Short Essay on Reformative Theory of Punishment

The reform theory is the most popular theory today. It holds that the
proper aim of criminal procedure is to reform the criminal so that he may
become adjusted to the social order. This theory is in fact a mixture of
sentimental and utilitarian motives.
With the fading of faith in inflicting pain and with the spread of humane
thought, belief in re-educating the criminal to enable him to become a
useful member of society developed.
Even from the strictest economic point of view, individual men and women
are considered to be the most valuable assets of any society. It is therefore
better to save them for a life of usefulness rather than punish them by
imprisonment.
Punishment has its limitations: (1) It may produce harmful effects in the
criminals who are punished. There remains the possibility of serious
damage to the personality of the offender. With bitterness in his heart, he
may seek an opportunity to strike back at society. (2) It may label the
offender not only a criminal in his own eyes but also in the eyes of the
community.
Thus stigmatised, a man may be psychologically isolated from law-abiding
groups and again be driven into the association of criminals upon his
release from prison. (3) Punishment may also cause a person to develop
caution and unusual skills, so that he could protect himself from
apprehension, conviction and imprisonment.
It is, therefore, necessary that punishment is replaced by some alternative
so that an offender might preserve his self-respect and renew loyalties for
group standards. Criminologists have, as a result, started talking of
reformation and rehabilitation of offenders.
Reformation must involve change of environment which makes a person
criminal reducing his personality adjustments, and create barriers in the
inculcation of the principles of good citizenship.
Such a programme may even require restriction of liberty and curtailment
of rights and privileges. In other words, the reformative procedure must
not be so pleasant as to encourage further criminal activities but it must
be so designed as to produce desirable changes in the personalities of
offenders.
The propounders of reformative theory like Bentham (Rationale of
Punishment, 1830: 21), Ewing (The Morality of Punishment, 1929: 5), and
Hart (Punishment and Responsibility, 1968:10) rejected the retributive and

deterrent theories of punishment in the nineteenth and twentieth century

have and sought to take the anger out of punishment.
According to Bentham, "punishment is not an act of wrath or vengeance
but is an act of calculation, disciplined by considerations of the social good
and the offenders' needs. The reformative and utilitarian justification of
punishment was that it would persuade the offender to accept his
sufferings and face his own guilt.
Reformative theory thus presented punishment to offenders as being in
their best interests, while utilitarian theory cast it as an impartial act of
social necessity (Fitzgerald et al., Crime and Society, 1981: 52).
In other words, the reformers' task was to make punishment self-evidently
rational. On this question, Jeremy Bentham's views on whipping are
important. In the early nineteenth century, the severity of whipping in
Britain, France, and the US etc. depended on the strength of the person
who inflicted it and the degree of indignation that the offender aroused in
the crowd.
It struck Bentham as unjust and irrational that punishment should vary
according to the emotions of those who inflicted it and those who watched
it. In his view, its severity should depend only on the gravity of the offence.
In his conception of pain, what was rational was impersonal and what was
impersonal was humane.
He, therefore, held that punishment should not be scattered by a
monarch's wrathful hand but apportioned to each crime as precisely as the
market allocated prices to commodities. Punishment would then become a
science, an objective use of pain by the state for the regulation of the
egoistic calculus of individuals.
It may thus be said that: (i) the reformative theory gives importance not to
crime but to criminal; (ii) it considers defective functioning of social
systems and social structures, defective environment, and lack of
opportunities to achieve one's goals as the causes of crime.
There are, however, a number of highly questionable assumptions at the
back of this which need to be critically examined. Morris Cohen (ibid. 3031) has raised the question whether crime is curable and if so, at what cost
to society. Many social reformers and social scientists are apt to ignore
calculating shrewdness found among criminals.
Some hot-blooded criminals may even respond to emotional appeal but
they are also likely to backslide when they get an opportunity or when they
are exposed to temptation. Most criminals are also religious-minded but
religious education does not eliminate crime nor does education minimise
crime.

Even the records of special reformatories for young offenders show that it
is fully possible to reform delinquents and criminals so that they will stay
reformed for any length of time. The analogy of the criminal law to
medicine breaks down.
The surgeon can determine with a fair degree of accuracy when there is an
inflamed appendix or cancerous growth so that by cutting it out he can
remove a definite cause of distress.
There is no such physician in our complex social system who can readily
point out one cause of crime on the basis of similarly verifiable knowledge
which can be easily removed. Ignoring this question, we may ask another
question: to what extent can criminals be re-educated or re-socialised so
that they can live useful lives? Do we not know our limitations with regard
to answering this question?
Can we really deal with that group which determines the morals of its
members which ultimately provokes some to commit crimes? And here we
must not neglect the question of cost.
If poverty and unemployment are the main causes of many crimes, can we
afford the cost of removing these causes? (The expense in punishment on
the other hand is not unlimited.) Suppose a correctional institute gets
success in reforming deviants and criminals.
Will people provide funds for such correctional institutes when honest lawabiding people cannot get adequate hospital facilities? Suppose a prison
submits a plan that it requires several lakhs of rupees on a concurrent
basis every year to provide specific type of vocational education to
prisoners which will help them in economic rehabilitation after release
from prison.
Would our community stand for such expense when so many promising
young people remain unemployed? Will people be satisfied to see a
criminal convicted of a dangerous crime simply reformed and not express a
feeling of resentment against such criminal?
On all these grounds, should we accept the reformative ideal and totally
forget the punitive aspect of crime? It is, however, not easy to give a clearcut opinion on how to deal with criminals.
Perhaps, punishment policy for some and reformative policy for some other
criminals would be a pragmatic path. It is, thus, clear that punishment
cannot be abolished and correction cannot be ignored in dealing with
delinquents of differential types.

Shubham Srivastava.