Alternative sentencing in Nepal

If you were to envision an ideal punishment system what would its components be? Penal system is an important measure, a component of the broader system that ensures the wheels of justice are in motion.  A robust punishment system is integral in turning justice from a vain ideal to a pragmatic reality but with time, it is also important to change the modality and the very aim of the punishment system itself. As important as it is to ensure that justice is done to the victims, it is equally important to be prudent in the reform and rehabilitation of the perpetrator. 

A much-needed solution to the prison problem? 

In Nepal, the prevailing mode of our penal system has relied on financial sanctions and incarceration.  As per the Prison Reform International, financial sanctions such as fines are prone to criminalizing poverty and further over-representation of an impoverished minority. In provisions where the person can either pay fines or face incarceration people who are pushed into crimes because of poverty have no choice but to face incarceration and their jail term that further jeopardizes their economic status thus, even though sentencing is done-it is not a rehabilitative measure. Thus, it is important to acknowledge that financial sanctions have a disproportionate effect and often, may confer an adverse effect to the rehabilitative intent of the criminal justice system. 

This puts out a question on the efficacy of our incarceration system. The recidivism rate is ever so higher in the year 2019, as per a report by the Kathmandu Post the crime rate too had increased by 40 percent. Similarly, the physical infrastructures of our incarceration systems are exhausted beyond their capacity. A report presented by The Prison International  showed that Nepalese prisons were occupied and exhausted beyond their capacity as the occupancy rate was 153 percent. The budget for prison is scant as it is and when the designated resources are already in a state of severe scarcity in the prisons, such undercutting is bound to compromise the living condition standards in prisons. Whereas, increasing the funding causes an unnecessary exhaustion of the state’s economic resources at the expense of its taxpayers—so in this scenario, an alternative sentencing measure can be the economically efficient and effective measure to the problems our penal system is riddled with. The state of internal mismanagement along with plethora of problems such as drug use inside prison have riddled our prison system with a plethora of problems making it a brewing ground for chaos. 

But is incarceration the only norm when it comes to punishing the offenders? It is necessary to debunk these assumptions on the incarceration system by facts not mere assumptions and necessary frameworks are required for a penal system that is effective and just to both victims of the crime and conscious of tenants of rehabilitative and restorative justice.  

Sentencing policies: Incentives or sanction based? 

A way to connect sentencing policies with community is by incentivizing community integration i.e., rather than modes of imprisonment and confinement the justice system has to rely on a mode of incentives and rewards so that the rehabilitative intent of the criminal justice system can transform into a practical reality. Policies on sentencing have advanced community-based approaches in contrast to conventional modalities of punishment that inform a pragmatic and theoretical basis as to why community-based sentencing ought to be prioritized. The Criminal Offenses Sentencing and Executing Act, 2074 governs provisions regarding sentencing modalities—the very act in its preamble lucidly puts that the legislation has been provisioned for the intent of creating a just, peaceful and safe society. The very act in its section 13 (d) and (e) lay out two of the primary principles behind punishment. On one hand it emphasizes that the intent of punishment is to rehabilitate and assist to improve and the consecutive section e. emphasizes on keeping the offender astray or separate from the society thus, it puts out a preventive and a rehabilitative intent.

The emphasis on policies that focus on the role of communities in rehabilitation and restoration by incentivizing community integration as a correctional measure is a step for making our punishment system more efficient and humane. In Nepal, the Criminal Offences Sentencing and Execution Act, has envisioned the provision for community service for offenses with up to six months of imprisonment. The act has embraced a modern reform to our criminal justice system by envisioning provision for open prison, parole and probation. Despite the provision of the act, the system of parole has been implemented from 18 Oct 2023 and it is also to be taken to note that parole is not an absolute right-it is a privilege extended to prisoners who meet the conditions prescribed. As per the department of prison some 1,600 prisoners are eligible for parole which indicates a positive policy measure on the part of the government to address the overcrowding issue of prison.

Although, alternative sentencing practices mark a reformist approach to conventional sentencing modalities that emphasize sanctions as opposed to incentive and a more holistic goal that aims to punish the perpetrators whilst being prudent of their necessity to rehabilitate and reintegrate into society. However, alternative sentencing too has to make place for victim centric justice and should be a measure to promote the common good as opposed to the interest of certain political kittas and their aides. Prisons, fines or other alternative modalities should be perceived as correctional facilities and measures rather than an inescapable oblivion and sentencing term should be a journey of redemption as opposed to an institutional purgatory. 

The author is pursuing BA LLB at Kathmandu School of Law