Changed Without Changing Our Thinking Criminology Essay

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No social institutions as complex as the criminal justice administration system can be expected to serve a single function or purpose at all points of time. Being multi-valued and multi- purposed enhances its efficiency and equips it to serve better with foresight. Values and purposes may at different occasions prove inconsistent and produce conflicts and tensions. [1] However, rendering a philosophical orientation to suit only few or limited purposes for all the times to come will inevitably prove biased, unfair and unworthy.

From the time when man started to live as a society, punishing a deviant has been considered indispensible for its existence. Since then, different theories rendering justifications and rationalizations for punishment has been surfacing. [2] The idea of rehabilitation, which endeavors to correct an offender while in prison, has been neglected by the criminal justice system for long. The safety and security of the community and its retributive mentality has throttled a prisoner's keen desire and attempts to start afresh a new life. [3] 

However, prisons today are no longer considered as just punitive places. Rather they are termed as correctional homes. The International Covenant on Civil and Political Rights, propounded by United Nations in 1966, has clearly stated that the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. [4] Keeping in view the long term protection of society from criminal attack, sincere and laudable efforts have been taken for the reformation, rehabilitation and ultimate reintegration of the prisoner with his society. The employment of various corrective modalities like medical, psychiatric, educational, recreational, moral, religious and community based programs has helped the prisoner in reckoning his mistake and effectuated his re-entry to the society in a more meaningful way.

Conjugal Visitation Programmes have been part of the correctional field of many countries for decades. Its desirability, capability of addressing both the offenders and his family's concerns and implementation has been written, debated and discussed. Though just in the stage of contemplation, India too seems to have entered this debate with some High Courts and Prison authorities asking the State Governments to consider implementing this correctional tool in prisons. [5] 

Tough, it might seem for the policy makers in India to conceive such policy adjustments especially when the society is living through an increased fear of violent crime. But this is no excuse to learn and analyze the desirability of such initiatives to assess its suitability in the Indian societal context.

This paper makes humble attempt to find a justification, if any for introducing such measures in India. Such an exercise is carried out by navigating through the arguments advanced in its favour and opposition in the countries where it has already been implemented. An attempt is then made to check if its introduction is a feasible idea in our prisons toiling with issues like overcrowding and budget constraints.

II RATIONALE IN SEEKING REFORMATION AND REHABILITATION OF PRISONERS

The administration of criminal justice has always been dominated by one philosophy of punishment or the other. In the words of Herbert L Packer, today as always criminal law is caught between two fires. [6] The views that punishment of the morally derelict is its own justification and the only proper goal of criminal justice system is prevention of antisocial behavior have been contesting for a long time. However these are not the only views which hold the stage. Imprisonment today aims not just retribution or deterrence, but reformation too. Thus there has been a shift from the crude philosophy of combating barbarism with barbarism to understanding the reasons which prompted the criminals to commit the crime. In short, this is an advancement from offence oriented path to an offender oriented one.

The birth of the rehabilitative ideal is accompanied by the development of scientific disciplines concerned with human behavior. [7] Punishment is seen as a tool to prevent crime by changing the personality of the offender and making him confirm to the dictates of law. Rehabilitation theorists thus maintain that the offender's anti- social attitudes and his criminal behavior pattern can be changed by planned interventions including therapeutic, educational and community based programmes, so that he/she becomes less dangerous to the society and thereafter a useful citizen. [8] Thus the goal of reformation sought by this concept is not to benefit merely the prisoner but the society itself.

However, there are many dilemmas and confusions which arise when the reformation and rehabilitation of the offenders is sought to be achieved. The proponents of retributive and preventive schools of punishment lament that the rehabilitative ideals tend to threaten the very existence of criminal law today. [9] It is contended by many that social response to delinquency and crime is still commanded by the retributive position and it may be only in the intellectual circles that its strength is withering. This, they say is affirmed by a look at the language of punishment.

A criminal is said to be 'paying his debt to society' and satisfaction or dissatisfaction is expressed when a criminal 'gets what is coming to him' or 'gets off lightly'. [10] When the prime accused in the Delhi Gang Rape case committed suicide news papers, 24 X 7 news channels and social networking sites were abuzz with expressions like 'he cheated the gallows'. Police, Public prosecutors and Judges see themselves as the voice of community's demand for retribution. [11] Dilution of deterrence effect of punishment is also a concern for the opposers of rehabilitative ideal.

However, rationalizing punishments by merely sticking on to retributive ideology will not reduce crime, but only make the society more violent. Society has gradually started understanding that the act of punishing the offenders alone cannot wipe out the social and individual harm caused by the crime. [12] Medical and scientific studies have been demanding us to address the crime and delinquency problem in a wide context taking into consideration the social, cultural and psychological background of the deviants. They say that this concern shown for reformation of the criminal will eventually benefit the society itself. However one cannot look down the importance of deterrence effect of punishment. But deterrence purpose of punishment stands served by the fact of punishing itself. The precise issue which then arises is the nature of treatment meted out to prisoners while serving their punishment.

This is especially important in a country like India where death penalty is given only in the "rarest of rare" cases [13] and there exists a power to commute sentences granted to the Central and State Governments [14] . Further, formalization of the concept of individual liberty allows us to keep a prisoner behind the bar only for that period of time statutorily recognized in proportion to the offence he committed. Thus the criminal will ultimately return to the society after serving his punishment. So, it is in the benefit of the society that a criminal does not turn into a hardened one, create more havoc and drain more of taxpayers' money.

Problem arises in seeking the justification for rehabilitative ideal just from an offender's perspective. Instead a rationalization expressed in terms of preventing further harm and of eventual benefit to incur to the society will only strengthen the rehabilitative ideal. Concentrated efforts at influencing the future behavior of convicts is not forgetting but enhancing the primary objective of criminal law. Conjugal Visitation Programme is viewed as one of such efforts.

III HISTORICAL OVERVIEW OF CONJUGAL VISITATION PROGRAMME

Conjugal Visitation Programme is a rehabilitative tool used in the correctional arena of many countries. Before venturing into a historical overview of Conjugal Visitation Programmes, there has to be some understanding of the true meaning of 'Conjugal'. Though a term often used as a synonym for sex, it encompasses much more. There are certain rights inherent to marriage and sex is but one component of these rights. Conjugal rights enable married persons to enjoy associating with one another, sympathizing and confiding together. [15] 

Though not practiced in Federal Prisons, such programmes also known as Extended Family Visitation programmes exists in prisons of six States of United States of America: California, Connecticut, Mississippi, New Mexico, New York and Washington. Though not expressly mentioned in their policy directives, some other states, like Colorado, Nebraska, and South Dakota also provide for Extended Family Visits in some of its facilities. [16] 

Interestingly, one finds that the origin of the system of Conjugal Visitation has been linked with controlling the aggression of black inmates and increasing their productivity rather than reforming them for their eventual reintegration with the society. It had an informal beginning in the Mississippi State Penitentiary in Parchman in the 1900s and no formal records exist as to its actual onset. [17] 

It was believed that the black inmates had insatiable sexual appetite and only by providing for that they can be controlled and their 'super human strength' be utilized for increasing their material productivity. Since the inmates did not receive any wages for working in the cotton fields, these were incentives for increasing their productivity. As these programmes were considered just as a means to facilitate sexual release, even prostitutes were brought in every Sundays to satisfy the unmarried black inmates. It was only later in 1940s when these programmes started to be realized as effective tools for securing family ties during incarceration that this privilege, restricted to black inmates were extended to white inmates. [18] 

Professor Hopper explains that it is unusual that such a liberal initiative had its origin in a state known for its conservative ideology. He attributes this odd relationship to the rural set up of the state, plantation styled social system, economic motivation, the small camp infrastructure, respect for family unit and the segregation of the races at the time of inception of the programme. [19] 

Today the Mississippi Department of Corrections encourages both family and friends of prisoners to take part in the Three Day Family Visitation programmes. Emulating the successful implementation of these programmes in Mississippi, such initiatives were launched in California state prisons in 1968 and New York State prisons in 1971. However it is not a privilege extended to every prisoner. There are several criteria to be fulfilled both by the prisoner and the visitor. For e.g. the prisoner should have a clear record; should have undergone a stipulated period of his sentence; should be in medium or minimum security etc. [20] Visitors must also qualify for eligibility by showing to be on the prisoner's approved visitor list, providing a proof of relation, passing a background check, dressing decently and appropriately etc.

The development of a philosophy of corrections based on the social integration of offenders by reinforcing the role and status of an offender as a parent, son, partner and citizen lead to the introduction of Private Family Visiting programmes for the correctional facilities in Canada in 1980. Until then such a measure was spotted in 1960s in some provincial facilities for offenders serving a sentence of less than 2 years. Article 71(1) of The Corrections and Conditional Release Act, 1992 categorically states that "in order to promote relationships between inmates and the community, an inmate is entitled to have reasonable contact, including visits and correspondence, with family, friends and other persons from outside the penitentiary, subject to such reasonable limits as are prescribed for protecting the security of the penitentiary or the safety of persons."

The Correctional Service of Canada(CSC) allows inmates with Private Visiting Programmes lasting up to 72 hours and these may be provided very two months subject to the availability of facilities. At present, anyone sentenced to more than two years in prison can avail the benefits of this scheme subject to their fulfilling certain criteria. [21] 

In Dickson v. United Kingdom (Grand Chamber), [22] European Court of Human Rights observed that more than half of the contracting states allow for conjugal visits subject to different restrictions. Though it expressed its approval for the evolution of such programmes in various European countries, it did not interpret the European Convention on Human Rights, 1950 as requiring contracting states to make provisions for such visits. [23] 

Interestingly, 24 hour long conjugal visits are permitted to married prisoners in Saudi Arabia every month according to the Sharia laws. [24] 

Having adopted a law in 2003 banning discrimination based on sexual preference, Mexico whose conjugal visitation programmes are not restricted to married prisoners allowed the same for gay prisoners in 2007. [25] Also, the Supreme Court of Costa Rica in 2011 struck down as unconstitutional the latter phrase of Article 66 of Costa Rica's Technical Penitentiary Regulations which guaranteed the right to 'intimate visits', but specified that the inmate's visitor 'must be of the opposite sex'. [26] 

It has been often challenged in American and European Courts that there is discrimination in the implementation of such programmes for HIV infected prisoners. [27] Inmates who are known to have the virus are denied the conjugal privilege if their partner is not infected. In the prisons of Mississippi if both the inmate and the spouse are HIV positive, they may be allowed the visits if the Commissioner of Corrections grants a written petition. However if the spouse of an inmate was a non-infected person but still desired to participate in the program, then upon petitioning the Commissioner and stating in writing that the couple will practice safe sex, this type of visit was allowed by the Commissioner or his authorized staff in 1970s. [28] However, today Mississippi Department of Corrections states that inmates who are identified to be at risk of transmitting HIV or any other sexually transmitted disease (syphilis, gonorrhea, etc.) to a non-infected person are not eligible for conjugal visits. [29] 

A comparison of the existing Conjugal Visitation Programmes in Canadian prisons, Washington State prisons and California State prisons highlighting their important characteristics is made using the table below. [30] 

CANADA

WASHINGTON STATE PRISONS

CALIFORNIA STATE PRISONS

Known as

Private Family Visiting

Extended Family Visiting

Family Visits

Objective

To encourage inmates to develop and maintain family and community ties in preparation for their return to the community

To support building sustainable relationship important to offender re entry and to provide an incentive for those serving long term sentences to engage in positive behavioral choice, therefore reducing violent infraction.

Maintaining connections during incarceration and enhancing the prisoner's success both while in prison and after release.

Implemented by

Correctional Service of Canada

State of Washington Department of Corrections.

California Department of Corrections and Rehabilitation.

Duration

Normally upto 72 hours.

No less than 24 hours and no more than 48 hours

Last approximately 30-40 hours.

Frequency

Normally every two months

On the basis of availability. However an offender may not have an EFV more frequently than every 30 days

Restricted by availability. Usually 1 visit every 3-5 months.

Eligibility of Inmates

Inmates are eligible for private family visits unless they are:

at risk for family violence;

participating in unescorted temporary absences for family contact purposes;

in a Special Handling Unit, or recommended or approved for a transfer to a Special Handling Unit; or

in disciplinary segregation at the time of the scheduled private family visit.

Offender should be serving 5 years or more in prison on his/ her current sentence is eligible to apply after 12 consecutive months in prison.

Offender serving less than 5 years on his current sentence eligible to apply after 6 consecutive months in prison,

Prisoner on death row or assigned to maximum / close custody level is excluded.

Must not have found guilty of any of the enlisted infractions in the guidelines.

Offender must be actively participating in his/ her Individual Reentry Plan and school/ work assignment.

Offender must not be housed in prehearing confinement, disciplinary or administrative segregation or Intensive Management status.

Must not be a suspect in other crime or have outstanding charges levelled against him

Should not have any documented history of domestic violence.

Offender with sex offence and serious violent offence needs special permission from Assistant secretary of Prisons.

An HIV positive prisoner should satisfy additional requirements and undergo counseling.

Prisoners on Death Row, with life sentences, with convictions for sex offences, or under disciplinary restrictions are not eligible for family visits.

Based on the conviction, certain restrictions are placed for meeting a minor visitor.

Eligible visitors

Immediate family(include a common law partner; or

Individual with whom the inmate has a close personal relationship, including a common law relationship.

The visitor must sign a "statement of voluntary participation and consent" and meet with the officer in charge of the case, who determines whether the person is entirely willing to participate in this type of visit and is not under any pressure to do so. The same officer evaluates whether "the relationship is well-grounded, stable and beneficial".

Immediate family only (includes state registered domestic partners).

Applicant should not be an offender in any correctional facility at the time of application. Special permission required for previous offenders.

Unless exception is granted by the Superintendent subject to the concurrence of applicant's Community's Correction officer, the visiting applicant should not be under any supervision of the Correction Department including probation or subject of pending felony or drug related charges.

The applicant must not have testified against the offender in any crime of conviction.

The applicant cannot have any active 'no contact' or protective order judgment against the offender.

He/she must confirm his desire to participate in a written statement.

Special requirements to be fulfilled by minors.

Restricted to approved visitors who are immediate family members (parents, children, siblings, legal spouses, or registered domestic partners) of the prisoner.

Certain attire restrictions are placed on the visitors. There are specifications about the colour of dresses allowed, hair-put etc.

Place of Visit

Special units within the confines of a correctional institution are provided. Most units are simple two-bedroom structures with a combination kitchen and living area.

Visiting unit consists of mobile home/ similar structure consisting of at least 1 bedroom, kitchen, bathroom and living room.

Private, apartment-like facilities on prison grounds.

Regulations

A visit may be ended at any time during the visiting period on the request of the inmate or visitor. Institutional staff may also terminate or suspend the visit at any time if it jeopardizes the security and safety of the institution, and/or the safety of an individual; or if it is believed that a criminal offence has been planned or committed. However, the inmate and the visitors will receive written notification of the reasons for any decision that is made, and given an opportunity to present their case.

A follow-up interview with the visitors will be conducted by an officer. The objective is to identify any unusual incidents which may have occurred during a visit and to assess any changes in and/or benefits to the inmate participating in the PFV.

EFV will be charged $ 10 for ever night.

Disciplinary actions including administrative segregation if the offender jeopardizes the security of institution or other inmates.

Provision for appeal on denial of permission to participate in EFV.

Prisoners and visitors are subject to having their visits terminated and/or suspended for rule violations and prisoners may also be disciplined for violations. Serious rule violations (for example, bringing drugs or weapons to the prison or engaging in sexual contact in the visiting room) can result in terminations, suspensions, and discipline even without warning.

One sees that this rehabilitative tool has been successfully implemented in many States of USA, Canada, European (Denmark, France, Spain, Germany), Latin American (Mexico, Brazil) and Asian Countries (Saudi Arabia, Israel, Russia, Pakistan, Afghanistan).

IV PROS AND CONS OF CONJUGAL VISITATION PROGRAMME

Researches and experiments conducted worldwide acknowledge that strong community support system plays a vital role in the successful reintegration of a prisoner with the society after his incarceration. Meaningful interaction with significant persons in his/her life through Conjugal Visitation Programmes contributes a lot in effective realization of rehabilitation, reformation and reintegration of the prisoner. An analysis of the arguments leveled for and against such programmes in the countries where it has been a part of the correctional system for decades will help us in enlightening ourselves and opening a debate as to whether such programmes are needed and desirable in our prisons.

Arguments advanced by those advocating and opposing conjugal visitation programs range from being rational and reasonable to illogical and insensate. The most important arguments advanced in favour of such programmes in countries where such experiments have been undertaken for years concern securing family ties, combating forced homosexuality and its associated violence in prisons, post-release success and behavior control. [31] 

Securing Family Ties

It is a well known fact that incarceration takes a heavy toll on the stability of family ties. While normal visitation programmes are available in many jurisdictions, the formal nature of these visits in the immediate presence of prison guards does not help much in maintaining marital stability. While many argue from the point of view of a prisoner i.e. his emotional and sexual frustration accompanied with fear of severance of marital ties, one forgets to appreciate that there is a concurrent punishment imposed on his family too. Some commentators take this point further and argue that these hardships constitute a punishment that is imposed on a legally innocent person and therefore there is a violation of civil rights. [32] 

In US, attempts were made to give these arguments advanced both from prisoner's and his spouse's view a legal footing. [33] In first of such cases, Paynes v. Columbia [34] , the appellant, wife of an incarcerated prisoner sued for damages and a declarative relief granting her the right to have conjugal visits with her husband in prison after alleging that she was personally denied fundamental rights without due process of law. The Circuit Court rejected her claim for 'failure to state a claim upon which relief can be granted'.

In Tarlton v. Clark, [35] the appellant a federal prisoner argued that he had been denied the protections of the Eighth Amendment to the Constitution of the United States, which prohibits cruel and unusual punishment, as the prison failed to allow him to engage in sexual intercourse when his wife visits him. The court held against Tarlton, saying that the claim for sexual relations with his wife 'does not come up to the level of a federal constitutional right so as to be cognizable as basis for relief in a federal court'.

In Stuart v. Heard, [36] a Texas court relied largely on Payne and Tarlton to deny a prisoner's challenge to a statute which required separation and segregation of prison inmates according to sex, holding it not to be violative of Eighth Amendment. The court while conceding that the plaintiff's argument for private facilities for conjugal visits 'may not be unreasonable', ruled that 'conjugal visitation is neither a federally protected right, nor does it present a claim upon which relief may be granted'. It further stated that 'such rehabilitative measures are roads upon which legislatures alone should tread'.

In Lyons v. Gilligan, [37] the prisoners not only raised the Eighth Amendment prohibition against cruel and unusual punishment, but also asserted that forbidding conjugal visits infringed upon inmates' and wives' constitutional right to privacy. However the District Court of Ohio rejected both these arguments. Court stated that 'the Eighth Amendment prohibition does not reach so far as to require the state to ensure against hardships caused to third persons as a result of the incarceration of one convicted of a crime'. The court further stated that 'the absence of conjugal visiting is merely a customary concomitant of the punishment of incarceration'. In response to the argument of infringement of right to privacy, court held that there is a difference between governmental intrusion to home and administration of prison. It concluded that evolving reform in penological practices is not per se translatable into a constitutional right. [38] 

In Virgin Islands v. Gereau, [39] a District Court in Virgin Islands permitted conjugal visiting for pre-trial detainees who were held for long periods in maximum security. Though not of much help to convicted prisoners, this decision carries great significance.

Combating Forced Homosexual Behaviour

The most pronounced reason advanced by those advocating for conjugal visitation programmes is that it reduces tensions of forced homosexual behavior in prisons. It is often said that prisoners leave their orientation at the gates before entering the huge cages. The imposed unisexual atmosphere forces development of homosexual desires and acts by those who were formerly heterosexuals. Often sexual tensions turn into fights among men who force upon fellow prisoners, so as to release their frustrations.

It should be noted that to oppose nonconsensual prison homosexuality is not to oppose the freedom of very person to choose his/her sexual orientation. The coercive nature of prison sexuality demands opposition. [40] It is opined by many that allowing prisoners to participate in conjugal visitation programmes will attenuate such 'acting out'.

This issue which has been widely written and discussed however is not without opposition. It has been suggested by many that prison homosexuality is not related to heterosexual deprivation, but is an attempt to express the urge for mastery by people in a position of powerlessness. They further opine that since the frequency of conjugal visits permitted is less due to practical considerations, its effect on controlling non consensual homosexual behavior is minimal. [41] But these arguments have not stopped more and more prisons around the globe from undertaking and experimenting such initiatives, as it has shown successful results in many prisons.

Post Release Success

When prisoners evaluate their experiences and attitudes in a hostile environment where everyone is defensive, their post release adjustment, rehabilitation and reintegration becomes difficult. By preserving social and family ties, as much as possible, such visits helps the offender in reaffirming his role as a father and a citizen and work as stabilizing factors working towards the prisoner's rehabilitation. Feeling less alienated, he can begin his after-prison life in a focused manner. Looking at prisons merely from the eyes of a retributionist, would not serve the interests of either the taxpayer or criminal justice system as the offender has to ultimately go back to society after serving his sentence. Studies analyzing the correlation between the average numbers of visits received by an inmate and recidivism shows that prisoners receiving more family support while in detention show lower rates of backsliding. [42] 

Management Tool

Prison visits are also seen as an incentive to improve discipline in prisons, thereby making the work of prison administrators much easier. Reduction in tensions and a happier inmate population in turn facilitates effective rehabilitation of each prisoner. [43] 

However, it has been argued from various quarters that the cost of conjugal visitation programmes outweigh its benefits. The opposition is grounded on preferential treatment for married prisoners being discriminatory, an unfavorable emphasis given on sex, financial limitations hampering the already dismal conditions of prison functioning, smuggling of contraband etc. resulting in more custodial problems and unacceptability to the general public. [44] 

Discrimination among Prisoners

It is argued by many that such programmes benefit only married prisoners and therefore generate a negative attitude in the minds of unmarried prisoners. Columbus Hopper studied this objection in detail by conducting an empirical research in the State Prison at Parchman. He asked the single inmates whether they resented married inmates having conjugal visiting privilege. Of the 822 inmates who responded, 89.9% said they felt no resentment. [45] 

This opposition can be taken care of by taking a cue from Canada and widening the scope of conjugal visitation programmes to Private Family Visiting Programmes or Extended Family Visiting Programmes. The potential visitors under their correctional system include not just spouses but children, parents, foster parents, siblings, grandparents etc. [46] Programmes allowing conjugal association in US prisons are also not confined to legal spouses. [47] 

Prisons not Country Clubs

Conjugal Visitation Programmes is often criticized to change prisons into sex dens. There have been many attempts to degrade the importance of conjugal visitation programmes by relegating it to a mere means for sexual release. The opposers argue that prisons are not 'country clubs' and society is under no moral obligation to grant such privileges. This attitude tends to ignore the very psychological and sociological realities underlying this vital issue. [48] 

Undue emphasis on sexual release makes it unacceptable to general public. Often, prisoners and spouses also hesitate to participate in such programmes as they find it a humiliating experience. When the New York State legislature began discussing on whether or not to provide conjugal visits, many spouses openly opposed the concept. They objected saying that it would be the 'grossly demeaning' and 'humiliating'. [49] 

It is true that once the object of such programmes were just sexual gratification. However, studies show that prisoners considered sexual release secondary to emotional gratification provided by such visits. One fails to appreciate that the 'hunger' is not just for sexual intercourse, but for intimacy, emotional talk and closeness which requires privacy. Further, it is critical to the success of such programmes which aims at rehabilitation of prisoners, that sex should not be the sole ground for entertaining it. [50] Having an emotional talk, holding each other's hands, a hug- all these are powerful soothing agents and assures a prisoner that he is loved in spite of his incarceration. [51] 

Against Public sentiments:

Prisons today are merely seen as punitive houses. Disinclination of the public to provide privileges to prisoners at the cost of taxpayer is one of the most pronounced arguments against implementation of conjugal visitation. [52] With violence manifesting in various forms and increasing manifold in day to day life, retributionist's demands are heard louder. These impulses and outcries will help in no way to reduce crime in the society. A criminal who is disenchanted with his life, when released has higher chances to resort to graver crimes. Sending him back to prison will again drain exchequer's purse. It will be a prudent move on the part of policymakers to persuade the public about the benefits to society by implementing such programmes. In countries, where conjugal visits have been implemented for decades, the public sentiment has changed from anger and shame to one of pride. As Simpson opines, those who fear public sentiment are not giving public the benefit of doubt and are using public opposition as a guise for their own biases or lassitude. [53] 

Security Concerns, Administrative Burden and Financial Limitations

State interests which are asserted most often in this area are security concerns, administrative burden and financial implications. [54] Critics argue that such programmes will facilitate easy smuggling of contraband.

Experience shows that constant supervision and taking more precautionary measures will make it easier in tackling with this problem. [55] However, Simpson opines that a more powerful deterrent is the prisoner's own desire to participate in the programme. In California, the only time when there is a denial of Family Visiting privilege to a prisoner is when there is a security infraction by him. In Parchman, restrictions are imposed on the whole Visitation Programme if trouble is created by a prisoner. So there is also a peer pressure among the prisoners to avoid security problems. [56] 

Further with regard to the administrative burden incurred, one needs to remember that those benefits to prisoners and finally to the society clearly outweighs the administrative burdens. Building facilities for implementing such programmes is mainly a onetime affair. At Parchman, it is the inmates who have built most of the facilities. At Tehachapi, in California most of the furniture was donated. At Parchman, inmates are responsible for maintenance. At Tehachapi, maintenance costs are higher as inmates view such facilities as motels and do not take part in cleaning. It seems a compromise of these two schemes is desirable. [57] 

V FEASIBILITY OF CONJUGAL VISTITATIONS IN INDIAN PRISONS

An understanding of the correctional jurisprudence in India will help us to examine the feasibility of introducing conjugal visitation programmes in a better way.

The foundation for the contemporary prison administration in India was laid down by the archaic Prisons Act, 1894. Though the States have enacted their own prison manuals (Prisons are a state subject), [58] this Act drafted and adopted under a hostile colonial administration which was suspicious of the indigenous population, still survives and governs our correctional jurisprudence. The lack of political will to legislate on this vital matter has occasioned the judiciary to assume time and again, the role of "guardian of their sentences". [59] 

Reading a variety of rights into Article 21, which it has expanded after Menaka Gandhi v. Union of India, [60] the Apex Court has tried to mitigate the apathy expressed by the State towards prisoners. This attempt by Supreme Court is reflective of the new waves flowing in the correctional jurisprudence across the globe.

In Sunil Batra v. Delhi Administration, [61] the Supreme Court asked "Are prisoners persons?" Answering affirmatively for making prisoners avail the fundamental rights guaranteed to 'persons' in our Constitution, court stated that "to answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order, which now recognizes rights of prisoners in the International Covenant on Prisoners' Rights to which our country has signed assent. Again in Charles Shobraj v. Superintendent, Central Jail, Tihar, [62] Supreme Court affirmed that imprisonment does not spell farewell to fundamental rights. However Court can curtail certain fundamental rights that are allowed to free citizens.

Expressing its views on the prisoner's right to socialize, the Supreme Court in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, [63] held that no prison regulation or procedure regulating the right of prisoners to have interviews with his family members and friends can be upheld as constitutionally valid under Article 21 unless it is just, fair and reasonable. The Court further stated that this right forms a necessary component of right to life and of personal liberty enshrined in this Article. Any arbitrary or unreasonable regulation or procedure would result in violation of Article 14 of the Constitution.

A perusal of the plethora of landmark decisions clearly shows that the Supreme Court will not permit shedding of prisoners' basic rights at the gates. These decisions clearly depicts that imprisonment in India encompasses much more than retribution and deterrence. They are milestones paving way towards realization of a penological jurisprudence based on reformation of prisoners.

Legislature has been forced by the Supreme Court to look into the rights of prisoners. This has lead to many Committees being appointed to study the plight of prisoners. [64] Though not much serious thought was given by the Legislature to many of the recommendations by these Committees, Central assistance was given to States to undertake some basic reforms in prisons. [65] However, it is sad to note that there is no much direct allocation of funds for rehabilitating the prisoners under these financial assistance schemes.

Courts, the frontrunner of prisoner's rights have again taken the lead and India has finally entered the debate of feasibility of introducing Conjugal Visitation programmes in Indian prisons with Bombay High Court making remarks and suggesting to State Government to consider it in the wake of increasing HIV positive prisoners. [66] In 2012, a Public Interest Litigation was filed in the Andhra Pradesh High Court seeking directions to the State Government for allowing conjugal visitation in jails across the state. [67] 

Jail authorities in Punjab have gone a step ahead and sought permission from the State government to allow male inmates who maintains good conduct in prisons to have sex with their legal partners. Director General of Police (Jails) of Punjab, Mr. Shashikant after sending a proposal to the state government noted that present visitation programmes does not allow inmates to reconnect with their families. [68] 

Apprehensions have been raised about importing this new concept to Indian prisons. Many argue that Indian prisons are overcrowded and such a move would lead to more chaos. Their opposition is mainly grounded on financial limitations, security concerns and public opposition. An examination of the present prison conditions would help us check how substantial these doubts are.

It cannot be denied that conjugal visitation programs is a costly affair as adequate space is required to facilitate running of such programmes in a dignified and secure manner. It is criticized that such ideas can only be dreamt of in India where there is a grave issue of overcrowding of prisons.

Overcrowding of prisons is a global phenomenon, which has been a matter of concern for prison administration worldwide. [69] Even after having one of the lowest rates of imprisonments in the world [70] , Indian prisons are overcrowded due to the high number of under trial prisoners. [71] However the recent efforts taken by the Indian Courts have made an impact in the reduction of the occupancy rates of our prisons. [72] 

Table : Under trial Prison Population

YEAR

TOTAL PRISONERS

UNDERTRIAL PRISONERS

PERCENTAGE OF UNDERTRIAL PRISONERS

2009

376969

250204

66.4

2010

368998

240098

74.0

2011

372926

241200

64.7

Source: Secondary [73] 

Table : Existing Capacity and Occupancy Rate

YEAR

NUMBER OF JAILS

AVAILABLE CAPACITY

PRISON POPULATION

OCCUPANCY RATE

2009

1374

307052

376969

122.8

2010

1393

320450

368998

115.1

2011

1382

332782

372926

112.1

Source: Secondary [74] 

Overcrowding in prisons can never be an excuse to withhold rehabilitative and reformative measures. More measures like increasing the capacity of prisons, number of courts, mandatory release of under trial prisoners in case of inordinate delay in trials, availing of probation and paroles, encouraging plea bargaining should be resorted to address the issue of overcrowding. [75] When such initiatives are taken, experimenting with Conjugal Visitation Programmes becomes easier. A gross failure on the part of the State to look after the basic needs of prisoners, who are no lesser citizens, should never be a ground for closing doors at such innovative thoughts.

Lack of funds is another excuse taken by the opponents of conjugal visitation programme. However a look at the Prison Statistics of India-2011 clearly shows that the actual expenditure of many States is far less than Sanctioned Budget. Except in Kerala, Nagaland, Daman & Diu, Chandigarh and D & N Haveli, total expenditure incurred was less than the sanctioned budget. [76] Thus none of the states whose prisons suffer from high occupancy rates has utilized its sanctioned budget fully. An analysis of budget allocation and actual expenditure of the 10 states whose prisons have the highest occupancy rates will give a clearer picture. [77] 

Table : Prison Budget and Expenditure (2011-12) in ten states having highest occupancy rates

Sr. no

STATE

OCCUPANCY RATE

(In %)

SANCTIONED BUDGET

(In Rs.)

ACTUAL EXPENDITURE

(In Rs)

1.

Chhattisgarh

256.3

6681.4

5766.7

2.

Uttar Pradesh

175.1

72956.2

54138.3

3.

Punjab

149.1

16742.7

13196.5

4.

Madhya Pradesh

128.2

16611.4

16212.7

5.

Jharkhand

128.1

9357

6324

6.

Goa

123.8

2518

2279.2

7.

Gujarat

123.5

14038.2

13674.7

8.

Assam

109.6

5779.9

5027.6

9.

Meghalaya

107.5

1093.8

628.6

10.

Rajasthan

100.5

9213.4

8144

Source: Secondary [78] 

Further, there is no transparency in the money spend. One wonders why Bihar spent Rs 280.6 lakh on clothing for prisoners in 2011-12, while Maharashtra which has a comparable inmate population spent only Rs 1.7 lakh. Even Uttar Pradesh with double the prison population of Bihar has spent only Rs 89.1 lakh on clothing. [79] 

One can safely conclude from the above statistics that it is not funds that are lacking but a determination to bring in more prison reforms for facilitating rehabilitation of prisoners. [80] Until and unless one wakes up to understand that prisons are not merely punitive houses but reformatories too, the crime rates in society will not reduce.

Security concerns might pose a problem especially keeping in mind the gap which exists between the sanctioned and actual strength of jail staff. [81] It is true that unsupervised nature of conjugal visits may in some cases actually pose risk to the physical safety of family members. Such security issues can be taken care of by employing more vigilant and dedicated jail staff. The issue here is whether the apathy of State authorities be an excuse, [82] especially when there is a gross unemployment issue in India.

Another ground of concern, public opposition may be greater in a country like India, where one finds it embarrassing to even utter the word 'sex' in public. As noted rightly by Mr. Shashikant, DGP (Jails), Punjab there has been a move to relegate the whole concept to something just concerning sex. [83] Such an undue emphasis on sex will result in the failure of the whole programme. Even prisoners will have reservations in having their spouses in the prison premises just for sexual release. Conjugal visitation programmes encompasses much more than mere sexual release. Taking a clue from other countries which do not confine its Visitation Programmes to spouses, it will be prudent to implement Extended Family Visitation Programmes in India. This will also benefit unmarried prisoners and silence the preferential treatment argument.

Also, it is not just spouses who are the innocent victims of incarceration. Studies indicate that high incidence of father's absence in the family leads to ineffective and faulty socialization of the child, thereby harming his/ her personality development. [84] In a country like India where marriage is considered a sacrament by many and family ties are respected, it would not be difficult to persuade the public if concrete steps are taken by the government authorities to educate people about the advantages of these programmes. One should also be reminded of the fact that incarceration is not an express ground for divorce under most personal laws in our country. [85] 

One may question the need of such programmes when there are already existed other reformation and rehabilitation measures like probation and parole. However a large chunk of convict population does not benefit from these. [86] Further it is often criticized that parole benefits mainly the rich in the country. [87] 

Studies have shown that parole success is greater for prisoners who were able to maintain strong family ties. [88] Such programmes thus only reduce chances of the prisoner returning back to his old illicit gangs.

This researcher believes that introducing conjugal visitation programmes as a public policy measure by introducing legislation on the lines of The Probation of Offenders, 1958 will ensure smooth functioning of the programme. Otherwise as experience of US courts show, Indian Courts will be drawn to dilemma very often. [89] Further, such a caution is necessitated by the fact that prisons are a state subject in India. However, implementation of the programme should be left to a body in each prison which includes prison administrators, social workers, and psychologists. Further, to ensure that the deterrence effect of punishment is not forgot measures like restricting the programme to prisoners who have served sentence for a stipulated period of time may be taken.

VI CONCLUSION

There exists an opinion, both within the intellectual circles and general public that a philosophical cleavage subsists between custody and reformation. However, this so called cleavage is more of a myth, than reality. [90] It may appear difficult in reconciling these two different schools of thought. In reality, the long term protection of society can be efficaciously realized only through reformation ad rehabilitation of a prisoner.

This is not to say a 'no' to punishment itself. Deterrence, both general and specific remains served by punishing the prisoner. However punishment should not be seen just as an occasion for unleashing vengeance. Society should wake up to the reality that punishment jurisprudence embraces much higher ideals than mere seeking revenge. The rehabilitation ideal after being neglected by criminal justice system for long, is finally establishing itself as a powerful solution to the protection of society.

Conjugal visitation programmes offer no panacea in reformation and rehabilitation of prisoners. However, once successfully implemented it shows positive results and effectuates the eventual re integration of the prisoner with the society is evident from the fact of its growing popularity within the correctional jurisprudence. It is not an unwanted luxury of pure sexual release granted in the 'punitive houses'. By strengthening the family ties, it helps in checking recidivism and prevents a further drain of the exchequer's purse. Instead, he becomes a productive citizen.

The benefits accruing from these programmes demand our policy makers, correctional administrators and academicians to have a closer look at them and to undertake this experiment in our correctional field too. Such an exercise might seem tough especially at this juncture where citizens have become too wary about their protection.

It can easily be assumed that conjugal visitation programmes will not be readily accepted by the Indian public. Public can be easily misled that these are purely sexual release measures allowed to the most hated section of the society. However, experience of other countries shows that such public outcries can be dealt with only by State taking the lead in educating the society about the benefits accruing to it by implementing such programmes. It is a truth that our society has not still appreciated even the existing reformation measures like parole and probation. It is only gradually, through concerted efforts that public perceptions will change. Withholding, implementation of such programmes till then will not be a prudent idea. Allowing for 'Extended Family Visits' will be more suited to our society.

It is only by devising appropriate techniques for implementation and careful allocation of resources, can such designs be successfully implemented. Meticulous research initiatives are to be undertaken by academicians to provide guidance to the State. It is only through sincere and concerted efforts of policy makers, correctional administrators and academicia that we can realize the long term protection of our society. The apathy of the State which has contributed to the sorry state of affairs of prisoners today should never again be allowed to be an excuse for introducing and implementing such correctional measures.

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