Social Injustice and Social Inequality in Punishment

4. Who defines crime, and what is enforced

Definition. Conduct characteristic of the poor is more often defined as an offence, and enforced when it is: encroachment, unlicensed vending, begging, sleeping in public places. Conduct characteristic of the wealthy is more often regulated than criminalised, and where it is criminal it is prosecuted by specialised agencies, slowly, with the accused at liberty and represented throughout.

Detection. Offences committed in public are detected easily; offences committed through documents and companies require investigation capacity that is scarce.

This is the Marxist argument of chapter 370 in its concrete form, and it can be made without accepting the rest of Marxism: the criminal law's shape reflects the interests of those with the power to shape it.

5. The consequences of punishment are themselves unequal

A conviction costs a professional their licence and a labourer their next job; a fine ends one person's inconvenience and another's savings; imprisonment removes one household's second income and another household's only one. The same sentence is not the same punishment.

What the Indian data shows, and where to find it

The house rule forbids quoting figures that have not been read, so this section teaches what to look for rather than asserting numbers.

The source is the National Crime Records Bureau's annual Prison Statistics India, published by the Ministry of Home Affairs, together with the periodic reports of the Law Commission of India and of the National Human Rights Commission.

The four things to look for in it.

The share of prisoners who are undertrials rather than convicts. This is the single most revealing number in the volume, because every one of those persons is in custody without a finding of guilt.

Occupancy against capacity, which measures overcrowding.

The composition of the prison population by education and by community, compared with the composition of the general population. A large divergence is the beginning of an argument and not the end of one, because it is consistent with several explanations.

The duration of pre-trial detention, compared with the maximum sentence for the offence charged.

How to use the figures in an answer. Report them as evidence requiring explanation rather than as proof of discrimination, and set out the competing explanations: differential offending, differential detection, differential ability to obtain bail and representation, and bias. The strength of a candidate's answer lies in eliminating explanations, not in the size of the disparity quoted.

What can be done

Bail reform. Reduce reliance on sureties and on documentary proof of address and employment, and provide for release on personal bond where the offence and the record permit.

Representation at the first hearing, rather than at the trial, since the decisions that matter most are taken early.

Fines calibrated to means, so that the burden of a penalty is comparable across incomes.

Speed. Delay is a tax that falls on those who cannot afford to wait, so reducing it is a measure of equality and not only of efficiency.

Decriminalising conduct that is a consequence of poverty, and dealing with it by regulation, licensing or assistance instead, which is Bentham's fourth class of case at chapter 480.

Publishing disaggregated data, since a disparity that is not measured cannot be corrected.

A worked example

Two people are charged with the same offence: causing hurt in a quarrel, punishable with a short term of imprisonment or a fine.

A is a salaried professional. He is granted bail on the same day on a personal bond with a colleague as surety, engages a lawyer, attends four hearings by taking leave, and is eventually acquitted, or convicted and fined an amount equal to two days' income.

B is a migrant construction worker. He cannot produce a local surety or proof of a permanent address, so bail is granted and cannot be furnished. He spends eleven weeks in custody, during which he loses his job and his place in the labour camp. Legal aid counsel meets him on the day of the hearing. He is advised that pleading guilty will end the matter and that contesting will take another year, and he pleads guilty. The fine is the same amount as A's, which for him is three weeks of food.

Now list the differences. Not one of them is a bias. Every rule applied to both men identically. The differences are: the surety requirement, the proof of address, the availability of counsel at the first hearing, the ability to take leave, the value of time, and the value of money. Each is neutral on its face.

And notice the outcome. B, who may well be innocent, has been punished more than A, who may well be guilty, and the record will show that B was convicted and A was not. Every statistic built on that record will report that people like B commit more offences.

Distinctions that carry marks

What this topic is NOT

It is not the claim that the poor commit more crime. It is the claim that the process converts poverty into conviction, and that the resulting statistics then look like evidence of the first claim.

It is not an argument for impunity. Nothing here suggests that offences should go unpunished; it suggests that the burden of the process should not fall where it presently does.

It is not solved by better people. The rules would produce these outcomes if every officer, prosecutor and judge were beyond reproach.

It is not a foreign import. The Constitution's own article 39A recognises the problem in terms, which is why the topic belongs in an Indian answer rather than an American one.

Quick revision

1. Formal equality is not substantive equality: a rule applied identically to unequal people produces unequal results, which is the point of France's remark about sleeping under bridges.
2. Every stage has a price: policing of public space, bail and its surety requirements, representation, the cost of attending hearings, fixed fines, and appeals.
3. Custody before conviction does the work of punishment, and every justification of punishment is unavailable for it because there has been no finding.
4. Definition and detection are unequal: conduct characteristic of the poor is criminalised and easily detected; conduct characteristic of the wealthy is regulated and hard to detect.
5. The consequences of the same sentence are unequal, so the same punishment is not the same punishment.
6. The source for figures is NCRB's Prison Statistics India, and the four things to look for are the undertrial share, occupancy against capacity, composition by education and community against the general population, and pre-trial detention against the maximum sentence. Report them as evidence requiring explanation, not as proof.
7. Remedies: bail reform, representation at the first hearing, means-calibrated fines, speed, decriminalising conduct that is a consequence of poverty, and publishing disaggregated data.
8. Article 39A directs the State to secure equal opportunity in the legal system and to provide free legal aid so that justice is not denied by economic or other disabilities.

Test yourself

1. Explain the structural argument that punishment falls unequally. That criminal procedure distributes advantages by wealth, standing and access to representation, so that identical rules produce unequal outcomes. Policing concentrates on public space, where the poor live and work. Bail commonly requires a surety, a permanent address and documented employment, all proxies for property rather than for the risk of absconding. Representation depends on means. Attending hearings costs a daily wage earner a day's wage each time. Fixed fines are trivial for one person and a month's food for another. And appeals cost money. None of this requires anybody to be biased.

2. Why is pre-trial custody the most important fact in this topic? Because it inflicts the whole substance of punishment, confinement, loss of employment and housing, and damage to reputation, on a person against whom there has been no finding of guilt, and frequently for longer than the sentence the offence carries. Every justification examined in this module is unavailable for it: there is no desert because there is no conviction, no deterrent message because no wrong has been established, and no reformative aim because there is nothing yet to reform. It is punishment without any of the elements that make punishment permissible.

3. How does inequality operate at the stage of defining crime? Conduct characteristic of the poor is more readily defined as an offence and is easy to detect because it happens in public: encroachment, unlicensed vending, begging and sleeping in public places. Conduct characteristic of the wealthy is more often regulated than criminalised, and where it is criminal it is committed through documents and companies, requiring investigative capacity that is scarce, and it is prosecuted slowly with the accused at liberty and represented. This is the concrete form of the Marxist argument, and it can be made without accepting the rest of that theory.

4. What should a student look for in Prison Statistics India, and how should it be used? The share of prisoners who are undertrials rather than convicts, which is the single most revealing figure since each of those persons is confined without a finding; occupancy against sanctioned capacity, which measures overcrowding; the composition of the prison population by education and community compared with the general population; and the length of pre-trial detention compared with the maximum sentence for the offence charged. The figures should be reported as evidence requiring explanation rather than as proof of discrimination, and the competing explanations, differential offending, differential detection, differential access to bail and representation, and bias, should be set against each other.

5. What reforms follow from this analysis? Bail reform, reducing reliance on sureties and documentary proof of address and employment and providing for personal bonds. Representation at the first hearing rather than at trial, since the decisions that matter are taken early. Fines calibrated to means so that the burden is comparable across incomes. Reduction of delay, which is a tax falling on those who cannot afford to wait. Decriminalising conduct that is a consequence of poverty and dealing with it by regulation or assistance, which is Bentham's fourth class of case. And publishing disaggregated data, since a disparity that is not measured cannot be corrected.