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  This module is a resource for lecturers  

 

Topic two: Current trends, key challenges and human rights

 

This section of the Module explores contemporary trends and key issues associated with rising prison populations, focusing particularly on the problems of overcrowding, as well as the substantial challenges of living and working in prison. It then considers the development of relevant international standards and norms, focusing particularly on the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (2015) that reflect a commitment to improving global prison conditions. Key questions to be addressed in this section include: To what extent are prisons overcrowded? What can be done to address overcrowding? What is it like to live inside prison? Who lives in prison? What role do prison staff play in improving the quality of prison life? What are the challenges of working in prison?

 

Overcrowding in prisons

The rate of imprisonment has been increasing in most countries worldwide. In 2018, the World Prison Brief reported that "more than 10.74 million people are held in penal institutions throughout the world, either as pre-trial detainees/remand prisoners or having been convicted and sentenced" (Walmsley, 2018, p. 2). Furthermore, the world prison population total has increased by almost 24 per cent since the year 2000, which - despite considerable differences between and within the continents - is about the same as the estimated increase in the world's general population over the same time period (Ibid, p. 2, p. 17).

There are diverging trends in the use of imprisonment at the regional level. Between 2000 and 2015, the total prison population in Oceania increased by almost 60 per cent, and in the Americas it increased by over 40 per cent overall - 14 per cent in the US, over 80 per cent in Central American countries, and by 145 per cent in South American countries. (Penal Reform International 2018, p. 7)

The growth of the world prison population has resulted in the acute problem of overcrowding in many prison institutions, one of the major factors contributing to poor prison conditions and inhumane treatment of prisoners around the world (Penal Reform International, 2018).

In its Handbook on Strategies to Reduce Overcrowding in Prisons, UNODC notes with concern that in many prison systems, prisoners do not have even minimum space requirements and spend up to 23 or more hours in overcrowded, cramped accommodation. "In some systems the several of overcrowding may be so acute that prisoners are forced to sleep in shifts, sleep on top of each other, share beds, or tie themselves to window bars so that they can sleep while standing" (2013, p. 11). According to 2018 data from the World Prison Brief, 121 out of 223 independent countries and dependent territories worldwide face a situation in which the national prison administration operates beyond its actual capacity, including 25 operating beyond 200% and another 26 operating between 150% and 200% of actual capacity (World Prison Brief).

In their critical assessment of the global challenge of prison overcrowding, Penal Reform International further notes that:

  • In some countries only periodic amnesties and pardons relieve overcrowding. While these provide short-term relief, they do not offer a sustainable solution and can erode public confidence in the criminal justice system. In others, costly prison-building programmes are undertaken to meet the growing demand for prison places (Penal Reform International, 2012)
  • Some groups are particularly adversely affected by prison overcrowding. For example, the needs of women and children in detention - already often given little attention - tend to be even more neglected in overcrowded and overstretched prison systems" (Penal Reform International, 2012). See also Coyle et al., 2014; United Nations Economic and Social Council, 2016; World Prison Brief).

While there is no internationally agreed set minimum standard for the physical space that should be provided for each person living in prison, a number of international bodies have set out recommendations for the minimum space that should be provided in a prison cell, per person (Coyle et al., 2014). The International Committee of the Red Cross (2012), for example, has specified that prisons should provide 5.4 square metres per person in single-cell accommodation and 3.4 square metres per person in shared accommodation. In 2015 the Council of Europe's Committee for the Prevention of Torture (2015, p.3) issued updated minimum standards for personal living space in prison establishments. It recommended that prisons should provide, "6m² of living space for a single-occupancy cell", (excluding sanitary facilities) and "4m² of living space per prisoner in a multiple-occupancy cell", (excluding fully partitioned sanitary facilities).

Coyle and others (2014, p. 771) have pointed out that in any prison system, there are likely to be problems of overcrowding when there is "an occupancy rate of over 100% and the higher the rate, the greater the level of overcrowding". The World Prison Brief reveals that a total of 121 (out of 205) countries have prison occupancy rates of over 100 per cent (2018). The problem of overcrowding can lead to multiple human rights violations, and to dangerous conditions that amount to the ill-treatment of prisoners, many of whom are pre-trial detainees (see United Nations Human Rights Council, 2015; Walmsley, 2017a). Overcrowding threatens the ability of prison systems to meet some of the most basic human needs, such as the quality of nutrition, sanitation, healthcare, accommodation, care for vulnerable groups and prisoner activities (see especially UNODC, 2013a; Coyle et al., 2018; for a review of the impact of overcrowding on health, see García-Guerrero and Marco, 2012). Prison overcrowding can also lead to increased tension, chaos, violence, infectious diseases and serious health problems, self-harm and suicide in prison, as well as to significant management challenges (Huey and McNulty, 2005; UNODC, 2013a; Coyle et al., 2018). Furthermore, overstretched resources and a lack of adequate living space compromises the provision and effectiveness of rehabilitative programmes, as well as prisoners' access to the outside world, and to educational and vocational training (UNODC, 2013a; see also The Huffington Post, 2012). Lecturers may also wish to explore the materials that showcase UNODC work on the Rehabilitation and Social Reintegration of Prisoners, conducted as part of the Global Programme on the Implementation of the Doha Declaration.

It is often assumed that increased imprisonment rates are directly related to increased crime rates. Research shows, however, that this is not necessarily the case, and that rising crime is not the main cause of high imprisonment rates (Lappi-Seppälä, 2010; cited in UNODC, 2013a, p. 19). UNODC's (2013a) Handbook on Strategies to Reduce Overcrowding in Prisons notes other factors, in addition to crime trends, that need to be considered as the underlying causes of prison overcrowding, including:

  • the overuse of pretrial detention;
  • increased use of punitive criminal justice policies and the overuse of prison;
  • drug laws which centre on imprisonment;
  • a lack of financial investment in rehabilitation and preventing reoffending; and,
  • the use of imprisonment in response to offences committed by persons with mental health care needs, or as an automatic punishment for fine and debt defaulters, or breaches of early release (UNODC, 2013a, p. 35-37).

While many factors explain the significant increase in the use of imprisonment, scholars have argued that "penal populism" and "tough on crime" policies have led to an era of harsh sentencing laws, lengthy prison sentences and the overuse of imprisonment or "mass incarceration" (see for example: Zimring, 2001; Roberts et al., 2003; Pratt, 2007). Research on the use of life imprisonment - the most severe type of prison sentence - has shown that the total number of people serving life sentences worldwide has significantly increased in recent years, from an estimated 261,000 in 2000 to 479,000 in 2014 (van Zyl Smit and Appleton, 2019, p. 97), a rise of nearly 84 per cent in 14 years. In 2016 in the United States, one in seven people in prison was serving a life sentence, many of whom have been convicted of non-violent crimes such as drug offences (Mauer and Ashely, 2018). The excessive use of life imprisonment has been described as a "hallmark of mass incarceration" (ibid, p. 5) and has led prison reformers and researchers to challenge the imposition and implementation of life sentences around the world (Penal Reform International et al., 2018; Appleton and van Zyl Smit, 2018; van Zyl Smit and Appleton, 2019), as well as to make the case for the total abolition of life imprisonment (Mauer and Ashley, 2018; see also van Zyl Smit and Appleton, 2019).

Mass incarceration and high levels of imprisonment can pressure governments towards prison reform because of public concerns about the dire consequences of overcrowding. Concerns focus on death rates in prison, and human rights abuses (for example: Hutton, 2018); prison riots and violence (for example: Apolinario, 2018; James, 2019), increasing health problems and the spread of infectious diseases (for example: Ayala et al., 2016) as well as the substantial cost of imprisonment (for example: Wagner and Rabuy, 2017).

In recent decades, some governments, faced by the problems of overcrowding, have opted for prison management to be privatized, either through the delivery of services, the management of existing prisons or the building and management of new prisons. Although the use of private services in prisons has a long history (for example, when jailors charged fees to prisoners for essential provisions in the nineteenth century), there was little interest in prison privatization up until the end of the 1980s, when privatization was reintroduced by 'New Right' governments in the United States, the United Kingdom and Australia, due to the belief that "privatization and better management might solve the prisons' crises, particularly of overcrowding" (Scott and Flynn, 2014, p. 114; see also McDonald, 1994). Prison privatization, however, has been criticized strongly on both moral and empirical grounds. Key among those is that it is immoral to make a profit out of the punishment of others (see Joy, 2018). As Mohammed (2017) has put it: "If private prisons make their profit from criminal society, it goes against business sense to reduce criminality", and there is no real incentive to reform or rehabilitate prisoners. Critics have also argued that private prisons are less accountable than public prisons, more focused on efficiency than human needs, and will only make profits by having fewer and poorly trained staff. Rather than solving the "prisons crisis", profit-driven punishment systems create greater pressure for carceral expansion (Scott and Flynn, 2014; see also Trilling, 2017; US Department of Justice, 2016; Rynne and Harding, 2016; Howard League for Penal Reform, 2014).

During the 1980s in the United States, problems of overcrowding, prisoner protests and an increase in prison violence led to the construction and development of so-called 'supermax' prisons, a move that fitted well with "tough on crime" (or pro-imprisonment) attitudes and "the new punitiveness" (Pratt et al., 2005; see also Ward and Werlich, 2003; Scharff-Smith, 2006). In the new supermax prisons, individuals who were often considered "the worst of the worst", were to be subjected to a strict regime of solitary confinement, isolated from other prisoners and held in closed cells for 22 to 24 hours a day, under extensive surveillance (see, for example, Human Rights Watch, 2000; Shalev, 2009; Gottschalk, 2015). A growing body of evidence, however, confirms that the extreme isolation of a solitary confinement regime impacts significantly on the mental health and social skills of prisoners, including increased levels of depression, self-mutilation, suicidal and violent tendencies, rather than reducing problematic or violent behaviour (see for example: Haney and Lynch, 1997; Kurki and Morris, 2001; Haney, 2003; Shalev, 2014; Casella et al., 2016). Critics have also argued that supermax prisons represent a violation of prisoners' rights and protections against torture and other cruel, inhuman or degrading treatment and punishment (see for example: Cole, 1972; Lobel).

Prison systems' failure to meet international standards, and criticizm from independent or international bodies can also pressure governments into addressing the problem of prison overcrowding, or even pressure from prison staff themselves, due to the unacceptable and unsafe working conditions (for example: Mayibongwe, 2018; see also International Centre for Prison Studies, 2004). Many countries, for example, have ratified the Optional Protocol to the Convention against Torture (OPCAT) (A/RES/57/199) which allows independent monitoring bodies, such as the United Nations Subcommittee on Prevention of Torture (SPT) to have the right to visit places of detention, including prisons, and to assist in the creation of ' National Preventive Mechanisms', or independent national bodies. There are also forms of regional inspection: In Africa, for example, the African Commission on Human and People's Rights appointed a Special Rapporteur on Prisons in 1996 to monitor prison conditions and to ensure prisoners' protections under the African Charter on Human and Peoples' Rights. Similarly, member states of the Council of Europe are subject to inspection by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.

Many prison reform groups and international organizations have developed key strategies to assist policymakers and practitioners in reducing prison overcrowding and meeting international standards (see for example: UNODC, 2013a; 2017a; Penal Reform International, 2012; International Committee of the Red Cross, 2012; International Centre for Prison Studies, 2004). UNODC's (2013a, p. 44-59) key 'strategies to reduce prison overcrowding' includes, inter alia, the development of fair sentencing policies such as:

  • Decriminalization and depenalization;
  • Imprisonment of children as a measure of last resort;
  • Removing mandatory minimum sentencing provisions;
  • Restricting the use of life sentences;
  • Rationalizing other sentences;
  • Introducing alternatives to imprisonment;
  • Taking prison capacity into account in the enforcement of pre-trial detention or prison sentences;
  • Reforming legislation and policies relating to drug offences;
  • Reducing the imprisonment of people with mental health needs;
  • Compassionate release and national pardoning mechanisms; and,
  • Amnesties.

UNODC (2013a) further contends that while building extra capacity might be a necessary short-term solution to the problem of prison overcrowding, any long-term efforts to reduce prison overcrowding must incorporate alternative sanctions to imprisonment, and be made in the context of a system-wide approach. The International Centre for Prison Studies (2004, p. 1) confirms that: "Increasing the capacity of the prison system rarely succeeds as a long-term strategy. Changing criminal procedure and sentencing policies is a more effective mechanism". For further reflection on this issue, students should refer to Module 7 titled Alternatives to Imprisonment.

 

Living in prison

A universal feature of imprisonment is the way it snatches its participants from everyday life and places them in an abnormal environment, divorced from their routines, and exposed to quite different pressures and imperatives. Prison is an upside down world, a single-sex environment with an inverted class structure. Its population reflects the inequities and injustices of the wider society, and relationships with the outside world are mediated through censors and eavesdroppers. Constructive human reactions and behaviour become more difficult. Confinement and security impose a range of indignities and absurdities on those who are confined and those who confine them (Stern, 1998, p. 105).

Research attempting to address the question 'what is it like to live in prison?', and open the 'black box' of life inside prison, has a long trajectory within sociology. During the twentieth century, a number of pioneering sociologists illuminated the experience of prison life, highlighting the degree to which prisons are powerful institutions that can have a strong influence on the persons confined (see Clemmer, 1958; Sykes, 1958; Goffman, 1961; Mathiesen, 1965; Cohen and Taylor, 1972). Gresham Sykes's classic ethnography on The Society of Captives, published in 1958, argued that the prison environment represented "a social system in which an attempt is made to create or maintain total or almost total social control" (Sykes, 1958, p. xiv). This total control of the prisoner is at the core of what Sykes (1958) defined as the five "pains of imprisonment", namely:

  • the loss of liberty - the drastic restriction on movement, and removal from families, friends and the outside world;
  • the deprivation of goods and services - the reduction in material possessions, as well as access to amenities and services that might be considered normal;
  • the deprivation of relationships - the denial of sexual relationships in prison;
  • the deprivation of autonomy - the massive restriction on the ability to make choices in many, if not most things; and,
  • the deprivation of security - being thrown into anxiety-provoking situations and prolonged intimacy with others, many of whom have a history of violent behaviour.

Erving Goffman's major study Asylums, published in 1961, described the prison regime and other similar institutions as comprehensive or "total institutions". Goffman's work highlighted the problematic and institutionalizing effects of imprisonment. He defined the total institution as "a place of residence and work where a large number of life-situated individuals, cut off from the wider society for an appreciable period of time, together lead an enclosed, formally administered round of life" (Goffman, 1961, p. xiii). In total institutions, all activities are tightly scheduled and enforced by the institution's staff. As Goffman stated, "minute segments of a person's line of activity may be subjected to regulations and judgments by staff" (ibid, p. 38). The result is a process of self-mortification, which brings about "acute psychological stress", especially in the cases of long-term imprisonment.

Further studies have emphasized the complexity of the impact of confinement, and highlighted differing responses among prisoners depending on their personal circumstances and psychosocial resources, as well as significant differences between contexts and institutions (see for example: Porporino, 1990; Liebling and Maruna, 2005). New lines of enquiry have opened up, introducing discourses on legitimacy and order in prisons (Sparks, Bottoms and Hay, 1996); the quality of prison regimes (Liebling and Arnold, 2004); the depth, weight and tightness of imprisonment (Crewe, 2011); the impact of therapeutic communities (Stevens, 2012); the gendered pains of imprisonment (Carlen, 1983; Walker and Worrall, 2000; Crewe et al., 2017) the spatial pains of imprisonment (Hancock and Jewkes, 2011); the pains of serving life imprisonment (van Zyl Smit and Appleton, 2019) and the effects that imprisonment has on prisoners' families and the wider community (Comfort, 2007; Condry and Scharff Smith, 2018). The most vivid descriptions of the impact of prison life, however, can be found in prisoner biographies and edited collections (see for example: Boyle, 1984; Mandela, 1994; George, 2010; Hartman, 2013).

Evidence suggests that while the effects of imprisonment vary from individual to individual, for many people prison can produce detrimental and long-lasting change, and that certain conditions can aggravate (or ameliorate) those changes. As Irwin and Owen put it, while the official purposes of imprisonment do not include harming prisoners, "imprisonment invariably does harm" (Irwin and Owen, 2005, p. 94). Furthermore, the more harsh or extreme nature of the prison environment, the greater the suffering and the deeper the damage on the individuals who are incarcerated. Spartan conditions, poor treatment, the use of solitary confinement and overcrowding are liable to exacerbate the negative effects of imprisonment, as well as undermine prisoners' efforts to adapt and survive prison life, or to reform. Conversely, rehabilitative and supportive environments are more likely to address prisoners' risk and needs, stimulate efforts at change, and increase the chance of reducing recidivism and improving public safety (see van Zyl Smit and Snacken, 2009).

Studies have also shown that positive prison climates, encouraging respect, humanity and fairness, reduce the risk of violence, sexual abuse and torture in prisons (Modvig, 2014). Doubtless, a major concern for individuals living in prison is personal safety and security. Violence, riots and the abuse of power can be common (see Penal Reform International, 2018; Subcommittee on Prevention of Torture, 2012). In the United Sates for example, "rates of physical assault for male inmates are more than 18 times higher than the equivalent rates for males in the general population", and for women, the rates are "more than 27 times higher" (Modvig, 2014, p. 19). Sexual violence in prison is difficult to assess due to the stigma associated with rape and sexual abuse. Wolff and Shi (2011) examined patterns of sexual victimization as reported by 6,974 male and 564 female prisoners. They found that four per cent of male prisoners and 22 per cent of female prisoners reported that they had been subject to prisoner-on-prisoner sexual victimization during the previous six months. Furthermore, approximately seven per cent of male prisoners and eight per cent of female prisoners reported at least one type of staff-on-prisoner sexual victimization (see also Wolff and colleagues, 2007). Despite the absolute prohibited of torture under international law (see especially United Nations Convention against Torture), Modvig and Jaranson revealed that "it is practiced in about 130 countries and is widespread and systematically used in 80-100 countries" (Modvig and Jaranson, 2004, cited by Modvig, 2014, p. 21). Other types of violence in prison include suicide, attempted suicide and self-harm, which tends to be much more common in prison than in the community in many countries (WHO, 2007), often reflecting the particular vulnerabilities and mental health problems of the many individuals who are imprisoned, all of which may be exacerbated by the pains and effects of prison life.

To understand the impact of a prison sentence, it is also important to consider the profile and characteristics of individuals who live in prison. There were more than 10.74 million individuals living in prison in 2018 (Walmsley, 2018). Of those, at least 2.5 million people were pre-trial detainees or remand prisoners who were yet to be convicted (Walmsley, 2017a) and more than 714,000 (6.9 per cent) were women and girls (Walmsley, 2017b). While prison populations are made up of individuals with different demographic, social and personal profiles, there are common features of prison populations across all countries. Imprisonment is often justified on the grounds of protecting the public from dangerous criminals, but prisons are generally filled with poor, vulnerable, stigmatized and powerless people who are "more likely to be harmed individuals than seriously dangerous to society" (Scott and Flynn, 2014, p. 140). As Stern (1998, p. 114) pointed out: "The prison is the magnifying mirror which reflects and enlarges the unresolved social problems of the society which it serves".

Research has consistently shown that prisons worldwide are made up of individuals who are disproportionately affected by significant health problems. Across jurisdictions, the rates of poor mental health in prisons far exceed the rates in the general population, and in many places suicide is the leading cause of death in prison (see for example: Fazel and Baillargeon, 2011; Fazel and Seewald, 2012; Kumar and Daria, 2012; Andreoli and colleagues, 2014). As Fuller and colleagues (2017, p. 1) stated in 2017: "Incarcerating pretrial and convicted criminal offenders with serious mental illness is so common today that jails and prisons are routinely called the 'new Asylums'" (see also Chertoff et al., 2017). Furthermore, a report by the United Nations Special Rapporteur on the right to health noted that:

Prison itself becomes a determinant of poor health as a result of poor conditions of detention, the provision of health care under surveillance and/or a lack of access to health care, the enormous psychosocial pain and hopelessness linked to being deprived of liberty, and untreated pre-existing health conditions attributable to the conditions of living in poverty (United Nations Human Rights Council, 2018, para. 19d).

Data from the World Health Organization ( WHO) ' Health in Prisons' project which has collected data on the health of prisoners in most European countries for over 20 years, summarizes some of the key issues:

  • Up to 40% of prisoners suffer from a mental health problem and up to 15% suffer from severe and enduring mental illnesses, such as schizophrenia, bipolar disorder and autism disorders. Over half of young prisoners have conduct disorders and around a third of young women in prison suffer from major depression.
  • Tuberculosis rates in prisons are up to 84 times higher than in the general population.
  • Many people entering prison have a severe drug problem.
  • Rates of HIV and hepatitis C infection are much higher among prisoners than among people living in the outside community.
  • Prisoners are seven times more likely to commit suicide than people at liberty.
  • Young people in prison are especially vulnerable and are 18 times more likely to commit suicide than those in the outside community.
  • Between 64% and 90% of prisoners smoke tobacco, whereas the average smoking rate for the general population in Europe is 28%.
  • Incarcerated women are far more likely to have had traumatic experiences in early childhood than incarcerated men, such as early sexual, mental and physical abuse. Half will also have experienced domestic violence. Many women in prison are mothers and usually the primary or sole caregivers for their children. Around 10,000 babies and children in Europe are estimated to be affected by their mother's imprisonment (as summarized by Coyle and Fair, 2018, p. 113-114; see also WHO, 2014).

Prisons around the world also lock up a disproportionate number of people from minority groups, often reflecting high levels of social exclusion of such groups, as well as colonial legacy in certain regions, and discriminatory legislation and practice across criminal justice systems (Penal Reform International, 2018; see also Stern, 1998). Statistics from countries in North America, Oceania and Europe clearly demonstrate this point. In the United States in 2014, 35 per cent of state prisoners were white, 38 per cent were black, and 21 per cent were Hispanic, compared to the general population where 62 per cent were white, 13 per cent were black and 17 per cent were Hispanic (Nellis, 2016, p. 4). Similar striking disparities exist in Canada where, during 2015/2016, Aboriginal adults accounted for only three per cent of the Canadian adult population but represented 26 per cent of admissions to custody (Reitano, 2016, p. 5). In Australia in 2015, Aboriginal people and Torres Strait Islanders made up 27 per cent of the prison population, but only accounted for two per cent of the adult population (Coyle et al., 2018, p. 775). In New Zealand in 2014, Maori ethnic groups represented 15 per cent of the general population but comprised almost 51 per cent of the prison population (ibid). In European countries, a key feature is the significant proportion of foreign national prisoners. A report by Re, in 2007, highlighted that the average percentage of foreign or foreign-origin prisoners in Europe exceeds 30 per cent of the prison population, while they comprise around seven per cent of the European population (Re, 2007).

There is also substantial evidence indicating enormous levels of social and economic disadvantage among individuals living in prison. A report published in 2002 by the Social Exclusion Unit (SEU) in the United Kingdom described alarming levels of social and educational disadvantage among the prison population in England and Wales. Compared with the national population, adult prisoners were:

  • 13 times more likely to have been in care as a child;
  • 10 times as likely to have been a regular truant from school;
  • 13 times more likely to have been unemployed;
  • 2.5 times more likely to have a family member who has been convicted of a criminal offence;
  • 6 times more likely to have been a young father; and,
  • 15 times as likely to be HIV positive (SEU, 2002, p. 6).

The basic educational levels of adult prisoners were also found to be significantly different to the population as a whole. SEU (2002, p. 6) reported that: 80 per cent of prisoners had the writing skills of an eleven year old; 65 per cent of prisoners had the numeracy levels of an eleven year old; and, 50 per cent of prisoners had the reading skills of an eleven year old. Around 60-70 per cent of sentenced prisoners were using drugs before prison. Over 70 per cent suffered from at least two mental disorders. Furthermore, 20 per cent of male prisoners and 37 per cent of female prisoners had attempted suicide in the past (ibid). For 18-20 year olds in prison, the situation was even worse - the basic skills, unemployment rate and school exclusion background for this younger group were all "over a third worse than those for older prisoners" (ibid). Such figures reveal that many prisoners have experienced a lifetime of disadvantage and social exclusion (see also Anderson and Cairns, 2011). Studies from other countries suggest that the situation in England and Wales, as described by SEU, is far from unique. It is a pattern that can be found among prisoner populations in most countries around the world (see, for example, United Nations Human Rights Council, 2009; Guthrie et al., 2013; Gottschalk, 2015; Jacobson et al., 2017).

While women comprise less than seven per cent of the total worldwide prison population, the proportion of women and girls detained around the world increased by 53 per cent between 2000 and 2017, while the worldwide male population increased by around 20 per cent (Walmsley, 2017b). In certain regions, significant increases in the female prison population are largely due to the development of tough legislation for drug-related crime. A report by the Inter-Commission on Human Rights (2017, p. 128) noted that "a high percentage of [imprisoned] women in the Americas have been imprisoned for non-violent drug-related offenses and a large number of them are in pre-trial detention" (see also Inter-American Commission of Women, 2014; International Drug Policy Consortium, 2013). Importantly, most female prisoners are "first-time offenders suspected of, or charged with, minor, non-violent offences, pose no risk to the public and should probably not be in prison at all" (United Nations Human Rights Council, 2018, para. 70). Furthermore, UNODC's (2014) Handbook on Women and Imprisonment reveals that many women who end up in prison have been physically or sexually abused, and in most cases their needs are very different to male prisoners. Furthermore, many will be the sole caregivers for their children. The report notes that female prisoners are often imprisoned "due to their poverty and inability to pay fines. A large proportion is in need of treatment for mental disabilities or substance dependence, rather than isolation from society. Many are victims themselves but are imprisoned due to discriminatory legislation and practices" (UNODC, 2014, p. 4). For further insight on women in the criminal justice system, see Module 9 in this E4J University Module Series. For information on children in the criminal justice system, see Module 13 in this E4J University Module Series.

Global trends with respect to the imprisonment of women

Women and girls constitute around 7 per cent of the global prison population ... [T]he world's female prison population has increaed by 53 per cent since 2000. This represents a significant rise compared to male prison population rates, which have risen by 20 per cent in the same period.

Female prison rates have risen sharply over the past couple of years in Brazil, Indonesia, the Philippines and Turkey, whereas substantial decreases were reported in Mexico, Russia, Thailand and Vietnam. Africa continued to have the smallest increase in the female prison population, whereas the Americas, Asia and Oceania saw sharp rises overall. (Penal Reform International 2018, p. 16)

Due to harsh sentencing laws and "tough on crime" policies, the increase in the number of long-term and life-sentenced prisoners around the world has resulted in many prisons becoming home to a growing number of aging and infirm individuals who present very little risk to public safety. The number of elderly prisoners has become a significant issue in the United States particularly which houses the largest total number of life-sentenced prisoners in the world (van Zyl Smit and Appleton, 2019; Appleton and van Zyl Smit, 2018). According to a report by American Civil Liberties Union (ACLU) in 2012, between 1995 and 2010, the number of prisoners aged 55 or more quadrupled, and it is estimated that by 2030, one third of all prisoners in state prisons will be over 55 years old. Furthermore, prisoners age at a significantly faster rate than the general population, so that their physical age is older than the average individual in the community. This is because of pre-existing ill-health, or health problems that develop as a result of the lack of appropriate healthcare in prison, as well as the heavy stresses of living behind bars (ACLU, 2012, p. v). Chen (2017) points out that in some prisons, "you're less likely to encounter any dangerous convicts than you are to see someone who could be your grandparent. But even if they can barely walk, much less commit another crime, elderly prisoners often remain locked up for life" (Chen, 2017).

Rather than housing the most dangerous individuals, prisons then are mainly occupied by men and women who are among the most vulnerable and stigmatized in society, with disruptive childhoods, low levels of education, high rates of unemployment, few positive social networks, all of which is compounded by complicated drug and health problems. Doubtless these vulnerabilities will compromise an individual's ability to cope with the strains, demands and sometimes dangers of prison life, as well as significantly challenge prison systems to work effectively to address these problems, provide adequate health care systems, and support the process of rehabilitation and reintegration. It should be noted that some categories of prisoners are particularly vulnerable in prison settings. Further information on prisoners with special needs is provided in Module 10 on Gender in the Criminal Justice System, and Module 1 on the United Nations Standards and Norms on Crime Prevention and Criminal Justice.

 

Working in prisons

Prison officers are in constant contact with prisoners around the world, and play a pivotal role in the quality of life experienced in prisons, in implementing national law and international standards, and in achieving the overall goals of criminal justice. Prison officers face the challenge of having to combine the three overarching aims of their role, namely to provide for the safe, secure and humane custody of prisoners under their care. On the one hand, they are charged with maintaining security and control, and on the other, they are asked to help prisoners to address their offending behaviour, and to prepare them for release (Liebling and Price, 2001). In their 2018 Handbook for Prison Staff , Coyle and Fair (2018, p. 17) noted that the role of the prison officer is:

  • "to treat prisoners in a manner which is decent, humane and just
  • to ensure that all prisoners are safe
  • to make sure that dangerous prisoners do not escape
  • to make sure that there is good order and control in prisons
  • to provide prisoners with the opportunity to use their time in prison positively so that they will be able to resettle into society when they are released."

Putting this into practice in a professional manner requires personal integrity, in addition to a particular set of skills, qualities. In fact, it can be argued that the work of prison officers is amongst the most complex and demanding work in criminal justice system. International standards require that staff in prison should be professional civil servants and that they should receive adequate remuneration and tailored training before starting work and throughout their career (see Rules 74 and 75 of the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules, 2015 - in the box below). Frontline prison officers who come into daily contact with prisoners need to be recruited with particular care. To ensure high standards in prison, and to encourage suitable applicants, prison administrators should develop "active recruitment policies", making clear the importance and the nature of work in prisons, as well as the educational standards and personal qualities that are essential for the role (Coyle and Fair, 2018, p. 24).

Nelson Mandela Rules (2015), Rule 74

  1. The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of prisons depends.
  2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance, and to this end all appropriate means of informing the public should be used.
  3. To secure the foregoing ends, personnel shall be appointed on a full-time basis as professional prison staff and have civil service status with security of tenure subject only to good conduct, efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women; employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.
 

Nelson Mandela Rules (2015), Rule 75

  1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner.
  2. Before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence-based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service.
  3. The prison administration shall ensure the continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel, after entering on duty and during their career.

While work in prison is an important public service, and crucial to reform in prison, in many parts of the world it is notoriously undervalued. Prison personnel tend to receive inadequate support, training, salaries and conditions of service compared to other public roles such as law enforcement agencies or health professionals. Evidence suggests that around the world, there is significant variation in the recruitment and training of prison staff ranging, for example, from a seven-week course in Victoria in Australia, to a twelve-month basic training course in the Indian state of Maharashtra to a two-year higher education degree in Norway (Penal Reform International, 2016). Similarly, there is great variation in the levels of pay and standards of working conditions for prison officers, which can often be much lower than other public professions. UNODC (2010, p. 58) has stated:

Unfortunately … the social status of prison staff is very low in many countries. Insufficient attention is given to their proper recruitment and training. A large majority will not have sought a career in the prison service in particular, e.g. they might be former military personnel, people who have been unable to find other employment, etc. Their salaries are often inadequate, which contributes to dissatisfaction and corrupt practices.

Prisons can often be stressful and sometimes dangerous places to work in. For example, according to the Bureau of Labour Statistics in the United States, prison staff have one of the highest rates of work-related injuries. For every 10,000 full-time Corrections Officers, there were 254 workplace assaults and violent injuries reported in 2011, that is, 36 times the rate for all American workers (Konda et al., 2013). A Canadian study found that on average, a prison officer is exposed to 28 "critical incidents" or traumatic events during the course of a career, including suicides, hostage takings, murders or assaults, and that "job stress has led to exceedingly high levels of post-traumatic stress disorder among Canadian prison guards" (Purdon, 2015). And in the United Kingdom, it was reported that the number of serious assaults on staff by prisoners increased by 45 per cent in two years, from a total of 374 in 2010, to 543 in 2012 ( BBC News, 2014).

Research studies reveal that safer prisons and lower rates of assault are not associated with more stringent control and harsh regimes, but with positive and collaborative staff-prisoner relationships. The evidence indicates that "safer prisons require a high level of staff skills, so staff build positive and collaborative relationships with as many prisoners as possible and become aware of the concerns influencing their everyday behaviour" (McGuire, 2018, p. 7). The United Nations Prison Incident Management Handbook (2013, p. 21-22) states that:

Prison staff members need to understand that interacting with prisoners in a humane and equitable way enhances the security and good order of a prison. (…) Irrespective of staffing ratios, each contact between staff and prisoners reinforces the relationship between the two, which should be a positive one, based on dignity and mutual respect in how people treat each other, and in compliance with international human rights principles and due process.

This is often linked to the concept of dynamic security. While physical security refers to the infrastructure and equipment of the prison (e.g. walls, barriers and locks) and procedural security relates to a standardized and consistently applied set of core procedures (e.g. on how to conduct searches, account for prisoners, etc.), these two elements are, by themselves, insufficient to ensure prison security. Rather "security also depends on an alert group of prison staff developing positive staff-prisoner relationships; staff who have an awareness of what is going on in the prison; fair treatment and a sense of 'well-being' among prisoners; and staff who make sure that prisoners are kept busy doing constructive and purposeful activities that contribute to their future reintegration into society." (UNODC 2015, Handbook on Dynamic Security and Prison Intelligence, p. 29). Accordingly, dynamic security is also described as the "concept of prison staff actively and frequently observing and interacting with prisoners to gain a better understanding and awareness of prisoners and assessing the risks that they represent" (United Nations, 2013, p. 10). Good professional relationships between staff and prisoners is a core element of dynamic security. It is an approach to security that aims to ensure the power imbalance between staff and prisoners is not perceived as provocation or punishment. Through the development of respectful staff-prison relationships, and an understanding of relationships between prisoners, and between prisoners and prison staff, staff can more readily anticipate problems, de-escalate potential security risks and restore order through dialogue and negotiation. Regular contact and interaction with prisoners enables staff to be responsive to situations which are different from the norm, and recognize a threat to security at a very early stage.

There has been wide recognition of the significance and centrality of good staff-prisoner relationships to maintain order, justice and constructive regimes (see Liebling and Price, 2001). A proper balance between physical, procedural and dynamic security are essential to maintain safety, security and humane treatment in prisons. As the Prison Incident Management Handbook (2013, p. 10) states:

Without the benefit of minimal security infrastructure, staff members are restricted in their ability to effectively control and manage prisoners, particularly where overcrowding exists. Similarly, security infrastructure is of limited value if staff capacity and competence are inadequate. This interdependence was often highlighted during serious prison incidents. It is often said that vigilant prison staff members prevent escapes and incidents, not bars and locks.

To be effective, however, dynamic security needs to be accepted by prison management, and accompanied by appropriate policies and procedures, as well as adequate staff recruitment and training. Evidence suggests that in some prisons, interaction between staff and prisoners is kept to a minimum or is even discouraged, especially in high-security settings or where there are problems of low staffing levels and overcrowding (see UNODC, 2015; Penal Reform International, 2013).

Significantly, prison overcrowding can have an enormous impact on the work of prison staff, and adversely affect all those living and working in prison. Inadequate staffing levels for the number of prisoners can lead to increased levels of tension between prisoners and between prisoners and personnel, as well as higher risks of violence, riots and other disturbances in protest to the conditions in prison (see United Nations Human Rights Council, 2015). It can hamper the ability of prison personnel to maintain a safe and rehabilitative prison environment. It puts prison staff in extremely difficult, sometimes dangerous conditions, and can lead to high levels of stress among staff and to staff sickness and even burnout (Penal Reform International, 2016). Furthermore, as noted earlier, overstretched resources in prison can lead to conditions that amount to ill-treatment of prisoners, and has serious implications on the human rights of persons deprived of their liberty.

 

International standards and norms related to prison management and the treatment of prisoners

Throughout this Module it has become clear that over recent decades, significant efforts have been made by the international community to address the challenge of reforming prisons, and developing effective, ethical and humane approaches to both the resort to imprisonment and prison management. In this section, we further investigate this development, particularly focusing on the international standards and norms that are relevant to improving prison systems, and to reducing the harms of imprisonment.

Prisoners' rights

Individuals are sent to prison as punishment, not for punishment. Prison reformers and the international community have long recognized that prisoners are human beings and must therefore be awarded the same fundamental rights and freedoms. As Coyle and colleagues (2016, p. 72) have stated:

People who are detained or imprisoned do not cease to be human beings, no matter how serious the crime of which they have been accused or convicted. The court of law or other judicial agency that dealt with their case decreed that they should be deprived of their liberty, not that they should forfeit their humanity.

By definition, human rights are applicable to all human beings. Like any other human being, prisoners are entitled to recognition of their rights. While this understanding has underpinned the efforts of prison reformers for more than two centuries, it was during the period following the Second World War that the recognition of prisoners as "bearers of human rights" became increasingly prominent at both national and international levels (van Zyl Smit, 2010, p. 507). Indeed, since the end of the Second World War, a significant body of international standards and norms related to crime prevention and criminal justice have emerged (see UNODC, 2006). While the main human rights legal treaties, such as the Universal Declaration of Human Rights (GA Resolution 61/295), the International Covenant on Civil and Political Rights (GA Resolution 2200A (XXI)), the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (GA Resolution 39/46), and the Convention on the Rights of the Child (GA Resolution 44/25) contain references to the treatment of all persons deprived of their liberty, there are various international standards and norms which focus specifically on prison management and the treatment of prisoners. A number of these standards are listed in the box below.

International standards for the treatment of prisoners

Key among the standards and guidelines that relate directly to improving prison conditions and the treatment of prisoners, is the Standard Minimum Rules for the Treatment of Prisoners (SMRs), first adopted in 1955 by the Congress on the Prevention of Crime and the Treatment of Offenders . Although not legally binding, the SMRs were approved by Member States in 1957, have since become the "universally acknowledged minimum standards for the management of prison facilities and the treatment of prisoners, and have been of tremendous value and influence in the development of prison laws, policies and practices in Member States all over the world" (UNODC, 2017a, p. 1; see also Rodley, 2011). In 2015, the original Rules were revised and updated with a view to incorporate advances in international law and correctional science. The revised United Nations Standard Minimum Rules for the Treatment of Prisoners are now known as The Nelson Mandela Rules in honour of the legacy of the late President of South Africa, a committed advocate for prison reform, who "had to spend 27 years in prison in the course of his struggle for human rights, democracy, and the promotion of a culture of peace" (UNODC, 2017a, p. 1; see also Mandela, 1994).

The Nelson Mandela Rules

The Nelson Mandela Rules were approved by the General Assembly of the United Nations in December 2015. The Preliminary Observations to the Rules set out what the rules aim to achieve and how they should be interpreted, recognizing the variety of legal, social, economic and geographic conditions and contexts that exist around the world.

Preliminary observation 1

The following rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principles and practice in the treatment of prisoners and prison management.

Preliminary observation 2

1. In view of the great variety of legal, social, economic and geographical conditions in the world, it is evident that not all of the rules are capable of application in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations.

2. On the other hand, the rules cover a field in which thought is constantly developing. They are not intended to preclude experiment and practices, provided these are in harmony with the principles and seek to further the purposes which derive from the text of the rules as a whole. It will always be justifiable for the central prison administration to authorize departures from the rules in this spirit.

The Rules (2015) deal with the essential features of day-to-day prison life and provide a valuable and much more detailed complement to the general principles contained in the legally binding Conventions. To increase the impact of the Nelson Mandela Rules (2015) worldwide, and to assist countries to apply them in practice, UNODC has launched a Global Strategy on Addressing Prison Challenges , focusing on (a) reducing the scope of imprisonment, (b) improving prison conditions; and (c) supporting social reintegration programmes for prisoners, including initiatives upon release. In the words of Yury Fedotov, Executive Director of UNODC:

In our efforts to make societies more resilient to crime and to promote social cohesion and the rule of law, we cannot disregard those in prison. We must remember that prisoners continue to be part of society, and must be treated with respect due to their inherent dignity as human beings. I invite countries, international organizations and civil society to make the Nelson Mandela Rules a reality for prisoners everywhere (UNODC, 2016, p. 17).

Of significance, UNODC has published a Checklist for Internal Inspection Mechanisms (2017a), which provides a useful practical tool for countries around the world to assess compliance with the Nelson Mandela Rules in a systematic and measurable way. The checklist has been structured around seven key themes, 36 expected outcomes and 240 corresponding indicators, covering "the most important aspects of prisons in the light of the Nelson Mandela Rules" (UNODC, 2017a, p. 7). The key themes are highlighted in the box below.

Thematic areas addressed in the checklist

1. Basic principles of treatment

Rules of particular relevance:

Rule 1

All prisoners shall be treated with respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.

Rule 3

Imprisonment and other measures that result in cutting off persons from the outside world are afflictive by the very fact of taking from these persons the right of self-determination by depriving them of their liberty. Therefore, the prison system shall not, except as incidental to justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a situation.

2. Safeguards

Rules of particular relevance:

Rule 54

Upon admission, every prisoner shall be promptly provided with written information about:

  • The prison law and applicable prison regulations;
  • His or her rights, including authorized methods of seeking information, access to legal advice, including through legal aid schemes, and procedures for making requests or complaints;
  • His or her obligations, including applicable disciplinary sanctions; and
  • All other matters necessary to enable the prisoner to adapt himself or herself to the life of the prison.

Rule 83

1. There shall be a twofold system for regular inspections of prisons and penal services:

  • Internal or administrative inspections conducted by the central prison administration;
  • External inspections conducted by a body independent of the prison administration, which may include competent international or regional bodies.

2. In both cases, the objective of the inspections shall be to ensure that prisons are managed in accordance with existing laws, regulations, policies and procedures , with a view to bring about the objectives of penal and corrections services, and that the rights of prisoners are protected.

3. Material conditions of imprisonment

Rules of particular relevance:

Rule 13

All accommodation provided for the use of prisoners and in particular all the sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.

4. Security, order and discipline

Rules of particular relevance:

Rule 43

In no circumstances may restrictions or disciplinary sanctions amount to torture or other cruel, inhuman or degrading treatment or punishment. (…).

Rule 35

Discipline and order shall be maintained with no more restriction than is necessary to ensure safe custody, the secure operation of the prison and a well-ordered community life.

5. Prison regime

Rules of particular relevance:

Rule 4

1. The purposes of a sentence of imprisonment or similar measures deprivative of a person's liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, as far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.

2. To this end, prison administrations and other competent authorities should offer education, vocational training and work, as well as other forms of assistance that are appropriate and available, including those of a remedial, moral, spiritual, social and health - and sports - based nature. All such programmes, activities and services should be delivered in line with the individual treatment needs of prisoners.

6. Health care

Rules of particular relevance:

Rule 24

1. The provision of health care for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.

7. Prison staff

Rules of particular relevance:

Rule 74

1. The prison administration shall provide for the careful selection of every grade of the personnel, since it is on their integrity, humanity, professional capacity and personal suitability for the work that the proper administration of prisons depends.

Rule 77

All prison staff shall at all times so conduct themselves and perform their duties as to influence the prisoners for good by their example and to command their respect.

As reflected under safeguards above, there is increasing acceptance around the world that standards in prison systems should be regulated and monitored in order to mitigate the risk of abuse, including by independent, formal mechanisms . Rule 57 of the Nelson Mandela Rules (2015) states that:

1. Every request or complaint [by prisoners] shall be promptly dealt with and replied to without delay. If the request or complaint is rejected, or in the event of undue delay, the complainant shall be entitled to bring it before a judicial or other authority.

2. Safeguards shall be in place to ensure that prisoners can make requests or complaints safely and, if so requested by the complainant, in a confidential manner. A prisoner […] must not be exposed to any risk of retaliation, intimidation or other negative consequences as a result of having submitted a request or complaint.

3. Allegations of torture or other cruel, inhuman or degrading treatment or punishment of prisoners shall be dealt with immediately and shall result in a prompt and impartial investigation conducted by an independent national authority […].

OPCAT (A/RES/57/199) requires independent monitoring bodies to visit prisons in States parties in order to prevent torture and other cruel, inhuman or degrading treatment or punishment. In many countries, inspectorates, ombudsmen, courts, committees and other bodies work to oversee the treatment of prisoners, their contact with the outside world, the conditions in which they are kept, the nature of disciplinary and grievance procedures, the provision of rehabilitation programmes, their access to health care and the work of prison staff (van Zyl Smit and Appleton, 2019). Furthermore, the development of regional treaties and standards, as well as the role of regional judicial institutions are a useful measure to assess the implementation and provision of prisoners' rights across different jurisdictions (see van Zyl Smit and Snacken, 2009; Rodley, 2011; Snacken, 2015). Key examples of these are given in the box below.

Regional treaties and standards

 

Regional judicial bodies

In recognition of the specific needs and vulnerabilities of women and girls in prison, in 2010 the General Assembly adopted the Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) (2010). The Rules provide guidance to states on reducing unnecessary imprisonment with an overview of gender sensitive alternatives to imprisonment; and set standards on various aspects of women's imprisonment such as gender-responsive healthcare, measures to be taken during searches, measures to protect prisoners from violence including sexual and gender-based violence (SGBV), and meeting the needs of children in prison with their mothers. These rules are examined in further detail in Module 9 on Gender in the Criminal Justice System.

It should be noted that the Bangkok Rules (2010) build on existing international standards and norms that apply to all prisoners without discrimination, and are designed to complement the Nelson Mandela Rules (2015). Moreover, some of the Bangkok Rules address issues applicable to both men and women prisoners, including those relating to parental responsibilities and some medical services.

 
Next: Topic three: Towards humane prisons and an appropriate resort to alternative sanctions
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