|
Abstract The
problem of prisons in Indonesia has not been resolved until now. There are 3
(three) main problems to date, namely, Overcrowded Prisoners, Lack of Human
Resources in Prisons and Large Costs. This greatly affects the rights of
prisoners themselves, where the rights of prisoners have been regulated both
in International (Standard minimum Rules For The
Treatment Of Prisoner) and National provisions (Law Number 22 of 2022
concerning Corrections). This research aims to answer legal problems regarding
how the government has been managing prisons and private prisons as an
alternative solution to the problems of prisons in Indonesia. To answer the
research problem, this study uses a type of normative legal research with a
legal approach, concepts and comparisons. The data used are secondary data
supported by primary, secondary and tertiary legal materials obtained through
literature research or document studies. The results of this study show that
in managing prisons, legally Indonesia has made significant improvements and
more implemented the human rights system by changing the orientation of
retaliation to coaching prisoners. However, in its implementation, the
Indonesian government still finds it difficult to implement these noble
intentions and until now there are 3 (three) major problems that have not
been addressed, namely Overcrowded Prisoners, Lack of Human Resources in
Prisons and Large Costs. To be able to implement these noble intentions,
there is an alternative solution, namely the implementation of private
prisons with the Public Private Partnership system or Hybrid System where
this system has been successfully applied in France and produces efficiency
for the state. Keywords: Private
Prisons; Alternative
Coaching;
Fulfillment of Inmates' Rights |
INTRODUCTION
Indonesia as a state of law makes the law the highest foothold in
carrying out state life, including in maintaining order and peace of the
nation's citizens in order to create a conducive climate to realize the goals
of independence contained in the country's constitution, namely protecting the
entire Indonesian nation and all Indonesian bloodshed, advancing general
welfare and educating the nation's life.
The characteristic of the rule of law is the limitation of power
contained in the constitution as the highest source of law that provides limits
on the division of powers so that state administration, especially government,
concentrates on realizing the goals of the state so that it is carried out
properly, according to the outlines contained in the constitution as law from
all sources of law in making policies and implementing laws so that the law is
in accordance with its functions and objectives, namely justice, certainty and expediency. Subekti
argues that the law serves the purpose of the state, which is to bring
prosperity and happiness to its people, in serving the cause of the state by
organizing justice and order, so that human rights can be well protected.
The purpose of the
country can be achieved if our nation has a high level of civilization and is
implemented consistently, high civilization can be measured from the level of
crime in a country that is low or can be handled optimally, so that the human
rights of every human being are upheld by every human being who lives on the
earth of Indonesia.
Crime fighting is one
of the country's main missions to protect its people. Any attempt by the state
to deal with these crimes is known as criminal policy. According to Barda Nawawi Arief,
efforts or policies to prevent and handle crime include the field of criminal
policy consisting of policies or efforts for social welfare (social welfare
policy) and policies or efforts for
community protection (social defense
policy) (Barda Nawawi Arief, 2018).
Criminal policy as an
attempt to deal with crime, has its main objective for the protection of
society and its ultimate goal of ensuring the general welfare. To achieve this
goal, two main approaches to criminal policy can be used, namely penal and
non-penal. The approach commonly used by the state is the penal approach, as it
can provide guidance not only to lawmakers but also to the criminal justice
system that implements laws.
Herbert L. Packer in
his book The Limits of The Criminal Sanction quoted
by Barda Nawawi Arief, discussing the issue of criminal sanctions in
tackling crime states (Barda Nawawi Arief, 2018):
1. Criminal sanctions are necessary, we cannot live in the present or the
future without crime.
2. Criminal sanctions are the best tools or means that already exist, which
we have to deal with great and immediate dangers.
3. Criminal sanctions are at one time the main or best guarantor and one
day the primary threat to human freedom itself. He, is a guarantor when used
sparingly, carefully and carelessly and forcibly.
Given that law is a
legal product born from the political process, it must be ensured that its
manufacture must be in line with the needs of criminal law implementation, both
in the formal and material processes so that criminal law politics becomes a
tool that determines whether future legal needs are in accordance with the
needs of criminal law that upholds human rights.
In the implementation
of criminal law politics, criminal sanctions are known to be imposed by the
judiciary on violators of the law. The existence of this criminal sanction
cannot be released with the existence of criminal law regulations. The
existence of criminal sanctions that fall into the severe category is expected
to achieve the goal of criminal policy to protect the community. One of the
most commonly used criminal sanctions is imprisonment. This prison sentence is
the most frequently used criminal sanction in various countries, because it is
considered effective enough to provide a deterrent effect.
The dynamics of the
development of criminal law, especially in providing sanctions for perpetrators
of criminal acts, raises very complex dynamics and problems. Considering that
many prisons are experiencing overcapacity due to increasing crime. Based on
information from the Directorate General of Corrections as of July 14, 2021,
the data obtained by the total population of LAPAS amounted to 271,231 people
from the capacity of 132,107 prisons, which means that over capacity reached
105% (Fauziah et al., 2022).
Therefore, a
fundamental change is needed at the normative level so that the provision of
criminal sanctions can adjust to the times. Along with the development of
criminal law, prison sentences have undergone various changes towards more
humane punishment. In ancient times when convicts were regarded as outcasts and
treated inhumanely, their necks and hands tied in chains to inflict physical
suffering, this method has slowly been abandoned. The prisoner is regarded as a
human being as well and treated humanely. Penalties place more emphasis on rehabilitative
functions with the primary objective of treating the offender and placing him
back into society through some combination of coaching, education and training (Miethe & Lu, 2005). For this reason, an inmate who is considered a "lost person"
must get guidance from the state in order to return to social life.
Improvements in the
treatment of prisoners began to be concretely implemented since the Standard Minimum Rules for the Treatment
of Prisoners initiated at the United
Nations Congress on The Prevention of Crime and The Treatment of Prisoners on
August 30, 1955. The Standard Minimum
Rules for the Treatment of Prisoners affirm more humane treatment of prisoners
regardless of race, color, sex, birth, and other status. This regulation covers
all aspects of improving the institution of Corrections and the treatment of
prisoners which includes minimum standards in facilities, hygiene, clothing,
bedding, food, health services, religious services, entertainment, social
relations, and treatment of Correctional Officers.
One of the criminal sanctions given to prisoners is imprisonment where
legal subjects are restricted in their right to freedom, imprisonment as a
criminal sanction is also used in Indonesia. Article 10 of the Criminal Code
states that imprisonment is one of the main crimes (Moeljatno, 2021).
The state's reliance on
imprisonment to deal with crime can sometimes spell trouble. The use of
criminal law policies to tackle crime actually leads to the criminalization of
public actions, which usually leads to excessive criminalization. According to
Mahrus Ali, overcriminalization is generally conceptualized in relation to
criminalization, its various forms include recriminalization of an act that has
been prohibited by another law, formulation of offenses without adequate
requirements of offender guilt, criminalization of irreproachable acts,
formulation of offenses that do not meet the principle of lex certa, criminalization of purely
administrative offenses, criminal threats are not proportional to the
seriousness of delicacies, and excessive enforcement of criminal law by law
enforcement (Ali, 2018). This excessive use of criminal law is contrary to the nature of
criminal law as the ultimate remedium.
The problem of
overcrowded, the number of escaped prisoners, the lack of budget and the lack
of prisoner development facilities still cannot be resolved until now and there
are still many ex-convicts who repeat crimes or crimes (recidivists).
Penitentiary, which is part of an integrated criminal justice system, is
certainly an important part of the success of criminal law in tackling crime.
As the final position, we cannot forget the role of the Penitentiary. A single
failure caused by the formation of inmates in the Penitentiary will hamper the
efforts of other criminal justice subsystems since investigations and
investigations, prosecutions and trials to address crime. The government should
focus on facilities that support the development of inmates as it does in other
criminal justice subsystems. Facilities, human resources, and policies are
important aspects of law enforcement success.
This overcapacity makes it problematic in
fulfilling the rights of prisoners in implementing correctional law. This is an
important point that is always discussed by criminal law experts in various
corners of the country. If the Penitentiary carries out its services humanely
and comfortably, then the formation will be able to run optimally. The only suffering
inmates experience in the penitentiary system is the loss of independence,
while maintaining their other rights.
The government should be able to try several
alternatives to handling crime in favor of prisoners. Penitentiary management
must also be considered in making improvements. Alternative efforts made by the
state to improve the performance of prisons are to hand them over to the
private sector or open outside participation in the process of managing
prisons. This places the responsibility of caring for and fostering prisoners
not only on the government but also on society, including the private sector. Several countries have used the concept of private prisons including
America, Britain, France, Australia, the Netherlands. But in Indonesia, the concept
of private penitentiary certainly requires in-depth analysis before being
introduced in efforts to foster prisoners.
Based on the
description of the background of the study, this research is needed to add
insight related to the conception of the development of prisons oriented
towards the fulfillment of human rights, the researcher wants to pour this
paper in the form of a thesis with the title "Fulfillment Of Prisoners' Rights With The Establishment Of Private
Prisons As An Alternative To Prisoner Development In Terms Of Law Number 22 Of
2022 Concerning Corrections”
The specific purpose to
be understood and described in this study is to know and analyze the concept of
application of state-monopolized penitentiary institutions in the formation of
prisoners to the rights of prisoners. To find out and analyze private prisons
as an alternative to prisoner development using Law Number 22 of 2022
concerning Corrections and Government Regulation Number 57 of 1999 concerning
Cooperation in the Implementation of Formation and Guidance of Correctional
Assisted Citizens.
RESEARCH METHOD
This study used normative
legal research. Normative legal research is legal research conducted by
collecting library materials that are studied by conducting literature. Normative
legal research uses deductive thinking (withdrawal thinking). Conclusions can
be drawn from generally accepted and correct data. Conclusion making is based
on the object of analysis in a qualitative way, namely referring to legal norms
and regulations.
This type of normative
legal research may use more than one approach (Abraham, 2023). The approach used in this study is Statute
Approach, Conceptual Approach and Comparative
Approach).
RESULT
AND DISCUSSION
This debate
continues. Some legal experts look at the philosophical side of Correctional
Institutions, while others focus on the implementation of Private Correctional
Institutions that have been running for several years. The following will
explain some of the debates that often arise about the privatization of
prisons, including:
The function of the state in punishment
Against the idea of
the state or government that must absolutely handle or regulate all matters
concerning prisons is put forward by the government and some legal experts,
where according to these circles the penitentiary is a form of state
sovereignty in carrying out punishment. Penitentiary is inseparable from an
integrated criminal justice system. This is the basic function of the state to
carry out law enforcement. Depriving citizens of their freedom by placing them
in prisons can only be done by the state. Other punitive parties, especially
those involving the deprivation of liberty as a human right, are a form of
arbitrariness.
The American Bar
Association states, "incarceration
is an inherent function of the government and that the government should not
abdicate this responsibility by turning over prison operations to private
industry" (Amir, 2018).
These jurists also
linked the practice of private prisons to the theory of the social contract.
Society abides by the law, because of the agreed social contract, that if we
break the law then we are willing to get sanctions given by the state. The
community entrusts the enforcement of the law to the state, because the
community believes that the law will protect the community.
Although the
Private Penitentiary only handed over the administrative system to the private
sector, it was also an offense. This administrative system is inseparable from
the entire Penitentiary system. Running the administration, which is a function
of the state, has historically been a central role that only state
administrators should perform. These functions cannot be delegated to other
parties. In essence, only the state has the authority to carry out punishments,
especially those concerning the freedom of citizens.
Proponents of
privatization say that no ideology has been violated in punitive functions not
carried out by the state. The practice of punishment is something that can be
delegated by the state to other parties. The most important thing is
accountability. Punishment still does not lose its function as long as the
practice of punishment is something that can be delegated by the state to other
parties. Penalties do not lose their function as long as the sanctions imposed
come from an independent judiciary. Penitentiaries that are given contracts to swatsa still receive supervision from the state so that
state functions are not abolished entirely.
Quoting Logan's
opinion in his book entitled "Private:
Cons and Pros", Logan expressed his opinion regarding the function of
the state in carrying out punishment as follows:
"Whatever reasons may exist for placing the power to punish in the
hands of the state, the major point is that it must be transferred; it does not
originate with the state. The power and authority of the state to imprison,
like all its powers and authority, are derived from the consent of the governed
and may with similar consent be delegated further. Because the authority does
not criginate with the state, it does not attach
inherently or uniquely to it, and can be passed along to private agencies"
(Logan,
1990).
Logan added that
the role of the state basically comes from the people. The punitive function
that exists in the state is not attached to the government, so it can be
delegated. The punitive function is under the control of the state because of
the consent of the people, and with the consent of the people can be delegated
to other parties, including to private parties.
Logan then
emphasized the theory of the rule of line,
as long as everything is governed by law, then no law is broken.
"Any legitimate governmental authority may be further delegated,
through the government, to private agents. This assumes the existence of a
legitimate and representative government so that the chain of authority is
unbroken from its original source-the people. In short, the state does not own
the right to punish. It merely admusters it in trist, on behalf of the people and under the rule of law.
There is no reason why salary trusters cannot be
designated, as long as they, too, are ultimately accountable to the people and
subject to the same provisions of law that direct the state" (Logan,
1990).
Again, Logan
emphasized that the role of government is a representation of a system that
comes from one source, namely society. The state carries out punishment,
because it is handed over trust and responsibility on behalf of the people and
under the rule of law. So there is no reason to
prohibit other parties from doing the same, as long as they have responsibility
to the people and are subject to the same rule of law.
Regarding the
doctrine of non-delegation, Rachel Antonuccio gave the view that the doctrine
of non-delegation only applies to legislative functions, and does not
explicitly prohibit some government functions from being delegated to private
parties. Only the legislative function in issuing legal policies cannot be
delegated to any party, because this function is a representation of the
community.
Improving the
quality of prisons is more important than ideology. As long as the penitentiary
is run cheaper and better, then the purpose of punishment can be achieved. Even
in other parts of the justice system have involved private parties, such as community-based correction and bounty hunters. In America, the involvement of private investigators or private detectives is a common thing to
do to help police duties.
Efficiency
Opponents say that
claims that Private Prisons are more efficient than State-run Prisons are
untrue. Private prisons make savings by cutting budgets for labor. Ironically,
private prisons pay a high price for the salaries of executives at the company.
The largest expenditure for labor in private prisons is precisely to pay
salaries, benefits, and bonuses to its executives. The income received by
executives in these Private Correctional Institutions is actually greater than
the income received by public officials who manage State-run Prisons.
Another waste
carried out by the private sector is when carrying out market activities.
Various kinds of market activities carried out by private companies such as
corporate restructuring, mergers, acquisitions, and stock offerings to the
stock exchange (IPO) demand large costs. In market activities, companies cannot
do it alone, companies engaged in Private Correctional Institutions must
involve other parties in carrying out market activities, such as notaries,
legal consultants, financing consultants, and others. When restructuring for an
IPO or acquisition, companies must ask for due
diligence which requires large costs.
Meanwhile,
proponents of privatization claim to be able to run prisons cheaper and better.
Market competition and freedom from complicated bureaucracy make the private
sector more efficient than the public service sector. There are reasons that
cause the private sector to be considered more efficient, namely (Roth, 2004):
a. The existence of
market competition causes private parties to use incentives. Competition that
exists between companies causes competition that requires companies to offer
cheap costs but with better service. Meanwhile, if the Penitentiary is handed
over to public administrators, there is a monopoly from public administrators
who actually allocate budgets freely and inefficiently. This competition also
encourages the company to increase innovation. With this innovation, one
company is superior to other companies.
b. The private sector
is freed from "red tape"
and more flexible management. This benefits the private sector because there
are no costs incurred for bureaucratic affairs, and rigid procedures, the
private sector can move more responsively because there are no strict
bureaucratic rules, so that the workforce can work more productively.
c. The private sector
makes savings through labor. The private sector tends to control the costs incurred
in staff operations rather than reducing building operating costs. Reduction in
labor costs can be achieved by reducing the number of employees. Using a design
that supports the management of prisons with a small workforce, and prioritizes
the use of technology, such as the use of surveillance cameras. Private Prisons
also reduced administrative officers, using only one-third of the
administrative officers used by State-run Prisons.
Accountability
Opponents of
private prisons say accountability in private prisons is worse than state-run
prisons. This delegation of public functions to private parties is a mistake.
There was a system error that decided the supervisory function of private
parties. Starting from a contract between the state and a private party, so
that the contract limits the relationship between the state and the
Penitentiary. The state is only responsible up to the contractual agreement,
after which the state has limited control over the contracted penitentiary.
Quoting Logan's
opinion on criticism of the accountability of Private Prisons:
"Critics claim that contracting reduces accountability because
private actors are insulated from the public and not subject to the same
political controls as are government actors. Also, critics charge, contracting
diffuses responsibility; Government and private actors can blame the other when
something goes wrong. Further, contracting may encourage the government to
neglect or avoid its ultimate responsibility for prisons; Supervision may Slacken's"(Logan,
1990).
According to Logan,
the private party has no public accountability, because this private party is
separate from the public, and political control has no effect on it. Other
critics also point to weak responsibility if prisons are handed over to the
private sector. If something goes wrong, the private sector and the government
will throw responsibility at each other. It even encourages the government to
neglect its inherent responsibilities towards staffing.
McDonalds, on the
other hand, expressed its opinion on the accountability of prisons in general:
"Unfortunately, control over public
correctional facilities in many places is neither as direct or effective as the
idealized model of the unbroken chain of command suggests...... Political and
administrative controls over correctional administration are excessively
fragmented; too many correctional agencies are insulated from the higher levels
of government, which has given administrators room to wield broad discretionary
powers; and administrators have resisted being held accountable for their
performance..." (Logan,
1990)
Mcdonalds considers Correctional Institutions to have
weaknesses in accountability because there is no ideal and effective model in
the surveillance system. Political and administrative control over the
Penitentiary seems to be dysfunctional because of the distance between the
Penitentiary and the supervisory institution above it. This triggers broader
discretion from Correctional Officers, and away from supervision, so there is
no accountability for the performance of the Correctional Institution.
On the contrary, private
parties claim that the system they implement is more accountable than public
administrators. First, market processes will result in competition that
encourages better improvements. Second, with the supervision of the government
on the private sector,
the check and balance
system is more maintained than the
government that controls itself. Then privately run prisons will attract higher
attention from various parties such as the media, legal observers, and the
public as a whole.
One way to increase
the accountability of private prisons is to regulate them in contracts between
the state and the private sector. In the contract clause, for example, several
things can be included that give the state a dominant position. For example,
the Tenesse Private Correctional
Institution contract states, "must
agree that the state may cancel the contract at any time after thefirst year of operation, without penalty to the state,
upon giving ninety (90) days' written notice" This example of a
contract clause gives the government a dominant position, because the
government can cancel the contract at any time in the event of a violation
committed by a Private Correctional Institution.
Accountability of
the private sector must be better because openness in business is one of the
important factors. Bad publicity actually has the potential to reduce the
company's stock price on the stock market. This can have bad implications,
because it weakens the company's business in the stock market so that to
support existing market activities, the company must increase their
accountability to the public.
Government policies
must also support accountability of the prison sector. With the policy, the
public can participate in supervising the implementation of prisons by the
private sector. In terms of contracts, increased accountability is realized
from the supervision of the process of realizing contract clauses. If the
contract is not successfully realized by the private sector, then the contract
can switch and have adverse implications for the company's business.
Profit Motive
The profit-seeking
motive is one of the weaknesses in the Private Penitentiary system. Private
Penitentiary becomes an institution that only aims to seek profit and results
in poor management of prisoners. Private Penitentiary managers do not care
about the human rights of prisoners, this results in an increase in violence,
riots and escaped prisoners.
The influence of
this profit-seeking motive also results in the private sector having no
responsibility for social goals. Private companies have no financial interest
in government programs to focus on the interests of society through crime
prevention and education of inmates so as not to become recidivists later in
life. Their responsibility is only operational and does not attach importance
to the purpose of coaching other than the realization of existing contracts.
This is what triggers privately run prisons that have no social benefits for
the community.
The motive to seek
maximum profit also makes the private sector cut the budget in the management
of prisons. One of the budget cuts is to eliminate training for staff, so that
staff in private prisons are untrained staff. In addition to cutting budgets
through staff, Private Correctional Institutions also cut budgets for inmate
services such as food, treatment and training.
Research at the Minessota Private Penitentiary states that the quality,
effectiveness, and safety carried out by Private Correctional Institutions are
at the level below those of State-run Correctional Institutions. This is due to
unprofessional staff because they are paid lower wages than staff in State-run
Correctional Institutions. Private Penitentiary management companies cut
salaries for staff for efficiency and profit-maximizing reasons. But this
strategy actually worsens the services carried out by staff who come into
direct contact with prisoners. The staff in the field do not attach importance
to excellent service because the income they get is only a small amount.
However, the profit-seeking
motive according to pro-privatization parties is irrelevant if it is considered
to thwart the purpose of punishment. A clear distinction must be made between
the profit-seeking motive for which the business is intended and the convict
purpose embodied in the Penitentiary. The desire to seek profit is the same as
the basic desires of other parties, such as politicians, officials, and the
public who must have personal motives.
If the company only
aims to seek profit, without considering excellent service, it can backfire on
the company. Penitentiaries can be neglected, which can trigger conflict. This
situation is actually detrimental to the company. So that the profit motive
will support each other with the aim of punishment. Because the private sector
will try to achieve the best service in order to maintain the benefits they
get.
This profit-seeking
motive should be seen as a convenience
motive. Logan said that in the market mechanism, the profit-seeking motive
can act as a convenience motive. Logan states"Businesses must often sacrifice their own convenience
if that will increase their profit. Businessmen understand that to sustain any
competitive enterprise, it is generally necessary to satisfy some needs other
than one's own".
This motive can improve
private services because of the desire to provide the best to others without
thinking about self-interest. Even they will sacrifice their own interests to
increase profits. Competitively, sacrifice may be necessary to meet the needs
of others rather than oneself.
Private Prisons as an alternative to the development of prisoners using
Law Number 22 of 2022 concerning Corrections and Government Regulation Number
57 of 1999 concerning Cooperation in the Implementation of Formation and
Guidance of Prison-Assisted Citizens
In this discussion,
the author tries to discuss Private Institutions as an alternative to the
problem of prisons in Indonesia. As explained by the author in the previous
discussion, there are 3 (three) major problems that occur in prisons in
Indonesia today, including Overcrowded Prisoners,
Lack of Human Resources in Prisons and Large Costs with Management that is not
optimal.
In such conditions,
it is doubtful whether the function of prisons as a place of formation has
fulfilled the rights of prisoners as well as human rights and the function of
prisons as a place of formation that replaces the prison system can be
achieved, namely carrying out the mission so that they can live again
reasonably and responsibly. As in Law Number 22 of 2022 concerning Corrections,
by socializing convicts to become good and useful citizens.
To further obtain
the results of a deeper study, the author will connect these 3 (three) problems
by comparing legal systems in several countries that use private prisons. Then,
the author compares these results with the theories that the author uses.
United States
Internal problems
faced by prisons in every state of the United States are policy-making methods
and sources of funds flow in maintaining and running facilities, such as water,
electricity, infrastructure improvements, and others. Therefore, the federal
government as a framer of statutory policy cooperates with private companies to
fix loopholes in the United States legal system (Wade-Olson,
2019).
In the North
American model, and in accordance with the specific laws in each state, private
operators can be involved in all dimensions of Penitentiary services, from the
construction of new facilities to full operation and management, which includes
housing, assistance for inmates. monitoring and security activities. More than
30 North American states have inmates held privately. At the end of 2004, more
than 150 facilities were staffed by private operators in the United States,
with 98,901 inmates representing 6.6% of the national inmate population (Cabral &
Azevedo, 2008).
In general, private
operators charge the government (their end customers) a daily rate for each
inmate. In this way, their financial performance depends on the number of
"workdays" they can fulfill, so there is a strong incentive to keep
the Penitentiary at full occupancy rate.
The advantage
offered by private companies in managing prisons is a change in policy-making
methods. Private companies as partners of private cooperation are not
constrained by a bureaucratic administration system that takes a long time
because there is a right to run the management of prison facilities
independently so that various complaints and actions needed in overcoming
various problems that are present can be resolved quickly, appropriately, and
do not cause further harm to all parties. In 1979, the territory of Virginia,
which is one of the states in the United States, made reforms in the party that
manages the Penitentiary (Bosworth,
2017).
The change starts
from the infrastructure of the Penitentiary which is in every Penitentiary in
Virginia has poorly maintained and even unclean conditions that cause it is not
good in terms of health of the prisoners. Infrastructure improvements start
from repairing lights from each side of the Penitentiary which has several dark
spots (black spots), updating the
shape of the room including various furniture in it such as tables, chairs,
pillows, bathrooms, bookshelves, improving the shape of the kitchen so that it
is truly hygienic including the type of food and drink given to prisoners that
can improve the mood of the residents to various facilities in the institution
Correctional facilities such as libraries, basketball courts, training courses
that can be useful before returning to society all have the purpose of filling
time so that the level of stress experienced by prisoners can be reduced (Bosworth,
2017).
Private companies
in Virginia that carried out a major overhaul in the first and second years
began to feel the positive aspects for prisoners in the latter second year
where especially prisoners long before the management of the penitentiary was
taken over by private companies could feel the difference in the positive
impact that occurred during their time as prison prisoners. Not only making
changes in the form of objects, private company partners also pay attention to
the formation of a comfortable and safe environment in the form of training for
warden guards to humanize prisoners by not committing violence by carrying
batons or conducting intensive communication sessions between individuals and
groups so as to build healthy social relations between human beings (Andreescu,
2017).
The private sector
has several alternative options as an effort to obtain sources of funds, among
others, can use funds originating from the company based on the Corporate
Social Responsibility (CSR) Program. The source of funds from CSR programs is
different from corporate cash which may be obtained from profits, bonds, and
mortgages because these funds have been separated from the beginning so that
they cannot interfere with the company's activities with one another.
The next source of
funds flow is funds originating from investors with company expansion agreement
contracts with statements stated in the company's prospectus before the
cooperation program takes place. The contract agreement is explained to avoid
disputes between investors and private companies because investor liability is
only as much as the number of shares they own in a company. If someone has more
shares, then the level of liability he has for the refund if something happens
is the company's top priority (Novisky et
al., 2021).
French
In contrast, in the
French model, the government remains responsible for maintaining, controlling,
and occasionally punishing prisoners. Private operators can build correctional
facilities and provide dormitories only for inmates (food, clothing, hygiene, etc.)
and certain reintegration services. Civil servants perform security and
management tasks. Private participation was introduced in France in 1987 in
response to the overcrowding of prisons. The government's original intention
was for the private sector to provide 13,000 new beds. Another 4000 places were
added later. According to the Direction de Administration Pénitentiaire (2005)
there are 23 Penitentiaries under hybrid management
(private and public agencies) in France. Penitentiary employees who are not
part of the civil service make up only about 20% of the staff (Cabral &
Azevedo, 2008).
From the
comparative description of the Private Correctional System system
in the United States and France, the author can conclude that the 3 (three)
problems that exist in prisons in Indonesia, namely Overcrowded Prisoners, Lack of Human Resources and Costs, can be
overcome with the private prison system both in America and in France even
though the application of the system is different where America uses full privatization, while France uses hybrid privatization.
Then, if the author
relates 3 (three) problems of prisons in Indonesia with Human Rights Theory.
Quoting Law Number 39 of 1999 concerning Human Rights in Article 1 number 1
explains that:
"Human Rights
are a set of rights inherent in the essence and existence of man as a creature
of God Almighty and are His gift that must be respected, upheld, and protected
by the state, law, government and everyone for the honor and protection of
human dignity and dignity".
However, in this
study, the author discusses prisoners whose basic rights are limited because of
their legal actions that have violated applicable provisions and indirectly
harmed a person and/or society. Therefore, as a representative of the above
Human Rights Law, the provisions of International and National Law.
In international arrangements quoted from Panjaitan and Simarangkir,
contained in the UN Guidelines on Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules For The Treatment Of
Prisoners, July 31, 1957), which include: Register book, Separation of
prisoner categories, Accommodation facilities that must have ventilation, Adequate
sanitation facilities, Getting water and toilet equipment, Proper clothing and bedding, Healthy food,
Right to exercise in the open air, Right to general practitioner and dentist
services, Right to fair treatment according to rules and self-defence
if deemed indisciplined, No confinement to dark cells
and corporal punishment, Handcuffs and prison jackets should not be used by
inmates, Right to know applicable regulations and official channels for
obtaining information and complaints,
The right to communicate with the outside world, The right to obtain
reading materials in the form of books of an educational nature, The right to
obtain religious services, The right to obtain guaranteed storage of valuables
and Notification of death, illness, from family members.
Meanwhile, in
national law, quoting from Law Number 22 of 2022 concerning Corrections,
Article 9 explains the rights of prisoners including (Hulsewé, 2022): Prisoners have the right to carry out
worship in accordance with their religion or belief, have the right to care,
both physical and spiritual, have the right to education, teaching, and
recreational activities as well as opportunities to develop potential, have the
right to get health services and proper food in accordance with nutritional
needs, the right to get information
services, the right to legal counseling and legal assistance, the right to submit
complaints and / or complaints, the right to get reading materials and
participate in mass media broadcasts that are not prohibited, the right to
humane treatment and protected from acts of torture, exploitation, neglect,
violence, and all acts that endanger physical and mental, the right to
guarantee work safety, wages, or
premiums for the results of work, entitled to social services and entitled to
accept or refuse visits from family, advocates, companions, and the community.
Article 38 of Law
No. 22 of 2022 concerning Corrections states that based on the results of the Litmas, prisoners are given guidance in the form of
personality coaching and independence coaching. Furthermore, Article 39,
self-reliance development as referred to in Article 38 paragraph (1) can be
increased to activities to produce goods and services that have benefits and
added value.
In Government
Regulation Number 57 of 1999 concerning Cooperation in the Implementation of
Correctional Assisted Citizens, it is stated in Article 1 paragraph (1)
Cooperation is an activity organized by the Minister with related agencies,
community agencies or individuals in the context of fostering funds or guidance
for Correctional Assisted Citizens, whose activities are in line with the
implementation of the correctional system. Article 1 paragraph (2) states,
Coaching is an activity to improve the quality of devotion to God Almighty,
intellectual, attitude and behavior, professional, physical and spiritual
health of prisoners and correctional students. Article 1 paragraph (4) states,
Cooperation partners are other relevant Government agencies, community
agencies, and / or individuals who collaborate with LAPAS or BAPAS in the
framework of coaching or mentoring activities for Correctional Assisted Citizens.
Article 1 paragraph (5) states, Wages are remuneration for services provided to
Correctional Assisted Citizens who work to produce goods or services.
Still in PP No. 57
of 1999 concerning Cooperation in the Implementation of Construction and Guidance
of Correctional Assisted Citizens. Article 2 paragraph (1) states that the
Minister can organize coaching cooperation with relevant government agencies,
community agencies, and individuals. Article 2 paragraph (2) states,
Cooperation with government agencies or parties as referred to in paragraph (1)
is held in the context of developing, improving and or expanding coaching.
Article 2 paragraphs (3) and (4) states, Cooperation relationships with
government agencies are functional and cooperative relationships with community
agencies and individuals are partnerships. Article 3 paragraph (1) states, the
cooperative relationship of coaching is carried out based on a coaching program
to improve the ability and quality of Prisoners and Correctional Students. Article
3 paragraph (2) states, the formation program as referred to in paragraph (1)
includes devotion to God Almighty, national and state awareness, intellectual,
attitude and behavior, physical and spiritual health, legal awareness, healthy
reintegration with society, work skills, and job training and production.
Based on the
provisions of international and/or national law (in Indonesia), it is very
clear that with the problem of overcrowding
prisoners, lack of human resources and costs needed, the Indonesian government
has failed to implement the rule of law to provide appropriate places and
facilities and provide the maximum possible guidance to prisoners. In terms of
this bad record, the government should start evaluating itself to make
improvements and start looking for solution options with one solution being to
open a private prison (Privatization)
with a system that is adapted to the provisions of the law in force in
Indonesia.
The privatized
management system has various alternative solutions in responding to problems
that cannot be resolved such as decision-making methods that do not wait long
because they are not hindered by bureaucracy, have various sources of fund
flow, overcrowded prisoners, improve
relationships among prisoners to the effectiveness of Human Resources.
Furthermore, what kind of prison system model is suitable to be applied in
Indonesia?
Based on the
results of the author's study, both conceptually and based on the Correctional Law, the Public Private Partnership system, which is a cooperation system between the
government and the private sector, is the right choice to be applied in
Indonesia. This choice, can also be seen based on the success of France which
implemented this system, although this system is more in France better known as
the hybrid system.
This system can
also refute some who think that the state or government must absolutely handle
or regulate everything about prisons, where according to these circles prisons
are a form of state sovereignty in carrying out punishment. Penitentiary is
inseparable from an integrated criminal justice system, this is the basic
function of the state to carry out law enforcement.
In the concept of
privatization of the Public Private Partnership system
applied in France, the role of the state or government remains absolute.
Where the state or government still controls the management and management of
prisons, while other functions of personality development and independence such
as education and job training industry and technology, are handed over to the
private sector. This cooperation in the privatization system of prisons in
France shows the complementary process of prison management between the private
sector and the government. This model seeks to create a complement between the advantages
possessed by the government and the advantages possessed by the private sector.
Private involvement in the prison sector is considered to improve the
efficiency and quality of prison management.
On the contrary, in
Indonesia today, it still applies a cooperation system between the government
and the private sector that is a partnership. As an illustration that the
partnership system is more procurement-oriented, for example the procurement of
food raw materials, where the private sector plays a role in providing raw
materials for the needs of prisoners where later the prisoners will cook in the
kitchen supervised by officers. This clearly does not describe system
efficiency.
According to the
author, the system of cooperation between the state or government and the
private sector is much more efficient, for example, tenders are made for
laundry, for staple food, for guidance and skills and maybe even for the prison
building itself where the government is no longer charged with building new
prisons which results in burdening state finances.
This concept can be
applied by making legal regulations for special companies to be in charge of
regulatory institutions which will later be tendered to get companies that are
able to carry out some of the needs of prisons and of course at a lower cost.
CONCLUSION
Penitentiary
is regulated in Law Number 22 of 2022 concerning Corrections. The definition of
Penitentiary in this Law is an institution or place that carries out the
function of coaching prisoners. Meanwhile, prisoners have the definition of
convicts who are serving prison sentences for a certain time and for life or
death row prisoners who are waiting for the execution of the verdict, who are
undergoing formation in prisons. Coaching is an activity held to improve the
quality of personality and independence of prisoners and fostered children.
Penitentiary institutions have a system, namely the order regarding the
direction and limits and the direction of guidance so that fostered citizens
realize mistakes, improve themselves and do not repeat criminal acts so that
they can be accepted again by the community, play a role in development and can
live reasonably and responsibly. From this description, prisons in Indonesia
are considered to be good in the regulatory system. However, in practice it is
not optimal as the results of research show that there are 3 (three) problems,
namely overcrowded prisoners, lack of Human Resources and costs.
Based
on the provisions of international law and national law in Indonesia itself,
with the problem of overcrowded prisoners, lack of human resources and costs
needed, the Indonesian government has failed to implement the rule of law to
provide proper places and facilities and provide maximum guidance to prisoners.
In terms of this bad record, the government should start evaluating itself to
make improvements and start looking for solution options with one solution
being to open a private prison (Privatization) with a system that is adapted to
the provisions of the law in force in Indonesia. Based on the results of the author's
study, both conceptually and based on the Correctional Law, the Public Private
Partnership system, which is a cooperation system between the government and
the private sector, is the right choice to be applied in Indonesia. This
choice, can also be seen based on the success of France which implemented this
system, although this system is more in France better known as the hybrid
system. This model seeks to create a complement between the advantages
possessed by the government and the advantages possessed by the private sector.
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Copyright
holders:
Riki Bramandita, Rizal Sofyan
Gueci, Gregorius Hernamarwan
Kristyanto (2023)
First
publication right:
Injurity - Interdiciplinary Journal and Humanity
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