The government has moved fast to rally the support of the House of Representatives, which agreed to resume deliberating the controversial revisions to the Criminal Code (KUHP) and the 1995 Correctional Facilities Law, which could pave the way to end prison overcrowding.

The 524 prisons and detention centers across the country hold 268,919 inmates including some 60,000 detainees, more than double the maximum capacity of 132,107 inmates, according to the Law and Human Rights Ministry's February 2020 data.

The data also showed that the nation's correctional facilities report an average occupancy of 104 percent.

Chronic overcrowding in the national prison system, combined with poor management and a shortage of wardens, has led to frequent prison riots. The most notorious among these occurred in 2013 at Tanjung Gusta prison in Medan, North Sumatra, and in 2018 at the Kelapa Dua Mobile Brigade headquarters (Mako Brimob) detention center in Depok, West Java. The two deadly incidents prompted the government to reform the prison system, yet overcrowding has persisted.

 

Law and Human Rights Minister Yasonna Laoly's latest plan to revisit prison reform is not without controversy.

Yasonna told lawmakers at last Thursday's teleconference that he would formally request approval from President Joko “Jokowi” Widodo to resume deliberations on the revised KUHP and Correctional Facilities Law that had been carried over from the previous legislative session.

Widespread protests from thousands of students and activists had forced Jokowi to delay the deliberations in September 2019. The protests criticized the deliberations for commencing just weeks before the end of the previous legislative session, as well as articles that they said would roll back decades of political reform to the New Order era.

The revised KUHP and Correctional Facilities Law would automatically void a 2012 Government Regulation on the rights of prisoners, which stipulates stringent criteria to determine the eligibility for sentence remissions and parole for inmates convicted of extraordinary crimes like corruption, drug crimes and terrorism.

Yasonna told lawmakers this time that he intended to revise the 2012 regulation to facilitate the conditional release of around 300 graft convicts aged 60 and above, among others.

Yasonna also aims to release 30,000 convicts of general crimes who have served at least two-thirds of their jail terms to prevent outbreaks in the country's overcrowded prisons, as part of the law ministry's COVID-19 prevention measure.

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Following immediate objections from antigraft activists who questioned the motive behind the inclusion of corruption convicts that represented only a tiny proportion of the prison population, Jokowi was quick to clarify on Monday that his administration had never considered corruption convicts under the scheme.

According to the ministry's February data, Indonesia has locked up 4,891 corruption convicts, far fewer than 91,308 convicts serving their sentences for drug trafficking and 46,794 convicts service time for drug abuse.

 

It has also been reported that graft convicts enjoy arguably less cramped prison conditions compared to prisoners convicted of other crimes.

Sukamiskin penitentiary in Bandung, West Java, for example, had 464 inmates in March, including 366 corruption convicts and five detainees, about 100 inmates fewer than its maximum capacity of 560 inmates.

While the Corruption Eradication Commission (KPK) initially said that it was open to the idea, it now says it is against the plan to grant early releases to graft convicts.

Anticorruption activists have said that reducing prison overcrowding is not as simple as granting early releases or remissions. Rigorous overhaul of Indonesia’s correctional system and codifications in the KUHP, the Criminal Law Procedures Code (KUHAP) and other related laws was pivotal to developing long-term solutions. They also said that any amendments or revisions, including to the KUHP, should consider additional alternatives to imprisonment.

Activists also slammed the House's apparent haste to resume deliberating the KUHP on the pretext of the COVID-19 outbreak. They said that doing so could only lead to excessive criminalization, given that the revised bill still included contentious provisions that would penalize activities in the personal domain, like consensual sex and cohabitation among unmarried people.

“Depenalization and decriminalization should be promoted [in the amended KUHP] for of several criminal offenses, considering that overcrowding has been partly caused by overcriminalization in existing regulations,” said Institute for Criminal Justice Reform (ICJR) researcher Genoveva Alicia.

Over the last two decades of reform, Indonesia has been obsessed with criminalizing certain acts and putting those who have committed such as behind bars.

From 1998 to 2015, at least 1,600 new crimes had been added to Indonesia’s criminal justice system, most of which carried cumulative punishments such as a prison term and a fine, said criminal law lecturer Miko Ginting of the Indonesia Jentera School of Law in Jakarta.

The prison population has grown steadily over the years, from around 117,000 in 2010 to 163,000 in 2014 and to 256,000 in 2018, according to the World Prison Brief (WPB) online database, hosted by the Institute for Criminal Policy Research at the University of London.

Rising incarceration (JP/Swi Handono)

Indonesia's incarceration rate is among the world's lowest at 100 people per 100,000 population, but the country ranks 8th in highest prison population total among the 223 countries and territories in the world collated in the WPB database.

Many blame Indonesia’s overcrowded prisons on the judicial system, the existing KUHP and the punitive attitude of the judiciary, prosecutors and law enforcement officers, particularly when it comes to drug crimes.

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“In the Narcotics Law, there are alternative [sentences] such as rehabilitation," Jentera's Miko said, referring to the different sentencing options available depending on the criminal charge. "But the imposition of these charges pale in comparison to those punishable by imprisonment."

“There is a tendency among the judiciary to hand down prison sentences despite the availability of alternative forms of punishment, such as [rehabilitation] for [drug crimes],” he noted.

The 2009 Narcotics Law permits judges to sentence drug users and victims of drug abuse to rehabilitation rather than imprisonment, but judges often refrain from imposing the alternative sentencing scheme.  Meanwhile, activists say that police and prosecutors often mistakenly classify drug addicts as drug dealers or traffickers.

In other indications of the country’s failed correctional system, Indonesia has seen numerous jailbreaks, cases of drug rings operated from behind bars, illegal excursions and lavish facilities granted to inmates, as well as radicalization in prisons.

As part of the codification of criminal law, the ICJR's Genoveva urged the government to issue implementing regulations to ensure that the judiciary and law enforcement applied non-penal approaches like probation for certain cases.

"In a nutshell, we need total reform [that involves] careful and comprehensive calculations," said Miko.