Overcrowding crisis

A disintegrating justice system is causing rampant prison overcrowding

Leopold Sudaryono

Even the process of afternoon roll call at Tangerang Juvenile Prison is made haphazard by overcrowding – Leopold Sudaryono

Since 1998, the Indonesian government has made a major effort to strengthen the country’s criminal justice system. The judiciary, the Attorney General’s Office, and the National Police have received tremendous support from government and civil society. Numbers of arrests and convictions have increased on the back of streamlined operating procedures, strengthened organisational structures and drastic budget increases. But behind this apparent success, the corrections system has languished, unable to keep up with the influx of new prisoners.

The number of prisoners more than doubled between 2004 and 2011, from about 71,500 to 144,000. At the same time, prison capacity increased by less than two per cent. The result is that prisons are now overcrowded by 45 per cent on average, while many Class 1 prisons in major cities are overcrowded by as much as 400 per cent. As a consequence, prisons’ entire operational resources have been diverted to simply accommodating the ever-growing number of inmates, leaving insufficient resources for vital services such as rehabilitation programs. Many prisons have already been forced to convert all available space, including administrative offices and meeting halls, into cells.

Severe overcrowding and underfunding makes prison life almost unbearable. Treatable illnesses like upper respiratory infections, scabies and other skin ailments are endemic. The quality of basic services including food, clean water and sanitation has also deteriorated. In most facilities, it is now common for inmates to pay for their own day-to-day needs such as extra food, soap and clothes (for more on this see Tim Mann’s article in this edition). It thus came as no surprise when a 2012 report by the Centre for Detention Studies revealed that many major prisons in the Greater Jakarta and Surabaya areas are failing to satisfy even the basic needs outlined in the United Nations Standard Minimum Rules for the Treatment of Prisoners.

Unintended complications

A combination of factors has contributed to the current overcrowding problem. One key reason is that the accused are often detained in prison before they have been tried or convicted. For years the minimum threshold for pre-trial detention was a crime punishable with a fine of Rp. 250 ($A0.02). Because almost every crime attracts a potential fine of greater than this amount, the rule effectively allowed for every criminal suspect to be detained in gaol before trial. Although the minimum threshold has recently been raised to Rp. 2.5 million ($A250), many minor offences continue to be included. Pre-trial detention is not mandatory, but police and prosecutors tend to overuse it, reportedly because this form of detention (and the associated cost of buying release) is a source of illegal income.

Overcrowding is exacerbated by the lack of alternative sentencing options at trial. The Indonesian Criminal Code, inherited from the colonial Dutch system, only recognises two types of criminal penalty: imprisonment and fines. Non-custodial sentences first became a sentencing option for judges in 2010, when the Law on Narcotics introduced drug rehabilitation. But few prosecutors or judges have exercised this option, and no other alternative sentencing mechanisms have been introduced.

These problems, which spring from the inadequacy of the criminal law itself, are exacerbated by delays in the administration of the criminal justice system. The prosecutor’s office and the courts often take a long time to submit copies of the court verdicts, particularly if the inmate has no legal representation. This results in many prisoners being detained beyond their actual sentence. In 2012, Indonesia’s National Ombudsman received 330 complaints from prisoners who had completed their sentences but remained in detention. This may just be the tip of the iceberg, however, as a 2010 study on prison overstay by the Centre for Detention Studies found that over ten percent of prisoners were being detained beyond their sentence end date.

With one guard often responsible for 500 or more inmates, activities like Glee Club in Semarang Women’s Prison offer vital assistance in maintaining order – Leopold Sudaryono

Failed attempts

The burden of prison overcrowding on the Ministry budget and media pressure have prompted a number of attempts to address these problems. In 2009, the Directorate General of Corrections undertook a pilot program that aimed to reduce overcrowding by relaxing the requirements for inmates to apply for parole or reductions of their sentences. Around 24,000 inmates were subsequently granted early release. But the early release of prisoners who had been charged with corruption and terrorist offences attracted considerable public criticism, soon bringing the program to an end.

The Ministry of Law and Human Rights has also tried to tackle overcrowding by constructing more prisons. Eighteen new prisons were opened in the year following April 2012. These new prisons are designed to house 4,466 more inmates. But an additional 10,468 people were incarcerated during their construction.

The Supreme Court has also had a go at the problem. In an attempt to ensure that no prisoners are detained beyond the length of their actual sentence, in 2011 the Court issued a Circular ordering court registrars to send prisoners’ conviction verdicts immediately to the gaol in which he or she is detained. A year later the Justice Reform Technical Office discovered that the District Courts were unaware of the Circular. As detainees or the public are also unaware of the policy, there has been no outside force for accountability.

Frustrated by the growing challenge of prison overcrowding, in December 2011 the Minister of Law and Human Rights issued a directive on the Release of Overstaying Inmates. The directive empowers prison heads to deal directly with cases of overstay. Previously wardens were reprimanded if they released inmates whose terms had expired without first obtaining the required judicial instruction. Now prison heads are obliged to release inmates whose detention documents or sentence has expired, and are subject to administrative sanctions if they fail to do so. The regulation also gives authority to prison heads to refuse to take any new inmates who are sent by law enforcement agencies without proper documents.

While it is too early to assess the impact of this directive, there is no doubt that additional legislative measures will also be required. Preliminary steps have been taken towards substantive legal changes in the Criminal Code Bill. The Bill would allow for more sentencing options including supervised release and community service. If the bill is passed, judges will be able to impose alternative sentences on offenders otherwise subject to up to six months imprisonment. This has the potential to significantly reduce the influx of prisoners for petty crimes, which make up around 35 per cent of offenders. The bill is also designed to reduce the overuse of pre-trial detention by prohibiting police from detaining suspects for more than 24 hours without a pre-detention hearing before a court.

The bill is due for deliberation by the 2009-2014 parliament, but may not go before parliament until after national elections in 2014.

No short-term solution

While it may be tempting to believe otherwise, high rates of incarceration are not indicative of strong rule of law. In the Indonesian context, prison overcrowding is a sign of a disintegrating criminal justice system, in which law enforcement agencies prioritise the function of their own institutions at the expense of other parts of the system.

The criminal justice system ought to be driven by the common objective that really matters to the public – the restoration of justice. Certainly some attempts have been made to address this problem. But to date these reform initiatives have had limited positive effects and have sometimes even caused counter-productive outcomes.

A more systemic approach is needed. The Criminal Procedure Code should be revised, and the President should take the lead in bringing the disparate sections of the criminal justice system closer. Whoever wins the 2014 election should utilise the momentum for change to work towards a more integrated criminal justice system that aims to achieve the all-encompassing goal of preventing crimes. In the meantime, the problem of overcrowding continues to harm inmates and prison staff, while also undermining the rehabilitative function of imprisonment.

Leopold Sudaryono (lsudaryono@tafindo.org) is Program Coordinator of the Law Program at The Asia Foundation in Indonesia.