Rethinking punishment

The symptoms of turmoil are all around us. First, it was a brutal call for death sentence and now it’s a call for getting tough on juvenile crimes by lowering the age of juveniles and/or treating those who commit serious crimes as adults. Those arguing for tougher punitive action on juveniles believe the juvenile justice system itself is deeply flawed and needs a complete overhaul.

Earlier, in August 2013, some media reports suggested that the Ministry for Women and Child Development was firming up to the view that juveniles in the age bracket of 16-18 years committing heinous crimes should not have the protection of Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act).

The Justice JS Verma Committee report on ‘Amendments to Criminal Law’ notes the failure of the JJ Act to protect the children in the country. It ruled out lowering the age criteria for juveniles accused of heinous crimes on the grounds that before holding children responsible for crimes, they must first be provided with the basic rights promised in the Constitution. This calls for a certain conceptual question of the very purpose of punishment for juveniles in a modern welfare state. Punishment is the infliction of harm by any appropriate authority upon a person found guilty of an act considered illegal under law.

At the core of this question of punishment is the philosophical problem of “agency”. Agency is about the capacity to act autonomously. The law believes that children lack agency and are incapable of rational decision-making. Therefore, laws regulate and restrict minors in contracts, guardianship, marriage, property rights etc. So when critics suggest juveniles need to be treated as mature adults, are they implying that adolescents have the agential capacity similar to those of adults?

A theory of punishment hinges upon the notion of agency. One is guilty for intentionally committing an offence. For example, it is for this reason that mental unsoundness becomes a defence in criminal trials. Whether adolescents have agency the way adults do is an extremely crucial question in this context.

Few would disagree that a solely ‘retributive’ approach to punishment is narrow and “backward-looking”. In Biblical terms, retribution is internalized and becomes morally linked to guilt; punishment is perceived as a means to account for this guilt. But punishment in a welfare state is not constituted by a vengeful sensibility, and must instead have an instrumental value. It has to be ‘forward looking’ and has to justify how the punishment would make the society a safer place in the future. But isn’t a strain of retribution gaining strength in our recent public outrage against the juvenile justice system?

A proponent of the ‘deterrence theory’ would justify it as a means to promote a safe and secure society. But a more broad and inclusive response would be that punishment must aim at safety, security and hope, not just for the society but for the criminal as well.

Besides, a deterrent society is a disciplinary society, regimented by fear and structured by suspicion, where even the innocent are constantly under surveillance, by the other as well as by the self. Retributive anger is rarely self-critical. It is a forgetting of the sociology of a crime. Should we not introspect on what it is about the urban social spaces of India that has led children and adolescents into a life of crime?

Studies confirm our own experiences of adolescence, which is that although adolescents by the age of 16 have the cognitive abilities of reasoning and understanding that are almost like adults, evidence suggests that they are less capable of ‘using these capacities’ in making choices in the real-world. [Elizabeth Scott Rethinking Juvenile Justice (2008)]. Their emotional and psychological development lags behind. For example, teenagers are more susceptible to peer influence and impulsiveness.

In fact, fundamental to the nature of the ‘self’ is the concept of identity and for adolescents, personal identity is fluid and still formative. (Laurence Steinberg Adolescence, 1999)
This difference in agential decision-making ability puts adolescents at a different footing from adults. Logically, therefore, they need to be classified as a separate legal category and need to be treated different from adults. As argued in Rethinking Juvenile Justice, the ‘rehabilitation’ model wrongly assumes that juveniles, including adolescents, have been forced into committing crimes due to their circumstances and by right guidance they can be reformed.

On one hand, deterrent and retributive theories of punishment are unjust when applied to adolescents. On the other hand, the rehabilitation model under the JJ Act has also been failing.

How does one resolve the bind?

We often treat the child and the adult as strict binaries, as if, at the age of 18, one suddenly transforms from a child to an adult. What we need to acknowledge is the graded development process of a human being. By understanding the being as a developmental process, adolescence becomes an intermediate legal category rather than being caught in the binaries.

The developmental model allows us to account for dynamism and the transitional nature of human psychology instead of boxing them in binaries of ‘childhood’ and ‘adulthood’.

The rehabilitative model (Rethinking Juvenile Justice; 2008) fails because of its naïve characterisation of delinquent youths as innocent children who are not responsible for their crimes. And the increased punishment model errs because for the limited purpose of criminal adjudication they are treated as adults.

The principle of proportionality in criminal justice requires that punishment be proportional to the moral blameworthiness of the criminal. If we treat adolescents as fully responsible for their actions, it fails the test of proportionality. Also, due process of law requires a capacity and competency to stand trial. Adolescents may not be competent to understand the full scope of the processes of law and adjudication.

To conclude, in a Kantian sense, an individual is to be treated as an end and not a means. For Gandhi as well, it is immoral to treat an individual as a means to an end. It may be wrong to make the goals of criminal law, such as deterrence or welfare, as overriding all else. Always obsessed with a future condition, we tend to subsume the individual in order to achieve our desired end. It is by understanding the complex needs and providing adolescents with necessary conditions for their growth that we treat them for who they are, as opposed to treating them as adults.  

The author is a Research Associate at Centre for Law and Policy Research, Bangalore