‘Entrapped in a penal time capsule’: Extralegal discourses in sentence review of life prisoners in India

Abstract

Scholars argue that lifers’ parole can be mobilised to be punitive and politicised. However, how parole decision-makers construct and disguise their punitive and politicised discourses when deciding the paroled subject is understudied, especially with regard to the global south. In this paper, based on content analysis of the dossiers of Delhi's Sentence Review Board (SRB) during 2018–2021, and in-depth interviews with the SRB members, we found that most of the SRB's rejections were solely based on the crime, a violation of a lifers right to a meaningful consideration for premature release. The SRB members rationalise their decision-making through two discourses: ‘temporal entrapment’, and ‘disguised punitivism’. Through these discourses, the SRB exercises penal power which is formally unified by the legal scaffolding but discursively bifurcated, for negotiating competing penal and political values and logics.

Introduction

Parole boards are a powerful, yet largely hidden and under-studied, decision-makers, located at the back-end of the criminal justice system (Annison and Guiney, 2022; Aviram, 2020; Dalke, 2023; Shammas, 2019; van Zyl Smit and Appleton, 2019). Recent years showed a growing interest by scholars, mostly in the U.S., to parole decision-making, showing parole sphere as an important field for penology and human rights, especially for lifers (Aviram, 2020; Griffin, 2018; Young and Pearlman, 2022; Shammas, 2019). However, an understanding of the extralegal discourses used by parole decision-makers to construct their punitive and politicised discretion, and how these discourses are negotiated ‘in action’, is still missing (Herbert, 2022), especially beyond the Western-oriented context (see Moosavi, 2019). This study aims to fill this gap through exploring the punitiveness and potential politicisation of parole decision-making for life prisoners in India, offering the first in-depth empirical study of lifers’ parole in this jurisdiction.

Life imprisonment is one of the most extreme sanctions of the state (Crewe et al., 2020). In India, it is also seemingly popular, being used as a sentence for more than 50 crimes in the Indian Penal Code (1860) alone (Gokhale, 2018). As of December 2021, there are 73,508 life prisoners in India, constituting 60% of the total sentenced prisoners. Although life prisoners in India do not have a right to release, life imprisonment rarely involves incarceration till the last breath (Dhanuka, 2019). Their hope for a ‘life after life imprisonment’ (Appleton, 2010) – is contingent on the grant of ‘premature release’ by the state government. In each state, the executive discretion to grant premature release is exercised on the recommendation of a Sentence Review Board (SRB). The SRBs are administrative bodies constituted exclusively for the sentence review of life prisoners through ‘well-informed, fair, justifiable, and rules-based’ decision-making (DPR, 2018). As the ‘gatekeeper of liberty’, the SRBs exercise one of the most ‘important uses of discretion in a penal system’ (Maguire et al., 1984: 250). They not only decide the ‘ultimate status’ of a life prisoner but also symbolically convey prevailing moral justifications for punishment in a penal culture.

Scholars have shown how punitiveness, arbitrariness and indeterminacy in early release processes can cause ‘pains of parole’ to life prisoners (Griffin and Healy, 2019). The ‘fog of uncertainty’ (Crewe, 2011: 514) surrounding the release process can intensify the life prisoner's insecurities, physical and mental deterioration (Griffin, 2018). In India, in the last decade, hundreds of lifers have gone on hunger strikes protesting premature release decision-making (Kaur, 2019). Further, the constitutional courts have routinely raised due process concerns with the functioning of the SRBs. While overturning or directing reconsideration of rejections, the courts often described the SRB's decisions as ‘whimsical, illegal, and arbitrary’ (Delhi High Court, 2018), ‘mechanical and without application of mind’ (Supreme Court, 2020; Allahabad High Court, 2021) and that ‘there is an apprehension or likelihood of bias based on caste or religion’ (Delhi High Court 2018).

The discontent with the SRB's use of discretion poses a serious challenge to the legitimacy of the correctional administration in India, which still claims normative commitment to the reformation of offenders. However, despite its penological relevance, the SRB's decision-making remains overlooked in punishment scholarship. This paper addresses this gap by examining the factors, frames, and rationalities that inform the SRB's use of discretionary penal power. Situating Delhi's SRB as a site of inquiry, and following a sequential mixed-methods design, it explores the penological logic that underscores the premature release decision-making.

The findings show a ‘governmentality gap’ (McNeill et al., 2009: 419) between the penological purpose of premature release ‘in the books’ and the SRB's ‘penality-in-practice’. We found the use of extralegal discourses through which the SRB constructs and disguises punitive and political considerations. Through these discourses, the legal boundaries between judicial and administrative decision-making and logic that is common in India and other penal systems is blurred, defied, and challenged. As the findings suggest, extending the sentencing logic to the sentence review process, without the former's due process protections, undermines the legitimacy of the SRB's decision-making, having serious implications for the human rights of lifers, custodial administration, and legality of the existing framework for sentence review. Finally, the findings show parole hearing could be used to construct penal power which is formally unified by the legal scaffolding but discursively bifurcated for negotiating competing penal and political values and logics.

Literature review

The logic employed by parole decision-makers in various socio-legal contexts and periods has been found to include multiple, often conflicting, discourses, such as clinical-rehabilitative (e.g., focus on individualised therapy), disciplinary (e.g., focus on normalising through work) and risk-management (focus on managing and containing ‘dangerous’ populations) (Griffin, 2018; Simon, 1993; Shah, 2017; Shammas, 2019). The later risk-management discourse, common in U.S. parole systems, rely heavily on ‘punitive risk-management techniques’ to justify the indeterminate containment of sex offenders that are constructed as ‘very dangerous, threatening and ethnically different ‘other’’ (Lynch, 1998: 98).

The parole of eligible lifers, a substantial subset within various penal systems, is a prerogative carried out by parole boards and similar administrative or quasi-judicial bodies (van Zyl Smit and Appleton, 2019). The ramifications of decisions made by these release authorities for lifers eligible for parole are profound, potentially leading to a decade reduction in sentence duration or, conversely, the implementation of ‘death by incarceration’ should their release continue to be denied (van Zyl Smit and Appleton, 2019; Griffin and O’Donnell, 2012). Early release of lifers has been traditionally justified on the grounds of ‘individualisation’ and ‘progression,’ signifying a transition from retribution to rehabilitation over time and implies a division between sentencing and parole functions, logic and authorities (van Zyl Smit and Appleton, 2019). Accordingly, the possibility of lifers’ parole is grounded upon a recognition of the rights to ‘social rehabilitation,’ ‘resocialisation,’, ‘reintegration,’, the prospect of ‘atonement,’ and human rights values of ‘dignity’ and ‘hope’, even for those convicted of serious crimes (Padfield et al., 2000; van Zyl Smit and Appleton, 2019).

In practice, the penological considerations of lifers’ parole decision-making in discretionary systems are usually public safety, rehabilitation, and potential reintegration into society (van Zyl Smit and Appleton, 2019). Consequently, the decision-makers for lifers’ parole in these systems have access to a broad spectrum of information related to their crimes and personal attributes before and during incarceration. This information aids them in making comprehensive decisions tailored to the prisoners’ circumstances, including prison conduct and rehabilitation progress, and risk assessment (Young and Pearlman, 2022).

However, scholars found that the lifers’ release sphere – especially in the U.S. context – have become punitive. Studies have revealed that such decision-makers operate with extreme caution, employing, openly and less openly, the logic of risk management and punishment (Aviram, 2020; Griffin, 2018; Shammas, 2019). Scholars also have framed the following as the signs of punitivism in parole: ‘overestimated criminal history’ (Hood and Shute, 2000; Padfield et al., 2000) and reinforcing ‘the moral significance of past criminality’ (Herbert, 2022). Others argued for a ‘disproportionate emphasis on crime’ (Padfield, 2019), ‘punitive public opinion’ (Griffin, 2018; Annison and Guiney, 2022), over-relying on ‘moral censure’ (Dagan, 2022), on the lifers’ moral character for denying parole (e.g., failing to show ‘insight’) (Aviram, 2020; Young and Chimowitz, 2022). Parole field personnel also found to act under a ‘punitive ideology’ that construct paroled subjects ‘as always precarious and as responsible for their own reformation’ (Werth, 2013: 213). Yet, rather than entailing the abandoning or de-legitimising rehabilitation, this approach folds rehabilitation within a web of punitivism (Werth, 2013). Finally, the parole sphere was also found to be politicised, especially for high-profile crimes, blending elements of populism and conservatism, law-and-order politics and reject balancing of the human rights against public safety (e.g., by giving the state officials authority to review politically embarrassing release decisions) (Annison and Guiney, 2022; Padfield et al., 2000; Padfield, 2019). However, institutional discourses, goals, policies of parole, are not static objects that predetermine their meaning; rather they are re-interpreted and re-implemented constantly (Aviram, 2020; Dalke, 2023; van Zyl Smit et al., 2013; Simon, 1993; Shah, 2017; Shammas, 2019), including attempting to exclude the gravity of the crime committed as a sole reason for parole denial both in some U.S. (Aviram, 2020) and European systems (Padfield, 2019; van Zyl Smit and Corda, 2018).

While current literature showed the possible punitivity and politicisation of the lifers’ parole sphere, three important questions are understudied, particularly with regard to the role of extralegal discretion in parole decision-making. First, how the evaluative categories reformation/rehabilitation and risk can be reconstructed by lifers’ parole decision-makers for promoting punishment; second, which discursive methods are used for politicising parole decision-making and how they are disguised and legitimated. Third, what is the nature of penal power in the context of parole and the competing interests that are negotiated within parole decision-making. These contributions become more evident considering that current parole scholarship is overwhelmingly U.S. and UK-oriented and ‘very little is known about life imprisonment in Asia’ (van Zyl Smit‌ et al., 2023: 2). Therefore, we aim to develop a more transnational and inclusive scholarship that considers the experiences and perspectives of the Global South through the case of India (see Moosavi, 2019; van Zyl Smit et al., 2023).

Context and methodology

Context

The Criminal Procedure Code (1973) contains the executive power to grant premature release to life prisoners. Each state has its own policy to guide the exercise of this statutory power. In Delhi, the legal framework for reviewing life prisoners for premature release is provided under the Delhi Prison Rules 2018 (DPR). The executive discretion to release is exercised by the Lieutenant Governor, based on the recommendations of the SRB.

In contrast to many U.S. parole guidelines for lifers (see Rhine et al., 2017; van Zyl Smit and Appleton, 2019) the SRB decision-making is non-legalistic, informal, politically-oriented, and highly discretionary, with little emphasis on procedural safeguards, and principles of natural justice. This is accrued to the SRB's composition and decision practices. SRB has seven members, six of which represent the state's executive branch: home minister, secretary (home), secretary (law), director general (prisons), director (social welfare), and senior police officer. The only non-executive member is a district judge. Decisions are made in a closed-door meeting, with eligible prisoners having no oral, written, or legal representation (Tripathi, 2021). Eligible prisoners are both constructed and rendered knowable to the SRB through their dossiers, which they cannot access until the decision is made. The dossiers contain evidence of reformation, rehabilitation, and risk, presented through reports by prison, probation, and police departments, respectively. While the SRB's decision-making is deemed administrative in nature, it is not beyond the pale of judicial review. The constitutional courts can intervene if the decision is found to be arbitrary and direct the SRB to reconsider the same.

It is common across penal systems to put temporal thresholds to release eligibility (van Zyl Smit and Appleton, 2019). In Delhi, life prisoners are divided into three categories for setting three distinct temporal thresholds. The first category consists of life prisoners convicted of a non-capital offence. Their temporal threshold is a minimum of 10 years of actual imprisonment. The second category includes those convicted for a capital offence and sets the threshold as a minimum of 14 years of actual imprisonment. The third temporal threshold – minimum imprisonment of 20 years – applies to life prisoners convicted of any of the following offences: multiple murders, rape and murder, dacoity ¹ and murder, child rape and murder, murder in terror activity, and murder of a public officer. The legal framework, however, does not set an upper threshold beyond which no prisoner should remain incarcerated. Further, it does not articulate any rationale for three distinct temporal thresholds (Gokhale, 2018).

SRB's decision-making is discretionary, but not unfettered. It is bounded by codified rules, judicial precedents, and stated penological goals. The criteria amalgam instrumental risk and rehabilitation, focusing both on the seriousness of the offence, and the rehabilitation of the offender. It requires the SRB to assess five factors: (a) whether the prisoner has reformed, (b) whether he has ‘lost the propensity to commit a crime,’ (c) whether he ‘can be reclaimed as a useful member of the society,’ and (d) the socio-economic condition of his family, and (e) the nature of the crime. While the discretion is quite broad, no descriptive guidance is provided for its exercise. In subjectively ‘making sense’ of the decision-making criteria, the SRB draws from a wide range of knowledges that often convey competing interests and ideologies (Rhine, 2012). How these diverse knowledge are assembled, interpreted, and operationalised has serious implications on both the administration and experience of punishment (Padfield, 2019).

The sentence review process does not operate in a normative vacuum. It is situated within the Indian penology's normative commitment, at least on paper, to the reformation and rehabilitation of offenders (Mulla Committee, 1982). In India's welfarist penal paradigm, the ‘hope’ of premature release, at least officially, is posited as an incentive for the ‘self-improvement’ and ‘self-discipline’ of the life prisoners (NHRC, 1999). Such hope is essential for efficient correctional administration, and effective ‘resocialisation’ of offenders ‘absolved of their criminal tendencies’ (Mulla Committee, 1982: 215). The legal framework for premature release in Delhi reiterates this rehabilitative commitment. It describes the ‘primary objective’ of premature release to be ‘the reformation of offenders, and their rehabilitation and reintegration into society’ (DPR, 2018: 345). In pursuit of this objective, the review process must be guided by certain ‘considerations.’ The SRB shall ‘predominantly consider’ the ‘welfare of the prisoner and the society,’ and ‘general principles of amnesty/remission as set out by the government and judicial precedents’ (DPR, 2018: 345).

As an ultimate decision on a life prisoner's status, the release decision-making must comply with certain substantive and procedural safeguards (van Zyl Smit and Appleton, 2019). The absence of normative restrictions on the discretion to grant release can render imprisonment cruel, inhumane, and degrading (Griffin, 2018; United Nations, 1994). In India, a life sentence is judicially interpreted as ‘wholly punitive’ (Gokhale, 2018), to last for the remainder of life. However, life prisoners do have a right to be ‘meaningfully considered’ for premature release after crossing the minimum temporal threshold (Dhanuka, 2019). This right obligates the state to ensure that (a) eligible prisoners are given adequate opportunity to submit their application for premature release, and (b) such application is subjected to reasonable and rule-based review. The ‘reasonability’ requires the sentence review to be ‘well informed, justifiable, reasoned, and fair to all parties concerned’ (Haryana v. Mohinder Singh, 2000). The right to seek sentence review, and to be meaningfully considered for premature release, forms part of their constitutional right to a dignified life (Mohinder Singh v. Punjab, 2013). Therefore, the discretion to grant premature release is subject to the rule of law, and cannot be exercised arbitrarily or extralegally (Haryana v. Mahender Singh, 2007).

The constitutional courts have elucidated the right to meaningful considerations in multiple judgments. While assessing the applications, the SRB must follow a ‘balanced approach’ which entails (a) giving equal weightage to all the factors of the decision-making criterion, and (b) strictly adhering to considerations stipulated in the DPR (Sushil Sharma v. GNCTD, 2018). The SRB cannot rely on extraneous considerations such as ‘negative message to the society,’ ‘religious disharmony,’ or ‘incapacitated from committing crime’ (Shor v. State of UP, 2020). Further, the nature/gravity of the crime, or the opposition by the police, cannot be the sole reason for rejecting an application (Satish v. UP, 2020; Munna v. UP, 2020). Privileging crime over the reintegrative potential of the lifers, negates their moral agency and violates their dignity (Satish v. UP, 2020).

Methodology

The two methods adopted were (a) content analysis and (b) semi-structured interviews, operationalised in a sequential design. First, we did the content analysis of SRB's decisions to identify the patterns of decision-making. Subsequently, we conducted semi-structured interviews to get a contextual understanding of the pattern identified. The syncretic nature of this approach helped in offsetting the limitations of the mono-methodological approach (Creswell and Clark, 2006) while collecting a diverse set of data from multiple sources.

The dataset for the content analysis consisted of the SRB's decision dossiers from all the meetings conducted between 2018–2021. During this period, a total of 1183 applications were decided over 8 meetings. This temporal range was selected because the DPR, which provides the contemporary framework for premature release, came into force in 2018. The decision dossiers were retrieved from Delhi Government's prison department by filing the Right to Information application. Once all the decisions were catalogued, a coding sheet was prepared to identify how the SRB applied the established criteria for premature release in each case.

Subsequently, in-depth semi-structured interviews were conducted with five current and three former members of the SRB. All 8 interviewees had participated at least once in the premature release decision-making during the period under consideration. The participants included members of the SRB from the prison, police, social welfare (probation), home, and law and justice departments. However, interviews with the state home minister and the judicial member could not be conducted due to the request denial. Participants were selected using convenience sampling and contacted through official emails. Interviews also allowed exploring in detail the patterns of departmental decision-making. For instance, interviews revealed why police almost always reject and the parole department always recommends release. While we briefly discuss this finding (particularly for police rejections), it is not engaged with in detail due to (a) paucity of space, and (b) our focus on SRB's unanimous decision-making rather than on discretionary practices and frames of individual departments.

Findings

Quantitative trends: Rejections based on crime severity (RBCS)

This section presents key quantitative patterns of the SRB's decision-making identified through content analysis of its decision dossiers for a total of 8 meetings held between 2019–2021.

Declining Rate of Premature Release

Analysing the dossiers reveal that overall, 1183 applications were decided across 8 meetings between 2019–2021. 917 applications (77.52%) were rejected, and 266 (22.48%) were recommended for release. The rate of recommending life prisoners for release has consistently declined over time, from 29% in 2019, 24% in 2020, to 17% in 2021. While the rate of recommendation for release has declined, the ratio of life prisoners to the total convict population in Delhi has increased from 40% in 2018 to 45% in 2020 (NCRB, 2021).

The rate of premature release is one of the key contributors to both the representation of life prisoners in the carceral population, and the average length of imprisonment under a life sentence. The policy (Mulla Committee, 1982) and judicial discourse (Supreme Court, 2021, 2022) have consistently emphasised the instrumental role of premature release in the management of overcrowding and occupancy rate in prisons. While it requires further empirical examination, the declining rate of premature release along with the rising rate of life imprisonment raises concerns about the nature of both the life imprisonment and correctional administration in Delhi.

• (b)

Rejections Based on Crime Severity (RBCS)

Rejection Based on Crime Severity (RBCS) refers to the decisions where the nature of the crime, and the facts underscoring its commission, were the only reasons for rejecting an application. Other factors of decision-making criteria (reformation, reintegration potential, etc.) were not considered by the SRB. The crime's facts and circumstances were evoked both to contextualise the application and justify rejecting an application solely based on crime. For instance, the decision in one application stated: ‘the convict sodomised and murdered his 14 year old nephew. Given the seriousness of the crime, the Board rejects the application for release’. In this case, ‘severity’ or ‘seriousness’ is not instrumentalised in the proportionality or reform/risk sense, but as a descriptive tool to contextualise and justify the decision.

The SRB is required to follow a ‘balanced approach’ whereby all the factors of the decision-making criterion are assessed and given equal weightage (Sushil Singh v. GNCTD, 2018). However, it significantly disregarded this legal requirement. Overall, in more than half of the rejected applications (55%), the prisoner was denied release solely based on crime. Further, the rate of rejections solely based on crime witnessed a sharp increase during the period under consideration, rising from 50% in 2019 to 64% in 2021, possibly following an increase in the number of sex offenders coming up for review.

In the SRB's decision dossier, crime becomes the sole criteria for rejecting release through typologies of ‘nature of the crime,’ ‘facts and circumstances of the crime,’ ‘gravity of the crime,’ ‘perversity of crime,’ ‘heinous nature of the crime,’ and ‘situation in which crime was committed.’ The SRB mostly cites ‘strong opposition by the police/not recommended by the police’ (67%) as the justification for rejecting an application solely on the basis of crime. In the other 33% of such rejections, no justification was provided. Situating the SRB's reliance on the police's opposition with the pattern of police assessments paints a concerning picture.

The police reports presented to the SRB show a clear and unilateral pattern: they always oppose release. The police's non-recommendation is expressed as ‘opposition’ in some applications, and ‘strong opposition’ in others. Further, there seems to be no dissonance between the police report and the opinion of the police representative during the meeting: in 98% of the applications, the police representative concurred with the position stated in the police report. This pattern confirms the apprehensions raised by the constitutional courts in multiple judicial reviews. Taking cognisance of the police's punitive approach towards premature release, the Supreme Court had directed that the police's opposition cannot become the sole reason for rejecting an application (Satish v. State of UP, 2020). Therefore, when police seem to mechanically oppose every application, the SRB's disproportionate reliance on it as a sole justification renders the decision arbitrary, ill-informed, and unreasonable.

The rationale for mechanical rejections by police was not entirely clear through decision dossiers, so it was explored further during the interviews. In the interviews, police representatives described that they see themselves as presenting only the risk-perspective in the meetings, as that's the only thing they can expertly assess and have a responsibility for. It's not just the police, but representatives from each agency (parole, prison, etc.) believe that their job is to assess and present only one aspect of the decision-making criteria. For instance, parole officers think they can only produce evidence about the rehabilitative potential of the lifer; his reformation is best assessed by the prison superintendent. All the interviewees claimed that the ‘authoritative say’ in framing, assessing, and evidencing this factor is exercised by the police and home departments. As also proclaimed by one of the interviewees, ‘risk of crime is the police's domain, they assess the threat posed by the prisoner to the law & order situation, to the victim.’

The deviation from the ‘balanced approach’ also underpins the remaining 45% of rejections that are not solely based on crime. Out of the 45%, 19% were based on a combination of the ‘criminal history’ and the ‘nature of the crime’; and 21% considered ‘unsatisfactory jail conduct’ along with the ‘nature of the crime.’ Therefore, only 6% of the rejected applications were decided by adhering to the ‘balanced approach’ – giving due consideration to all the factors constituting the decision-making criteria.

• (c)

Disproportionality in Crime-Based Rejections: Sex and Terror Offenders

While examining the offence-wise distribution of application, two categories stood out: (a) sex offences (standalone or in conjunction with other offences), and (b) terror offences. These two categories differ from others as none of the applicants convicted of either of the two were recommended for premature release. Therefore, while sex offenders and terror offenders constitute only 26% of total applications, they make up for 34% of total rejections.

The unique predicament of these two categories of offences informed a closer inspection of the RBCSs applications. The offence-wise analysis of the RBCSs revealed the disproportionate vulnerability of sex and terror offenders to RBCS. While applications of sex and terror offenders constitute 34% of the total rejections, they form 60% of the total RBCS (sex offences – 47%, and terror offences – 13%). The offence-wise disproportionality is underpinned by the fact that all the applications by terror offenders, and 96% of the applications by sex offenders, are RBCS. As in many other jurisdictions, sex and terror crimes are viewed as especially serious based on their crime severity and risk (see van Zyl Smit and Appleton 2019).

Qualitative trends: Discourses of distorted review

Drawing from the in-depth interviews, this section qualitatively analyses how the SRB justified its decisions to deny release through RBCS, particularly for sex and terror offenders (hereinafter referred to as ‘serious offenders’). The analysis shows that while justifying RBCS, the SRB members use two overlapping discourses: (a) ‘temporal entrapment’, and (b) ‘disguised punitivism’.

While both ‘Temporal Entrapment’ and ‘Disguised Punitivism’ share the notion that lifers are irredeemable, they adopt different discursive tools, and construct the lifer through different referential frames. ‘Temporal entrapment’ refers to discursive tools that are (a) focused on ‘facts and circumstances of the crime’ (as verbatim in dossiers), (b) backward-looking, and (c) reproduce the lifer as constructed at the time of sentencing. The backward-looking and immobile temporal frame is justified by reproducing the ‘facts and circumstances of the case’ as stated in the sentencing order, and reifying the judicial construction of the lifer at the time of sentencing (as discussed later). Also, temporal entrapment is communicative to the lifer, not to the victim or the public. It is not deemed generative, not serving a greater penological purpose other than dehumanising the lifer for unending confinement.

Disguised punitivism, on the other hand, is forward-looking, but premised on the lifer's temporal entrapment. Here the referential frames for lifer's construction are the ‘public’ and the ‘political interests’. These frames are mobilised through discursive tools that aim to disguise, and in doing so legitimise, the punitive logic underscoring the frames. Containment of a temporarily entrapped lifer is seen as generative, serving larger penological goals of general deterrence, public interest, moral censure, and political goal of avoiding risks of mass mobilisation/protest. We argue that through these frames, the SRB blurs the conceptual boundaries between sentencing and sentence review. Extending sentencing logic to sentence review without the former's due process protections has serious implications for lifers’ right to meaningful consideration, the normative justification for premature release, and the SRB's legitimacy as a decision-making body.

‘This criminal mentality… it never goes away’: Performing Temporal Entrapment

The first discourse through which the SRB justifies denying release through RBCS reflects temporal entrapment of serious offenders. ‘Temporal entrapment’ is used to describe discursive practices that dissolve the prisoner's carceral trajectory into a present ‘inescapably influenced by its past’ (Schwerzmann, 2021: 1892). It distorts the normative linear temporality of the sentence (Armstrong, 2020) by viewing the prisoner's qualitative progression along the penal continuum as ‘suspended’ (Griffiths, 2014) or unmoving – like being stuck in a penal time capsule. The metaphor of ‘entrapment’ is premised on an extreme power hierarchy between the ‘entrapping authority’ and the ‘entrapped agent’. It views the construction of relevant temporal frames – how far in the past or forward in the future should the regulatory gaze extend – as an exercise of penal power to ‘reinforce and reproduce different inequalities and regimes of social order’ (Fabian, 1983: 144). The ‘past’ is not just ‘revisited’ but mobilised to exercise and justify penal decision-making for the present and the future. In the SRB, the temporal entrapment of a life prisoner is performed through three discursive practices: (1) deference to judicial reasoning, (2) constructing an ‘incorrigible prisoner’, and (3) moral censure.

1. The interviewees justified RBCS by showing disproportionate deference to judicial reasoning, which appears in the review process through the sentencing order, and the opinion of the judicial representative during the meeting. As one interviewee described: ‘in such serious cases, everything we need to know is in the (court) judgement… the judge had already applied his mind in deciding what the prisoner deserves, we need to respect that.’ The interviewees’ disproportionate deference to sentencing reasoning has been interpreted as the ‘temporal entrapment’ of the prisoner for various reasons. First, the review became a site to simply reproduce the prisoner as constructed on the day of sentencing. Instead of extending it to the evidence on reformation and rehabilitative potential, the temporal frame was restricted to the facts, circumstances, and seriousness of the crime as elucidated in the sentencing order. The sentencing order, and the reasoning therein, served as a script to justify RBCS – as ‘evidence’ (interviewee 1) of how ‘it was all planned… how mercilessly he did it’ (interviewee 2). Second, as stated by all the interviewees, the judicial representative's recommendation is simply a reiteration of the logic and language of the sentencing court. For instance, one probation representative described that: ‘The judge (judicial representative) knows more than us about the sentence… he refers to the judgement and says it's a heinous crime – can’t release, there's not much we can do then’. The use of judicial deference as a justificatory device was premised on the construction of judicial officers as ‘fair’ and ‘just’: ‘judges are impartial, they have no fear or favour … they go by the law, evidence … they (judges) are there [SRB meeting] to keep a check on injustice’ (interviewee 3).

2. Further, in their justification for RBCS, 5 out of the 7 interviewees (the prison and probation representatives being the exceptions) discursively constructed certain kinds of offenders, especially sex offenders, as ‘incorrigible’ or ‘beyond redemption’ (interviewee 4). The discursive construction of incorrigibility is also reflected in the decision dossiers. For instance, in some applications, RBCS was justified through typologies like ‘no aptitude for reform’ or ‘no reformation possible.’ As irredeemable penal subjects, these offenders are rhetorically constructed as serving penal time while being ‘outside the scope of reformation’ (interviewee 1). The incorrigibility rhetoric is not premised on the inadequacy or inefficiency of correctional interventions but on the perceived immutable criminality of such offenders. For instance, while addressing the question on the role of prison programmes for terror and sex offenders, one of the interviewees said:

   I don’t think one can reform them. Prison programmes like yoga, vipassana (meditation), art therapy – are meant for prisoners who can be reformed, you know, who have it in them to become better. These programmes cannot change a perverse mindset, there is no point in making any such investment.

3. In operationalising temporal entrapment, the SRB not only performs an administrative but also a communicative function (Dagan and Segev, 2015). The narratives underpinning RBCS are not ‘purely rational or non-emotive’ (Lynch, 2006: 530) but can be viewed as communicating moral censure to the prisoner. The moral censure of the serious offender appeared both in the interviews, and more modestly, in the decision dossiers. In the latter, it was expressed by first describing the facts and circumstances of the index crime, and then using it as a frame to morally and de-construct the prisoner in dehumanizing way: ‘raped his own 3-year old daughter in an inhumane manner… shows perverse mentality’; ‘sodomised and murdered a helpless 14-year-old boy… shows inhumane and perverse nature.’ These discourses presented as part of the ‘reformation/reintegration’ or ‘risk’ paradigms, using the legal scaffolding of the rehabilitative/risk-oriented DPR (DPR, 2018). It helps to disguise extra-legal punitive considerations through the known legal terms of ‘lack of reformation’ or ‘inability to reintegrate’ or other medical-psychological-jargon, hiding punitive meaning, blurring the line between rehabilitation and ‘punitive regulation’ (Werth, 2013).

The interviews provided a deeper insight into the typologies and frames mobilised to express moral censure to serious offenders. Most of the interviewees (except representatives from the probation and law departments) negotiated binaries of humane/inhumane, normal/abnormal, and general/exception, in their moral construction. These binaries served a dual purpose of both justifying the RBCS and legitimating the prevailing legal framework that does not endorse RBCS.

Occasionally, the ‘exceptional crimes’ (prison representative) rhetoric blurred the distinctions between the criminal act, the mental state, and the moral character of the offender (see Shammas, 2019). For instance, describing the review of a life prisoner convicted of sodomy and murder, one of the interviewees said: ‘how do you expect us to recommend release in such a case… it shows a diseased mentality, no normal human being will do such a thing’. The interviewees’ moral censure of serious offenders was closely linked with the conception of ‘deserved punishment’ (Aviram, 2020; Dagan, 2022). They often referred to the minimum custodial threshold for eligibility (14 years) as ‘too less’, and also used it as a rhetorical device to justify longer incarceration. The prolonged incarceration extending beyond the eligibility threshold was also defended by selectively invoking ‘life means till end of life’ (interviewee 2) rhetoric. The interviewees further expressed that it was ‘obvious’ (interviewee 6) that serious offenders cannot be released at the first or even second review. As succinctly described by the police representative: ‘he (prisoner) just spent 14 years, he should at least spend 14 more.’

By doing so, these officials reinforce a deterministic and stigmatising vision of lifers – as the ultimate others and ‘monsters’ (Aviram, 2020) – setting a permanent and exclusionary moral boundary between lifers and community (Herbert, 2022).

Temporal entrapment, thus, is based on crime-focused (deference to judicial reasoning) and ‘character-determinism’ (constructing an ‘incorrigible prisoner’ beyond reform) narratives (Lacey, 2016). This theme logic that signals openly the impossibility of the lifers’ reform; the first narrative even makes the rehabilitation question unnecessary since the crime severity, as the single question asked, already determined in court.

• (b)

‘Perverse Mentality’: Performing Disguised Punitivism

The second discourse mobilised to use RBCS shows how the SRB disguises punitivism in the review process operationalised through the generic categories of ‘risk’, ‘public order’, ‘dangerousness’, ‘lack/inability of reformation’ and similar terms. While the meaning of ‘punitivism’ as a theoretical concept lacks consensus (Matthews, 2014) it is broadly understood as ‘an unspecified mix of attitudes, enactments, motivations, policies, practices, and ways of thinking that, taken together, express greater intolerance of deviance and deviants, and greater support for harsher policies and severer punishments’ (Tonry, 2007: 7).

During the interviews, two narratives emerged that indicate the ‘punitive creep’ in the SRB's decision-making for serious offenders: (a) general deterrence and crime prevention, and (b) punitive public opinion. These themes assisted the SRB in reconceptualising the review process as serving penological goals that are extraneous to and transcend the legal framework.

General Deterrence and Crime Prevention

The members further disguised punitivism by situating the review of serious offenders in the wider discourse on ‘public interest’ that combined the different, but related, discourses of general deterrence and crime prevention. The review process was viewed as serving a utilitarian function, with a ‘tough stance’ (interviewee 4) contributing to fostering deterrence and crime prevention in the public interest. The deterrence logic is prospective and consequentialist in nature, invoked to prevent crimes by addressing future behaviour. The decision in serious cases was perceived as ‘sending a message to the society’ (interviewee 8), that ‘we will not go easy on rapists’ (interviewee 6). Typologies like ‘the wrong message to society’, ‘fear of punishment’, and ‘cannot appear as going easy’ featured strongly in the interviewees’ logic underscoring RBCS.

The narrative of ‘crime prevention’, for terror offenders, was based on a de-individualising logic that not only undermined their moral agency to reform but also viewed them as ‘active cells’ of a larger ideological struggle. As described by one of the interviewees while justifying the RBCS for 1993 Delhi bomb blast case accused DP Bhullar:

There are bigger issues in play … what if we release Bhullar and he starts radicalising the Sikh youth, he will go out and give speeches, hold meetings, anyways the Khalsa movement is a threat. It will lead to more crimes. … Releasing Bhullar will activate sleeper cells.

In such cases, the SRB constructs the lifers’ release as a group-based political risk to public order that should be prevented instead of individual rehabilitative assessment.

• (b)

Punitive Public Opinion

Even though not explicitly prescribed by the law, the interviewees posited public opinion as a significant factor in the review process. However, during the discussion on RBCS, ‘public opinion’ not only surfaced as having ‘utmost importance’ (interviewee 2), but was always uncritically viewed as punitive. In the discursive construction of punitive public opinion, the sex offender becomes synonymous with his index crime. The conception of punitive public opinion was not based on empirical studies but on (a) their own subjective understanding of ‘the public anger’ interviewee 4), (b) media reportage in ‘high-profile’ cases, and as described by the probation and prison reports, (c) political considerations. If a sex offender from a ‘high-profile’ case is up for review for premature release, or files a petition before the court or the National Human Rights Commission for remission, the media coverage of the victim's family, local public, and political leaders become an important source for the SRB members. For instance, narratives from on of the interviewees reflect how the consideration of punitive public opinion is justified as a ‘precaution’ against the ‘risk of disturbing law and order situation’:

If we release a child rapist, there will be an uproar… it's too much of a risk; public will protest at Jantar Mantar, the pressure will come on us (police department) to manage unruly crowds.

The risk here is less of a future crime, but more a risk from the public response for release that needs to be managed.

The construction of punitive public sentiment to justify RBCS for serious offenders is also political, informed by the ‘risk of political blunder’ (interviewee 2), especially for high-profile sex and terror cases. The state home minister's (who chairs SRB meetings) unwillingness to ‘take any risk’, in turn, makes other members reluctant to question the use of RBCS for sex offenders. As described by one of the interviewees, ‘rape cases are politically sensitive… the (home) minister just does not want to touch them, it is obvious that even if probation department recommends release, he is going to reject.’ Further, the interviewees recognised the Nirbhaya gangrape case (Delhi, 2012) as a ‘turning point’ (prison representative) for the sentence review of sex offenders. Considering the mass public protests that followed the Nirbhaya case, governments have become unwilling to afford the political risk of releasing any sex offender. This is exemplary of what some scholars have noted as the rise of hyper-punitive state feminism post the Nirbhaya case in 2012, marked by securitisation of sexual violence to justify stricter punishment (Dash, 2021; Kotiswaran, 2018).

Discussion

The syncretic analysis of the decision dossiers and in-depth interviews reveals a ‘governmentality gap’ between the normative purpose and policy for premature release, and the SRB's ‘penality-in practice’ (McNeill et al., 2009: 421). The ‘gap’ reflects how and why the penal actors resist, renegotiate, or reconfigure the normative rationalities while exercising discretion. In Indian penology, the premature release is normatively committed to reformation and rehabilitation of offenders. However, the findings show a significant distortion of this ‘rehabilitative ideal’ through ‘disguised punitivism’. This ‘governmentality gap’ not only challenges the legitimacy of the SRB as a neutral, fair, and rule-abiding body, but also has serious implications for the rights of life prisoners, custodial administration, and the legality of existing premature release framework. It can create disparities in release determinations (Ruhland, 2020), and symbolically convey the ‘language and ideology of penal governance’ (Bosworth, 2007).

The two discourses found – (a) temporal entrapment, and (b) disguised punitivism – shed light on how the SRB justifies denying premature release to serious offenders through RBCS. The SRB's construction of these discourses reflects premature release decision-making which is formally unified but discursively bifurcated. While maintaining the veneer of rules-based review, obeying to the declared principles of legality, rehabilitation and human rights, it mobilises logics that affront the normative purposes and considerations of premature release. The discursive bifurcation allows the SRB to reinforce its legitimacy while also constructing a prisoner that is incapable of reform, morally perverse, and who can be rejected solely based on the nature of his crime in the interest of public security.

The two discourses underpinning the discursive bifurcation blur the conceptual boundaries between sentencing and the sentencing review. They defy the mutually exclusive demarcation of judicial and administrative nature of discretion that underpins sentencing and sentence review respectively in the Indian penal system. This challenges the legitimacy of the sentence review process, and poses serious challenges to the due process protections of life prisoners (van Zyl Smit and Appleton, 2019). The sentence review process is legally conceptualised as administrative, not judicial or even quasi-judicial. Its strict demarcation from sentencing underscores the exclusion of greater due process protections that are provided in the sentencing phase – right to counsel, oral hearing, public proceedings, etc. In order to maintain this distinction, the Supreme Court has established that premature release decisions cannot be based solely on retributive considerations such as the nature of the crime (Kumar v. State, 2018), length of the sentence (Satish v. State of UP, 2020) or communication of censure (Shor v. State of UP, 2020).

However, the two discourses underpinning the discursive bifurcation reflect how the SRB reinforces sentencing logic through retributive and consequentialist considerations. The ‘retributive whisper’ (Dagan and Segev, 2015: 612) is communicated by disproportionately focusing on the construction of the prisoner in the sentencing order (‘temporal entrapment’), and using that construction to morally censure ‘perverted mentality’ or ‘inhumane crime’ (‘disguised punitiveness’). The facts and circumstances of the crime, its severity, and perceived ‘criminal mindset’ are privileged over evidence of reformation and rehabilitative potential. The SRB's rhetoric of ‘deserved punishment’ (Aviram, 2020; Dagan, 2022) – as expressed by citing (a) the eligibility threshold of 14 years as ‘too less’, and (b) never recommending serious offenders in at least the first two reviews as ‘obvious’ – also indicate the retributive logic.

The sentencing logic is also reproduced by disguising penological goals of general deterrence and crime prevention as justifications for RBCS. The members expressed these goals by conceiving the review function as serving a ‘communicative role’ (Griffin, 2018: 153). The typologies used - ‘wrong message to the society’, ‘fear of punishment’, ‘can’t appear to go easy’ – symbolise the board's deterrence logic that transcends the individual prisoner to address the public. Undergirding both the retributive and deterrence logic is the emergence of the public as both the audience and stakeholder in the premature release process. Akin to what some scholars describe as ‘populist justice’ (Roberts and de Keijser, 2014: 486), the invocation of ‘public’ in the SRB's justification for RBCS, reflects a form of ‘populist premature release’ (see Annison and Guiney, 2022). The ‘populist premature release’ foregrounds subjective conception of the public's ‘interest,’ ‘punitive desires’, and ‘expected reaction’ (protests, outrage) in justifying RBCS, especially for serious offenders.

The blurring of sentencing and sentence review through discursive bifurcation has serious penological implications. The premature release is normatively justified as serving the purpose of reformation and rehabilitation (DPR, 2018). It is premised on penological progressivism (Mulla Committee, 1982; van Zyl Smit and Corda, 2018), which views a sentence as progressing towards reformation, and eventually, reintegration into society. Further, every prisoner, by virtue of their eligibility for premature release, is deemed a moral agent capable of traversing the progressing sentence trajectory. However, the two discourses described in the findings, affront the normative penological justification of premature release. In justifying RBCS, the SRB seems to temporally entrap the prisoner to his past by conceiving him as ‘irredeemable’. This undermines the prisoner's moral agency to reform and reintegrate into society. It renders the punishment as passive and static rather than an active and dynamic process (Roberts and Dagan, 2019) – communicating to the prisoner that his moral development is irrelevant to his condemnation (see Herbert, 2022).

Further, the blurring of boundaries privileges punitive logics of censure, deterrence, and public opinion, over the normative considerations as prescribed in the legal framework. The dispassionate, neutral, and rational decision-making is distorted by what appears as a ‘moral trial’ (Aviram, 2020: 112) or ‘re-sentencing’ (Dagan, 2022: 16). The discourses reflect reliance on a ‘popular punitiveness’ (Griffin, 2018) which is not empirically grounded but based on subjective and impressionistic assessments of media coverage.

The SRB's legitimacy is normatively justified as exercising uniform, well-informed, and rule-based discretion which serves penological goals of reformation and rehabilitation. However, the discursively bifurcated paradigm challenges the said legitimacy, and pose serious implications for the legality of the premature release process, and the due process protections of the prisoners subjected to RBCS. The diminished legitimacy can lead to frequent judicial review of SRB decisions, a constitutional challenge against the legality of the present framework, or stifle efforts to reform the legal or normative framework for the premature release of life prisoners. When the boundaries of sentencing and sentence review logic are blurred, the SRB appears to exercise a judicial function albeit in absence of procedural safeguards and moral legitimacy of a sentencing court (Dagan, 2022). This function is exercised not in an open court during a public hearing, but in a closed-door meeting of executive officers – with no legal, oral, or written representation from the prisoners. This reflects not only a plausible breach of the life prisoner's right to seek review, but also his constitutional protections of equality, due process, and dignified life (van Zyl Smit and Appleton, 2019). The empirical findings have shown how RBCS are selectively invoked and disproportionately distributed among different categories of offences. As prisoners serving a life sentence for a sex or a terror offence are disproportionately more vulnerable to not just RBCS but also to the dilution of due process that results from the discursive bifurcation of sentence review. Their disproportionate vulnerability makes the SRB decision-making irreconcilable not just with the existing legal framework for premature release, but also with the life prisoner's right to meaningful consideration for premature release.

Conclusion

The present study provides an exploration of the sentence review process in Delhi, having the Sentence Review Board (SRB) as a site of inquiry with a focus on the extralegal punitive and politicised logic of parole decision-makers. They support the punitive potential of parole decision-making in the context of life imprisonment (Aviram, 2020; Dagan, 2022; Herbert, 2022; Shammas, 2019; Werth, 2013) but expand our knowledge regarding the parole decision-makers’ ‘tool-kit’, pointing to the role of temporal-related and disguised discourses that enable parole punitivity. These findings seem to be relevant for other parole systems that act under a punitive and politicised atmosphere, especially for prisoners convicted with serious crimes (see Aviram, 2020; Herbert, 2022; Shammas, 2019).

Our findings reveal that contrary to the judicial precedents, and stated normative goals, the SRB's use of discretion is overwhelmingly guided by various forms of punitivism. The dominant influence of index crime in the SRB's decision field was evident in the fact that most applicants that were denied release (55%) were rejected solely based on their crime (RBCS). Particularly in the review of sex and terror offenders, the crime reigned supreme. Almost all such offenders were rejected solely based on crime. The RBCS decisions are based on discourses that disguise punitivism – disproportionate focus on sentencing order, backward-looking review, moral censure, mobilising punitive public opinion, and communicating deterrence. The disguised punitivism blurs the conceptual boundary between sentencing and sentence review. The SRB reconceptualises the review as a site to extend sentencing rationalities, without the due process protections accorded to a prisoner by a sentencing court. This significantly challenges the legitimacy of the sentence review process as ‘well-informed, fair, justifiable, and rule-based’ (DPR, 2018), and breaches the life prisoner's right to meaningful consideration for premature release. These findings have serious implications for correctional administration, and constitutional validity of the sentence review framework.

More theoretically, as the findings suggest, the parole hearing could be used to construct penal power which is formally unified by the legal scaffolding but discursively bifurcated for negotiating competing values and logics of penal agencies. This could be made through complex discourses that serve to disguise, legitimise and politicise the paroled subject.

Finally, the study is not without limitations. It lacks identity-wise analysis as the dossiers do not record information on the applicant's caste or religion. Also, the study did not include interviews with the state home ministers and the judicial members. Further, it is restricted to male lifers and duly acknowledges the need to study parole decision-making for women prisoners. Despite these limitations, we believe that this study provides a needed analysis of the open and disguised penal and political discourses involved in the making of the lifer paroled subject. Future studies will explore these discourses in further socio-legal contexts, groups of prisoners and parole decision-makers.