Out of sight, out of mind?

CATHERINE HEARD

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IN 1996 the Supreme Court of India delivered a ruling in the case of Ramamurthy v State of Karnataka. It called for action to tackle torture, ill-treatment, overcrowding, delays in trials, neglect of health and hygiene, inadequate food and clothing, and deficiencies in communication and visiting systems in the state’s prisons. India’s prison population was then around 220,000. It is now almost 479,000: the fifth largest in the world.

In 2016, further Supreme Court rulings followed, grouped under the case heading, Re Inhuman Conditions in 1382 Prisons. The rulings ordered states to address the high numbers of under-trial prisoners (almost 70% of the prison population of India); improve access to lawyers and legal aid; and use funds more effectively to improve prisoners’ living conditions. The court declared that ‘prisoners, like all human beings, deserve to be treated with dignity.’

In each subsequent year since 2016, conditions in Indian prisons have been described in US State Department reports as ‘inhumane and frequently life-threatening’ due to inadequate sanitary conditions, lack of medical care and extreme overcrowding.

Our recent research has focused on a group of contrasting jurisdictions, of which India is one. In this essay, I will reflect on some of the learning from this research. I will argue that the Covid-19 pandemic should prompt a rethink of our ever-increasing reliance on imprisonment. Since the pandemic was declared in March 2020, prisons across the world have seen large numbers of infections, their environments being especially ill-equipped to take the social distancing and hygiene precautions urged on us by governments and public health bodies. Those held in overcrowded prisons are especially vulnerable to Covid-19.

India is far from unique in having a severely and chronically overcrowded prison system. Overcrowding affects the prison systems of over 60% of countries worldwide, with grave consequences for health, rehabilitation and community safety. The Covid-19 pandemic throws those consequences into sharp relief, while also making ever clearer the pre-existing health vulnerabilities of most prisoners – vulnerabilities which themselves reflect the social and health inequalities faced by the vast majority of the world’s prisoners, in developed and less developed countries alike.

 

Covid-19 has made particularly evident the permeability of prison walls, as the virus spread from prison staff to prisoners and back into communities, taking a heavier toll in areas where prisons are located.1 Just as it was impossible for prison administrations to keep the virus out, so, too, it is futile and dangerous to expect prison walls to contain the risk of crime or keep communities safe from harm.

It has long been known that prisons are epicentres for infectious diseases. Infections such as tuberculosis and even syphilis have been shown to spread rapidly between prisons and the community. We have found disturbing evidence of the impact of imprisonment on prisoners’ health. Prisoners have described extreme overcrowding (for example, 60 men sharing cells built for 20 in Brazil); inadequate medical treatment, with too few doctors to deal even with routine health issues let alone serious disease outbreaks; constant hunger; lack of fresh air and exercise; shared buckets instead of toilets; not enough fresh water or soap; even having to eat while seated on the toilet due to lack of space in a shared cell. These are the realities of prisons across the world.2

So, when the pandemic began to take hold in early 2020, it was clear that overcrowded prisons would present the ideal conditions for the virus to spread. Levels of infection and death among prisoners and prison staff in many countries have been notably higher than in the communities outside. In May 2020 there had been around 36,000 reported cases among prisoners in 56 countries and at least 690 prisoners had died. By early January 2021, there had been over 311,000 confirmed cases in 118 countries and over 2,700 deaths. These figures do not include prison staff, among whom infection rates in many countries have been higher than among prisoners.

These numbers will be the tip of the iceberg. With prison health systems in much of the world struggling to provide even basic healthcare, many sick prisoners and prison staff will not have been tested. And without routine and regular testing in prisons, numbers of a symptomatic inmates and staff will present a further, unseen risk to those within and beyond the confines of the prison.

 

Prisons are the end point in a process usually considered to begin with a person’s arrest by the police, although in reality the journey to imprisonment begins much earlier than arrest or criminal conduct. A complex array of factors – legal, procedural, systemic, but also political, socio-economic and cultural – influence who goes to prison, and how long they remain there. These diverse factors combine and conspire to produce a country’s prison population, and to exert upward and downward pressures on it. Although levels and types of crime do of course affect the size of a country’s prison population, they are far from the only factor: indeed, the correlation between crime rates and imprisonment is complex and highly contested among scholars in the field.

 

The India Justice Report, published November 2019, provides many insights into the causes and consequences of prison overcrowding in India today. Ranking the states and union territories on their performance across policing, the judiciary, legal aid and prisons, the report contains grim findings. Analysis of five years of official data revealed huge gaps between constitutional standards and on-the-ground reality. Enormous back-logs of pending cases, severe prison overcrowding, and disproportionate numbers of under-trial prisoners were identified as consequences of these failures.

The report highlighted something that researchers have found to be an invariable characteristic of criminal justice systems worldwide. The people who suffer most from state failures in delivering decent and humane justice systems are the socially and economically marginalized. It has long been the case in India that proportions of Muslims and members of some castes are much larger in national prison and arrest statistics than in the general population. Likewise, in Brazil, America, England, the Netherlands and Australia, we know that people from black, indigenous and other ethnic or faith backgrounds are grossly over-represented in prison populations.

This points to a pressing imperative to ask who is in prison and why they are there, and to consider what the answers to these questions reveal about our social, political and economic structures. These are questions for all of us, but they barely feature in public discourse: prisoners are ‘out of sight, out of mind.’

Incarceration as a response to certain forms of criminal activity is an unquestioned facet of current times, as it has been since at least the nineteenth century. Despite the large and enduring social and economic costs – for individual prisoners, their families, communities and wider society – there is no international consensus on the proper aims and objectives of imprisonment. Most legal systems do not specify the purposes that imprisonment should serve, or the mechanisms which can help ensure those purposes are met.

 

If we find it so difficult to identify the purpose or role of an institution – particularly one with so many adverse consequences for individuals and society – what does that imply about its legitimacy? Perhaps we do not ask this question because of the widely held assumption that we need prisons and that their supposed functions cannot be performed by any other means. But what purposes can imprisonment reasonably and realistically be expected to serve? They may be more limited than is commonly believed.

Theorists have advanced the following putative objectives of, and justifications for, the use of imprisonment: (i) punishment or retribution; (ii) denunciation of wrongdoing; (iii) deterrence; (iv) incapacitation (to manage risk and protect against further harm); and (v) rehabilitation or re-socialisation.

Before addressing prison’s capacity to meet these objectives, I would pose the question whether any custodial setting could in reality achieve rehabilitation. Undeniably there are a few countries (for example, the Netherlands, Sweden and Finland) where prisons are exceptionally well resourced, with large numbers of highly qualified staff striving to create humane, supportive living conditions. Prison is treated as a last resort: when custodial sentences are used, they tend to be short. These countries’ reoffending rates are low compared to those in England or the USA.

Putting this aside, even if we accept that each of the above objectives of imprisonment are, in themselves, capable of providing some justification for its use, how much weight should we give to each one? To what extent should punishment take precedence over rehabilitation – or vice versa? Too much credit is often given to the power of imprisonment to deter and to reform (objectives that are ‘talked up’ by politicians). Less attention is given to prison’s poor record in preventing or deterring crime, or to its numerous adverse effects on individuals, families and communities.

 

What would help is principled guidance on the relative weight and value to be ascribed to the supposed goals of imprisonment, informed by the evidence of its harmful effects and of the capacity of other approaches to meet the same goals. For present purposes, here are some brief observations on the shortcomings of imprisonment in meeting its supposed objectives.

As to punishment or retribution, even if one accepts that curtailing a person’s liberty is a necessary means of achieving these objectives, the use of imprisonment is open to criticism for going further than is usually necessary or proportionate. Moreover, imprisonment punishes not simply through the deprivation of liberty: in India, as in much of the world, that aspect of imprisonment is the least harmful one. Violence, intimidation, separation from family, untreated health problems, and worsening mental and physical health are also part of the lived experience of custody. After release, for many, the punishment continues, with lasting social stigma, diminished job and housing prospects, and weaker family and community ties.

 

With regard to denunciation, this is also achieved – potentially with much less collateral damage – by sanctions other than incarceration, such as community service, unpaid work, or a fine. The fact of a conviction and the resulting criminal record in themselves carry personal stigma, while the greater and lasting stigma associated with time spent in prison is often a major barrier to social reintegration. In the Netherlands and other Northern European states, fines and unpaid work penalties are used in cases that would, in many other countries, attract short prison sentences.

Research evidence on the (general or specific/individual) deterrent effects of imprisonment suggests that they are limited: certainty of detection and punishment is more likely to deter than the threat of imprisonment. In many jurisdictions, high levels of repeat offending by people who have been to prison point to custody’s limited impact on behaviour at an individual level. Deterrence theory also fails to account for impulsive or irrational motivations, unmet mental health needs, the influence of drugs and alcohol, or the role of poverty and weak welfare or social support – all factors known to underlie much offending.

In many cases, the objectives of incapacitation and risk management can be achieved at less cost and with less harm through curfews, house arrest, affordable bail, or other forms of restriction or control. There will always be some offenders who present serious risks to the public, who should be in prison for as long as that risk exists and can be managed by no other means. However, the number of people falling into this category is small – in many countries no more than a fraction of those actually in prison.

The supposed rehabilitating or re-socialising purposes of imprisonment are perhaps the most problematic. It is uncontroversial to hold that law-breakers can be ‘reformed’, for example, through programmes and support that encourage them to take responsibility for the harm their offence has caused, address the reasons for their conduct and receive educational or vocational training towards a better life after release. However, it is inherently contradictory to expect custodial settings to fulfil these purposes, involving (as they typically do) separation from family and community, hours of confinement in cells, forced cohabitation with other convicts, and exposure to harsh and sometimes violent conditions.

 

Given these objections, are there other criminal justice tools capable of achieving the same goals? Alternative sanctions and measures like probation supervision, unpaid work orders, curfews and electronic monitoring are the main examples of non-custodial measures in operation today in much of the world. In most cases, they are, at least in principle, capable of meeting all five of the objectives discussed above. If used sparingly and in a way that is tailored to the individual, non-custodial alternatives have a part to play in preventing excessive resort to custody, both at pre-trial and sub-sequent stages. Rehabilitation and reform are notoriously difficult to bring about in prison, but have better prospects in the community.

Only the objective of incapacitation might arguably, in certain circumstances, necessitate use of incarceration. The question then arises as to how the prison sentence – not only its length but also the way it is experienced by the individual – should be calibrated to match the risk it is deemed necessary to manage. This difficult question often becomes highly politicized; for present purposes, two points deserve mention.

First, we have seen huge increases in the use of life sentences and mandatory minimum sentencing in many countries in recent years (often after use of the death penalty has ended). These harsher, more arbitrary sentencing regimes have greatly increased prison populations. In India today around half of all convicted prisoners are serving what are in effect whole life sentences. Secondly, a minority of countries do not use life or other indeterminate sentences at all, or do so exceptionally rarely. Our research on sentence disparity shows that a 23 year-old first time offender convicted of intentional homicide would, if sentenced in India, probably receive a whole life sentence, but if sentenced in the Netherlands, a custodial term of under 12 years would be the most likely outcome (perhaps with a stay in a psychiatric treatment centre to follow).

 

Many people who do not read criminal justice statistics tend to assume that prisons are full of people so dangerous, who present such a risk to public safety, that incapacitation is the only possible response. The reality is very different. In most countries, large numbers of people entering prison every year have been charged with non-violent crimes such as theft or the possession of drugs for personal use. Non-custodial alternatives are frequently cited as a better response in such cases.

We should, though, be cautious about seeing wider use of such measures as a panacea in the Indian context. Importing approaches from other jurisdictions can be problematic in itself: one size certainly does not fit all. The frequent call for alternatives to custody as a way of reducing prison populations in countries where large numbers of people are in prison for relatively low-level offending is, in particular, worth questioning. Do we really want to see those countries implementing widespread use of electronic monitoring or unpaid work programmes, when research shows that these measures have done little more than widen the net of criminalization and stigma in England, America and the many other countries where they now proliferate?

 

Do we want all the apparatus of a probation system if it is, in effect, little more than another layer of social control carrying significant costs to the state – and burdens for those subject to it? The evidence from America and Europe shows that they have failed to make a dent in prison population rates, and have even increased prisoner numbers when prison is used routinely to punish non-compliance with supervision. Although there may be a case for greater use of electronic monitoring to reduce unnecessary pre-trial detention, this should be approached with care even in this more limited context.

Similarly, do we wish to see case backlogs cleared through use of fast-track justice and all it might entail? Plea and charge bargaining, sentence discounts for guilty pleas, on-the-spot penalties, and the myriad other forms of summary justice seen in many parts of the world have done nothing to drive down imprisonment rates. They have disproportionately impacted the poor and marginalized and simply served to entrench inequalities that have weighed communities down for generations. Suspects who can afford good lawyers end up getting community sentences, while the vast numbers who cannot are more likely to go to prison.

The post-pandemic environment will see public expenditure plummet across all sectors, justice included. Instead of reaching for costly technological solutions or fast-track justice schemes to address case backlogs and reduce incarceration levels, the first priority should be to drive down the volume of cases passing through the formal criminal justice process.

There may be scope to decriminalize some forms of conduct altogether. In much of Africa, the prosecution of less serious, non-violent offences contributes to clogged justice systems and high levels of overcrowding and pre-trial detention. In a bid to address this problem, the African Commission in 2017 adopted the Principles on the Decriminalization of Petty Offences in Africa. The principles recognize that such offences tend to undermine people’s ability to self-sustain, mandating criminal justice responses to socioeconomic problems. In India, too, this is a problem. There have been increases in convictions under ‘special and local laws’ (as distinct from offences set out in the Penal Code). Offences typically involve sale of illicit alcohol, marijuana and lottery tickets.

It is also vital to scrutinize proposed new offences to assess their likely impact on prisoner numbers and arrest rates. An unwelcome development in this regard was India’s Citizenship (Amendment) Act. This served to increase detainee numbers by several thousand while doing nothing to improve social cohesion or community safety.

 

In 2003, in a lecture at Harvard’s Kennedy School of Government, Angela Davis said: ‘Our most difficult and urgent challenge to date is that of creatively exploring new terrains of justice where the prison no longer serves as our major anchor.’ In 2008, America’s total prison and jail population peaked at a staggering 2.3 million. Perhaps the most shocking part of the American story is the sheer speed of that growth: in 1980, the prison population had stood at around half a million.

Billions of philanthropic dollars are supporting America’s push to end mass incarceration and re-channel the roughly US$100 billion spent on policing and US$80 billion spent on prisons annually. The justice reinvestment approach has been part of this. It involves mapping locations hit hardest by crime and criminalization, and funding the health, education, housing and other community needs in those areas, instead of criminal justice interventions. Perhaps most importantly, the contribution made by the Black Lives Matter movement has been enormous, revealing the deep social and economic scars left by the mass criminalization and incarceration of black communities.

 

America still has a long way to go. Despite significant falls, its prison population remains the highest worldwide, at 639 per 100,000. The attacks on George Floyd and Jacob Blake and the protests that followed are the latest in a line of reminders that the country’s black community still bears the brunt of state violence in the form of brutal, dehumanizing law enforcement. The jail incarceration rate of black/African Americans is still over three times that of white citizens. Demands in some states to ‘de-fund the police’ suggest that the justice reinvestment programme did not go far enough.

By American, and indeed international, standards, India’s prison population rate is low: indeed, one of the lowest in the world, at 35 prisoners per 100,000 of the population. This is no cause for complacency. The prison population rate is higher today than it has ever been, as is the total number of prisoners, far too many of them under-trials. This unrelenting upward pressure on the prison population has had devastating consequences for health and rehabilitation. The India Justice Report revealed serious deficiencies in numbers of prison medical staff levels across virtually all states, with some prisons lacking a single medical officer.

 

So, what of justice reform and the wider political context that shapes it? As Einstein observed, in the midst of every crisis lies great opportunity. Can we hope for a silver lining from the Covid-19 cloud, in the shape of a health-informed approach to criminal justice reform? In March 2020, when the pandemic was declared, some countries moved decisively to reduce prisoner numbers in order to minimize the risk that overcrowded conditions would present. For this and other reasons related to the pandemic, it is likely that prisoner numbers across the world will fall during 2020-2021, following decades of growth. If these lower levels can be maintained, cost savings could be reinvested in health and social interventions known to reduce crime.

Perhaps, too, the pandemic will prompt us to demand better from our politicians. Voters may tire of the strongman or ‘charismatic’ leadership style embodied by Trump, Bolsonaro, Johnson and others, with their disregard for science and experts, even in the face of a devastating health crisis. The new public enemy is a virus that does not stop at borders and does not recognize uniforms: unlike economic migrants, Muslims or other convenient targets, it cannot be walled off or legislated against. Covid-19 has revealed our shared human vulnerability, showing that we cannot build walls to contain or keep out every risk. It may serve to illustrate that ‘out of sight, out of mind’ is a flawed strategy for keeping communities safe.

 

* The research team headed by the author monitors trends in world prison populations and examines the causes and the consequences of rising levels of imprisonment. A core component of the programme involves compiling and hosting the World Prison Brief – a unique database that provides free access to information about prison systems throughout the world. (All prison population data in this essay are drawn from the World Prison Brief site and reflect the latest available figures as at early January 2021. Country information is updated on the website on a monthly basis, using data largely derived from governmental or other official sources. At https://www.prisonstudies. org/.) For 20 years the Brief has been collecting and publishing the best available data on prison populations and reporting on trends in imprisonment worldwide. Today, it provides data for all but three countries in the world. (Those countries are Somalia, Eritrea and North Korea. Not all countries publish data on all categories of prisoner: notably, for example, China does not release information on people held in either pre-trial imprisonment or ‘administrative detention’.)

Footnotes:

1. In the USA, several studies have demonstrated the significant capacity for community spread of COVID-19 infections in areas with jails and prisons. See M. Ollove, ‘How COVID-19 in Jails and Prisons Threatens Nearby Communities’, 1 July 2020, Stateline, at https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/07/01/how-covid-19-in-jails-and-prisons-threatens-nearby-communities/

2. C. Heard, ‘Towards a Health-Informed Approach to Penal Reform? Evidence From Ten Countries’, Institute for Crime & Justice Policy Research, London, 2019. At: https://prisonstudies.org/sites/default/files/resources/downloads/icpr_prison_health_report.pdf/

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