Kauffman (2020) emphasises that governments need to focus on densely populated places like prisons to flatten the curve where social distancing is not possible. He further adds that ‘jails are notorious incubators and amplifiers of infectious diseases’ (ibid.). Highlighting the situation of American prisons, he says that roughly 600,000 people are housed in 3000 local jails, 75% of them being under trials, often in overcrowded conditions and poor sanitary conditions. Discussing the health concerns of prison populations, he emphasises that they have a greater share of co-morbidities ‘including 7% with diabetes, 20% with asthma, 10% with heart-related problems, 7% with kidney problems, and 26% with high blood pressure’. In response to this situation, while steps were initiated to reduce the prison population in the county jails leading to 15–5% population reduction, in the federal and state prisons, the releases have been very poor, varying from 2 to 16% (Widra and Wagner 2020). This difference in rate of release of prisoners from the local jails and the federal prisons could be attributed to the fact that local jails house short-termers, persons charged with misdemeanours and violent offences; whereas federal prisons house those arrested for committing federal offences, economic crimes, drug trafficking, kidnappings, sex crimes, etc. One can surmise here that prisoners who are considered to be less serious offenders have been released in larger numbers as they are considered to be lower risk prisoners as compared to those housed in federal prisons. This shows that dangerousness has been used as the main criteria while deciding categories of prisoners who could be released. One can see the binary of dualistic exclusion whereby there is a constant division between the normal and the abnormal (Foucault 1995) at play here—between those who are considered dangerous and those who considered as safe or less dangerous.
In Europe, according to a report by the Courthouse News Service as on June 18, 2020, more than 128,000 prisoners have been released due to the pandemic, out of which 103,000 were from Turkey, around one third of its prison population (Burdeau 2020). Most European nations released between 6 and 14% of their prison populations, according to the Council of Europe, an international organisation which set up the European Court of Human Rights to uphold the European Convention on Human Rights (ibid.). This is in consonance with the percentage of prisoners released in America.
The large number of prisoners released in Turkey could be explained on the basis of the fact that since the 2016 coup attempt there, thousands of dissenters have been arrested and put behind bars, leading to huge overcrowding of its prisons. On the other hand, Russia, which shares the distinction of having the highest prison population in Europe with Turkey (325 inmates per one lac population), had not released any prisoners as on April 15, 2020 (ibid.). One can see here that authoritarian regimes’ decision whether or not to release prisoners depended on how these regimes reacted to the risks involved. One decided to release large number of prisoners based on its risk assessment and the other decided not to release a single prisoner and in fact adopted a policy of ‘hyperisolation’ whereby prisoners’ links with the outside world were completely cut off, including their access to families, lawyers, human rights defenders and public oversight bodies (Usanova 2020).
It needs to be highlighted that the risk of individual prisoners catching the Corona virus did not appear to be a consideration while deciding their release. This is clear from the fact that the vulnerabilities of the prisoners to get infected was not a criteria for decision making; rather it was the manageability of the risk of an outbreak inside prisons, without disturbing the narrative of those who deserve to be imprisoned.
Reports of prisoner releases from prisons in Asia due to the pandemic show a mixed picture. Mitra (2020) reports that as on April 26, nearly 10,000 prisoners have been released from Afghanistan, ‘in particular of vulnerable groups such as inmates aged over 55 years and those with critical illnesses, through early release and parole’, Sri Lanka released 2691 prisoners, and Myanmar announced the release of 24,896 prisoners. Bangladesh decided to release prisoners by identifying ‘those having already served around 20 years of their prison term, and others associated with minor offences or pending trial’. Similar efforts have been undertaken in the highly overcrowded prisons of Philippines (with a congestion rate of 534%), whereby they released more than 30,000 prisoners, some of whom were rearrested on charges of reoffending. In Pakistan, in response to the Punjab Government’s decision of releasing more than 20,000 prisoners (nearly half the prison population in the province), the Supreme Court of Pakistan overturned the decision of the lower courts, declared their release null and void and called for their re-arrests. Despite these setbacks, Mitra says that overall, countries across Asia have released prisoners based on criteria like ‘(i) persons associated with minor offences redirected to non-custodial alternatives to imprisonment; (ii) overstaying prisoners, including those who have already completed their sentence; (iii) persons who are unable to pay their fines or bail; and (iv) special categories of prisoners such as the elderly, critically-ill, pregnant women, juveniles and imprisoned mothers with accompanying children, who are in need of additional care and assistance that prisons are not traditionally designed to offer’ (ibid.).
It emerges from the above discussion that most prisoners across America, Europe and Asia were considered fit for release based on the narrative of dangerousness and risk to society, rather than risk of the infection to them. Decisions were often taken based on fear of the consequences of keeping prisoners locked up or releasing them in society. This can be also evidenced from news reports creating moral panics (Cohen 1972; Welch, Fenwick and Roberts 1997) about prisoners reoffending after their release due to the COVID crisis (Johnson 2020; Gurman and Elinson 2020; Gumelar 2020; Shaikh 2020).
In India, the supreme court (SC) of India took suo moto cognizance of the issue on March 16, and asked state governments to file affidavits regarding the steps being taken to prevent the spread of the disease in prisons and juvenile homes. In response to the public interest litigation (PIL), state governments filed affidavits before the SC showing their willingness to release prisoners on bail or parole, especially those arrested in less serious offences. In its orders passed on 23rd March, the Court asked state governments to constitute a High Powered Committee chaired by the Chairperson of the State Legal Services Authority to identify categories of prisoners who can be released based on criteria decided by them. It has also asked the under trial review committees (UTRCs) to meet every week to consider releasing under trials on bail or PR Bond. With regard to further reducing the pressure on the prisons, the Court has reiterated the orders passed in the Arnesh Kumar v. State of Bihar case (2014) to avoid making arrests in case of persons charged with offences where the maximum sentence was less than 7 years, as far as possible.
Post the order of the SC passed on March 23, 2020, state governments across the country constituted the three-member high powered committee (HPC) comprising the Chairperson of the State Legal Services Authority, the Home Secretary and the Director General of Prisons in the state. Initially, most of the HPCs issued guidelines for the release of under trial prisoners on ‘temporary bail’ and convicted prisoners on ‘emergency parole’ in offences where the maximum sentence was less than 7 years (Raghavan and Tarique 2020; Raghavan and Dhanuka 2020). Gradually, as cases of COVID 19 were detected and began to increase in prisons, the HPCs issued guidelines to release more categories of prisoners. As per an online tracker on State/ UT Wise Prisons Response to COVID 19 Pandemic in India managed by the commonwealth human rights initiative (CHRI), 18,157 cases of Corona positive have been detected in prisons across India (prisoners as well as staff) including 17 deaths, as on October 25, 2020.
An analysis of the category of prisoners who were considered for temporary release on bail or parole by the HPCs provides interesting insights. Initially, as mentioned earlier, most HPCs issued guidelines to consider those arrested or convicted in offences where the maximum sentence was less than 7 years. Later, some of the HPCs broadened the categories due to the spread of the virus, but their criteria for eligibility were based on the purported seriousness of the offence rather than vulnerability to getting infected. Prisoners arrested or convicted in offences relating to economic offences, organised crime, terrorism, sexual crimes and national security were excluded from the eligible categories. Also, foreign prisoners were excluded from consideration for release on temporary bail or emergency parole, irrespective of the offence background. The national forum on prison reforms (NFPR), an alliance of organisations working on prisoners’ rights, filed an intervention application (IA) in the SC in the ongoing suo moto PIL, highlighting the alarming situation in prisons and requesting the court to pass directions to reduce the prison population, take effective measures to improve health and hygiene conditions inside prisons and ensure the safe passage of released prisoners to their homes due to the lockdown situation. For example, it suggested that prison specific readiness and response plans must be developed in consultation with medical experts. It further suggested that the Interim Guidance on Scaling-up COVID-19 Outbreak in readiness and response operations in camps and camp like settings jointly developed by the International Federation of Red Cross and Red Crescent (IFRC), International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHCR) and World Health Organisation (WHO), published by Inter-Agency Standing Committee of United Nations on 17 March, 2020 may be taken into consideration for similar circumstances (NFPR 2020, unpublished).
Some of the HPCs were more liberal than the others. For example, the Delhi HPC issued guidelines vide its meeting held on April 18, 2020, that ‘prisoners/ UTPs who are suffering from HIV, Cancer, Chronic Kidney Dysfunction (UTPs requiring Dialysis), Hepatitis B or C, Asthma, and TB’ may be considered for release on bail or parole’. The Haryana HPC expanded the category of prisoners for to include those above the age of 65 years, except those involved in multiple crimes, to be released on six weeks special parole. Karnataka HPC expanded the scope of persons being eligible to be released on bail to include persons with mental illness and offences triable by magistrates’ courts. Further, the Committee has also increased the amount for legal aid empanelled advocates to be paid Rs.1500 per bail application, on account of the emergency. The Madhya Pradesh HPC has released under trials who have been in prison for more than 5 years. The Chhattisgarh HPC has included offences triable by magistrates like the Karnataka Committee, so also lesser offences under the protection of children against sexual offences (POCSO) Act. Chhattisgarh has also considered releasing prisoners in preventive custody under Sect. 151 of the criminal procedure code (CrPC) and also Sect. 107 and allied provisions of the CrPC. The Jammu and Kashmir High Court has directed that all prisoners who are convicted in one offence and have already served a term of 10 years (8 years for women); except those convicted under narcotics drugs and psychotropic substances (NDPS) Act, POCSO or violence against women cases including acid attack; to be released. They have also directed that prisoners serving sentences in lieu of fine to be released (NFPR 2020, unpublished).
In terms of number of prisoners released as a result of the SC PIL, according to the CHRI tracker, 68,264 prisoners have been released as on October 25, 2020, leading to a reduction of 17.2% in the overall prison population (CHRI 2020). Another report by the National Legal Services Authority, 42,529 under trial prisoners and 16,391 convict prisoners have been released as on May 15, 2020. Given the fact that the occupancy rate in prisons across the country is 118.5% as on December 31, 2019, the occupancy rate as a result of these releases is around 101.3%, which means that the situation of overcrowding has undergone a marginal improvement. It must be noted that since there is no available data on new admissions, these figures may not reflect the ground realities. Even if these figures were considered as correct, social distancing is by no means possible under the current circumstances. This is particularly true of prisons in cities and major towns where the overcrowding situation continues to be dismal. For example, the prison population in Mumbai Central Prison, also known as the Arthur Road Prison, as on July 31, 2020, is 1843, where as its official capacity stands at 804, implying an occupancy rate of 229.22% (Government of Maharashtra 2020).
The absence of gender disaggregated data on release of prisoners indicates the lack of importance given to the needs of women prisoners. Baxi and Singh (2020) say that ‘all women in prisons without distinction of charge, crime or sentence, whether pregnant, lactating, menstruating or menopausal, differently abled or ailing may be thought of as “custodial” minorities’ and advocate their release irrespective of the offence for which they have been arrested or convicted. They emphasise that alternatives to imprisonment should be innovated for all convicted women, and gender and sexual minorities. Release of women prisoners is important also from the point of view that there are children (below 6 years of age) living with them. For example, as on May 10, 2020, there were 352 women prisoners with 26 children in the Byculla District Prison in Mumbai, as against its official capacity of 200 (176% occupancy). Post the SC orders and the HPC guidelines, 147 prisoners had been released as on March 31, 2020 (Shantha 2020).