Criminal Law Objectives and Reforms.

Whatever views one holds about the penal law, no one will question its importance to society.
This is the law on which men place their ultimate reliance for protection against all the deepest
injuries that human conduct can inflict on individuals and institutions. By the same token, penal
law governs the strongest force that we permit official agencies to bring to bear on individuals. Its
promise as an instrument of safety is matched only by its power to destroy. Nowhere in the entire
legal field is more at stake for the community or for the individual. Herbert Wechsler

Before we begin, we, need to understand that what are the objectives of criminal Law?

General understanding is:

As we study basically there are essentially five purposes or objectives of criminal law.

Retribution

Families of victims of crimes often seek some form of retribution for the wrongdoing done to them.
This is perhaps one of the more evident reasons for the existence of the criminal justice system.
People who commit crimes should also be punished for their crimes although not necessarily in the
same manner inflicted on the victim of the crime.

Deterrence

Judgments made regarding crimes can act as deterrent to future criminal acts both by the defendant
and by the general public. The punishments or penalties imposed during the sentencing can serve as
discouragement to those in the general public not to make the same mistake or commit similar
crimes. For the defendant, the sentencing is supposed to deter him from committing criminal acts in
the future.

Incapacitation

For the general population, an individual convicted of a crime must not be allowed to mingle with
the rest of society without any guarantees that the person will not do the same crime again. In
incapacitation, the goal of criminal law is to effectively protect the public from the criminal acts of
the defendant. In some societies, this is carried out in the form of a death sentence or banishment.
In most societies, however, it can mean life imprisonment without the possibility of parole.

Rehabilitation

One of the often-forgotten objectives of the criminal justice system, rehabilitation aims to transform
the offender into becoming a valuable member of the general population once he serves his time in
prison. Here, they are taught skills that will render them useful in general society.

Restoration

In some forms of crimes, the offender may be ordered to restore or repair any damages inflicted on
the victim. The purpose is to restore the status or position of the victim to his pre-crime state.

Substantially the abovesaid understanding is simply a punitive explanation of criminal law or its
objectives. Where as we need to understand grass root functionality of the of the Criminal Law, from
this perspective the objective of Criminal Law/Criminal Justice System have to be understood as
following:

The objective of criminal policy is to reduce crime and increase public security.
The objective of the judicial system is to ensure the rule of law and legal security for
individuals.
The ‘rule of law’ means that the administration of justice and other exercise of public
authority must be predictable and consistent, and must be conducted to a high standard.
‘Legal security’ means that private individuals and other legal entities must be protected
from criminal attacks on life, health, freedom, integrity and property.
It is important to improve our efforts to prevent crime and increase security, not least in
socially vulnerable areas.

As far as Criminal Justice Systems reforms are concerned

Creating a secure society requires an active and inclusive welfare policy coupled with strategic and
determined crime prevention and law enforcement efforts.

The justice system, as well as legislation, needs to be adapted to the changing social conditions. For
the Government, it is crucial that more crimes are prevented and more crimes are solved.

This applies to both everyday crime and crime that poses a threat to our democratic society, such as
organised crime, terrorism and hate crime.

The insecurity experienced by women is much greater than that of men. There are also differences in
men's and women's vulnerability to crime and crimes committed by men and women. The
Government is must give high priority to efforts to create a more gender-equal society and is
continuing efforts to achieve its special gender equality objectives.

Being able to live a secure crime-free life must not depend on which area or which part of the
country you live in, or who you are.

The Government shall undertake broad and long-term measures to build a stronger society, in which
the justice system and other actors together take responsibility for creating safer and more secure
societies.

The criminal justice system on this account presents a bulwark against the potentially overwhelming
power of the state and other vested interests. A concern for due process, checks and balances, core
values and an underlying institutional strength inform this perspective, rather than the pragmatic
appeal to the effective and efficient control of crime. Successful criminal detection, prosecution and
conviction are hallmarks of an effective criminal justice model to stop crime and maintain the peace
in any society.

The two models of CJS: Crime Control and Due Process

It was the American legal scholar Herbert Packer who first proposed in his noted work ‘The Limits of
the Criminal Sanction’,  that the competing logics of 'crime control' and 'due process' exercised
varying influence on the operations of the US criminal justice process 1 while comparing due process
and crime control. Under the crime control model, the underlying logic of the criminal justice is to
contain and repress criminal behaviour. The due process model, on the other hand, places at least as
much emphasis on protecting the rights of the innocent as it does on convicting the guilty. The
protection of individual liberty in the face of a potentially over-powerful state is a key preoccupation
of the due process model. The Due Process Model has less faith in the reliability and accuracy of
decisions made in the early stages of the criminal process. Greater reliance is placed on formal fact
finding in the adjudication phase of the criminal process. Judicial officers are supposed to operate on
a presumption of innocence, meaning that they must “ignore the presumption of guilt” in their
treatment of the accused. The Due Process Model distinguishes between the factually and legally
guilty, whereas the Crime Control Model does not. Factual guilt is based on evidence of a person's
commission of a crime, whereas legal guilt is based not only on this evidence, but also on evidence
that the state has acted legally in obtaining evidence and proving its case beyond reasonable doubt.
The Crime Control Model is concerned with the efficiency of the criminal process, whereas the Due
Process Model is concerned with the accuracy and reliability of the decisions made.

Packer's contrast between crime control and due process was developed in the context of the US
criminal justice process. Yet it is possible to consider recent debates on criminal justice in India in the
context of categories he developed.

Apart from the above given perspectives of both the models, disputes between crime control and
due process considerations also, boil down to questions of degree of leniency and strictness of
process with an emphasis on justice delivered. Crime control advocates have argued that a
misguided attachment to certain protections historically afforded to suspects hampers convictions
Due process advocates claim enhanced protections for suspects in police custody.

The debate over the appropriate balance between due process protections and the crime control
imperatives, in other words, tends to be dominated by disagreements of a largely procedural kind.
Such procedural debates are obviously vitally important. A society that shows indifference to the
processes by which those deemed to have breached the laws of the land are dealt with is unlikely to
be a society in which the rights of individuals are respected. But on their own, procedural debates
offer little insight into the social context and political-economic structures within which the criminal
justice process operates.

To substantiate the above point, we must understand that Crime control and due process logics are
not pristine and mutually exclusive, in practical dimensions both models reflect qualities and
limitations. Firstly, Andrew Ashworth2 points out several problems with Packer's models, among
them he cites that, Packer failed to discuss the relationship between Due Process and Crime
Control, he paid insufficient attention to financial pressures on the state's response to crime, and
he was silent on victims. Ashworth says that in emphasising the value of speed in the Crime
Control Model, Packer ignored the equal concern that a Due Process Model would give to
“unreasonable delay” (1998: 28). On the relationship between the models, he suggests that we
might view Crime Control as “the underlying purpose of the system, but that it should be qualified
out of respect to Due Process. Secondly, Doreen Mc Barnet3 lends a way to view the relationship

1
HL Packer 1968, The Limits of the Criminal Sanction, Stanford University Press, Stanford
2
Andrew Ashworth 1998, The Criminal Process: An Evaluative Study, Clarendon Press, Oxford
3
Doreen Mc Barnet 1981, Conviction: The Law, the State and the Construction of Justice, Palgrave Macmillan
UK
between the two models. The Crime Control Model, as per her, is more visible in Magistrates
Courts, which dispose of the less serious cases, typically by guilty pleas, and where trials are
uncommon. The Due Process Model is usually visible in the District and Supreme Courts, which
handle more serious cases, where a higher proportion of matters are dealt with by trial, and
where the full repertoire of legal arguments and options is utilised, given the potential for a
lengthy prison term if a defendant is convicted.

Why do we Need Reforms in CJS?

From the perspectives of substantive justice an efficient criminal justice system calls for filtering
out what Packer referred to as the “factually guilty “cases from the “non-guilty” cases as early as
possible by police officers and prosecutors, who make decisions based on talking with witnesses
and reviewing the evidence.

Once this filtering process is accomplished, the case proceeds through successive stages until it is
disposed of. During the later stages, Packer said that officials operate on a presumption of guilt,
meaning that, based on earlier informal investigations, they assume that innocent individuals have
been weeded out.

Now this observation of Packer indicates an element of inadvertent prejudice of opinion i.e.
biased assumption of guilt of the instrumental agencies of CJS, towards criminality of person
accused of criminal conduct ultimately, leading to an inference that CJS somewhere down the aisle
coercive institution.

In order to better understand this situation of CJS, let us consider the following definition of criminal
justice, taken from Andrew Sanders and Richard Young's standard textbook on the subject. Criminal
Justice, as per them “is a complex social institution which regulates potential, alleged and actual
criminal activity within procedural limits supposed to protect people from wrongful treatment and
wrongful conviction”. Criminal justice practices, they go on to note, 'are inherently coercive'.

This focus on criminal justice as a set of often coercive social regulatory institutions, and not merely
a collection of 'crime fighting' agencies, throws a spotlight on the broader social purpose of criminal
justice, rather than merely considering its operations within the framework of a fight against crime
versus the protections afforded suspects.

But then criminal justice, as a social regulatory set of institutions, operates within a society
characterised by notable inequalities in wealth and power. What is the implication of this for the
operations of criminal justice? For Sanders and Young they are very clear. In a society in which
power, status and wealth are unequally distributed along lines such as age, gender, race, and class,
much criminal justice activity will compound wider social divisions. They go on to argue that the
'enforcement of the criminal law... reinforces a hierarchical social order which benefits some while
disadvantaging others.

To mitigate this hidden coercive element, we need reforms in criminal justice system while not
compromising on punishing the guilty.

To be more cautious before discussing the reforms, let it be emphasized over here that biasedness
and coerciveness can be towards victims of crime as well, based on the circumspection of the
dispute at disposal for example Mathura rape case. Biased assumption of guilt or Pre disposed
understanding of the case can be deliberate as seen in many cases of biased cases of concocted
investigation and false prosecution. This is more visible in case of weaker sections of the society.