This module is a resource for lecturers
Topic three: Towards humane prisons and an appropriate resort to alternative sanctions
In this final section, students will develop an understanding of the ways in which prisons can operate humanely by considering examples of rehabilitative approaches across jurisdictions and focusing on prison regimes that reflect a commitment to apply international standards and norms in practice. It will also take account of limiting the scope of imprisonment, and will briefly consider alternative perspectives to punishment and the role of non-custodial measures in reducing of the resort to imprisonment.
Rehabilitation in prisons
Key questions in this section include: How can prisoners treat prisoners humanely? How can prisons treat prisoners as citizens, and reflect life in the community? How can prisons support an individual's social reintegration? This section aims to address these questions and consider examples of practice and initiatives that incorporate some of the core principles referred to above through individualized sentence planning, normalized regimes and constructive activities (see also van Zyl Smit and Appleton, 2019).
Classification and individualized sentence planning
Article 10.3 of the ICCPR (GA Resolution 2200A (XXI)) mandates that the essential aim of the treatment of prisoners shall be "their reformation and rehabilitation". To achieve this, prisons systems should classify prisoners and develop and implement individualized sentence plans that consider the risk and needs of each prisoner, and focus on rehabilitative opportunities that will help facilitate an individual's progression to release and re-entry into society. Importantly, prison populations are made up of diverse individuals, and the reasons why they have committed crime are often unique to their environment and personal circumstances. Therefore, "the successful identification, targeting and tackling of risks and needs among offenders depend on an effective assessment system to identify those needs and to measures change in the degree to which they are present." (UNODC, 2018; Coyle et al., 2016). As prisoners are not a homogenous group it is also imperative to identify those who may be more vulnerable in prisons than others, the elderly or those with physical disabilities may be in need of mobility aids or space for wheelchairs. Appropriate measues should also be taken to protect the rights of other partners with special needs, such as ethnic minorities, foreign nationals, prisoners with mental health issues, or lesbian, gay, bisexual, transgender or intersex individuals (LGBTI).
Rule 2.2 of the Nelson Mandela Rules states: "In order for the principle of non-discrimination to be put into practice, prison administrations shall take account of the individual needs of prisoners, in particular the most vulnerable categories in prison settings. Measures to protect and promote the rights of prisoners with special needs are required and shall not be regarded as discriminatory". Further information is also available in the UNODC Handbook on Prisoners with special needs 2009.
According to the Nelson Mandela Rules, the purpose of classification is to separate prisoners based on assesses risks, and to divide prisoners into classes with a view to foster their social rehabilitation (Rule 93 of the Nelson Mandela Rules). More specifically, the classification process involves a risk and needs assessment upon admission (to be updated at regular intervals thereafter), the (re-)categorization of prisoners into a respective security category and their allocation to a suitable prison regime. A properly designed and managed classification system is key to ensure (a) the safe, secure and humane custody of prisoners on the one hand, and (b) to contribute to the timely preparation of their eventual release by means of an individualized sentence plan. The classification process is based on information gained through an individual risk and needs assessment of each prisoner, including the consideration of a prisoner's "social and criminal history, physical and mental capacities and aptitudes, personal temperament, the length of his or her sentence and prospects after release" (Rule 92 of the Nelson Mandela Rules). It may further be informed, as applicable, by relevant health information gained by health-care professionals during medical examinations upon admission. Individual assessments are crucial in order to ensure that the necessary measures are put in place to minimize the risks which prisoners may pose in prisons, to respond to special needs which they may have, and to thereby design a sentence plan which will support their eventual social reintegration (Rule 94 of the Nelson Mandela Rules). (UNODC, 2016)
According to the Nelson Mandela Rules and other regional standards, prisoners should actively participate in drawing up their sentence places (Rule 96.1 and 98.3 of the Nelson Mandela Rules; Rule 103.3 of the European Prison Rules). Core areas of prison-based rehabilitation include education, vocational training and work programmes. To be truly responsive to the individual needs among the prison population, however, a rehabilitative prison regime should equally encompass more specialized services and interventions, such as physical and mental health care services, including drug dependence treatment, psychological counselling and mentoring, as well as cognitive behavioural and skill development programmes (such as anger management, sex offender treatment programmes and relapse prevention) (UNODC, 2018; UNODC 2017).
Various prisons systems around the world support the process of social reintegration by establishing "a systematic approach to sentence planning" (Drenkhahn, 2014, p. 293). In New Zealand, for example, all prisoners have a sentence plan to assess their "risk, needs and responsivity" which includes the following elements:
- the need for programmes such as Drug and Alcohol Treatment or Violence Prevention
- assessment of literacy and numeracy needs - the National Certificate of Employment Skills can provide both vocational training and basic literacy
- work skills and experience and deficits in this area
- reintegration issues to be addressed in order to successfully settle the prisoner back into the community. This may, for example, include assistance to find post-release work ( New Zealand Department of Corrections, Section B).
Individualized sentence plans also help to inform the security level and allocation of prisoners, matching their individual risk and needs with the appropriate regime and level of supervision. This helps to minimize the risk of escape, prison violence and misconduct, ensures that resources are not wasted on high-security facilities and measures in cases where they are not warranted, and increases the opportunity for individual's to access appropriate rehabilitation programmes. In some jurisdictions, sentence plans also act as a type of "contract" between prisoners and staff, "that outlines expected behaviours while in prison, engagement in activities and commitment to an agreed upon plan" (UNODC, 2013b, p. 62), to be reviewed and reassessed at regular intervals. Individualized sentence plans can therefore serve as a key incentive for prisoners to complete certain activities and achieve certain goals, as part of their overall progression to release.
Rule 5(1) of the Nelson Mandela Rules state that: "The prison regime should seek to minimize any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings." Concrete manifestation of this principle resonate throughout the rules, including in the field of health-care services (Rule 24.1: "Prisoner should enjoy the same standards of health care that are available in the community") or prison-based rehabilitation programmes (Rule 99.1: "The organization and methods of work in prisons shall resemble as closely as possible those of similar work outside of prisons… " / Rule 104.2: "So far as practicable, the education of prisoners shall be integrated with the educational system of the country…").
At a regional level, Rule 5 of the European Prison Rules (2006) states that: "Life in prison shall approximate as closely as possible the positive aspects of life in the community". Consistent with the principle of normalization, the preamble to the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (2008) states that the essential aim of the deprivation of liberty is that of, "reform, social readaptation and personal rehabilitation of those convicted; reintegration into society and family life (…)". Furthermore, Principle VIII underlines that:
Persons deprived of liberty shall enjoy the same rights recognized to every other person by domestic law and international human rights law, except for those rights which exercise is temporarily limited or restricted by law and for reasons inherent to their condition as persons deprived of liberty.
While life in prison can never be the same as life in free society, normalized prison regimes aim to reduce the pains and institutionalizing effects of imprisonment by reflecting the realities of life in the community as much as possible, providing opportunities for prisoners to exercise their personal responsibility, and promoting the process of social reintegration, contact with the outside world and progression to release (see Gronowska, 2016).
The regime in Danish prisons, for example, is based on the principle of normalization, a regime of openness and responsibility, where "life in prison should be as normal as possible" (Storgaard, 2014, p. 110). Prisoners typically live in units where among other things, they are responsible for managing a budget, buying food from the prison shop, preparing and cooking their own meals and doing their own laundry. Furthermore, prisoners are often involved in planning their leisure time, and making decisions about their treatment while in prison (Ibid.). The Danish Prison and Probation Service Handbook states that, "[b]y establishing conditions which differ as little as possible from those obtaining in daily life outside prison, the grounds for aggression and apathy are reduced and the negative effects of a prison sojourn are limited" (Denmark Ministry of Justice, 1994, p. 10).
A focus on the significance of the architecture and design of prisons in normalized regimes has developed in recent years (see for example: International Committee of the Red Cross, 2012 and 2018; Fransson et al., 2018; UNOPS 2016). In some jurisdictions, prison designers have focused on adding architectural aesthetics and qualities to buildings that can enhance the rehabilitative function of imprisonment, and reduce physical and psychological violence. Among the design features found in these prisons are, for example, soft furnishings, effective colour schemes, maximum use of natural light, open spaces, displays of artwork, views of nature through windows without bars and access to plants, trees, flowers and nature (Handcock and Jewkes, 2011; Jewkes and Moran, 2014). Such an approach to designing new prisons has been found to "encourage personal and intellectual creativity, and even a lightness and vividness of experience, in contrast to the depth, weight and tightness commonly associated with imprisonment and its material darkness, even hellishness" (Moran et al., 2016, p. 125; see also Gleeds, 2016; Wall, 2016).
The Nelson Mandela Rules acknowledge that enabling prisoners to maintain and improve constructive contact with the outside world is another key element of normalized prison regimes and of their preparation for release (Rule 106). Rule 58 of the Nelson Mandela Rules (2015) states that: "Prisoners shall be allowed, under necessary supervision, to communicate with their family and friends at regular intervals", "by corresponding in writing and using, where available, telecommunication, electronic, digital and other means"; and "by receiving visits." Rule 59 states that: "Prisoners shall be allocated, to the extent possible, to prisons close to their homes or their places of social rehabilitation."
While imprisonment inevitably results in some loss of access to the outside world, there are various positive ways in which prison regimes can create opportunities for prisoners to maintain strong links and meaningful connections with relatives and friends in the community, including, for example, family visits, conjugal visits, extended home leave and so on (see especially Coyle and Fair, 2018, p. 103-110). In the 2018 Global Prison Trends report, Penal Reform International highlight innovative schemes in Singapore, whereby prisoners are encouraged to develop close family relationships during a four hour long "Family Day". Similarly, in Zimbabwe, "Family Weeks" have been introduced to enhance contact and relationships with family members (Penal Reform International, 2018, p. 27).
In addition, fostering links with persons and agencies outside the prison who can assist after release, is a crucial element in the normalization of prisons. Rule 107 of the Nelson Mandela Rules (2015) states that: "From the beginning of a prisoner's sentence, consideration shall be given to his or her future after release and he or she shall be encouraged and provided assistance to maintain or establish such relations with persons or agencies outside the prison as may promote the prisoner's rehabilitation and the best interests of his or her family."
In a number of jurisdictions around the world, prisoners may leave the prison regime during daytime in order to go to work, attend a training course or educational institution (see for example: Subramanian and Shames, 2013). Such opportunities are important because they help prisoners acquire the necessary skills and capacity to earn a living following release, and offer a means of integrating prisoners back into society.
Normalized regimes therefore means that prisoners should - as much as feasible within a prison context - have the same rights as other citizens, and that their living conditions should be made to reflect normal life, and aid the process of rehabilitation and reintegration. In many European countries, the citizenship of all prisoners has been recognized by allowing them to retain the same democratic rights as other citizens, including the right to vote. This right to vote is an important part of normalized prison regimes and the process of social reintegration because it is a "symbol of citizenship, as well as a sign of one's participation in society" (Crétenot, 2013, p. 25). As expert penologists have argued, "to strip prisoners of one of their most basic rights of citizenship, such as the right to vote, will isolate them from their communities and fellow citizens and threaten their capacity to establish or maintain successful adult roles, which are important in the process of desisting from crime" (van Zyl Smit and Snacken, 2009, p. 254).
Facilitating prisoners' participation in constructive activities, such as education, vocational training and work, is an inherent and crucial element of normalized prison regimes and a pre-condition to give practical meaning to individualized sentence planning and assessing a prisoner's progress towards his or her social reintegration upon release (UNODC, 2017; van Zyl Smit and Appleton, 2019). Providing opportunities for prisoners to build work experience, gain qualifications and develop new skills will improve their employment prospects on release and thereby reduce recidivism and increase public safety. Leading a "normal occupational life" in prison (Rule 99(1) of the Nelson Mandela Rules, 2015) can also reduce the risk of institutionalization, mental health problems or learned helplessness among prisoners, and help to develop more positive, secure and safe regimes (UNODC, 2017b). The UNODC Roadmap for the Development of Prison-based Rehabilitation Programmes (2017b) addresses the topics of education, vocational training, and work, providing Member States with concrete examples from a broad range of countries to guide the development of programmes that align with international standards and norms.
Education in prison is generally considered to be a key tool for personal change - "its value judged by its impact on recidivism, reintegration and, more specifically, employment outcomes upon release" - as well as an "imperative in its own right" (Muñoz, 2009, p. 2). There is a substantial body of evidence that suggests many prisoners around the world lack basic literacy and numeracy skills, as well as a "growing recognition of the need to equip prisoners with the skills and education needed to obtain employment on release" (Penal Reform International, 2017, p.33). Rule 104 of the Nelson Mandela Rules (2015) states that:
Provision shall be made for the further education of all prisoners capable of profiting thereby, including religious instruction in the countries where this is possible. The education of illiterate prisoners and of young prisoners shall be compulsory and special attention shall be paid to it by the prison administration.
Furthermore, educational opportunities in prison "shall be integrated with the educational system of the country so that after release they may continue their education without difficulty" (Rule 104 of the Nelson Mandela Rules, 2015). Of relevance here is the recent growth in the number of 'prison university partnerships' in most regions of the world. UNODC has identified the development of such partnerships in a wide range of jurisdictions, including initiatives in the United Kingdom, Nigeria, Panama, Canada and the United States, whereby "prisoners can learn alongside university and college students, and can start regular college or university level courses which they can complete upon release" (UNODC, 2017b, p. 33; see also Champion, 2018). As part of this work, UNODC is implementing a project in El Salvador, to foster opportunities for male and female prisoners to gain a university education. This project is being implemented under the Global Programme on the Implementation of the Doha Declaration.
The importance of offering vocational training opportunities in prison has also been recognized in order to improve employment prospects and reduce recidivism after release. Rule 98(2) of the Nelson Mandela Rules (2015) mandates that: "Vocational training in useful trades shall be provided for prisoners able to profit thereby and especially for young prisoners." A study by the RAND Cooperation in the United States confirms a clear link between vocational training opportunities in prison, and the improvement of future employment (2013). Significantly, the researchers found that "individuals who participated in vocational training programs had odds of obtaining postrelease employment that were 28 percent higher than individuals who had not participated in vocational training" (Davis et al., 2013, p.58). Furthermore, participation in a correctional educational programme was associated with a significant reduction in the risk of reincarceration three years following release (ibid, p. 38-39; see also UNODC, 2017b).
In addition, Rule 105 of the Nelson Mandela Rules (2015) states that: "Recreational and cultural activities should be provided in all prisons for the benefit of the mental and physical health of prisoners." Importantly, physical and recreational activities can play a significant role in counteracting the pains of imprisonment, structuring time in prison, developing pro-social skills, and encouraging purposeful use of leisure time after release. Having access to religious practices and activities (including diet, religious services, duties and support) can also play a crucial role in benefiting the health of prisoners. Rule 66 of the Nelson Mandela Rules (2015) states that: "So far as practicable, every prisoner shall be allowed to satisfy the needs of his or her religious life by attending the services provided in the prison and having in his or her possession the books of religious observance and instruction of his or her denomination". In other words, education in its widest sense "should be aimed at developing the whole person, taking account of the prisoner's social, economic and cultural background" (Coyle et al., 2016, p. 94).
Finally, international standards clearly recognize that productive and paid work is a crucial component of prison life. Work should never be harmful, used as a punishment or be undertaken for the personal benefit of prison officers. Rather, it should "maintain or increase the prisoners' ability to earn an honest living after release" (Rule 98 of the Nelson Mandela Rules, 2015). In keeping with the principle of normalization, best practice suggests that where work is offered in the prison, prisoners should be able to choose - as much as feasible - the type of employment in which they want to engage; the organization of work should "resemble as closely as possible those of similar work outside of prisons"; and the interests of prisoners "must not be subordinated to the purpose of making a financial profit from an industry in the prison" (Rule 99 of the Nelson Mandela Rules, 2015).
Alternatives to imprisonment
While there is a growing recognition of the importance of prisoners' rights, and improving prison conditions around the world, implementing reform is not easy to achieve. Many prison reformers face significant barriers, including political and social pressures, problems of severe overcrowding, lack of sufficiently trained prison officers, outdated legislation, limited resources, weak monitoring systems and safeguards, and limited opportunities to foster links between prisoners and the outside world. The worrying situation in prisons around the world and the serious effects on prisoners, their families and societies as a whole has been referred to by the United Nations as a "global prison crisis" on several occasions (A/HRC/30/19, A/65/273).
Many prisoners, often from the most marginalized groups of society, are treated in inhuman and degrading ways, and subject to conditions that inherently infringe human dignity and their value as human beings. In addition, a common characteristic of many prison systems is that recidivism rates for released prisoners remain high, and many released prisoners are recalled to prison (see, for example, The Scottish Centre for Crime and Justice, 2012; Padfield, 2005; Appleton, 2010; Prison Reform Trust, 2018).
In the light of the harms, failings and criticizm surrounding the use of imprisonment, a number of penologists have argued for the abolition of imprisonment or so-called 'penal abolition' (see for example: van Swaaningen, 2013; Epperson and Pettus-Davis, 2017). Over recent decades, prison abolitionists have started to question the role of imprisonment across societies, and the extent to which the infliction of pain through the deprivation of liberty is necessary. They argue for a future where punishment and punitive responses to crime are dismissed, and replaced by dispute settlement, reparation and social justice (ibid, see also Braithwaite, 1989; 1999). René van Swaaningen (1986, p. 9), the Dutch abolitionist, briefly summarized the abolitionist message as follows: "From the beginning [criminal law] has been seen to create problems instead of solving them. A penal reaction after the fact is not preventive but de-socialises an ever-increasing number of people. Therefore it would be better to abolish penal means of coercion, and to replace them by more reparative means" (see also Rutherford, 1984; Mathiesen, 1986; 2006; Sim, 1994).
Other scholars have argued for 'penal reductionism', in order moderate or limit the use of imprisonment and to "muster the political will to change" (Scott and Flynn, 2014, p. 209; see also Loader, 2010). Following Sir Alexander Paterson's famous statement in 1922 that "people are sent to prison as punishment, not for punishment" (cited in Ruck, 1951, p. 13), penal reductionists share a commitment to reducing overcrowding and improving prison conditions and prisoners' rights. Prison reform calls for: a reduction in the capacity of prisons; imprisonment for serious crimes only; more penal accountability; less punitive sentencing; the creation of non-imprisonable offences; the early release of prisoners; and the development of alternatives to imprisonment (Scott and Flynn, 2014).
In line with a reductionist approach, international standards state that imprisonment should only be used as a last resort and that non-custodial measures should be used as much as possible (see especially the Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules, 1990; see also UNODC, 2007; and for gender specific standards the Bangkok Rules, 2010). The development and implementation of alternatives to imprisonment is particularly relevant both as a way to tackle the problem of prison overcrowding, and as a means to promote social reintegration, and reduce recidivism. In principle, the aims of punishment can, in many cases, be achieved without having to resort to the sanction of imprisonment. Rule 2.3 of The Tokyo Rules (1990) holds that criminal justice systems should provide "a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions", "consistent with the nature of the gravity of the offence, the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment" (see also UNODC, 2007).
The notion that non-custodial sanctions are more effective than imprisonment at rehabilitation, social reintegration and reducing recidivism is reflected in international human rights standards as well as the empirical and theoretical literature. However, the success of alternatives to imprisonment depends in part on a wholesale reform of the criminal justice system, as well as communication with the wider community and media to increase their public legitimacy. The United Nations, alongside non-governmental organizations and prison reform groups around the world, are actively developing and introducing strategies and toolkits to help countries reform their penal systems and reduce the resort to imprisonment, in line with international standards and norms (see for example: UNODC, 2011). The judiciary have a key role to play with respect to non-custodial options. Judicial training, and judicial integrity are discussed in further detail in Module 14 on the Independence of the Judiciary and the Role of Prosecutors. For further information on this topic, students should refer to Module 7 on Alternatives to Imprisonment.