For humane prisons

The traditional neglect of jails is a result of a morally flawed assessment that incarceration is meant solely to be penal rather than reformative.

A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilised society.

Justice Anthony M. Kennedy, United States Supreme Court in Brown vs Plata (May 2011)

THE Tihar prison in New Delhi is very much in the news. With several celebrities lodged there, media focus is on how these important people are spending their time and under what conditions. Kanimozhi of the Dravida Munnetra Kazhagam (DMK) has hogged all the attention. But I thought the graphic description of her cell in a section of the media was mischievous and crude. The distinct impression one gained was that a certain sadism rather than enlightenment marked the reporting.

Why is the media suddenly interested in the goings-on in Tihar? Is some in-depth attention to general jail conditions all over the country not warranted at times when no prominent dignitaries are housed in jail? Governments alone cannot be expected to act to alter jail conditions. It must be remembered that politicians do not have much of a stake here because prison numbers and conditions do not make any difference to their electoral fortunes. The initiative should, therefore, come from the whole of society, aided of course by a well-intentioned, less-sensational and progressive media. Nothing short of this will work.

Traditionally, jails are neglected deliberately in most parts of the world, including the developed countries. This attitude derives from a morally flawed assessment that incarceration is meant solely to be penal rather than reformative.

The U.S., which preaches human rights to the rest of the world all the time, is one of the nations hugely delinquent in the matter. It locks up people for alleged crimes much more than any other nation. The current estimate is that it has 2.3 million convicts behind bars. (The corresponding figures for the United Kingdom and India are 85,000 and 380,000.) Some of these people are there for stealing a pair of socks or hand gloves!

A much-discussed recent U.S. Supreme Court decision bares all. My focus in this column is on that judgment, and I am hoping that one of these days our own apex court will come down heavily on governments in India for their indifference to what is happening to people held in jails. Indian jail conditions are no less miserable than those in the U.S., and the token administrative action here and there has helped only slightly.

Writing this piece from the U.S., I am convinced by the media attention here that the U.S. Supreme Court ruling will necessarily trigger a major nationwide debate on how to make prisons more humane than they are now. This is why I am anxious that the imprisonment suffered by Suresh Kalmadi, A. Raja and Kanimozhi should help provoke and crystallise public opinion in India, generate a much-needed informed discussion and also ignite some new thinking on a vital subject that affects our national image.

A few weeks, ago Justice Anthony M. Kennedy, a Reagan appointee to the U.S. Supreme Court and a native of Sacramento (California), authored a welcome judgment that will be recognised as a landmark in the history of criminal justice in the country. His five-four ruling on May 23 referred to the deplorable conditions in California's prisons as violative of the Eighth Amendment ban on cruel and unusual punishment. It directed the state to reduce the prison population by 30,000 so that the Constitution is respected. (The 33 prisons in California were built to accommodate a little more than 80,000 people. However, at any point of time, more than 140,000 people are packed mindlessly into a crumbling system, which is a scandal.)

Through his forthright ruling in Brown vs Plata, Justice Kennedy once again proved that he held the scale in the evenly divided court, whose members fall into two recognisable groups: liberal and conservative. Four of the nine judges Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan are generally looked upon as the more liberal of the distinguished team, and they voted wholeheartedly with Justice Kennedy. (Interestingly, there have been three other five-four judgments this term, and in all those, Justice Kennedy took the side of the conservatives.)

The Brown vs Plata judgment was perhaps greatly influenced by pictures of California prison inmates huddled into gymnasium-style rooms, which Kennedy described as telephone-booth-sized cages without toilets. It also cited the high suicide rate among California prisoners, which was 80 per cent higher than the national average.

It was not as if the U.S. Supreme Court gave a suo motu ruling. In Brown vs Plata it was merely upholding a federal court decision of 2009 on two class-action suits of 1990 and 2001 respectively. Significantly, the then California Governor, Arnold Schwarzenegger, was also convinced, even five years ago, that there was a state of emergency in California's prisons. The Kennedy ruling did not, therefore, come as a surprise to those who believed that the condemnable situation within California's prisons could not be tolerated any longer.

My friend and classmate at the Madras Law College in the early 1960s, Rita Gunasekaran, is a distinguished appellate lawyer who lives in Los Angeles. She points out that in Brown vs Plata, the U.S. Supreme Court describes in grim detail the appalling conditions that prevail in California's prisons. Rita Gunasekaran also states that given those findings, the court's decision that the overcrowding in the State's prisons must be alleviated is both just and humane.

Conservatives the world over look upon incarceration as something inevitable and feel that those who commit crimes against citizens and society as a whole deserve to be locked up by the state for as long as possible, if only to deter others from lapsing into delinquency and also to ensure that people can live in a low-risk environment.

This narrow view, which ignores the need to reform and rehabilitate criminals, was endorsed in Brown vs Plata by the four dissenting judges (Justices Antonin Scalia, Samuel Alito, Clarence Thomas, and Chief Justice John J. Roberts, Jr). Of the four, Justice Scalia was the most vocal and caustic. He referred to the concluding part of the majority judgment as a bizarre coda, which was nothing more than a ceremonial washing of hands by the Supreme Court. Justice Alito went further than this, saying that the majority is gambling with the safety of the people of California.

Shorn of its rhetoric, the judgment was not toxic or imbalanced. First, it gave at least two years for the orderly reduction of prisoner strength. Actually, in accordance with Assembly Bill 109 drafted by Governor Jerry Brown (successor to Schwarzenegger) as part of his realignment plan, only people convicted for non-violent crimes (perjury, bookmaking, drug possession, forgery, and so on) would be sent to the county prisons, thereby reducing the main State prison population by 30,000. This, too, would be done in stages. So the ruling will not result in any mass diversion of dangerous criminals into the community. Those released could include those who are literally dying from various ailments. I am told, in one instance, a prison was spending nearly $1,000 a day to keep a prisoner on dialysis. The Kennedy directive could help reduce greatly government spending on prisons.

One argument against early discharge is that recidivism among those released is very high. This masks the reality that prisoners relapse into crime even without the concession of a premature exit. What is needed is fresh thinking on how to prevent people from committing their first crimes. This is where my good friends Professor Lawrence Sherman of Cambridge University's Institute of Criminology, a renowned researcher in the area of evidence-based policing, and Peter Neyroud, a former U.K. Chief Constable and a distinguished scholar, come to our rescue. (Both of them currently guide Indian Police Service officers in the mid-career training programme held at the National Police Academy in Hyderabad.)

As a tool for the overall reduction of crime, prison does not work, says Sherman. Neyroud is of the view that a near revolution is needed in respect of classifying crime so that only those who deserve it are incarcerated and the rest are administered less harsh programmes which aim at rehabilitation. Basically, the two plead for a trinity of measures cutting prison numbers by 50-70 per cent, saving money, and keeping the public safer and claim that the programme they are constructing for the U.K. seeks to achieve this. Knowing as I do their immense capacity for scientific and honest research, I am sure they will come out with a practical formula that will achieve the difficult combination of less crime and more community safety. This is what we need in India, with its ballooning prison population that is 30 per cent in excess of the capacity of its more than 1,300 prisons.

The fact that people under trial contribute to nearly 60 per cent of those held in prisons is a matter of concern and shame. With rapidly improving affordable technology available for monitoring convicts outside the prison environment, we have to ask ourselves the question: Is prison the only answer to punish or reform those who lapse into crime? As responsible citizens we need to toss this up for public debate. If we do not do this, we are not only being cruel but dishonest as well.