Trigger warning: mentions of violence against marginalised communities
Before we start talking about the different forms of criminal justice systems that exist and can be created, we need to sneak a peek into the current carceral, criminal justice system in India. Our current criminal justice system is that of punitive justice, where we seek to impose a punishment (deprivation or restriction) on the offender, that is mostly incarceration.
At the end of 2019, we had 4,78,600 prisoners, with an occupancy rate of 118.5%. Seven in 10 of them are under still under trial, two-thirds of whom are from marginalised castes. Also, more than one in five (21.5%) undertrials were Muslim. Data shows that 27.7% are illiterate and over 70% haven’t received 10th standard education.
Also, trials are taking longer and the number of people in prisons awaiting the completion of their trials for long periods, is increasing. The high proportion of undertrial population defeats the purpose of prisons, which are supposedly meant to correct convicted offenders of law (Paliath, 2020).
Long periods of incarceration can deplete the prisoners and their families financially and emotionally; and eliminate their chances of employment and societal reintegration—leaving the under-privileged groups susceptible to more profiling and harassment by police and subsequent arrests.
Entire Communities Have Been Criminalised
Deeply entrenched caste prejudices, and over-policing of certain communities, are important social factors behind the significant presence of marginalised caste groups in jails. Counter-cases are often filed against marginalized castes and minorities who might file a case of atrocity.
The investigation and trial in these counter cases is speedy, while the cases filed by Dalits and Adivasis against dominant caste communities is slow. Once the persons from marginalised social groups are registered in the criminal justice system, they tend to be repeatedly targeted and profiled for offences by the police.
This is the case with de-notified tribes like the Pardhis in Madhya Pradesh, or the Kuruvas in Tamil Nadu, who were considered to be “criminal tribes” by the colonial administration under the Criminal Tribes Act, 1871. It was repealed in 1952, but the legacy of profiling and stigmatisation continues.
Such communities, including their children, are vulnerable to illegal detentions, false confessional statements, and arrests, as they have no means to seek bail. The bail system rests on furnishing of assets as sureties, which most people from marginalised communities do not have.
Prisons Reinforce Pre-Existing Inequalities
Therefore, poverty, high cost of litigation, poor quality of free legal aid and caste bias, ultimately fill our prisons mostly with the underprivileged and marginalised (Paliath, 2020).
These statistics show that institutions like the prison and police are structures designed to reinforce the social inequities already present in society, and protect the power hierarchies.
This is obvious when we see how the state uses these institutions to criminalise voices of dissent using colonial era laws like sedition, arrest and harass human rights activists by: charging them with UAPA [Unlawful Activities (Prevention) Act] and NSA (National Security Act), creating conspiracy theories, and tagging them as “anti-nationals” and “urban-naxals”.
The violence unleashed by the state on its people, and by dominant castes on the oppressed, are never considered as violence. But, when people protest against the oppressive social structures and pro-capitalist laws of the government (like the new farm laws, EIA, NEP and CAA), they are swiftly arrested and thrown into jails.
Punitive Justice Lets The Powerful Go Scot-Free
People of power, who spew hate and attack minorities, are never held accountable. Instead, they are offered complete immunity from arrests. Many people say that this system is broken and corrupted, and that we should reform this system by funding more police, surveillance and jails.
But, the fact is that the system is functioning exactly as it was designed to operate—protect the existing hierarchies by relentlessly targeting the people it wants. It is imperative that we stop hoping to better this system; and think of other ways in which we can think about: violence, crime, harm, justice and punishment.
Restorative justice seeks to: compensate the victim, repair the harm, and facilitate the offender’s remorse. It is an ideology much broader than our current, criminal justice system based on punishment. It is about values around how we treat each other. It acknowledges that we are human beings who can hurt and cause each other harm.
When a violence or harm is committed, the punitive justice system only asks who committed it and what rules were broken. It focuses on how to punish them, and it empowers the state to punish the offenders. In restorative justice, we enquire, talk, share and discuss what happened.
What Can Survivor-Centric Justice Look Like?
Then, it focuses on the survivor’s needs. It asks them what they need as a result of this because harms engender needs that must be met. Consequently, it looks at ways to repair this harm and who needs to be at the table for that to happen. It invites the community to participate.
It also invites other people who were harmed because it recognizes that the ripples of harm are beyond the two individuals that might have been involved (the offender and the survivor). It also includes the broader community and the society at large (Rice & Smith, 2019).
People often confuse restorative justice and transformative justice, but they are not the same. Restorative justice focuses on the individual. The intervention is based on the individuals, not the system.
On the other hand, transformative justice tries to transform the conditions that make this possible. Merely restoring people to the situation prior to when harm occurred, doesn’t stop the problem from recurring. Most of the crimes and violence doesn’t come just from individual motives, but has clear social and cultural factors behind it.
Structural Conditions Behind Violence Should Be Addressed
The crimes on women and people from marginalised gender identities, oppressed castes and other minorities, happen due to structural conditions and the institutions that encourage this culture of violence.
It is patriarchy, caste oppression, xenophobia, transphobia and capitalism, that create these social hierarchies that sow the seeds of violence. We have to transform those conditions and in order to do so, we have to reorganise, shift structures and systems. This goes beyond just the interpersonal relationships that need to be mended (Rice & Smith, 2019).
People are always skeptical when they hear phrases like “defund the police” and “abolish prisons”, which became popular during the recent Black Lives Matter (BLM) protests in the US. They immediately ask how we would protect ourselves from rapists and murders if we don’t have prisons or cops.
But, people fail to ask whether these institutions are actually protecting us now. If prisons and the police are meant to convict criminals and protect people from violence, where is the data that shows us that they are doing this job?
Conviction Rate In Sexual Assault Cases Is Appallingly Low
For example, according to the Crime in India report (2019), one rape was reported every 16 minutes in India, and only one in four cases resulted in convictions. The perpetrators were known to victims in 94% of the cases. Most rapes go unreported because the survivors fear retaliation and humiliation.
A UN (United Nations) study of 57 countries estimates just 11% of rape and sexual assault cases worldwide are ever reported (Factsheet, Global, Progress of the World’s Women in 2011-12, 2013). This means that means roughly, less than 3 % of all rapes end in conviction.
Also, if the perpetrator is from a dominant community, then the conviction rate is even lower. Time and again, we have seen the reluctance of the police to arrest dominant caste perpetrators, during cases like the one that happened in Hathras.
The current punitive system is not doing anything to stop crimes and violence. Neither is it trying to identify the systemic and institutional hierarchies which create this violence, nor is it trying to help the survivors heal after an ordeal.
Those At The Margins Often Get Excluded
Therefore, the vast majority of people who are harmed in multiple ways, whether it’s a theft or a physical assault or rape, never report these cases. They choose nothing over going to the current system. We don’t think about the millions of people who don’t avail the criminal justice system in the country.
If every single person who was harmed went to the system, it would crash. There would be no way to account for them, because it’s not just about filing a FIR (first information report) at the police station. You need the investigation to be over, appear in trails or appeal to higher courts, etc. It is a long and expensive affair.
Therefore, the number of people who are convicted are miniscule, compared to the people who have harmed others and still exist out in the world. Restorative and transformative justice work overwhelmingly with people who either can’t access the system, or don’t want to access the system, or have accessed the system before and had a horrible experience.
We can’t have conversations about criminal justice without asking what is currently available to people, and whether they are availing themselves of those options. For certain populations who are already at the margins, they already feel alienated and criminalised by the system, so much so that they came up with other tools, to try and actually address the harms that have occurred.
Marginalised People Came Up With Transformative Justice
The birth of transformative justice started with trans people and black women rethinking ways to create models within their communities, to address intimate partner violence: both domestic and sexual. This was because the current punitive justice system wasn’t solving their issues, and quite often, the survivors were getting criminalised (Rice & Smith, 2019).
In the minds of people, justice centers around prison and punishment. This is instilled in us from our childhood, when children are beaten up and punished for wrong behaviours. People don’t like complexity, and want simple solutions to things that are not simple.
We live in a society where the punishment mindset has seeped into our hearts, minds, and spirits. We can’t even begin to imagine a world where people aren’t being coerced into doing things. Transformative justice says that prison is actually an outcome of a broader system of violence and harm, that has its roots in casteism, patriarchy, and colonisation.
Restorative and transformative justice are not alternatives to punitive justice or prisons. They constitue a philosophy and ideology on their own. Punitive justice creates binaries, that categorises persons as good and bad. Transformative justice shatters these binaries by trying to understand the nature of people and the complexities involved.
There Is No Singular Solution To Violence
People don’t have to be “perfect victims” to have somebody pay attention to their harm. Also, people are not monsters for having done a bad thing. This understanding is essential in trying to address harms that have happened in particular instances.
The carceral state conspires to obfuscate structural and systemic violence. By doing so, it turns all violence into individual failing. Transformative justice understands the need to illuminate structural and systemic violence. It shows that violence is beyond the individual, and is embedded in their social realities.
The structural and state violence that exists, is a mirror of the interpersonal violence that exists. It understands the complexities of people. For example, the domestic violence between partners is a manifestation of larger systems of patriarchy, misogyny and masculinity. It isn’t just confined to a man and a woman.
Transformative justice rejects the idea that a singular solution to the violence from an intimate partner, or the protection of a vulnerable group, is to put the perpetuators in prison. Without systemic changes and destruction of social hierarchies, this violence won’t stop no matter how many jails we fill.
Justice Must Be Tailored To Suit Survivors’ Needs
People who experience harm mostly want answers for questions like: “why are you doing this?” or “why did you do this to me?” If they are engaging, they want recognition and an admission of the harm. People also want some form of repair.
Sometimes, they want some restitution of their agency, which they feel has been taken away from them. And, sometimes, people say: “I want to make sure this doesn’t happen to another person.” The current system fails to provide answers for such questions and address such needs.
Restorative justice has different accountability processes, in which the survivor can be a part of the process if they want to. There can be processes with just the person who caused harm and no survivor also. There can be processes with just a survivor and not the person who caused harm, if they won’t take accountability.
Processes can be designed according to the needs of the people who are involved. It’s very much tailored to what the situation is, what the harm has been, and what the people need as well as want. In punitive justice, the solution to every problem in incarceration.
Let’s Think About Consequences, Not Punishment
It’s like taking a hammer and then assuming that everything is a nail. Restorative justice constantly works at figuring out what is hopefully going to help people.
People who advocate for transformative justice, understand that it is completely and utterly fair for the survivor of the violence to want their perpetrator dead. People might want to seek vengeance and it is fair for the individuals to want it. But, it should not dictate the public policy around how we resolve these crimes.
The survivors should also not have to forgive their attackers. Restorative and transformative justice is not about forgiveness. Transformative justice says that it is easy to punish people by inflicting pain and suffering, but it doesn’t change the underlying conditions that enabled the harm in the first place.
We know that punishment often does not work in transforming the root cause of violence. Transformative justice works with consequences rather than punishment. Consequences are always the things you have to think about within the context of the harm that occurs.
What If The Survivor Wants Vengeance?
The difference between consequence and punishment is that it doesn’t deprive the person of their basic needs for living, like food, water, shelter and liberty. Consequence focuses on identifying the position of power that the person holds and removing them from that, so that they can’t repeat the horrible actions they committed.
It reminds people that they no longer have the privilege of power, if they abused it. These consequences should also be proportional to the harm that they caused. Restorative justice asks the survivors their wants and needs, and tries to ensure that their needs are met.
Restorative justice understands that if the survivor wants revenge or violence, it can’t help them satisfy those wants, but it can help the survivor in getting a recognition of the harm caused to them, and in moving forward with their healing process.
It understands that the wants of people change when their needs are fulfilled, and that they might feel and think about the whole situation differently.
What Would Abolishing Prisons Look Like?
Prison abolition is not just about changing one facet of our criminal justice system, like closing jails. It is a project that is focused on not just the dismantling of the current punishing systems, but a framework where we think about different ways to stop people from landing in prison in the first place.
Our current criminal punishment system is surrounded by many other systems, that create situations of oppression and hierarchies, that need the existence of prisons for their survival. So, abolishing prisons is also about eradicating all forms of coercion like capitalism, patriarchy, caste system etc.
It’s a systemic and structural view of how the world operates, and what we need to do in order to be able to actually change those conditions. Working to make sure people have a higher wage, ensuring that people have access to free quality education and access to free healthcare, is doing abolitionist organising.
Abolitionists themselves are quite unclear of how the world will look like, when we change all these structural factors that lead to incarceration. So, when questioned about what to do with serial killers or habitual sexual offenders, they might be quite unclear as it all depends on the kind of relationships that are going to exist in that new world.
Throwing People Into Jails Is Not The Answer
They know that we will need to come up with solutions at that point, for people who cause harm on a regular basis. Abolitionists understand that there will be people who will cause horrible harms to others repeatedly, but they also realise that punitive justice is not the best way of addressing it.
Abolitionists are not asking for a sudden shutting down of all prisons and releasing of all prisoners. They want to target the root causes of these harms and address it. They want to solve them, rather than throwing people in prison without addressing them.
Abolitionists realise that imprisonment is not the solution to stop further harm from occurring. Prisons are used to hide the problems of our society, and to control marginalised populations.
Every day, we see how the police is used by the ruling party to quell dissent, arrest activists, attack protestors and enable violence on minorities. We have seen how human right activists and whistle-blowers have been hunted down, and put behind bars in fabricated cases such as the Bhima Koregoan one.
Let’s Look At Diminishing The Power Of Prisons
We have witnessed police brutality against the under-privileged during the Delhi pogrom and worker migrations during Covid-19 lockdowns. It’s time we start rethinking possibilities about how we deal with crime, and how we think about justice.
Getting rid of prisons would require an array of alternative solutions, whose utility depends on the person, the wrongdoing, and the circumstances. Those alternatives could include: rigorous therapy, targeted treatment, housing, restorative and transformative justice, education and employment.
It is not about letting all of the people out of prison right now, in this moment, and destroying prisons instantaneously. It is about creating a set of social and systemic structures that diminish the power of prisons, by investing in communities, so that it breaks the hierarchies which put people on the trajectory to prisons.
It is about continuously diminishing the need for this institution, which we know continues to cause harm. For those who think this sounds absurd and impractical, it’s worth keeping in mind that our current system is also impractical and absurd.
People Come Out Of Prison Worse, Not Better
People come out of our current criminal justice system worse, not better. And, this is a feature of the system… Not a bug. We can’t end violence, harm and destruction through a system designed to subject millions of people to violence, harm and destruction.
It really doesn’t make much sense to advocate for maintaining a system that has basically proven itself to be worthless. This is a system that causes actual harm to millions of people, every single day. In other words, this is NOT a system built to: make anyone better, really rehabilitate them, address the harm that they have done, and focus on repair and healing.
We should focus on not just addressing the situation at hand, but really healing them from the inside… Their trauma and hurt, ensuring that there are consequences for their actions, but not ones that destroy them.
“The most difficult and urgent challenge today is that of creatively exploring new terrains of justice, where the prison no longer serves as our major anchor.”
– Angela Davis
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This article was first published in Round Table India.
This article draws its content extensively from an interview of Mariame Kaba, who is the director of Project NIA, the co-founder of Survived + Punished, and a researcher in residence at the Barnard Center for Research on Women.
REFERENCES:
Crime in India, NCRB (2019).
Executive Summary, Prison Statistics India, NCRB (2019).
Factsheet, Progress of the World’s Women: In Pursuit of Justice, UN Women (May, 2013).
Paliath, S. Seven in 10 Indian prisoners are awaiting trial – one in three jail inmates is Dalit or Adivasi (September 9, 2020). Retrieved from scroll.in
Rice, J, & Smith, C. JUSTICE IN AMERICA EPISODE 20: MARIAME KABA AND PRISON ABOLITION (March 20, 2019). Retrieved from theappeal.org