The association of stigma is both an intended and unintended result of the operation of our criminal justice processes. It is intended because the criminal law performs a punitive function by qualifying a person as an “offender”. In doing so, the law proclaims the individual as deviant, unfit to function in a civil society. It is also unintentional because in reality the stigma attaches to the accused long before his conviction. In both cases, those accused or convicted of an offense in some way face ostracism, the impact of which has enormous implications for them and their families.
An arrest by the police in India is a grand spectacle. Take, for example, the arrest of Amitabh Thakur, a retired IPS officer, by UP police. The district alerted by a sudden appearance of men in uniform, the arrest was carried out by a team of ten police officers. Thakur was pushed and shoved into a police jeep. Without prejudice to his case, it can be said that as the music videos made the rounds on social media, Thakur was stripped of his dignity. If such treatment were meted out to a high-ranking officer, one can only imagine the fate of lesser mortals.
The right to dignity is now established as an essential facet of the right to equality and the right to life and personal liberty. Yet the functioning of criminal proceedings continues to have a chilling effect on the dignity of individuals. It is quite common to see people being casually summoned to police stations and made to sit for hours and even informally detained. This in itself is an attack on dignity. Wrongful convictions, prosecutions and incarcerations stigmatize many innocent people. Such stigma goes against the principle of the presumption of innocence.
Although it is argued that the threat of stigma is a deterrent to crime, such an argument finds little empirical evidence. On the contrary, such stigmatization has harmful consequences. As stigmatized people increasingly see themselves from the perspective of those who stigmatize, they begin to believe in these notions. In fact, criminological labeling theory states that being formally labeled as an offender or anything remotely associated with such a label leads to internalizing stigmatizing attitudes, withdrawal from conventional society and conform to a deviant identity. The formal labeling of the “delinquent” then becomes immaterial.
Recent policy approaches have focused on increasing the number and stringency of identity-related requirements for access to social benefits. These can include high levels of documentation, disclosure of personal information, intrusive investigations and even subjection to surveillance measures. An accused is subjected to scrutiny, pushing him to a lower level of self-esteem; his dignity, which our constitutional system seeks to protect as a basic human right, is under attack.
Stigma undermines the autonomy and personal independence of offenders, real or perceived. They are made vulnerable to abuse and harassment. These negative effects include the proliferation of legal and societal barriers that make it more difficult to find gainful employment, to secure a constant source of housing, and to generally function as an active member of society.
Another relevant example here is the sex offender registry. Although the same may have public and political support, there is little evidence demonstrating its effectiveness in reducing sex crimes. In the Indian context, the registry will do little for the huge number of sexual violence cases that go unreported. The criminal justice system is already understaffed and under-resourced. Diverting resources to the sex offender registry means fewer allocations for other measures to increase public safety, including the chances of reform.
The problem is magnified in the case of an offender who has served his sentence. Former prisoners face challenges on all levels. Ann Jacobs, director of the Prisoner Re-entry Institute at the John Jay College of Criminal Justice, explains that “a person’s successful reintegration into society can be viewed through their ability to adequately meet six basic life needs: livelihood , residence , family, health, criminal justice compliance and social connections. Meeting each need presents unique challenges, many of which can be interconnected.
Criminal records are much more readily available to the public than ever before. This was not the case in previous decades when there were many strategies to avoid the negative consequences associated with past contact with the criminal justice system. Despite much information available on criminal records, little is known about how defendants/convicts/ex-offenders seek to overcome the negative consequences associated with a visible criminal record when applying for employment, housing, and financial assistance.
Most inmates have limited education and work experience, which makes it difficult for them to find employment after release. According to Prison Statistics India 2020, nearly 35.4% of convicts and 41.4% of remand prisoners were illiterate. At the same time, nearly 41.4% of convicts and 36.5% of defendants have a level of education below secondary school. This, combined with a limited professional network and an obvious lack of resumes, can make it very difficult for ex-convicts to even get an interview with a potential employer.
Additionally, many job applications require the disclosure of prior criminal records, which inevitably leads to a feeling of bias on the part of the employer. Certain legal restrictions apply to ex-offenders when applying for certain jobs. These problems have a negative impact on their fundamental rights, including the right to equality, the right to equal opportunities and even the right to work with dignity.
There are many consequences of applying criminal justice processes that are unrelated to the original crime. Therefore, it is high time that we start thinking about major policy changes not only rehabilitating ex-offenders, but also pretending to run national campaigns to prevent stigma and discriminatory practices against a person arrested, a convict or even an ex-offender.