehabilitation, schooling or vocational training’[10]. According to Black’s Law Dictionary, ‘reformative punishment intended to change the character of the offender’[11]. Reformation in penal jurisprudence specifies to restore a criminal in society as a good citizen.
Reformative theory of punishment is the product of positive school of criminology which focuses on the ‘criminals not on the crime. This school came forward with the new idea that the causes of crime is identifiable and once the cause is identified proper treatment is possible’[12]. ‘The positivist school began late in the nineteenth century as a reaction to the abstract justice of the classicists. The positivists view man and his/her behavior as determined and regard criminals as ill or deprived; the role of penology is to provide the offender with treatment and a cure for his deviance’[13]. This theory owes its origin to the Italian School headed by Lombrosso and French writer La Gassaque. The sociological school headed by Ihering has evolved this theory of punishment according to which criminal sanctions should be adjusted to the criminal sanctions should be adjusted to the criminal and not the crime. The main object of this theory is to reform the character of the criminal so that s/he will desire to do what is right instead of fearing to do what is wrong.[14] ‘Lombroso and Enrico Ferri, the father of the Italian Positive School of Criminology and author of Criminal Sociology (1884), gave a theoretical impulse to the principle of individualization’[15] of punishment. Individualize punishment, was openly in sharp contrast to the principle of nulla poena sine lege[16]–no punishment without the law.
In the early period sole aim of sentencing is retribution and deterrence. In the recent time, the reformative or rehabilitative theory gaining momentum in many countries. According to Friedman, “generally speaking the increasing understanding of the social and psychological causes of the crime had led to a growing emphasis on reformation; rather than deterrence, in the older sense as the best way to protect both the individual criminal from himself and society from the incidence of crime”[17]. ‘Chief Justice of the American Supreme Court honorable Oliver Wendell Holmes referred that, we must consider the criminal rather than the crime’[18]. ‘He spoke sharply against the legal abortion of judging the whole men rather than his acts’.[19] He believes not the nature of the crime but the dangerousness of the criminal’[20] is evil to the society.
Reformative theory rejects the deterrence and retributive elements of punishments and impeccably advocates reformative approach on simple idea that, ‘we must cure our criminal, not kill them’[21]. So, it is based on the humanistic approach. ‘With the passage of time, developments in the field of criminal science brought about a radical change in criminological thinking. There was a fresh approach to the problem of crime and criminals. Individualized treatment became the cardinal principle for reformation of offenders.’[22] An essential basic philosophy behind the law of punishment was to encourage human rights and human values and also decrease their violations[23]. ‘Reformative theory is part of the humanistic tradition, which presses for ever-more individualization, as the basic principle of justice demands treatment of the criminal not the crime. It relies upon medical and educative model, defining the criminal as, if not sick, less than evil, somehow less responsible than s/he had previously been regarded. Individualization of punishment, the main thrust of which is that, the law should look to the criminal and not merely to the crime while fixing the punishment’[24]. ‘Individualization is the process of adjusting a penalty to the character of a criminal’[25] for their reformation.
Individualization of punishment means that the punishment has to fit the moral case of the criminal as the drug has to fit the pathological case of the sick man. As Prof. Vinogradoff observes: “The judge stands to the criminal in the position of the doctor who selects his/her remedy after diagnosing the disease and the resources of the patient organizations.” ‘The rationalist philosophers believed in the natural rights of human beings and did not concede the right to take away any one of those rights to the state. Prominent among these philosophers of enlightenment were John Locke, David Hume, Jeremy Bentham, Voltaire, Montesquieu. Montesquieu was more concerned with improving the behavior of people rather than the punishment. He was of the view that moderate punishments would result in better administration of justice and the punishments must not be out of proportion to the offence the guilty person is punished for’[26]. Aristotle sought to mitigate the harshness of the punishments imposed and sought a more rational approach[27].
‘As Lombroso originally pointed out, the criminal are individuals of diseased mind or morals. Their malady is a real one and demands thoughtful and positive treatment. Experience proves that nearly ninety percent of all criminals are sick or diseased in body a large proportion of crimes are attributable to the physical causes’[28]. ‘The abstract notion of uniform and predetermined ‘punishment’ was to be replaced by the idea of individual treatment, always customized to the personal character, psychology, and overall social conditions of the criminal, who was primarily regarded as a person suffering from a disease’[29]. Criminals must be treated with good treatment and cured of criminality. ‘Sampson, who tended to take extreme positions, viewed all criminals as “patients” who should be sent to moral hospitals’[30]. Edward Ross who likened the reformatory to a “hospital for moral diseases and by Reverend Frederick Wines, who termed the prison a “moral hospital”[31]. The aim of prison is not to punish but to educate the criminals.
‘Punishment is based on individual criminal’s dangerousness rather than their guilt. The purpose of punishment is future oriented, not past-oriented: rather than being retributive, punishment is imposed as a means of correction of the criminal’s antisocial character and prevention of future offences and recidivism’[32] through reformation of criminals. ‘Reformative theory view punishment not as an end in itself, but rather as a means to a beneficial result. While there are many definitions of the rehabilitative ideal, its core is the notion that the sanctions of the criminal law should be used to effect a transformation in the offender, with the two-fold aim of protecting society and of enhancing the offender’s wellbeing’[33]. ‘As a social malfunctioned, the criminal needs to be treated or to be reeducated. The emphasis is not to look into the past to the offence committed but to the future needs of the offender. Rehabilitation promises pay off to society by reforming the offender into law-abiding, productive citizen who no longer desires to victimize the public. It is also, one way of controlling crime humanly where the emphasis lies not on the nature of the crime the perpetrator commits but on the treatment of the offender’[34] for the prevention of crime in the future from the same criminal.
‘Reformative model which treats the accused as sick or helpless or like a child[35]. This theory of punishment treats criminals as a patients and prison as a hospital. In modern criminal jurisprudence, the reformative jurists opines that, criminals are the patients who are in search of social and moral treatment. ‘The criminal must be isolated and his/her case carefully diagnosed. If incurable, society must be quarantined against him; if curable, s/he must be detained and treated. The method of treatment should at least tend toward reformation. Pursuing the parallel of the hospital, this treatment may be both external and internal. Such theory is not to be undermined by the assumption that a reformation is to be effected in any particular or uniform manner. It must be adapted to the needs of the individual; such needs to be determined by a scientific psycho-analysis of the patient’[36].
This theory owes its origin to the Italian School headed by Lombrosso and French writer La Gassaque. The sociological school headed by Ihering has evolved this theory of punishment according to which criminal sanctions should be adjusted to the criminal sanctions should be adjusted to the criminal and not the crime. The main object of this theory is to reform the character of the criminal so that s/he will desire to do what is right instead of fearing to do what is wrong.[37] It believes criminals as a patient must be kept far from the society i.e. in isolation or quarantined for certain period of time for the good of society and for the good of the criminals through reformation. ‘This theory is based on the “progress” s/he has shown toward a rehabilitative ideal’ or creating good behavior[38]. Gandhi to leading sociologists, criminologists and prison management officials, it is established that work designed constructively and curatively with special reference to the needs of the person involved, may have a healing effect and change the personality of the quondam criminal. The prisons should be converted into reformatory schools. For this prison must provide a benevolent and transformative environment to reform the criminals.
Reformist looks at sanction as instrument of rehabilitation and tries to mould the behavior of criminal on the premises that criminal is not born but made by the environment of society. The primary underlying assumption regarding treatment is that criminal or delinquent behavior is merely a symptom of underlying maladjustment. Crime is the result of social dysfunctions, cultural conflict, unavailable opportunities or poverty and slum living or psychological abnormality of the criminals. The implications for correction of offenders attempts to alter the criminal personality to trying to compensate for lacks in his/her social situation. The attention of this theory remained on the offender and correction attempts to change criminal and their life situation to prevent repetition of their criminal behavior[39].
‘Reformative measures are essentially curative. They are therapeutic not coercive. They assume that the criminal is suffering with some abnormality which can be eradicated; that the criminal can be restored to societal usefulness; that his/her fearsomeness to society can be removed; that the protection to society comes from the restoration of the criminal to normality of thought and action; that when the criminal has been reformed h/she will present no source of danger to the community of which s/he may be a part. It is, therefore, obvious that reformative treatment can never be destructive’[40]. Therefore, it is the responsibility of society to reform them by adopting certain suitable reformative methods. The increasing understanding of the social and psychological causes of crime has led to growing emphasis on reformation rather than retributive or deterrence.
‘The central thesis of reformation rests solely on the basic premise that it is the social environment, which is the crucial causative factor for any crime. Accordingly, a new outlook on crime and punishment compelled the investigation into crime causation and research on the effects of different forms of punishment’[41]. It is the society and social environment that make or compel men to be criminal. Crime and criminals are the byproduct of the society. The causation of crime is to be find out from the society and social environment itself. Criminals as human beings are the members of the society. Being genus, rational and social animal human beings must be treated humanely without pain and torture. ‘True punishment considers the offender as a patient of society. Its primary function is to cure, not castigate; to heal rather than to hurt. Unless s/he is turned back to society a better man, then society has failed. It is true that pain may be caused as an incident to their treatment, their liberty restrained’[42]. This means that punishment is supposed to reform or re-socialize the criminals to prevent further commission of the criminal act.
This theory takes into account the factor which compel the criminal to commit crime his family, education, culture, socio-economic background etc. This theory, thus, concentrates not on crime but on the criminals, his personality and all other related factors which led him to do wrong. It is a general truth that nobody wants to be a criminal. There are some or the or other reasons which led an individual to be criminal. According to this theory the subject of punishment is to find out the cause, the reasons which compelled an individual to commit a crime and then try to eradicate the criminal tendency by providing education to him/her.[43] While giving the punishment to the criminals their age, personal record and their social and economic conditions should be considered.
‘It is assumed that the individual has, in some way, been changed through the crime s/he has committed, or that the crime occurred because of the offender’s mental, physical or moral degradation. This suggests that treatment is most important and that, just like medicine, if the problems could be correctly diagnosed, we would be able to cure the offender and ultimately, society of problematic behavior. This idea is linked to the medical model and the importance of forensic psychology, psychiatry, and medical experts’[44]. According to the reformative theory, a crime is committed as a result of the conflict between the character and the motive of the criminal. One may commit a crime either because the temptation of the motive is stronger or because the restraint imposed by character is weaker. The reformative theory aims at strengthening the character of the main, so that s/he may not become an easy victim to their own temptation. This theory would consider punishment to be curative or to perform the function of a medicine.
‘If criminals are given training or education in such a manner as to enable them to earn their livelihood by honest means then they would not need to adopt criminal methods for their subsistence. Death penalty, according to this theory, has got no meaning for death would segregate the criminal forever and will not cure them. The trend, in recent times is towards inflicting punishments on a person depending upon his/her status in society, the psychological reasons which prompted him/her to commit the offence and the nature of the individual himself/herself; first offender or habitual offender. Despite its limitations, the reformative theory is here to stay’[45].
Punishment is used as a measure to reclaim the offender and not to torture or harass them. According to the reformative theory, the main aim of punishment is the improvement of the offender themselves.[46] The exponents of the reformative theory believe that a wrong-doers stay in prison should serve to re-educate and to re-shape the personality of the criminals through the effective techniques. The reformists argue that criminals are sent to prison in order to transform them into law-abiding citizens. ‘The rehabilitative idea aims at both the happiness of the prisoner and the prisoner’s ability to live a crime free life outside of prison’[47]. ‘In reformative treatment the emphasis is placed upon the relation of the criminal to himself and the possibility of restoring him to a full participation in societal activities and relationships’[48]. ‘The reformative theory has been defined as an effort to restore a man to society as a better and wiser man and good citizen’[49]. Thus, the ultimate aim of the reformists is to try to bring about a change in the personality and character of the offender so as to make them a useful and responsible member of society.
- Rationale of Reformative Theory of Punishment
According to this theory, the object of punishment should be the reform of the criminal, through the method of individualization. It is based on the humanistic principle that even if an offender commits a crime, h/she does not cease to be a human being[50]. This theory is based on the human rights. Reformative theory is in favor of right oriented approach of the criminals and the notion of respect for individual autonomy. ‘The reformation of criminal important as it is, is only one of the end of justice’[51] and penology. This theory maintains that “criminals cannot cure by killing”. The exponents of this theory believe that wrong-doers in prison should serve to re-educate him/her and reshape their personality in a new way. ‘The votaries of reformative or rehabilitative theory aim at the process of reintegration of criminals into the mainstream of social life, thereby containing recidivism at any level’[52]. The objective of rehabilitation, therefore, is to encourage the offender to abstain from criminal behavior in the futures. Scholars of reformative theory rejected the principles of retribution and deterrence on which this body of law had traditionally rested. They advocated a jurisprudential overhaul to reorient criminal law toward reformation of the criminals to prevent the crime from the society. Therefore, humanistic approach, notion of human rights, individualization of punishment, individual autonomy, social elements as a casual factor of crime etc. are the mile stone foundation and are the main arguments in favor of reformative theory of punishment. This punishment is suitable for the juveniles, youth criminals, first time offenders or occasional criminals, situational criminals and young criminals.
- How to reform the Criminals?
The scope of punishment was rehabilitation of the offender and because each individual offender ought to have been treated and reformed in different ways according to their character, background and dangerousness, the idea of a fixed, predetermined and uniform penalty was illogical and ineffective. Neither the legislature nor the judiciary had the necessary knowledge and expertise to decide the fittest treatment for the criminal and the time needed for rehabilitation could not be fixed once and for all at the end of the criminal trial but had to be determined and periodically revised by observing the convict’s behavior while serving the sentence[53]. The motives behind the offences and the other backgrounds of the offenders should be clearly examined and there should be made a way so that the offenders’ mental environment can be changed. The theory aims to convert an offender into a civilized citizens. The object of punishment should not be physical or mental torture but a healthy atmosphere in the jail where the offender’s notorious activities should be removed by providing him/her with the facilities and opportunities with which s/he was lacking and which prompted him/her to lead such a life.[54]
The reformative theory is against capital punishment, whipping and death-penalty etc. According to the reformative theory, all modes of punishment other than imprisonment are barbaric. Imprisonment, parole, probation community service and open prison system are the instruments available for the purpose of a purely reformative system. Less frequent use of imprisonment, abandonment of short sentences and attempt to use prison as training rather than a pure punishment and greater employment of probation, parole and suspended sentences are evidence of reformative trend.
‘Rehabilitation as a treatment includes psychiatric therapy, counselling, vocational training and other behavior modification techniques’[55]. Reformation of the criminals can only be possible through changing the structure, physical conditions and environment of prison as well as making prison as moral and spiritual center. Proper schooling, psycho-social treatment, advising, vocational trainings, workshops, prison education i.e. religious and moral education etc. should be given to the criminals for reforming them. Likewise, small scale cottage and handicraft industries should be established inside the prison for providing prison labor and skill development programs to the prisoners. They must be taught about their responsibility, security and discipline towards their family members and to the entire society.
- Limitation and Criticisms of Reformative Theory
Oppenheim criticized the reformative theory claiming it removes punishment of its sting. The criminal is looked upon as an object of pity, not of hatred, and punishment becomes the work of charity[56]. The philanthropic attitude of this theory cannot be denied but the importance of the deterrent, preventive and retributive theories cannot be undermined also. It can never be underestimated that there are certain persons who can be set right by giving them full opportunities but there are certain persons who will feel prison as the rest homes and the places of comforts and they will never hesitate from commission or recommission of the crime. The mental attitude of every member of the society cannot be kept at par. Some of them have got the sweetening nature some are neither sweetening nature some are neither sweetening not touching nature and some are of tough nature. Some of them are so deprave, corrupt, base and mean persons that they cannot be set right even by all the possible human agencies. If they are not deterred, they are not disabled nor prevented, they can never be checked from committing the offences. The reformative theory fails for such offences[57].
Punishment is inevitable for recidivist who are habitual law-breakers. The tendency among recidivists to repeat crime is due to their inability to conform to the accepted norms of society. Investigative researches reveal that it is the mental depravity of the offenders which makes them delinquent and, therefore, a system of clinical treatment seems inevitable for the correction of such offenders[58]. Thus, punishment should be a sort of social surgery since criminals is essentially a product of conflict between the interest of society.[59] The reformative punishment is quite difficult to apply and to achieve its effect in all types of crime and criminals. It is difficult to change the habits of professional, recidivist, habitual, incorrigible and organized criminals. ‘Hence, difficulty arises with the incorrigible offender’[60]. Many other criminologists and penologists criticize this theory by arguing that, it is highly criminal centered and ignores the crime.
Prison to criminals is freedom and society is the prison because they cannot operate in society. The criminals who spent long period of time in prison became habitual and enjoy prison environment. In the same manner, releasing from the prison after long time, the criminals have the psychological perceptions that, the society label me as a criminal and doesn’t take me positively. Not only this the society becomes quite new for them and it is difficult for the criminals to adjust themselves in the society and to members of society. They may face the economic and other various problems in the every step of society. In a society where the majority of the people are divided between classes one highly rich and the other extreme poor, the reformative punishment would prove not only fruitless but dangerous also. If a man is to suffer want, wrong and starvation every day, he would naturally prefer to go to prison where s/he would be in the position to keep his/her body and soul together. So, some criminals feel prison as their homes and the places of security, safety, comforts and they again recommit the crime for entering into the prison.
- Legal Framework of Reformative Punishment in Nepal
The Prison Act, 2019 B.S. which made several provisions about the reformation of the criminals. Section six of this Act provisioned that, while detaining or imprisoning the detainees or prisoners, they shall be detained or imprisoned on the basis of age, sex (male or female), sick, insane and half-minded detainees or prisoners, convicted prisoners, under trail, civil and criminal case prisoners, prisoners under twenty-one shall be separated and kept separately through settlement arrangements[61]. Section nine mentions about the provision relating to food and clothes of detainees and prisoners. The detainees or prisoners detained or imprisoned in prison for the period of one or less without specification of imprisonment shall be provided with clothes. Likewise, the minor children of such detainees and prisoners also gets same facilities as like the prisoners. This law gives privilege to the detainees or prisoners to make arrangement for his/her food and clothes at his/her own cost, he/she shall be allowed to make such arrangement, as prescribed according to their wish[62].
No detainee or prisoner can be engaged in any work against his/her will against the prevailing law. But if the Government of Nepal considers it necessary for the health, economic progress or improvement of the detainees and prisoners, arrangement may be made to engage them in a work[63]. ‘The case adjudicating authority may send an offender sentenced to imprisonment for a term not exceeding three years in any case for community service’[64]. Similarly, the prescribed authority may permit a prisoner who has been sentenced to imprisonment for a term of more than three years and already served at least one-thirds thereof to remain in open prison[65]. The period of stay in open prison shall be deemed as the service of imprisonment[66].
Physically or mentally sick detainees or prisoners gets treatment facility from the government doctor. If any detainee or prisoner wishes to have his/her treatment done by any other doctor at his/her own cost, permission shall be granted to have such treatment as prescribed[67]. In the same manner, the inmates are allowed to visit or correspond with any other person or vice versa, according to their desires as prescribed circumstances and time[68]. Provisions of school to educate the prisoners[69], providing motivator to divert/change the prisoners in good character[70], provision of library and radio center[71], small cottage industries and working center to utilize the time of the prisoners, train the prisoners in skill development for their betterment and making prisoners able and independent[72], enrollment of prisoners at industrial works[73] etc. are the provisions related to the reformation of criminals.
The Constitution of Nepal 2072 (2015) states that, no person who is arrested or detained shall be subjected to physical or mental torture or to cruel, inhuman or degrading treatment. Any person who is the victim of such treatment shall have the right to obtain compensation in accordance with law[74]. In the Criminal Offences (Sentencing and Execution) Code, 2017 (2074) there are several provisions of the reformative punishment. In Section 13 there is provision of “Purposes of Sentencing to be taken into account”. This code provisioned that, the court shall determine the sentence “to assist in the offender’s rehabilitation in the society or to reform the offender”[75]. Likewise, to make the offender regret his/her offending and promote in the offender of a sense of acknowledgement that harm has been done to the victim or the community’[76] is also related to the reformation of the criminals. Therefore, it included these provisions for the reformation of criminals as the purpose of sentencing.
In the same manner, in Section 25 of the said Code there is provision of ‘power to make order to send offender to reform home” and mentions that, If, in relation of an offender who is sentenced to imprisonment for a term of two years or less, having regard also to the offence committed by the offender, the age, conduct of the offender, the circumstances and the manner of the commission of the offence, it appears to the court that it is appropriate to hold him or her in a reform home instead of sending him or her to prison, the court may, on recommendation of a probation officer, send such offender to the reform home.[77] In sending an offender to a reform home the terms and conditions as determined by the Probation and Parole Board, to be compiled with by him or her, shall also be specified[78]. If the offender serves the term of imprisonment in a reform home in compliance with the terms and conditions he/she shall be deemed to have served such term in prison[79].
Section 26 is about the “power to make order to send offender to rehabilitation center” which states that, if, in relation of an offender who is convicted of using narcotic drug or who is suffering from physical or mental infirmity or similar other offender, having regard to the offence committed by the offender, the age, conduct of the offender and the circumstances of the commission of the offence, it appears to the court that it is appropriate to send him or her to a rehabilitation center instead of sending him or her to prison, the court may, on recommendation of a probation officer, send such offender to the rehabilitation center[80]. If the offender serves the term of imprisonment in a rehabilitation center, he/she shall be deemed to have served such term of imprisonment in prison[81].
Besides these provisions the provision of community service[82], provision relating to imprisonment[83], provision of open prison[84], parole[85], socializing the prisoners[86] are related to the reformative punishment. Likewise, Section 33 of the same code made a provision for conducting reformative programs which includes, in order to reform the conduct of prisoners serving the sentences of imprisonment, a prison shall conduct reformative programs and measures, including skill, education and employment oriented, morality, disciplinary, physical, spiritual, meditation and exercise related education programs.[87] All of these legal provisions are related to the reformative theory.
- Concluding Remarks
Reformative theory maintains that crime is a kind of disease and the criminal should be treated well, so that they may be able to recover from this disease. Criminal are individuals of diseased mind or morals. Their malady is a real one and demands thoughtful and positive treatment. This theory of punishment treats criminals as a patients, prison as a moral hospital. According to modern penal jurisprudence, criminals are the patients who should be sent to moral hospitals for social and psychological treatment. Criminals must be treated with good treatment and cured of criminality. It takes punishment as a means for correction of the criminal’s mental and psychological disorder. The theme and aim of this theory of punishment is to care, reform, correction, improvement, rehabilitate, resocialization, re-educate, diagnosis, treatment and reshaping or moulding the criminal or delinquent behavior, antisocial character, personality and social malfunction of the criminals for the prevention of future offences and recidivism. The idea behind this theory is that, “no one is a born criminal and criminals are also humans”. This theory claims that, man are not born criminals; crime and criminals are the byproducts of society as well as psychological and mental dysfunction or disorder of the human beings. This theory aims to transform the criminals into good, law-abiding, civilized, productive, useful, a rehabilitated and responsible members of the society who will no longer desires to victimize the public and the entire society.
The rationality behind the reformative theory are individualization of punishment, humanistic philosophy, human rights, individual autonomy and it also respect human dignity as well as treats criminals as a members of society not always permanently dangerous for the society. They should reformed to make law-abiding, good, productive and responsible member of society. This theory wants to permanently control the crime through the reformation of criminals. In Nepal we have constitutional provisions, several laws and legal provisions regarding the reformation of prisoners. But in the execution part there are shortcomings and lacunas. The Criminal Offences (Sentencing and Execution) Code, 2017 (2074) is new law for Nepal which has made several provisions for the reformation of prisoners. But the reality is that, the mechanisms are not well established for the implementation of those legal provisions. Due to the lack of infrastructures, proper institutions and implementation mechanisms the legal provisions related to the reformation of criminals are still remain only in the black letters of law. As a result the reformative theory of punishment it is not objective due to these factors.
Laws related to the reformation of criminals included several methods and techniques for the reformation of criminals. For this purpose, small scale cottage and handicraft industries are established inside the prison for providing skill development trainings to the criminals, providing work to the prisoners for enabling them to be skilled in those works and earn money to maintain their livelihood. Many prisoners make very good earnings from the prison labor and they also send money to their family members as well. Similarly, at present time prisoners gets various facilities inside the prison. The prisoners gets fixed daily wages, they are employed in making various kinds of handicraft products etc. and they get certain additional wage according to their work. Prisoners can play various types games, get opportunity to make physical fitness i.e. gym, can consume additional food stuffs from the canteen of the prison, get clothes, facilities of visit and correspondence to their family members and relatives, sanitation, health instruments, health treatments (physical and mental) etc. For the incorporation and implementation of reformative punishment legislators, judges, prison administration etc. must have the adequate knowledge of behavioral sciences, criminal sociology, criminology etc. The legal expertise of lawyer and judge is necessary in the verdict phase. Likewise, the whole prison officials must be well-known about it because the sentencing phase was the task of the prison administration. Therefore, all the stakeholders who are directly or indirectly related to the reformation of criminals must have the knowledge about the concept of reformation, criminology, penology and criminal science for its successful implementation, making it objective and for getting fruitful result.
Author: Assistant Professor of Law and Coordinator of B.A.LL.B. Programme at Gandaki University, Pokhara (Nepal).
References
[1] RABINDRA BHATTARAI, QUESTING THE CAUSES OF OFFENDING & VICTIMIZATION CRIMINOLOGY AND VICTIMINOLOGY, 51, (1st ed.,) Pairavi Book House Pvt. Ltd, Kathmandu, 2021).
[2] A. Lakshminath, Criminal Justice in India: Primitivism to Post-Modernism, JOURNAL OF THE INDIAN LAW INSTITUTE, Vol.48, No.1, Indian Law Institute, 50, (2006), available at http://www.jstor.com/stable/43952016, (last accessed on 8 October 2022).
[3] P.J. FITZGERALD, SALMOND ON JURISPRUDENCE, 94, (12th ed., Sweet and Maxwell, South Asian edition, India, 2016).
[4] Lakshminath, Supra note 2, 31.
[5] Martin B. Miller, The Indeterminate Sentence Paradigm: Resocialization or Social Control? ISSUE OF CRIMINOLOGY, Vol.7, No.2, 336, (1972), available at http://www.jstor.com/stable/42909758, (last accessed on 11 October 2021).
[6] Julian P. Alexander, The Philosophy of Punishment, JOURNAL OF THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY, Vol.13, No.2, 240, (1922), Northwestern University Pritzker School of Law, available at https://www.jstor.org/stable/1133492, (last accessed on 11 October 2021).
[7] LOEWAY ARNOLD, CRIMINAL LAW, 3, (St. Paul Minn, West Publishing Co., New York, 1975).
[8] Lakshminath, Supra note 2, 54.
[9] FARHAD MALEKIAN, PRINCIPLES OF ISLAMIC INTERNATIONAL CRIMINAL LAW A COMPARATIVE SEARCH, Brill, 403, available at https://www.jstor.org/stable/10.1163/j.ctt1w8h3dt.38, (last accessed on 11 October 2020).
[10] DAVID SCOTT, PENOLOGY, 19, (1st ed., Sage Publication Ltd., Great Britain, 2008).
[11] BARYAN A. GARNER, BLACK’S LAW DICTIONARY, 1429, (10th ed., Thomson Reuters, United States of America, 2014).
[12] PROF. MADHAV PD. ACHARYA & GANESH BDR. BHATTARAI, CRIMINOLOGY PENOLOGY, 16, (1st ed., Bhrikuti Academic Publications, Kathmandu, Nepal, 2012).
[13] Eugene Doleschal & Nora Klapmun, We Need Criminals, EKISTICS, Vol.39, No.231, Combatting Urban Crimes, Athens Center of Ekistics, 93, (Feb. 1975), available at http://www.jstor.com/stable/43618453, (last accessed on 12 October 2020).
[14] Dr. S.R. MYNENI, JURISPRUDENCE (LEGAL THEORY), 133, (2nd ed., Asia Law House, Hyderabad, 2012).
[15] MICHELE PIFFERI, A COMPARATIVE HISTORY OF CRIMINOLOGY AND PENOLOGY IN THE NINETEENTH AND TWENTIETH CENTURIES, 17, (1st ed., Oxford University Press, United Kingdom, 2016).
[16] Michele Pifferi, Global Criminology & National Tradition: The Impact of Reform Movements on Criminal Systems at the Beginning of the 20th Century, ENTANGLEMENTS IN LEGAL HISTORY CONCEPTUAL APPROACHES, (Thomas Duve eds.). Max Planck Institute for European Legal History, 544, available at https://www.jstor.org/stable/j.ctvqhtwr.18, (last accessed on September 26).
[17] Lakshminath, Supra note 2, 50.
[18] W.A. Wall & W.A. Watt, Deterrent Punishment, INTERNATIONAL JOURNAL OF ETHICS, Vol.8, No.2, The University of Chicago Press, 162, (1898), available at http://www.jstor.com/stable/2375260, (last accessed on 19 September 2020).
[19] Miller, Supra note 5, 109.
[20] Wall & Watt, Supra note 18, 162. (1898).
[21] FITZGERALD, Supra note 3, 95.
[22] PROF. N.V. PARANJAPE, CRIMINOLOGY AND PENOLOGY, 226, (14th ed., Central Law Publications, Allahabad, 2010).
[23] FARHAD MALEKIAN, PRINCIPLES OF ISLAMIC INTERNATIONAL CRIMINAL LAW A COMPARATIVE SEARCH, Brill, 400, available at https://www.jstor.org/stable/10.1163/j.ctt1w8h3dt.38, (last accessed on 20 September 2020).
[24] Lakshminath, Supra note 2, 50-51.
[25] W.H. Townsend, The Principle of Crime, THE JOURNAL OF THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMONOLOGY, Vol.10, No.4, Northwestern University Pritzker School of Law, 535, (1920), available at https://www.jstor.org/stable/1134291, (last accessed on 20 September 2020).
[26] PROF. DR. SYED MOHAMMAD AFZAL QUADARI, AHMAD SIDDIQUE’S CRIMINOLOGY & PENOLOGY, 165, (6th ed., Eastern Book Company, Lucknow, 2009).
[27] Lakshminath, Supra note 2, 26.
[28] Alexander, Supra note 6, 239-240.
[29] PIFFERI, Supra note 15, 19.
[30] Nicole Rafter, Chad Posick & Michael Rocque, THE CRIMINAL BRAIN, UNDERSTANDING BIOLOGICAL THEORIES OF CRIME, (2nd ed., NYU Press), available at http://www.jstor.com/stable/j.ctt1bj4qgv.10, (last accessed on 15 September 2020).
[31] Miller, Supra note 5, 106.
[32] PIFFERI, Supra note 15, 18.
[33] Martha Grace Duncan, Positive Images of Prison and Theories of Punishment, ROMANTIC OUT LAWS, BELOVED PRISONS, THE UNCONSCIOUS MEANINGS OF CRIME AND PUNISHMENT, NYU Press, 51, available at https://www.jstor.org/stable/j.ctt9qg6p4.10, (last accessed on 9 September 2020).
[34] Lakshminath, Supra note 2, 51.
[35] Amit Bindal, Rethinking Theoretical Foundations of Retributive Theory of Punishment, JOURNAL OF THE INDIAN LAW INSTITUTE, Vol.51, No.3, Indian Law Institute, 312, (2009), available at http://www.jstor.com/stable/43953451, (last accessed on 9 September 2020).
[36] Alexander, Supra note 6, 240.
[37] MYNENI, Supra note 14, 133.
[38] Miller, Supra note 5, 102.
[39] Doleschal & Klapmun, Supra note 13, 93.
[40] Albert Levitt, Some Societal Aspects of the Criminal Law, JOURNAL OF THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY, Vol.13, No.1, Northwestern University Pritzker School of Law, 97, (May 1922), available at https://www.jstor.org/stable/1133866, (last accessed on 25 September 2021).
[41] Lakshminath, Supra note 2, 50.
[42] Alexander, Supra note 6, 246.
[43] MYNENI, Supra note 14, 133.
[44] DAVID SCOTT, PENOLOGY, 19, (1st ed., Sage Publication Ltd., Great Britain, 2008).
[45] Lakshminath, Supra note 2, 36-37.
[46] RAJENDRA K. SHARMA, CRIMINOLOGY AND PENOLOGY, Atlantic Publishers and Distributers P. Ltd., India, 196, 2017).
[47] Duncan, Supra note 33, 55.
[48] Levitt, Supra note 40, 96.
[49] Lakshminath, Supra note 2, 36.
[50] https://www.lawctopus.com/academike/reformative-theory-of-punishment/, (last accessed on 20 September 2020).
[51] Townsend, Supra note 25, 545.
[52] Lakshminath, Supra note 2, 50.
[53] Pifferi, Supra note 16, 54.
[54] DR. S.S. SRIVASTAVA, CRIMINOLOGY, PENOLOGY & VICTIMOLOGY, 281, (4th ed., Central Law Agency, Allahabad, 2012).
[55] Lakshminath, Supra note 2, 51.
[56] Idid, 36-37.
[57] SRIVASTAVA, Supra note 54, 281.
[58] PARANJAPE, Supra note 22, 227.
[59] Ibid.
[60] FITZGERALD, Supra note 3, 95.
[61] The Prison Act, 2019 (1963), § 6.
[62] The Prison Act, 2019 (1963), § 9.
[63] The Prison Act, 2019 (1963), §, 10.
[64] The Prison Act, 2019 (1963), § 10A(1).
[65] The Prison Act, 2019 (1963), § 10B(1).
[66] The Prison Act, 2019 (1963), § 10B(2).
[67] The Prison Act, 2019 (1963), § 11(1).
[68] The Prison Act, 2019 (1963), § 14(1).
[69] The Prison Regulation, 2020, Rule 31.
[70] The Prison Regulation, 2020, Rule 32.
[71] The Prison Regulation, 2020, Rule 33.
[72] The Prison Regulation, 2020, Rule 34.
[73] The Prison Regulation, 2020, Rule 35.
[74] Constitution of Nepal, 2072 (2015), Article 22.
[75] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § 13(d).
[76] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § Section 13(f).
[77] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § Section 25(1).
[78] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § Section 25(3).
[79] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § Section 25(4).
[80] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § Section 26(1).
[81] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § Section 26(4).
[82] Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § 22.
[83] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), Chapter 5.
[84] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § 28.
[85] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § 29.
[86] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § 30.
[87] The Criminal Offences (Sentencing and Execution) Code, 2017 (2074), § 33(1).
प्रतिक्रिया लेख्नुहोस्:-