How Prisons Have Failed Criminology Essay

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Before we proceed with the actual alternatives suggested, first, one must appreciate why is there a need for alternatives in the first place. Should we have an alternative for prisons? What do these alternative mechanisms seek to achieve? What is it in prisons that these alternatives seek to evade or undo? A prison is a place where persons are confined and deprived of their liberty on the grounds that they are convicted or awaiting trial for an offence. Prison is also known as penitentiary, borstal/detention centre, correctional institution or Jail. The conventional notion of punishment are set as essentially a good against an evil, any effort at changing common-sense notions of crime and crime control requires a rethinking of both concepts of crime and punishment. The shift has to be made where the objective to control and punish must give way to reform. There are various factors that play a part, for example it is very difficult for a criminal to find work after his sentence gets over. It is in the author's opinion that there is very little chance for a person to come back to the society as an active member after being confined in a cell with few facilities, limited privacy, limited vital life contacts and a large degree of regimentation. A person, who has a home a family and a job, may lose all after they go to prison. It is the steadiest predictor of people ending up in prison, if they have gone to prison once, they will go again. The concept of recidivism is based on this.

How prisons have failed

The failure of imprisonment has been one of the most noticeable features of the crisis in criminal justice system in third world nations such as Australia, Britain, Canada and the United States. The justifications advanced in favour of the use of imprisonment have been shown to be misconceived. At best, prisons are able to provide a form of crude retribution to those unfortunate to be apprehended. At worst, prisons are brutalising. They have not been shown to rehabilitate or deter offenders and are detrimental to the re-entry of offenders into society. Furthermore, the intense reliance upon prisons, has led to an inordinate drain upon the overall resources devoted to the criminal justice field. Corruption amongst prison staff is widespread. In some cases, a prison sentence is as good as a death sentence. There are many questions regarding our prison systems and their rehabilitative value. Observers from inside the walk find prisons to be a melting pot of tension and anxiety as a result of a variety of abnormal conditions. Prisons, including the so-called model prisons, rob a man of his individual identity and dignity. The laws governing prisons on a national and international level are scant, but there has been significant development in this field. The first piece of legislation was the Prison Act in 1894 [2] which was introduced amidst a climate of fright, repression, security concern and terror. There were no provisions for their rights, or for their rehabilitation or reformation, or for their reintroduction into society on completion of sentence. The philosophy has now changed to minimum standards in prisons and steps ensuring psychological support to the inmates. However, the antiquated provisions of this act, which was enacted during the British rule, still govern the substantial part of prison system in India. In 1980, the All India Committee on Jail Reform, known as the Mulla Committee headed by Justice A.N. Mulla was set up to study the problems, it made 658 recommendations related to prison reforms this included a call for uniform national prison standards, the reformation of the criminal justice system, and the construction of new and adequate housing facilities, including separate facilities for women and juveniles. The Prisoners Act, 1900, the Transfer of Prisoners Act, 1950, Draft National Policy on Prison Reforms and Correctional Administration, BPR&D, 2007 and major recommendations contained in Justice Krishna Iyer Report on Women Prisoners, 1987 are some measures at the national level for administration of this system.

There are many benefits to be had by resorting to alternatives for prisons, not only for the individual but the society as well. It is a well established fact that in the present day, jails are a breeding ground for criminals and mafia gangs. In such a situation, it would cause considerable damage both to the imprisoned and their families to keep prisoners in jails for long periods of time, this will then lead to destructive developments, extinguishing any chances of his revival. Government has realised the nagative effects that prison can have on children and the Juvenile Justice Act, 1986 (hereinafter J J Act) is a living example. Children at tender ages cannot be sent to prisons, for the sole reason that it will extinguish any chances of them having a successful life. The objective of the J J Act states that it is for the care, treatment, development and rehabilitation of neglected. In Maru ram v. UOI, [3] Justice V. R. Krishna Iyer held that,

We cannot view without gloom the reversion to the sadistic superstition that the longer a life-convict is kept in a cage the surer will be his redemption. It is our considered view that, beyond an optimum point of say. eight years--we mean no fixed formula--prison detention benumbs and makes nervous wreck or unmitigated brute of a prisoner. If animal farms are not reformatories, the Remission Rules and short-sentencing schemes are, a humanising wheel of compassion and reduction of psychic tension.

Chapter I- Finding the Alternatives

The basic idea is that courts should do more than just decide the cases at hand, maybe be mindful of the fact that they are deciding the fates of actual people who turn into habitual offenders and keep coming back again and again for one offence or another. Deciding these cases is not the same as resolving them, the court's task is not to dispose of cases quickly, it is to deliver justice effectively. However, given the criminal justice system in India as of now, this is still a far flung dream. In the commentary of United Nations Standard Minimum Rules for Non-Custodial Measures, known as the Tokyo Rules [4] it is stated that "imprisonment cannot be considered an appropriate sanction for a wide range of offences and many types of offenders, in particular those who are not likely to repeat offences, those convicted of minor crimes and those needing medical, psychiatric or social help." There are four stages through which use of prisons can be reduced, pre-trial, sentencing and after some part of a prison sentence is served are the last three stages. The first stage is before a man is sent to prison, poverty, unemployment and illiteracy have a direct bearing on people taking this path. An important part is also after they are out of prison, measures must be taken to ensure that he or she is able to reclaim his life back and is not driven to the same path again. Two primary arguments advanced for extension of alternatives is that they are cheaper and more effective.

Prisoners who are waiting for trial or imprisoned on remand should be treated differently because the law assumes them to be innocent until proven guilty. All international rules provide for special treatment of detained prisoners, for instance, article 9(3) of the Covenant on Civil and Political Rights [5] and rule 6.1 of the United Nations Standard Minimum Rules for Non-Custodial Measures. [6] Many alternatives work at the sentencing stage, financial penalties, confiscation, verbal sanctions for younger offenders, restrictions or removal of some rights and community service.

The objective of open prisons is to give offenders an experience that helps them in changing their attitudes and behaviour to catalyse their social, moral and economic rehabilitation. The key is to raise his self esteem and inculcate a sense of social responsibility. This gives them an opportunity to live their lives like a part of the society, a life resembling some degree of normalcy to enable social readjustment. The kind of life in open prisons is usually along the patterns of living in small communities such as the rural groups. The characteristic features are informal intimate living in small groups in a minimum custodial centre, regular routine work on wages, contact between staff and inmates, impact of group life on the individual inmates and avoidance of unnecessary long detention and extra expenditure.

The general consensus is that prisons without walls have been successful and do not pose any risks to the safety of the prisoners in custody. It is safe to say that they are a necessary adjunct to any reformatory programme for prisons and will continue into the future, the same is evident by looking at the prison departments of several states. [7] Some important criteria for an open prison are the form of employment which is provided by agriculture and ancillary industries. The location should be convenient so as not to isolate and obstruct the educational, social and recreational opportunity for the prisoners as it may hinder their balanced rehabilitation. It should not be more than 30 to 35 kilometres from the nearest town and closed prison. The strength should be around 200 to 500 prisoners and the accommodation should be either cottage or barrack type. The number of executive and custodial staff should be minimum and a full time Medical Officer and Compounder should be appointed, the personnel employed should be well adjusted and trained. The inmates in these prisons have the liberty to enjoy home leave up to ten days and the scale of remissions is more liberal as compared to closed prisons. The total remission granted should not exceed half the sentence. A proper record of all the inmates with their reports of work, conduct, behaviour, sociability etc should be regularly maintained to enable a proper assessment. The interviews should be held in humane and relaxed conditions. [8] 

International scene

The chief international instrument governing sanctions apart from imprisonment in the administration of criminal justice is the United Nations Standard Minimum Rules for Non-Custodial Measures, also known as the Tokyo Rules. [9] These were adopted by the UN General Assembly on December 14, 1990.

Some countries are trying to follow the international guidelines. Czech Republic amended its Czech Penal Code in 1995 to allow community service as an alternative punishment to be imposed on convicted offenders. [10] It may be imposed when a prison sentence of upto five years could be passed. The factors that the judge needs to take into account are nature of the crime, personality of the offender, grounds to believe that the purpose of punishment will be achieved without sending the offender to prison. Community service must be a genuine alternative to prisons and not to other alternatives.

An experimental community service scheme was started in Zimbabwe in 1992 in response to the rapid rise in prison population. Sixty percent of the prisoners were minor offenders, this had a cost implication. Zimbabwe was spending $ 10.8 million on prison budget! A National Committee on Community Service was set up, chaired by a high court judge. A significant feature is the National Steering Committee which operates independently. The key element is the membership of the Committee which is judicially driven at a high level.

Chapter II- Open prisons

Prison is a place with immense scope for human rights abuse. Article 10 of the International Covenant on Civil and Political Rights [11] says that prisoners should be treated with humanity and respect. Yet in most prisons, overcrowding, lack of hygiene and inadequate medical facilities are common. Presently, attempts are being made to implement the United Nations Standard Minimum Rules for Treatment of Prisoners [12] in all the state prison manuals. Uttar Pradesh has pioneered the area of Jail Reform and Experiments. The U.P. Jail Reform Committee conceived the idea of a model prison for experiment. It adopted a sociological approach with an emphasis on classification, educational training and self sufficiency. Presently, there are 2 types of prisons in the state, district jails, where all sorts of convicts are confined for some time and central jails where convicts of heinous crimes are confined. These are of three kinds, central prisons, open camps and model prisons.

Open Prisons/Minimum Security Prisons [13] 

They are also known as 'prison without bars' or minimum security prison, or open camps, it was a very late development in the prison system. The first open prison was established in 1891, at this time the other countries were more cautious. In Britain the breakthrough happened in 1930 while for USA it was in 1940. The two chief ideas in the UK penal system were, a man is sent to prison as a punishment and not for punishment, and you cannot train a man for freedom under the conditions of captivity.

According to United Nations' Congress on Prevention of Crime and Treatment of Offenders, 1955 [14] an open penal institution is characterized by the absence of physical or material precautions against escape and by a system based on self-discipline and inmates' sense of responsibility towards the group in which they live. These prisons are different from traditional closed prisons in their philosophy of governance, authority, and enforcement of orders, appraisal of problems and models of tackling them. This model is based on hope, forbearance and truth. Reformation and rehabilitation is given prime importance. The outcomes of this institution are that it instils a sense of community living, responsibility as a citizen, constructive work, sense of dignity, positive change in attitudes and conduct of the inmates.

The criteria of selection and eligibility of prisoners to open camps vary from state to state. There are certain features like health, conduct, first offence, period of sentence which are common to most of them. For instance, in Assam, prisoners between the age group 21 to 50 undergoing sentences of 5 years rigorous imprisonment are eligible for selection. In Rajasthan the age limit is 30 to 46. There are certain types of crimes like dacoity, rape, counterfeiting which are not eligible. The area of the open camps varies from 10 to 50 acres and most of them are agricultural farms.

Case study- Uttar Pradesh

The model prison came up in 1949 which was organised under the leadership of Dr. Sampurnanand, for the construction of a dam. On March 15, 1956, a permanent camp was started at Ghurma, Mirzapur for employing prisoners for work on stone quarrying for the government cement factory. The initial stage was 150 and after a stage the number went upto a staggering 1700! At present, there are 800 inmates in an area of 31,100 sq. yards enclosed with 5 feet thin barbed wire. In 1960 another camp was established at Sitarganj in Nainital. It is an 8730 acre agricultural camp without a boundary wall, it houses around 2000 prisoners. The crucial aspect of open prisons is that they don't depend on the state for their subsistence, their work pays enough to provide for them which in turn lessens the burden on the state's resources. This self sufficiency is a key feature of success of open prisons. It is beneficial for the entire society to have less number of people in prisons, as they are a dependent population, it consumes state's resources and thus the expenditure on other important areas falls. This can have serious long term impact.

The mode of selection to the camps

Prisoners who are eligible:

Convicted criminal prisoners who:

Are found to be of good behaviour, and are physically and mentally fit,

Willing to do hard work and abide by the rules and regulations of Open-Camp,

Sentenced to terms of imprisonment for one year or more and undergone 1/4th of their sentences in closed prison,

Sentenced to life-imprisonment who have undergone five years in closed prison.

Prisoners who are not eligible:

Habituals classified as such by courts,

Known habitual,

Punished thrice or more for major offences,

Case pending in court,

Suffering from serious disease or mental disorder,

History of serious mental illness,

Convicted and sentenced for offences under sections 126-126, 128-135 and 376, 392 and 402,

Escapees and escape risks,

Hired and professional murderers,

Connected with offences under Narcotics Act, Gambling Act and Sea Customs Act,

Have been transferred once form open camp to closed prison,

Class I prisoners,

Women prisoners,

Any other prisoner or category which the I.G. Prisons considers unfit.

Procedure for selection of prisoners to open camps

The Superintendent of Prisons prepares a separate list of prisoners, according to the abovementioned criteria. He also prepares case histories of those prisoners and forwards the list to the selection committee. The selection committee examines each case and makes the final selection based on, physical and mental health, good behaviour, conduct of responsibility, progress at work, vocational training, group adjustability, character and self-discipline and trustability. The duration of stay in these camps varies from one month to seven years. The inmates are allowed to meet their friends and relatives twice in a month, write two letters in a month, 15 days home leave and 30 days ticket leave are given to these inmates in one year or three years.

The programmes at these camps are multipurpose and multidimensional. There are numerous short term and long term recreational, reformative and educational facilities. The selected prisoners are kept under observation in various schemes and trades on the basis of their interests. The programmes are based on modern trends of thought in penology with the aim to bring about purposive transformation in their attitude and personality.

Another case of open prisons can be seen in the state of Kerala, in Nettukaltheri in Thiruvananthapuram district and Cheemeni in Kasargod district. [15] The open prison in Nettukaltheri was started on August 20, 1962 and spreads upto 200 acres in the foothills of Western Ghats, this area was allotted for the purpose of carrying out reform activities through agriculture. [16] 

India's first open prison for women

India's first open prison for women was inaugurated at the Yerawada Central Prison on March 14, 2010 in Pune by the State Home Minister R. R. Patil. [17] Till now, there were only open prisons for men, the proposal for an open prisons for women for was put forward in the state assembly last year. Initially, 50 out of 500 prisoners lodged in Byculla and Yerawada jails would be selected, then the numbers would be increased. The inmates will be made to do agricultural work on the 17 acres of land and for every one year served in the open prison, a year of their sentence would be reduced. Apart from agricultural work they would also be trained in other skills such as candle making and screen printing to improve their mental and physical well being and start a new life.

Several other states have also adopted the practice of open prisons. West Bengal has only one open air correctional home [18] which was set up in 1987 in the district of Lalgola. [19] The response has been very encouraging and there has been no incident of escape since starting the jail.


Open air prisons can safely be said to be non-institutional or neo-institutional ways of delivering reformatory justice. The need of the hour is to bring about reformative prison justice.