“We are convicting far too many people who should not be in prison…When it comes to individuals who cannot pay the fine, it is the government that ends up paying the fine because they keep them imprisoned for one month and shoulder the cost of imprisonment…” — a former commissioner-general of Prisons, Report of the National Study of Prisons.
As I write this article, I am getting reports of violence and death from Mahara prison. In the last month, there have been clashes and deaths at two prisons leading to at least 33 deaths. The pervasive and chronic nature of prison violence raises grave concerns about the ability of the government to manage the prison system. Although the reason for the Mahara violence is yet unknown, it points to system-wide shortcomings which remain unaddressed, the principal one being prison overcrowding.
Prison overcrowding re-entered public discourse after the island faced the second deadliest prison violence in its history at Negombo in July. In the incident’s aftermath, there were calls for solutions such as building new prisons and using ankle bracelets.
Such proposals are uninformed. They disregard the fact that we can have so many fewer people in prisons if we properly used alternatives to incarceration, such as bail, probation, and community service. Provisions for these alternatives already exist in our laws. But lawyers, judges, and the justice sector don’t use them enough, or sometimes at all.
Penal populism: ignoring alternatives to imprisonment
Most people in prison are remandees — the term for those who are behind bars but who haven’t been convicted. From 2015 to 2023, 70% of prisoners were waiting for their trials to start or end, many of them for years. The Release of Remand Prisoners Act, passed in 1991, tries to tackle this problem.
In the case of some offences, including the possession of less than a gram of heroin, the Release of Remand Prisoners Act empowers the court to release an accused person pending trial — even if they’re unable to fulfill bail conditions.
Prison statistics show that most incarcerated people in Sri Lanka are poor and oppressed. These include people imprisoned for the non-payment of fines and drug use (as opposed to manufacturing or dealing drugs). They’re the least able to retain lawyers, apply for bail, and mount a vigorous defence. This in turn leads to their extended imprisonment and prison overcrowding.
This law gives magistrates the opportunity to consider the person’s circumstances and release those who are unable to secure bail. This is especially important as, in a perversion of one of the fundamental tenets of the criminal justice system, bail has become the exception, rather than the norm.
The act goes so far as to empower magistrates to release accused persons who are unable to fulfill their bail conditions, on the simple promise that they will attend their court hearings, known as a bond without surety. This is very important as it is fairly common for people to be stuck in prison simply because they can’t find a family member, or funds, to secure bail. As an incarcerated person said: “I have no one here to sign. There is no way for me to communicate that I’ve been granted bail and I don’t know anyone in this town.”
The act provides for four safeguards designed to stop remand detention from drifting into indefinite imprisonment.
First, if a person has been granted bail but can’t meet the conditions and has spent one month in remand, the prison superintendent must produce them in court, which must release them on a bond without sureties. Second, after three months in remand, the superintendent must again produce the remandee in court, which can release them if proceedings have not begun. Third, after one year, the procedure is repeated. Fourth, once the trial is under way, release without sureties remains the default unless the court identifies “good and sufficient” reasons to refuse it.
Magistrates must also visit every prison in their judicial division each month. During these visits, the prison superintendent can produce remandees who were denied bail or could not meet their bail conditions, and the magistrate can immediately release them on a bond without sureties.
A landmark Human Rights Commission study on prisons found that the Release of Remand Prisoners Act wasn’t used as much as it should be. Lawyers often didn’t advocate that their clients be released under the act, prison superintendents didn’t regularly produce people under this law, and magistrates didn’t use the law to release the prisoners brought to them. Most magistrates also don’t visit prisons in their area every month.
The Probation of Offenders Ordinance which provides an alternative to imprisonment is currently not in use. Passed in 1944, the ordinance is a progressive law that was ahead of its time. It doesn’t set a rigid criteria for deciding who probation can apply to. The decision is made on a case-by-case basis and is dependent on various factors including, the nature of the offence, the age and sex of the offender, and whether it appears that probation is more suitable than imprisonment.
Prior to issuing a probation order, the court must ask the Department of Probation and Child Care Services to report on the offender’s character, background, environment, and mental or physical condition. The department must also confirm that the case is suitable for probation and that the division's probation officers can take on the offender's supervision, given how many offenders they already supervise.
The Human Rights Commission study found that lawyers and judges generally didn’t know that this ordinance existed, as it's not in operation. The Department of Probation and Child Services does not handle the probation of adult offenders and there is no infrastructure in place for this system.
But there should be. Imprisonment is a far greater burden on the taxpayer; the cost of maintaining an incarcerated person is nearly 400,000 rupees a year. It also results in diminishing returns because people don't leave prison prepared to reintegrate into society and live as productive citizens. Instead, they often return to jail, driven by poverty.
The Community Based Corrections Act provides that a judge can order community service where the punishment is less than two years in jail.
Community corrections help break the vicious cycle of poverty, marginalisation, destitution, and criminality. It forces accountability, but allows people to continue being part of their families and society. As Ruth Wilson Gilmore highlights, “in the case of communities where imprisoned people come from, we have the removal of people, the removal of earning power, the removal of household and community camaraderie, you name it.”
One official at the Department of Community Based Corrections recounted how important it was for his clients to not go to prison. A single mother with a paralysed son was caught selling two bottles of illegal alcohol. “Now, suppose that mother could not pay the fine. If she was sent to prison for six months or three months or even one month, what will happen to that child?” he said.
In 2024, more than 96% of convicted persons were serving sentences of less than two years. That means almost the entire prison population could have been sent to community corrections rather than prison.
Nevertheless, the law is underused. A condition for community based corrections is a pre-sentence report on the person, which is prepared by the corrections department and submitted to the judge. The report must be thorough, containing details on the person’s social history, dependents, education, and employment history. It also must include courses or programmes which they could attend and benefit from.
The prisons study report points out there is reluctance to use this law as the process of obtaining a pre-sentence report, and implementing a community based corrections order takes longer than the process of sentencing the person to imprisonment and closing the case.
Progress requires progressive policies
It is not surprising that simplistic solutions like building more prisons and introducing anklet bracelets will capture the public imagination. They don’t require any substantive, complex, and long-term action that dismantles structures of inequality and violence. For the effective implementation of the Probation of Offenders Ordinance and the Community Based Corrections Act, the government will have to allocate adequate resources to ensure the infrastructure and personnel are available.
Instead, the current government’s approach, much like past governments, is penal populism. The government, instead of basing policy decisions on research or the advice of experts, seeks to give the public “what they want”. This is often presented as acting based on common sense. In reality, the only common sense involved is the political calculus of pandering to the gallery’s worst instincts.
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