For the better, Release drug use convicted from prisons now!

The outbreak of the corona virus or coronavirus novel (Infection 2019-Ncov) forces many fields to build their mitigations to prevent the spread of this virus. One thing that is encouraged to prevent the spread is by limiting physical interactions between people, also known as physical distancing. This effort requires various parties to adjust the administration and mechanism of their work, including the field of judiciary or justice system. 

The Supreme Court (MA) as a judicial institution that deals with justice in Indonesia issued Circular Letter No. 1 of 2020 concerning Guidelines for Performing Duties During the Prevention Period of Covid-19 within the Supreme Court and the Judicial Bodies. Through the Circular, the Supreme Court orders to make adjustments to the work system, one of which, judges and judicial apparatus can carry out official duties by working at home or work from home (WFH). Regarding the implementation of court proceedings, this Circular mandates that efforts to carry out physical trials need to be limited. Criminal proceedings continue to be held but only limited for defendants whose detention periods cannot be extended further.

In the event that the case must still be tried, there are several aspects that must be implemented, such as visitor restrictions, distance restrictions, detection of body temperature, prohibition of physical contact, use of protective equipment including the use of e-litigation applications. In short, in this Circular it is implied that the hearing is only for cases that are urgent to be tried, and the Supreme Court and the judiciary below it try to reduce the number of cases that must be tried by physical contact. This clearly brings its own burden, in the context of criminal justice alone, the number of ‘ordinary’ criminal cases at the District Court level during 2019 reached 137,249, not to mention the trial of other cases. In a day-to-day condition, the problem of unsolved cases is inevitable, obviously this condition brings more severe when the trial must be postponed.

Not to mention the problem of detention and imprisonment in Indonesia. Criminalization process in Indonesia does not maximize the use of alternative to imprisonment, so that what overcrowding detention and prisons is happening in Indonesia. The total number of prisoners is 268,919 people with overcrowded up to 104% as of February 2020. This condition has reached extreme overcrowding. This clearly had an impact on the spread of Covid-19. The European World Health Organization in its document has stated that people in prison or detention are more vulnerable to the infection of covid-19 than the ordinary population because of their close settings for longer periods. Not to mention the problem of health access in detention and prisons which is minimal. Detention centers and prisons in Indonesia have only 887 total health workers — not just doctors for nearly 300,000 inmates.

No wonder, the Ministry of Law and Human Rights as the boss of the Directorate General of Community Affairs (PAS) was also in a mess to overcome this problem, on March 24, 2020, the Minister of Law and Human Rights issued Letter No. M.HH.PK.01.01.01-04 regarding the Temporary Suspension of Sending Prisoners to Detention Centers in the Ministry of Justice and Human Rights as an Effort to Prevent the Spread of Covid-19 by calling for a delay in sending prisoners to detention/prisons in the Ministry of Justice and Human Rights. A bit strange actually, because the Ministry of Law and Human Rights does not have the authority to prohibit detention, but illustrated from this condition, there is panic in the criminal justice system.

Then, on March 30, 2020, the Minister of Law and Human Rights issued Minister of Law and Human Rights Decree No. M.HH-19.PK.01.04.04 of 2020 concerning Release of Prisoners and Juvenile through Assimilation and Integration in the Framework of Preventing Covid- 19. In this Ministerial Decree the ministry encourages Prisoners and Juvenile to be released from detention/prisons through assimilation programs, parole, conditional leave and leave before release. Under this scheme, the ministry estimates that as many as 30,000 inmates of detention/prisons can be released. 

However, Reducing the number of residents by 30,000 will only reduce about 11% of all prisoners, there will still be around 240,000 prisoners, while the capacity can only accommodate 130,000. This means that this reduction will still cause overcrowding. This condition will definitely have an impact on the massive spread of the virus. 

If the President Joko Widodo's administration will seriously prevent the spread of Covid-19 in detention/prisons, then there must be other more significant actions taken. 

This time, Indonesia still criminalize personal use and possession of narcotics. Whereas the Narcotics Law was made to guarantee the rehabilitation of people who use drugs (PWUD). In the 2019 Supreme Court Report, narcotics is the 1st common crimes handled by district court in term of “ordinary offence” with a total of 50,102 cases, more than 36% of the total. As of February 2020, there were 134,138 people (95% of prison inmates) were convicted to drug offences. The Narcotics Law itself fails to elaborate precisely the criminal provisions for PWUD and drug dealers, at least there are 44,759 PWUD in prison.

The government still promotes punitive law towards PWUD in Indonesia, even though the criminalization is ineffective in deterring of drugs use. The prison actually worsens the living conditions of PWUD because in prison there is no adequate health service available, especially in the midst of overcrowding. The UNODC (United Nations Office on Drugs and Crime) study in 2010 concluded that imprisonment has a limited impact on reducing drug use, on countries that impose harsh penalties on small possession and personal use of drugs do not reduce drug use rather than countries that set lighter sentences. Many studies have also stated that the health risks of PWUD are greater after being released from prison. The harm reduction based public health approach that should be given to PWUD, as stated many UN reports that oppose punitive approach towards drug use. 

Law Number 35 of 2009 on Narcotics actually has provided opportunities for interventions other than imprisonment, namely in the provisions of Article 127 j.o. Article 103 of the Narcotics Law which explains that in order to convict drug use, the judge must pay attention to rehabilitation guarantees for PWUD. Unfortunately, this article is rarely applied. There is a reluctance and difficulty for PWUD to ask law enforcement officials to implement rehabilitation - allegedly because of the practice illicit transactions and other incentives, for example, it is easier to use articles that imprison PWUD.

The Supreme Court has been aware of this problem, the Supreme Court stated that PWUD should not be imprisoned. The Supreme Court has issued SEMA Number 3 of 2015 explaining rehabilitation guarantee based on judges' consideration, even though public prosecutors do not use Article 127, judges are allowed to ignore the mandatory minimum sentences in the articles in Narcotics Law, so the judge don’t have to impose a prison sentence. Based on SEMA No. 4/2010 and SEMA 3/2011 also judges can determine defendants only as PWUD, and to implement Article 127 of the Narcotics Law without any previous charge from prosecutor. This can be an opportunity for judges to impose probation in Article 14a and Article 14c of the Criminal Code, where the defendant does not serve his prison sentence, but are given probation, in the probation,  the general condition is not to re-conduct the criminal offense and special conditions it can be related to compensation due to criminal acts or other obligations that must be carried out to change the behavior of the convicted person. With the use of this article, PWUD do not have to be imprisoned, conditions can be imposed, for example carrying out rehabilitation in accordance with their needs, or for PWUD without any disorder, conditions can be various, such as contributing social funds for Covid-19 prevention, it can be.

The same thing had been declared by the Minister of Law and Human Rights long ago. Because overcrowding conditions are already very burdensome, the Minister of Law and Human Rights has requested that PWUD not to be sentenced. The discourse has even been called for to grant mass amnesty a to PWUD.

Amid the Covid-19 outbreak, it should be a momentum fix this problem. This can be started from investigators and public prosecutors to maximize the implementation of Joint Regulation 7 (seven) Institutions on Handling of PWUD into Rehabilitation Institutions, this can be done directly without establishment of new regulation. Detention should be minimally carried out amid covid-19, what need to maximize is the assessment process to determine the need of rehabilitation and other intervention for PWUD.

The judge must also adjust accordingly, if the judge still sees a case of PWUD for his own purposes being detained, the judge through his authority in SEMA 4/2010 with the help of doctors maximizing the decision on rehabilitation, or the use of probation with to prevent PWUD from being sent to prison. Drug use convicted on probation are included in the Balai Pemasyarakatan/ Probation Office (Bapas) client list for surveillance. This can be maximized without the need for new regulation. 

In prisons system, to prevent covid-19 in detention with more than 40,000 PWUD, efforts to grant amnesty must be accelerated, considering that detention centers and prisons are places that is vulnerable as covid-19 spreads. The government must immediately re-try to reduce the number of prisoners, because in conditions of overcrowding and minimal health services, physical distancing or self-isolation is not possible.