“I believe that at its heart, America is a nation of second chances. And I believe these folks deserve their second chance,” said U.S. President Barack Obama during a video announcement of mercy to 46 drug offenders in prison. He added that the move was a part of his larger attempt to reform the criminal justice system, including reviewing sentencing laws and reducing punishments for non-violent crimes.
“I am granting your application because you have demonstrated the potential to turn your life around. Now it is up to you to make the most of this opportunity. It will not be easy and you will confront many who doubt people with criminal records can change,” were the words of Mr. Obama’s letter to each released convict.
Mr. Obama’s decision on July 13 to commute the sentences imposed on 46 non-violent drug offenders now serving term in various U.S. Federal prisons should warm the hearts of those who strongly believe that a criminal justice system sans mercy and compassion is blind and lame; 13 of these prisoners had been on life sentence, while 1,000 others continue to be incarcerated for life without parole. This step is not something revolutionary nor is it something that has not been done before.
Trust and reform In early 2014, U.S. Attorney-General Eric Holder announced a proposed plan to release nonviolent drug offenders with no links to gangs or drug trafficking organisations. Following this, in December last, commutations were approved for eight offenders. Unlike a presidential pardon, a commutation does not erase a criminal conviction, but only reduces a sentence. In his presidency, Mr. Obama has granted 64 pardons. When a head of state himself takes such an initiative and personally sends out a message to each of the released persons, the gesture assumes an import that is difficult to exaggerate.
I welcome the move as a step in the right direction, and as one that should be emulated in India and across the world. This unequivocal endorsement of a benevolent approach to crime and criminals rests on two unassailable facts: first, judicial officers imposing sentences are not infallible; they actually commit egregious mistakes. And, second, many offenders, after being found guilty and convicted, are known to display remorse and a desire to reform themselves and not transgress the law again. While there is no guarantee that those released would not go back to their career of crime, there is every hope that they will not given the hardship that they had undergone during their long spell of incarceration. There is an element of trust here which is the foundation of civilised living and a stable public order. I am happy that more action and reforms of such a nature are on the anvil. Remember, the U.S. criminal justice system has repeatedly been the subject of bitter criticism for its bias against the minorities, especially African-Americans. Instances of proven brutality against African-Americans and the disproportionate number of them in U.S. prisons — more than 30 per cent of the prison population — are often cited here.
Undoing injustice In general, it is widely known that many prisoners in the country have established their innocence after conviction and incarceration. According to the “Innocence Project”, a non-profit private initiative launched in the U.S. in 1992 (and committed to exonerating wrongly convicted people through the use of DNA testing and to reforming the criminal justice system), 330 convicts, including 20 on death row, have been released since 1989, after they successfully invoked their right to a DNA test and convincingly proved that they had been wrongly sentenced. The average time they spent in prison was 14 years! Also, statistics of recidivism point to only a small percentage of them as being repeater offenders. The rest are not inclined to return to crime, but would rather engage themselves in some form of gainful employment yielding an income that would help look after their families.
These facts uphold Mr. Obama’s recent action as one that has merit and is justified; one which will at least partially restore the faith of America’s minorities in the administration’s willingness and ability to undo injustice. In essence, what we need is a system that will take care to make a distinction between the one who lapsed into crime by accident and on impulse, and the one who is vengeful, and displays rancour and no penitence whatsoever. Again, the plea should be for a jurisprudence which would impose penalties proportionate to the crime on hand, and not go overboard by being vindictive. What is also desirable is a reasoned examination of the age-old nagging and unresolved question on whether the establishment can bring down instances of crime by resting solely on the deterrent effect of criminal penalties. Incidentally, this latter issue, is linked to the never ending debate on the rationale of capital punishment.
Our Law Commission released a “consultation paper” on the subject recently, and followed it up with day-long discussions by experts. Such initiatives confirm that enlightened opinion does not set much score by the deterrent effect of the severest of punishments, and that there is still a case for continual evaluation of the impact of penalties.
Subject of ‘deterrence’ Fortunately, till now, responses to Mr. Obama’s bounty have been positive. What is ignored is the fact that crime in the U.S. is a subject that still arouses passions. Every outrage, such as the attack on the Emmanuel African Methodist Episcopal church in South Carolina in June, and which claimed nine lives after the 21-year old white gunman emptied his semi-automatic handgun on an essentially African-American congregation, raises the clamour for more severe sentencing rather than release. Also not brought up in public discourse is the fact that a majority of drug offenders in the U.S. are either African-Americans or Hispanic. I can’t see this happening in India. We are inclined to view every such gesture by the establishment with coloured eyes. We also tend to attribute religious, ethnic or political motives to a Prime Minister or a Chief Minister or a political party in power doing such a thing. The study of deviance and handling of crime are serious matters which should go beyond the pale of sectarianism and prejudice. The debate over what dispenses adequate justice to those who commit crime, had, till recently, been the sole preserve of criminology.
Mr. Obama’s action revives memories of certain classical personalities who have contributed greatly to the evolution of criminology as a fascinating discipline, and especially to the subject of “deterrence”. In this, two names come readily to mind. Cesare Beccaria (1738-94), was an Italian criminologist, jurist and one of the greatest thinkers of the Enlightenment period, and his short treatise, “On Crimes and Punishments” highlighted his abhorrence of the death penalty. While he conceded that deterrence had a role in controlling crime, he would rather place a premium on certainty, proportionality and promptness of punishment. Closely following him was the British philosopher, Jeremy Bentham (1748-1832), whose credo of pain and pleasure — a man will indulge only in an act that gives him pleasure and causes no pain — was stated in his monumental “An Introduction to the Principles of Morals and Legislation”. He spoke of an element of rational choice by each offender in committing or staying away from crime. His stand was that since punishment and pain were closely associated with each other, the state should inflict only so much punishment as was necessary to ward off the greater evil of a penalty. While both Beccaria and Bentham believed somewhat in the deterrent effect of criminal punishments, they never exaggerated it.
Lessons for India In recent years, they have been questioned because of a lack of scientific evidence to substantiate the effect of deterrence. But then we are still nowhere in our attempts to scientifically prove that punishment deters crimes. We still rely on guesswork and vague conjectures. We know at best that enhanced patrolling of identified “hot spots” reduces crime in a locality, but then crime only gets displaced and tends to relocate in new places. Beyond this it has not been possible to prove that intensive application of police manpower or stringent punishments in the statute books are a deterrent. It is this anomalous situation that strengthens the case in favour of measures such as the one Mr. Obama has initiated.
In all this, there are lessons for India. Although the U.S. is guilty of incarcerating more people than it should, we are no less blameworthy. We carry the shame of having far too many undertrial detainees in our prisons because of an overburdened judicial apparatus and the excruciatingly slow pace of trials. My impression is that while there is greater restraint in terms of police arrests, too many people are being sent for trial. The United Kingdom’s example of a highly empowered Crown Prosecution Service that vets all police recommendations needs to be examined so that there is a fall in the numbers. The anticipated criticism of such a body frustrating police investigations by not according sanction for prosecution is infinitely preferable to too many cases clogging the courts and delaying justice to those who are innocent among the suspected offenders. There is a need to disseminate knowledge on justice processes so that fearless decisions are made by investigating officers and prosecutors. This is the only way we can change the face of the Indian criminal justice system that currently suffers from a very poor image in the eyes of both victims of crime and the layman.
(Dr. R.K. Raghavan is a former CBI Director and a graduate in criminal justice from the Temple University, Philadelphia, U.S.)
