‘Technically’ Worse: The Paradox of ‘Smart’ Prisons in India

A critical evaluation of the challenges posed by the digitization of Indian prisons.

Ashna Devaprasad is a final year law student at the National University of Advanced Legal Studies, Kochi, India, and has a keen interest in researching prisoners’ rights and capital punishment. She is currently a Death Penalty Research Fellow at Project 39A.

Around the world, government support for the digital transformation of correctional institutions through the creation of ‘smart prisons’ is on the rise. Discussions on the use of Information and communication technologies (ICTs) in prison settings include introducing risk assessment software, facial recognition tools, artificial intelligence-based monitoring systems (AI), electronic tagging using GPS, and audio surveillance mechanisms. While using technology in the criminal justice system, part of a larger scheme of ‘algorithmic governmentality,’ can help address a shortage of prison staff and aid socially distant functioning during the COVID-19 pandemic, its routine application in homogenous environments of control raises serious human rights concerns.

Human rights advocates commenting on the use of such technology in law enforcement, including in prisons, have flagged issues like accuracy problems in violence detection, the possibility of embedded biases, invasions of privacy, data ownership, violations of consent, and a lack of transparency in their functioning. In an attempt to replicate these models, reports from India highlight efforts to install prison management software, AI-based video surveillance and drone monitoring to effectively scrutinise prison activities, check violent behaviour, and improve overall prison governance. In addition to posing a threat to the human rights of its prison populations, plans to digitise correctional institutions in India also suffer from implementational hurdles given the unique structural design and functional aspects of prisons in the country.

Nearly seventy prisons in India are currently known to be implementing an AI-based video surveillance software called JARVIS, developed by a locally run start-up. In some prisons, the software uses a combination of object recognition and computer vision to closely monitor live footage from prison cells and evaluate frisking of inmates, acts of violence, unauthorised use of contraband, and access to mobile phones, knives, guns, and other potentially dangerous weapons. Other jails have set up similar systems where prison personnel use automated drones to provide minute-to-minute information on activities within the prison, including casual interactions between jailers and inmates. In Punjab, the state government recently amended its Prison Rules to ‘strengthen security arrangements’ in its prisons by introducing various technologies. Consequently, prisons have installed a range of surveillance systems, including CCTVs, AI-enabled motion sensors, body scanners, biodata kiosks, mobile jammers and alarms. Though authorities claim that such measures will address prisoners’ grievances, the emphasis seems to be mass surveillance, preventing escapes and creating high-security enclosures, which authorities call ‘prisons within prisons.’

In India, prison authorities have continually praised this shift to ‘smart’ prisons, vaguely terming them as ‘spectacular’, ‘cutting edge’ and ‘advanced’ solutions to security concerns. State authorities impetuously justify ‘smart’ initiatives in prisons using public safety and crime prevention rhetoric without offering any concrete scientific evidence on the actual logistics of their efficient functioning. The repeated use of such rhetoric enables the State to reproduce a ‘fabricated social truth’ grounded in what Jinee Lokaneeta calls ‘a spectacle of science’, without addressing how technological interventions will address the constantly changing and unpredictable human realities of prisoners’ lives. With no clarity on what these systems do, who has access to the data collected, and how prison officials will use such data, technological incarceration only reinforces the power and privilege of state authorities, disenfranchises prisoners and relegates them to the fringes.

Mahuya Bandyopadhyay, in her prison ethnography studies, characterises everyday Indian prison life as a chaotic confluence of nuanced negotiations between prisoners and prison staff — a constant struggle by inmates to secure rights, break free from discriminatory stereotypes on criminality and prevent frequent misuse of power by prison authorities. She draws attention to various strategies of control used by jail wardens to deny prisoners their basic amenities and their right to freedom of speech and expression. Introducing technological reforms to such authoritarian carceral settings complicates this chaos by forcing prisoners to rely on services they can neither choose nor truly consent to, thereby brushing aside the ethical burdens of the State.

Although replacing human reasoning with automated technology in prisons could arguably minimise subjective human decisions leading to bias, a failure to recognise distinct living conditions in Indian jails could magnify opaqueness through unilateral decision-making and exacerbate ‘past injustices or produce new ones.’ For instance, technological incarceration could become a source of exclusion and invisibilisation, especially for illiterate and impoverished prisoners who are disproportionately represented in the criminal justice system and have little background knowledge about these issues.

As Bandyopadhyay notes, mutual prisoner-staff negotiations often help prisoners construct meaningful, smaller worlds within the jail by opportunistically preserving self-interest even in the slightest of ways. The substitution of such human interactions with tightened non-human technologies only deprives prisoners of their agency, heightens manipulation risks, and worsens their frustrations and anxieties. Similarly, a decision to protest against technological surveillance or a refusal to volunteer biodata could increase chances of exploitation, with prison officials arbitrarily denying prisoners material ‘privileges’. Removing human staff from the equation could aggravate distrust among the prison community, who may perceive ‘secret surveillance systems’ as nothing but deliberate strategies to exercise more power and invade their privacy.

The ‘smartification of prisons’ could also result in what Kaun and Stiernstedt identify as a ‘desynchronisation between the temporalities of prisoners’ lived experience and temporalities of digital technologies.’ For example, from the prison regulation perspective, jail officials could take swift remedial action in the form of complete lockdowns or pervasive monitoring of personal communications under the garb of providing real-time surveillance to efficiently identify regulatory breaches. For prisoners, such ‘immediate results’ that are non-negotiable then translate to more repressive prison conditions. Fast-paced digital reform thus paradoxically becomes a way for authorities to maintain the institutional goal of ordered routines, slowness, and predictability of prison life. Concomitantly,  prison officials evade responsibility for their choices while interpreting the results generated from automated monitoring systems and proving their effectiveness. Since technological reform is accompanied by the dehumanisation of everyday prison governance, officials can mechanically control how prisoners spend their time, placing constraints on their sociality and bodily mobility.

Much like prison reform in other areas in the past, efforts to digitise prisons in India have thus far been piecemeal, opaque and undemocratic. Although measures to introduce technological reforms within carceral settings may be well-intentioned, failing to plan and scrutinise their implementation could give rise to a ‘modern panopticon’ — an invisible surveillance mechanism within an already disintegrating criminal justice system that validates power and subordination, exacerbates vulnerability, and normalises social sorting to identify deviant behaviour. From the State’s perspective, it is symbolic of a deliberate policy to reinvent the status quo — to ignore the harsh sociocultural and legal-political realities of everyday prison life, retain arbitrary control, and continue to deprive prisoners of their most fundamental human rights.

Ashna Devaprasad,  The National University of Advanced Legal Studies, Kochi, India.  

Email: ashnad96@gmail.com

Twitter: https://twitter.com/ashdev13

Images: courtesy of the author

Why Were Prisoners Left Off the Covid-19 Priority Vaccination List?

Despite calls from health experts to prioritise the vaccination of prisoners, the UK’s punitive society prevented putting prisoners above law-abiding citizens.

Rosie Judd is a Politics and International Studies graduate from the University of Warwick with an interest in social politics. Her studies have focused on understanding how societal opinions govern day-to-day policy matters, particularly in light of the recent Covid-19 pandemic.

The Covid-19 vaccination programme presented a difficult challenge to the UK justice and punishment system: where do prisoners fit in our public health policy? For many, such a conversation was about the absolute health of inmates. Prisons were viewed as hotbed climates with porous borders that required the priority vaccination of inmates for their, and public, safety. Indeed, previous infectious outbreaks in prisons demonstrate the severity of prison walls.

However, where health experts were arguably naïve was their assumption that the vaccination list was simply a health matter. Rather, the list was a convergence of health and crime and punishment, which in our punitive society, meant that prisoners would not be put above law-abiding citizens. Really, no matter the strength of the health argument (which was strong), ideas on crime and justice triumphed. So, rather than discussing why prisoners should have received the vaccine first, it is more useful to understand exactly why prisoners could not be prioritisied.

First, is how we characterise prisoners. In today’s punitive society we adopt a harsh view on criminals. They are stereotyped as unruly, dangerous, career offenders who keep such labels even once they have served their punishment. With such labelling, punishment is more commonly administrated through i) retribution; where offenders morally deserve a penalty, and ii) incapacitation; where the prisoner is removed so they do not pose a threat to the public. There are other aims of punishment, such as rehabilitation, but these are subordinated to more penal aims. This punitive landscape is well evidenced by the steep increase in prison populations, where despite crime rates falling we still decide criminals need to be locked away.

Second, is what the aim of the punishment is. Today, society demands criminal justice is for our benefit, at the expense of what is best for prisoners’ own improvements. For example, we do not lock away prisoners to primarily help them, but to make us feel safe. Naturally, punishment and justice policy may have benefits to prisoners. However, this is a secondary thought to how law-abiding citizens benefit from the decision.

Third, is who directs prisoner characterisation and the focus of punishment. Notably, the public has increasingly demanded, or taken interest in seeing, expressive punishment. We view crime as an incredibly personal, emotional experience and therefore want to be involved in both how justice is administrated and how it affects us. Our inflated belief that crime is a national epidemic means that we demand harsher punishments too.  Of course, it is important to remember that these opinions are heavily shaped by the media. Given we care about these issues based on our personal consumption of them (i.e. the way we feel they will affect us), how the media directs us to think about crime will impact our attitudes. Therefore, with over-reporting of violent and sexual crimes to stories of ‘soft prison life’, the media is guilty of scaremongering the public and shaping their penal demands.

However, why exactly does public opinion on crime and punishment matter? For there are other matters we have opinions on but do not drive policy on as much. Fundamentally, the public has a key role in crime. We need to report crime, act as witnesses and jurors, or provide evidence, without which would undermine the success of our punishment and justice system.  Public trust is required to ensure we fulfil our roles, so it is vital that the government responds to public expectations of the system. Additionally, the government will serve public interest for electoral success. For contemporary politicians, punishment and justice policy is the opportunity to prove they will ‘get things done’ and act in favour of public interest.

So, today then we have a punitive criminal justice system which: i) constructs criminals as dangerous, ii) prioritises law-abiding citizens and iii) listens to public demand over expert advice. We have a society divided by ‘us’ and ‘them’, the ‘good’ and the ‘bad’, the ‘law-abiding’ and the ‘criminal’ – in which there is a clear order of preference. When health experts tried to argue that prisoners should be prioritised, this was asking us to completely overturn today’s attitude on crime and punishment. First, how we depict criminals would have to be based on vulnerability and hardship. Second, what the focus of crime and punishment is would have to prioritise criminals over law-abiding citizens. Third, who drives such decisions would have to be led by experts not the media and public.

Problematically, such changes are arguably difficult to induce and without these changes prisoners were never going to be prioritisied for a Covid-19 vaccine. In fact, even though the government did not actually prioritise prisoners, inflamed media coverage of the idea demonstrates the impossibility of the proposal. The government is not in a place yet to forgo public opinion on justice and punishment.

So yes, the Covid-19 vaccination programme was always going to require prioritisation. But no, deciding the list was not a simple health exercise. Rather, the vaccination list was the convergence of ideas on health and crime and punishment, which in our punitive society generates a contrast to serve the helpless and punish the contemptible. It was such an intersection that health experts failed to properly acknowledge and therefore why their bid for prisoner priority vaccination was never successful.

As a concluding thought, note the impact of failing to prioritise prisoners. With a lack of vaccines prisoners have been stripped of nearly all their opportunities: seeing family, undertaking education, and general day-to-day interaction. A report by the HM Chief Inspector of Prisons found most prisoners have spent over 90% of their time behind their cell door, with disturbing levels of well-being decline. Of course, law-abiding citizens have faced enormous restraints on livelihoods too. However, we must remember that such dramatic prisoner restrictions have risked indefinite rehabilitation failures – crossing the line between Covid-19 prevention and ensuring offenders re-enter society as better citizens. Failing to prioritise prisoners, not only illustrated exactly what our criminal justice system is but reinforced the dwindling focus on rehabilitation we have in this country.

Contact

Rosie Judd, Warwick University

Email: juddrn@btinternet.com

Photographs courtesy of author 

Covid and the Penal System

This review reveals some of the ‘behind the scenes’ issues dealt with by the English courts during the Covid-19 pandemic period.

Susanna Menis is a Lecturer in Law at Birkbeck London University, School of Law. She was a member of the Independent Monitoring Boards of Prisons for many years.

News concerning sentencing in the UK during the pandemic period are mixed in tone and expectation. Typical to the media’s lack of restraint in informing the public, we can read headlines such as ‘Criminals handed coronavirus discounts as sentences shortened because of harsh new prison conditions’; and ‘Paedophiles, thugs and drugs dealers have sentences cut because coronavirus makes prisons too harsh’. Other concerns have also been reported, for example that ‘prisoners locked up for 23 hours a day due to Covid rules is dangerous’. The aim of this blog entry is to reveal some of the ‘behind the scenes’ issues dealt with by the English courts during this pandemic period. Some of the prison related concerns that the judiciary came across have been sentencing, prison conditions, release on licence, extradition and early discharge. The following will review the extent to which Covid-19 has affected some of these circumstances.

One of the first stories released by the media at the end of March 2020 was the governmental instruction for early discharge from prison. The conditions for such a release were that the prisoner was of low risk and within two months of their original release date. In the first application for early release that we have a record (6 April 2020), the Queen’s Bench Division made an interesting observation (Chelsea Football Club Ltd 2020). The Court was concerned as to whether the early release scheme might undermine the rule of law. The answer was ‘yes’ in principle, but ‘no’ in practice. It was considered that the scheme was part of a bigger picture of protecting public interests by reducing the burden on the NHS in case of a Covid-19 outbreak in prison. In hindsight, most prisons were able to limit the spread of the Covid-19 first wave, and this was the reason why the scheme was very quickly shelved.

The court also touched on a concern which came up in several forthcoming cases, that is, the balance between more restricted prison conditions and the proportionality of the sentence. It was this that has mainly caught media attention: imposing the lowest threshold of a sentence on individuals which in normal circumstances might not have escaped imprisonment or longer sentences so easily. The restricted prison regimes used to control the spread of the virus meant that prisoners were confined in their cells for longer hours and family visits were not permitted; although similar or worse circumstances were faced by the public, the courts took the pandemic as a factor in determining the suitability of a prison sentence (Manning 2020) – would imprisonment during this period inevitably restrict even more the level of privation of the individual? And should this be taken into consideration?

The courts believed that they should (Manning 2020; Smith 2020; Ranshawa 2020; Khan 2020; Davey 2020); although not without challenge by the Solicitor General (Manning 2020; Gaves 2020; Mohamed 2020; Bastri 2020). Indeed, despite decades of overcrowding, questionable conditions, and doubtful rehabilitative impact on low risk offenders, it is only with the pandemic – ironically, given the safer environment during the first Covid-19 wave – that the courts felt it acceptable to waive a prison sentence and replace it with, for example, a suspended sentence accompanied by any of the range of rehabilitation, prevention and curfew orders. Another eyebrow-raising observation made by the Courts was the rational used to justify a suspended sentence on an offender who ‘posed a high risk to a “known child”’ (Manning 2020); that is, that the curfew imposed was further enhanced by the lockdown forced by the government. Of course, having experienced several lockdowns since, it is clear that the inhibition of this person’s movement would have been but little affected by the lockdown.        

It seems that the courts have started to back down from this reasoning, perhaps because the state of emergency had become the norm by November 2020. However, before this shift took place in England, the Appeal Court in Scotland made its stance clear earlier in June 2020 (HM Advocate, 2020). Accordingly, in the context of the pandemic, coughing in jest justified a longer prison sentence. This court response to the approach taken in England was first, that opting for a suspended sentence instead, and ‘take account of the emergency as a reason for discounting – would only serve to discriminate against those who might have been given a short term sentence before lockdown’. Second, the court thought that by now, prisons had found ways to mitigate the conditions dictated by the pandemic. For example, they were told that Inverness prison was about to implement a ‘virtual’ family visits scheme. It is difficult to tell whether this case had any effect on the English courts as it was only cited once and not in relation to the pointers mentioned above. Nevertheless, since November 2020, the English courts have showed greater reluctance in allowing the initially applied lax approach to sentencing (Strong 2020; Gaves 2020; Mohamed 2020). 

Although apparently less newsworthy but perhaps most significant, the last two questions faced by the courts during this period concerned extradition and immigration bail. The travel restrictions meant that several extraditions had to be postponed. The issue at hand was not so much the longer detention period that followed, but rather what was considered to be an unlawful detention – habeas corpus. The courts clarified that there was no case to answer. The original detention was set by a judge following lawful legal procedures; this was the case also for the order authorising the postponement of the extradition term (Cosar 2020; Verde 2020). Referring to an EU decision on that matter, it was explained by the court that postponing these extraditions was justified on a serious humanitarian reason and that this was a situation beyond states’ control (EU Council Decision 2002/584/JHA Article 23).

Different has been the case for immigration bail. Individuals granted bail from immigration detention to an approved premise had their rights mostly compromised during this period. The lockdowns and social distancing experienced meant that approved premises have struggled to meet the increasing demands– particularly detrimental in cases of immigration. Here, the Home Secretary for the Home Department was delaying removals due to lack of suitable accommodation, leaving people in detention for longer than justifiable. Applications for interim relief to urge action, were framed around the violation of the Hardial Singh principles concerning lawful detention in the context of immigration. The Courts recognised the impact of COVID-19 on these situations stating that it ‘made an already difficult task virtually impossible’ (Mahboubian, 2020); however, it was also stated that the need to avoid false imprisonment was not mitigated by the pandemic (Merca 2020; Ko 2020; CN 2020; Diriye 2020; Tutaj 2020; Mahboubian 2020).

Almost reaching a full year of life under pandemic conditions, initial media focus on punishment and justice is dwindling. Unsurprisingly, attention is now shifted towards crimes committed in the context of Covid-19. Still, in the background, the criminal justice system is facing a real struggle in balancing public interests against individual liberties.

Case reference

Chelsea Football Club Ltd v Nichols [2020] EWHC 827 (QB)

R. v Manning (Christopher) [2020] EWCA Crim 592

R. v Peter James Smith [2020] EWCA Crim 1014

R. v Randhawa [2020] EWCA Crim 1071

 R. v Khan [2020] EWCA Crim 1617

R. v Davey  [2020] EWCA Crim 1448 

R. v Gaves [2020] EWCA Crim 1728

R. v Mohamed [2020] WCA Crim 1745

R. v Basri [2020] EWCA Crim 1218

HM Advocate v Lindsay (Iain) [2020] HCJAC 26

R. v Strong [2020] EWCA Crim 1712

Cosar v Governor of HMP Wandsworth [2020] EWHC 1142

Verde v Governor of Wandsworth Prison [2020] EWHC 1219

R. (on the application of Mahboubian) v Secretary of State for the Home Department [2020] EWHC 3289 

R. (on the application of Merca) v Secretary of State for the Home Department [2020] EWHC 1479

R. (on the application of Ko) v Secretary of State for the Home Department [2020] EWHC 2678

R. (on the application of CN) v Secretary of State for the Home Department [2020] 10 WLUK 85

R. (on the application of Diriye) v Secretary of State for the Home Department [2020] EWHC 3033

R. (on the application of Tutaj) v Secretary of State for the Home Department [2020] EWHC 3579

R. (on the application of Mahboubian) v Secretary of State for the Home Department [2020] EWHC 3289

Susanna Menis, School of Law, Birkbeck, University of London, Malet Street, London WC1E 7HX

Email: s.menis@bbk.ac.uk

Images: Courtesy of author