It’s a typical superhero movie final scene.
The superhero slowly walks towards the busted burglar, grabs him by his collar and, with a flick of arm, throws him over his head. The burglar is unconscious, unable to cause any more troubles. We hear the police siren approaching the scene. Evading from attention, the superhero turns, saying the killer line, “I hope you have now learned that justice always prevails” before disappearing into the thin air. The people rejoice. Justice is restored.
But is it, really?
Does our superhero ever realize that his relentless arrests never result in a reduction of crime rate? Does he ever learn about the bad guy’s life during and after his prison term; that the situation that caused him to steal in the first place is never addressed; that the arrest has made him even more alienated to the society? And does the same old superhero know that soon he will have to do the exact same task, reciting the exact same line all over again.
If this measure works, shouldn’t it put our superhero out of the job already?
Did justice in this story really prevail?
Snapping back to the real word. During the online forum “Living with COVID-19: the Global Prison Trends 2020 Report and the ‘New Normal’ of Legal Punishment” organized by Thailand Institute of Justice (TIJ), experts in the field of criminology and criminal justice gathered to deconstruct that exact paradox.
The current criminal justice system is in a complex gridlock situation where high arrest and high imprisonment lead to nowhere. With an additional challenge from the novel coronavirus that becomes an imminent threat to the lives of inmates who live in close proximity, authorities are rushing to put immediate preventive measures in place. But experts are foreseeing that the effects of the current adversary might persist well beyond the pandemic.
Re-watch the discussion: https://www.youtube.com/watch-Living-with-covid-Global-prisontrend
Imprisonment and what we think about when we think of justice
The Global Prison Trends report, published by Penal Reform International (PRI) in collaboration with TIJ, reveals a series of prison-related statistics, with 11 million people incarcerated worldwide, it’s forcing prisons in over 124 countries to operate beyond their full housing capacity.
Even with the high number of arrests and incarceration, the crime rate worldwide hasn’t been reduced; the report itself, as presented by Olivia Rope, PRI’s Director of Policy and International Advocacy, strongly suggests that “there is virtually no link between the number of people in prison and levels of crime.” On the other hand, the overuse of incarceration as criminal punishment cripples the ability of the correctional system to effectively rehabilitate any individuals, while putting inmates in horrendous living conditions and under the risk of catching contagious diseases.
Prison overcrowding is not news. And the statistics have already proved, time after time, that the method isn’t the most effective way of achieving a crime-free world. But why can’t we seem to quit or even reduce the use of imprisonment at all? If not using more.
“Our criminal justice system has a very strange character,” observed Mr. Wanchai Roujanavong, Thailand’s Representative to the ACWC for Children’s Rights. “How can a small country like Thailand gain a top spot in prison population among others in the world.” Mr. Wanchai asserted that the justice system has used imprisonment as an automatic response to crimes because it’s the only feasible punitive measure we are familiar with. “There are not many other choices that can be effectively used instead of incarceration,” he said.
The inflated use of prison sentences drives Thailand’s inmate population to nearly 400,000 people, only around 10% of which are in for violent crimes. Others simply lose their freedom in the name of justice without being physically dangerous to anyone. And things have always been this way, but the COVID-19 is shining the spotlight onto this problem once again, showing us that our criminal justice system has made prisons an open wound that’s extremely vulnerable to any additional assault.
Innocent but not really: The flock of remand prisoners and the crook in our bail systems
Looking closely into our system’s addiction to the use of imprisonment, we can see that, there’s a big chunk of those who have not been declared guilty mixed within the cohort.
During the report presentation, Rope made it clear that there has been “very little progress in lowering pre-trial detainees'' across the globe, as the number has now climbed to 3 million people, accounting to almost 30% of all prison population, with Thailand’s number also falling along that line. In some countries, such as Libya, remand prisoners make up a whopping 90% of the prison population.
While our constitution has a principle called “presumption of innocence” in which defendants must be considered innocent until proven otherwise by the court, but through social conditioning, the media and the society around us has normalized the way we perceive and treat those who are criminally accused as if they are convicted. Hence making most people very accustomed to seeing the accused in the news being called names or being detained in prisons as a form of justice being served. Such narratives inevitably influence the way our system operates and is very contradictory with the principle, as Asst. Prof. Dr. Prinya Thaewanarumitkul argued.
The law professor and longtime advocate for an inclusive bail system also pointed out that a large portion of prisoners fall victim to the way bail conditions are monetized. “Right now, there are around 65,000 people who are actually allowed to bail themselves out but can’t afford to pay the prices. These are the people who really should not be imprisoned,” Dr. Prinya insisted. The criminal procedure code itself never states that the bail condition has to be measured monetarily. But through practices and guidelines, it becomes a norm. To bail yourself out for a charge equivalent to 10 years imprisonment, you would need around 200,000 Baht. And let’s face it, not many people would have that amount of money lying around at hands. “So, does our system think being poor is a crime?” Asked Dr. Prinya.
Apart from this, there are also those who are incarcerated for not being able to pay fines or for committing other small property crimes due to their financial shortcomings. So it is no surprise that the prison population is filled with people living under or barely above the poverty line, whose problems aren’t going to be fixed from being incarcerated.
And should we not forget the drug-related offenders, contributing to almost 80% of the prison population. “Since the dawn of our 'war against drugs' policies in the early 2000s, the amount of drug users as well as drug prices continue to rise, consequentially driving up the prison population” Dr. Nathee Chitsawang, former Director General of the Department of Probation explained. The government had successfully constructed a new villain, methamphetamine, informally named in Thai as “the crazy drug”.
Somehow, this seems like Economics 101. The more we arrest and incarcerate drug dealers or drug users, the higher the demand for drugs, making prices go higher, attracting more dealers to try to enter the market. Yet we have not found our way out of this paradox. Drug-related offenders continue to flock prisons faster than any types of crime. Putting this into perspective, with approximately 1,000 new prisoners entering Thai prisons daily, within today, there will be almost 800 of drug-related offenders entering prisons somewhere in Thailand, and have their lives, including their families’ , changed forever.
The highlighted groups of the prison population are ones that demand immediate attention from policy makers. These people along with other vulnerable prisoners such as the elderly, pregnant women, or those suffering from underlying health conditions, are included in TIJ’s recent policy recommendations as demographics that should be considered for the use of non-custodial measures amidst the COVID-19 situation and beyond.
Recounting one important point made by Dr. Nathee, the challenges that come with the COVID-19 aren’t just ones that are health-related but are concerning their future livelihood as well. “Prisoners who are about to be released back into ‘the new normal’ are now without any external training sessions or classes, since all external contacts are entirely prohibited,” he argued. Indeed, to be released without being prepared for a society that has turned upside down, -- jobs are nowhere to be found and everything is online -- they would be leaving prisons with a very small chance of financially surviving, let alone starting a new quality life. Without proper pre-release and post-release measures, we might need to expect a spike in recidivism in the near future.
The mindset is where it all begins. Ms Chontit Chuenurah, Director of the Bangkok Rules and treatment of Offenders at TIJ explained that by referring to other non-custodial measures as ‘alternatives', the system simply won’t prioritize them or sometimes forget that they are part of the choices at all. We simply need to make these non-custodial measures more institutionally implemented and be treated just as other criminal sanctions, “so that the ‘alternatives’ become mainstreamed,” Ms. Chontit asserted.
During the fruitful discussion of the virtual forum, various academics and practitioners proposed the possibility of promoting community service to become part of the official criminal sanctions. Mr Wanchai called for an expansion of the criminal procedure code to cover other non-custodial measures. It was additionally pointed out that not every offender who is imprisoned for being unable to pay fines are aware that they can make a request to complete a community service instead of being sent to prison. With such change, the courts can use more discretion to consider offenders’ context and backgrounds.
The bail system should also be revisited as it could bar a lot of underprivileged people from exercising their rights to fair trials or unnecessarily putting them in prisons. Recently there have been changes made by various President of the Supreme Court Orders and Guidelines which guide judges to lower thresholds for granting bail under different circumstances, marking a very hopeful beginning for an inclusive criminal justice system. Nonetheless, as judges are equipped with new bail guidelines, probation tools and measures such as monitoring equipment that will help strengthen measures such as house arrest and other travel restrictions must be readily provided alongside this systematic transformation.
Across the ocean, there has been progress as well. Judges in Canada are now citing the grave risk of contracting COVID-19 in order to grant bail requests. A Justice of Ontario’s Superior Court of Justice pointed out during his video delivery of his decision for granting a man seeking bail while facing a drug trafficking charge, asserting that amidst the Coronavirus pandemic, “the court must be mindful of the risks of release of violent offenders back in the community for the sake of reducing the prison population. Indeed, there is a delicate balance that needs to be put into play.” There have been more bail approvals thereafter citing the same principles and circumstances. In citing the WHO’s report, the justice sector is recognizing that inmates face a higher risk of contracting the virus than those being restricted using the house arrest condition. These may seem like small steps, but when the efforts accumulate and reach critical mass, significant changes can be achieved.
Lastly but most essentially, building public trust in the system and changing their perception about justice and imprisonment cannot be excluded from a reform effort. And to get the nod from the public, policy advocates need to rethink the way we communicate concepts of justice or what it means to achieve it. Ultimately, facts must be informed to the public with strategic delivery. The legislative branch will only move if they feel that their constituents are on board with the ideas.
Justice is a delicate concept, contingent to each individual’s worldviews and their share in the society. But in the field of criminal justice system, it is important that the lens of sustainability and inclusiveness are put on when interpreting this concept, in order to give everyone a fair chance to have their standing in the society. COVID-19 is an adversary that threatens our society's progress. But there is simply no better time to turn our criminal justice system around.