Legal Articles

Prevent The Crime or Punish the Criminal?

From the beginning of humankind, time immemorial, we have witnessed humans committing crimes. The early incidents began with the hunting of animals which soon converted into killing other human beings. From then on to today, we have only seen an increase in the crimes committed by humans. They have not only increased in numbers but have expanded in their kind as well. Genocides, caste-based atrocities, religious persecutions, nuclear attacks, mob lynching are just a few crimes that weren’t there at the beginning of humankind. Now we know some of the new forms of crimes such as embezzlement, piracy, money laundering, and the invention of the internet has opened a whole lot of new ways for humans to commit crimes varying from data theft, cyberstalking, hacking, harassment, cyberbullying, personal video circulation, voyeurism. It is as if humans are inventing new ways to commit crimes as time evolves and it seems the crimes are just increasing and increasing with time and they don’t seem to stop.

The past few years have also seen a rapid increase in sexual offences. Humans, particularly women and transgenders are subjected to new forms of sexual offences every day. It begins right from the home, follows them in the streets, continues in schools and colleges, ends up in marital relationships and sometimes they don’t even end with the death of the person.

There must be something wrong with us to see all this happening around us? There must be something wrong with what we have been doing for years that every other day there is a fight in the Parliament to make a new law to deal with the new type of crime that has emerged in the society?

What do the lawmakers do? They put together all the brains, gather the different information related to the crime, think of different ways that a crime could be committed and put all their resources in creating the stringent of punishments and least is done to prevent the crimes.

The focus on preventive measures has been negligible and punitive measures always gets all the resources. It is as if everyone is obsessed with the idea of revenge justice in society.

The sanction theory by John Austin, speaks highly for the importance of punishments in society to create a threat that can prevent people from committing crimes.

However, other theories such as ‘Volksgeist’ by Karl von Savigny which states that the law comes from the ‘will of the people’ and Roscoe Pound’s interest theory have put less emphasis on sanction and more emphasis on the power and will of the people to commit and not commit crimes.

The outline of this article is based on the theories of Pound & Savigny rather than Austin.

The crimes can be divided into two categories, done consciously, committed against the individual- civil wrongs, where the victims of the crime could be indemnified by a way of compensation. For these crimes punishments such as fine and compensation and even simple imprisonment could prove to be fruitful for both the victim/sufferer and offender. These could be economic crimes, civil wrongs, corruption, torts etc.

The other branch of crimes is socially and subconsciously driven crimes. The root cause of such crimes isn’t the individuals but the social and psychological evils that are conditioned in society for years. Individuals merely are the crusaders of crime, the real offender is the social evil. They are crimes related to castes, class, race, sex, religion. Most of these crimes are just an assertion of power and superiority. The seeds of such crimes are sown from the very beginning, as early as childhood or as Freud claims even before birth as well. How we normalise racism, casteism, sexism, sexual offences, patriarchy is the reason why individual end up committing these crimes. The various research and evidence assert that punishments are less likely to prevent people from committing such crimes.

Our society on a day to day basis faces a large number of such crimes every day and punishments have contributed very less in reducing these crimes over the period of time. And the lawmakers hardly focus on the preventive measures to tackle these crimes.

These crimes cause great damage to the victim, economically, socially and mentally. The eye for an eye practice we have been following for years does very little to indemnify the victim. The occurrence of crime shifts the whole focus on punishing the criminal and our justice system fails in giving importance to the victim. The effect of these crimes is not the same on every victim. Some suffer economically, some suffer socially, it won’t be an exaggeration to say that all of them suffers emotionally and mentally. It is no intelligent guess that this one-stop solution for all, of giving punishment to the offender, for which victim has to run for trials, which is another mental trauma for them, doesn’t benefit the victim/sufferer in most cases. Also, keeping in mind the acquittal rate on lack of prove.

And this leaves us with just one question? What are we trying to do?

The goal of the trial is to provide justice to the victim/sufferer and seldom does it happen in these crimes driven by class difference because their class itself become the prejudice in the judicial system.

These crimes cause mental distress to the victims/sufferer, that can have lifelong effects and hardly ever they get the right treatment to resolve their mental issues. Mostly because we all are unaware of mental health.

Interestingly, the cause of these crimes also works as a mental illness of the offender, a part of their brain, the uncontrollable urge to seek a feeling of superiority from the crime, which is induced by social conditioning & genetic built. This social conditioning becomes so strong that they lose their sense of right and wrong at times, just like happens in a mental illness and their goal remains solely to the gratification of power.

Psychological research has evidence that mental illness isn’t cured by punishment and torture. It has proved that infliction of torture leads the person to do anything that would put an end to the torture, and does not give them a reasonable approach to think and correct themselves or even to tell the truth. When a person fails to correct themselves we have harsher punishments under the head of ‘repeated offenders’.

It is evident that the mental problems of casteism, patriarchy, racism, will not be resolved by punishments. In fact, the sexual offences are seen to be increased after the death penalty. The rate of crimes is more in countries with the death penalty. And we know for a fact that education can and has effectively put an end to the social evils of patriarchy, casteism and it is the only solution to prevent crimes. For which the education should begin from childhood, from families, from books to schools. But this is a slow process.

So, what we are proposing here, no punishments for the offender?

I won’t just end this by criticising that punishments aren’t the solution.

What scares a person more than the punishment and fear of imprisonment, especially in these socially driven crimes is the label of ‘mental illness’. Since these crimes are power-driven, one thing that makes a person completely powerless is to tell them that they aren’t capable of thinking right.

So, yes punishments should be inflicted on the offenders, and the conviction rate should be high. But, punishments could be awarded a certificate of ‘mental instability’ so they can get the right psychological therapies and education. Prisons & Rehabilitation centers should work as a reform system in educating and helping them unlearn the social conditioning that leads them to these crimes. The treatment should not be specific to preventing the crime but also to resolve the criminal’s mental issues of the past as well.

As it’s said, no one in their right mind wants to hurt others.

Equal importance should be paid to the victims of the crime. They should not only be indemnified for their social and economic loss but for their mental loss as well. It should be on the offender to indemnify them. Until and unless they are mentally treated, there is no justice for them, there is no safe haven for them.

Send the offenders to prisons to reform them, to get the psychological treatment but not to punish them more and when they come out, they shouldn’t come out as a criminal of social conditioning anymore but educators who can go back and teach their family and society the same.

And we will only have an open mind to reform our society if we will shift our focus from punishing the criminals to preventing the crimes.

The choice isn’t that hard to make.

Simran Gill
Advocate & Founder of
Su Iccha Foundation

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