Much of the discourse on prison conditions stops short of a practical agenda for major reforms. While one reason cited is a paucity of resources, the other is about a mindset that those in jail do not deserve better. Except for a few studies done outside India, most of the material on the subject is superficial, to put it mildly. In prisons across the world, overcrowding, brutality, a lack of sanitation and unacceptable standards of health care are standard.
There is also no liberal mindset anywhere to set the ball rolling on how we can introduce clemency in incarceration. This is cause for concern given the growing aggressive nature of public discourse on treatment of offenders. How can one ignore strident demands for harsher criminal penalties and a higher rate of incarceration?
We see this happen in India where there appears to be blind public frenzy without a thought being given to the truth being established by rigorous research and a recognition that draconian punishment does not necessarily deter a determined or an impulsive offender.
A case for compassion
In this context, news that “ 46 children are behind bars in Odisha, for no crime of theirs ” ( The Hindu , May 19, 2018), must focus attention on the status of women prisoners and their children remaining with them during detention. I do not make a plea for a reprieve for women who transgress the law. What I advocate here is a less harsh response to women overstepping the law and some concessions with regard to detention before trial. Crime data show that there is a high rate of simple thefts among women prisoners. In the case of non-violent women offenders, community service should be the main option for reform. A jail term should be the last resort. Once detained, a woman prisoner not only deserves compassion but should also be given standards of facilities more liberal than for men. We may have to go a step further if a prisoner has children living with her in prison. It is the fundamental duty of the state to do everything possible to see to their physical and emotional needs.
On children
In most parts of the world, including India, there are prisons exclusively for women. Tamil Nadu has some, with one recent estimate putting their current occupancy at 25%. Creches for children up to the age of 3 and nurseries for children up to 6 years are available. Older children are entrusted to relatives or voluntary organisations. There are no reliable reports on how well these are run.
In the West, the U.S. has the most acute problem. According to a study (2010), several thousand children lived with their incarcerated mothers at one time, not a shocking number if one takes into account the magnitude of incarceration (2.3 million). The same study suggested that the U.S. has a third of all women prisoners in the world; about 60% of them have children under 18 years. When children are not with their mothers, contact can be difficult, because no extra consideration is shown to an incarcerated mother.
The European Prison Rules have been modified to make treatment of prisoners in all member-nations more civilised. The World Health Organisation in particular has expressed concern over the reproductive health of women prisoners and the absence of maternal education during pregnancy.
Problems and solutions
For criminal justice policy makers, there are now three challenges. That a conscious effort should be made to reduce female incarceration is the general consensus. However, there is a general lack of will arising from an assessment that any radical departure from the law and practices is not going to earn votes for a government. It is sad that there is such a lack of empathy despite research that women offenders are themselves victims of crime before they turn to crime. Therefore, there is a clear case for the award of community service to those women who have been jailed for non-violent offences.
The second challenge is on protecting the children of women prisoners. The one thing common is that most of them do not have physical and emotional support. Many are single parent children, usually with their mothers. This is one more reason why many nations should adopt community service for female convicts who have had no record of violence. It would be an entirely different matter if such a convict commits an offence again after community service. In such cases she would be on a par with a male recidivist.
The final challenge is in protecting women inmates from sexual/non-sexual violence and their forceful initiation into substance abuse while in custody. An all-female warden system is difficult as a small complement of male security staff is needed despite its attendant consequences. In this, technology can play a role.
In the ultimate analysis, prisons can be made safer for women only by a mindset which is convinced that female offenders deserve compassion. When this will happen is anybody’s guess.
R.K. Raghavan is a former CBI Director
