PRE-TRIAL DETENTION IN THE TIMES OF COVID 19- ON BALANCING THE SCALES OF SECURITY AND SAFETY

Autors:

Vijaya Singh Gautam & Shreya Chandhok

From living in large dormitories, to sharing cells with poor ventilation, eating in common rooms, to sharing toilet facilities. The idea of social distancing seems quite distant in a prison setup around the world. Unlike free people, inmates do not have the facility to engage in ‘social distancing’, ‘self-quarantine’, or for that matter in the fight to flatten the curve of this soaring pandemic.[1] The most vulnerable group amongst these inmates are the pre-trial detainees, who make up around 30% of the prison population worldwide,[2] and even outnumber the convicted people in prison in at least 46 countries.[3] What is more alarming is the fact that this situation exists, despite a global commitment to using pre-trial detention as a measure of last resort.[4] Moreover this sizable percentage of pre-trial detainees around the world is vulnerable to be subjected to other heinous crimes which allegedly arise in prisons such as, torture, assault, arbitrary death and racial discrimination, to name a few.

Democratic Republic of Congo,the main prisons are functioning at more than 400 percent

Covid-19 stands as a testament to the fact, that the rule of law is undermined within the Criminal Justice System and these extraordinary times expose the fissures in the administration of justice. Delayed hearings, lack of financial resources to pay the penalty or engage a lawyer, no access to fair trial etc., makes the system of pre-trial detention vulnerable to encompass arbitrary detention.[5] This conduct goes against the very essence of Human Rights echoed in the International Covenant on Civil and Political Rights (ICCPR), which states that “No one shall be subjected to arbitrary arrest or detention”.[6] Additionally, the European Convention on Human Rights,[7] the Inter-American Convention on Human Rights[8], and the African Charter on Human and Peoples’ Rights,[9] also addresses the gravity of arbitrary detention, which can lead to additional abuses.

This predicament is now aggravated by the ongoing Covid-19 pandemic, because a mere accusation on an accused for an offence can lead him/her to be exposed to a global contagion, skewing the calculation of liberty interests at stake. Even though every part of the society has been impacted by this contagion, but the pre-trial detainees are more susceptible to this disease due to the prison setup they are residing in. Likewise, this pandemic brings back the long-standing concern of overcrowded prisons, which has time and again been addressed by the United Nations Office on Drugs and Crime and the United Nations.[10] This concern coupled with the inadequate access to basic facilities for sustenance,[11] restricted access to space[12], denial of access to legal counsel,[13] and the impact on the mental health of a pre-trial detainee[14] raises serious concerns with respect to the already wrecked criminal justice system. This article aims to analyse the legal and policy responses developed by different jurisdictions, and will further suggest specific institutional reforms to strengthen the effectiveness of the justice chain in a radically shifted social context.

PRACTICES AROUND THE WORLD

Jurisdictions around the world are announcing meaningful steps to protect not only the general public from this pandemic but also the population behind the bars. The most common approach to implement this is by reducing overcrowding in correction facilities as enunciated in the joint statement on Covid-19 in prisons and other closed settings by the UNODC, WHO, UNAIDS and OHCHR. These organisations urged the political leaders to consider limiting the deprivation of liberty, including pre-trial detention, to a measure of last resort, particularly in the case of overcrowded prison facilities, and to enhance efforts to resort to non-custodial measures.[15] Additionally, the position paper on Covid-19 prepared by the UNODC emphasised on the relevance of alternatives to pre-trial detention and the commutation of certain sentences as valuable instruments to curb the spread of the virus.[16] Finland, for instance, has already introduced measures to postpone the enforcement of sentences up to six months and adopted the ‘fine-conversion approach’.[17] In the United States of America (USA) on the other hand, four states have decided to release hundreds of pre-trial detainees and other prisoners sentenced for minor crimes.[18] Furthermore, the Penal Reform International has elaborated that individuals presenting minimal flight risk, little risk of collusion, and presenting a low risk to society should be considered for alternatives to pre-trial detention, and to establish an intelligible differentia.[19] Also, the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rule) while articulating the importance of alternatives to imprisonment quoted,  “In order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions.[20]

Taking into consideration the release of pre-trial detainees, many jail authorities have been instructed to release these prisoners, based on different criteria’s. For instance, in the USA, Florida’s Orange County jail, Franklin county jail, and the Multnomah County Jail in Oregon have observed a reduction of 30%, 25%, and 30% inmate population, respectively due to the correctional measures adopted by the authorities.[21] Correspondingly, in the Democratic Republic of Congo, where the main prisons are functioning at more than 400 percent of capacity and over 70 per cent of detainees have not been convicted, less than 3,000 of 20,000 total detainees have been released.[22] In the United Kingdom[23] and India[24], the release of 4000 out of 10,080, and 3000 out of 2.8 Lakh prison inmates have been authorised respectively. Agreed, that these steps look promising and compliant to the international instruments, but when compared to the actual figures, the release percentage is a drop in the ocean.

Therefore, deriving inspiration from international instruments and statements, some countries are adopting practices to help the prisoners to cope up with these testing times by staying within the prison setup. The Irish Prison Service Psychology, for example, is rolling out “telepsychology,” which provides a confidential space to talk and express frustration, and engage with counsellors to help them with coping strategies.[25] Similarly, France is providing various compensation measures, such as free television services, phone credits, activation of a new vocal message service, and extra compensation to poverty-stricken detainees in order to help them support their families during the crisis.[26] Additionally, the ‘Email the Prisoner’ scheme adopted by the Scottish Prison Services (SPS), coupled with the distribution of self-help leaflets designed by SPS Psychologists, are some of the progressive steps to ensure a sense of wellbeing for everyone in custody.[27] Even the California Department of Corrections and Rehabilitation (CDCR)[28], along with Federal Bureau of Prisons[29], while recognising the importance of human contact have waived fees for all phone calls and video communication made during the times of the pandemic.

Furthermore, in order to make sure that justice is maintained, various countries are taking steps to maintain contact between the offenders and their legal counsels, since it becomes imperative for these offenders to keep them updated. Canada, for instance, has allowed inmates to contact their counsels through the mail, fax or email.[30]

CONCLUSION & RECOMMENDATIONS

The excessive and arbitrary use of pre-trial detention needs to be monitored, especially in the time of this global contagion. The governments must ensure that legal rights, including increased protections for persons accused of any offence, are protected in practice at the first place. Secondly, is important that the states, who are still alien to the concept of reforms during this pandemic, take inspiration from various nation states discussed by the authors, and adopt such good practices. In addition, we encourage countries to authorise the release of pre-trial detainees bearing in mind the total population of such detainees in jails, so that the release is effective in lowering the prison population statistics. It is highly recommended to adopt alternatives to pre-trial detention and the commutation or temporary suspension of certain sentences to reduce new admissions to prisons. Access to justice can be insured by giving the inmates access to a legal counsel by adopting practices such as: collaboration with law firms, providing toll-free numbers to an institution’s telephone common access list, which will make calls free of charge for an inmate, and access to services such as mail, fax or email. Most importantly, every country must give utmost importance to the mental health of prisoners, and should strive to achieve the same by adopting practices such as video visits for family members, replacing face to face contact with audio-visual methods, subsidised phone calls, and alike. It is high time that jails, which are racing against time in this fight against the virus, buckle up and take appropriate actions.

References


[1] Jennifer Gonnerman, ‘How Prisons and Jails Can Respond to the Coronavirus’ (New Yorker, 14 March 2020) <https://www.newyorker.com/news/q-and-a/how-prisons-and-jails-can-respond-to-thecoronavirus [https://perma.cc/5TAQ-AH6P]>.

[2] ‘World Prison Population List’ (2018) Institute for Criminal Policy Research; <https://www.penalreform.org/issues/pre-trial-justice/issue/>.

[3] ;Global Prison Trends’ (2020) Thailand Institute of Justice <https://cdn.penalreform.org/wp-content/uploads/2020/05/Global-Prison-Trends-2020-Penal-Reform-International-Second-Edition.pdf>.

[4] United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules), General Assembly Resolution 45/110, 14 December 1990.

[5] Aya Fujimura-Fanselow & Elisabeth Wickeri, ‘”We Are Left to Rot”: Arbitrary and Excessive Pretrial Detention in Bolivia’ (2013) Fordham International Law Journal, Vol 36, Issue 4 <https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2625&context=ilj>.

[6] International Covenant on Civil and Political Rights (ICCPR), United Nations, Treaty Series, vol. 999, p. 171, 23 March 1976, Article 9.

[7] European Convention on Human Rights, ETS 5, Council of Europe, 3 September 1953, Article 5.

[8] Inter-American Convention on Human Rights, Organisation of American States, 18 July 1978, Article 7.

[9] African Charter on Human and Peoples’ Rights, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, 27 June 1981, Article 6.

[10] United Nations Office on Drugs and Crime (UNODC), ‘Legal basis (mandates) and mission’ <https://www.euro.who.int/en/health-topics/health-determinants/prisons-and-health/partners/united-nations-office-on-drugs-and-crime-unodc#:~:text=Role%20in%20prisons,including%20HIV%20prevention%20and%20care.&text=addressing%20prison%20overcrowding,with%20UN%20standards%20and%20norms>.

[11] ‘Prisons and Health’ (2014) World Health Organization <http://www.euro.who.int/__data/assets/pdf_file/0005/249188/Prisons-and-Health.pdf>.

[12] Commonwealth Human Rights Initiative, ‘COVID-19 and Prisons: Ensuring an Effective Response’ (2020) CHRI <https://www.humanrightsinitiative.org/download/1585130808CHRI%20Suggestions%20on%20Covid%2019%20and%20Prisons.pdf>.

[13] ‘Guidance Note Ensuring Access to Justice in the Context of COVID 19’ (May 2020) UNODC <https://www.unodc.org/documents/Advocacy-Section/Ensuring_Access_to_Justice_in_the_Context_of_COVID-191.pdf>.

[14] ‘Mental Health and Prison’ World Health Organisation & ICRC <https://www.who.int/mental_health/policy/mh_in_prison.pdf>.

[15] ‘UNODC, WHO, UNAIDS and OHCHR joint statement on COVID-19 in prisons and other closed settings’ (WHO, 13 May 2020) <https://www.who.int/news-room/detail/13-05-2020-unodc-who-unaids-and-ohchr-joint-statement-on-covid-19-in-prisons-and-other-closed-settings>.

[16] ‘COVID-19 preparedness and responses in prisons – Position Paper’ (31 March 2020) UNODC <https://www.unodc.org/documents/justice-and-prison-reform/UNODC_Position_paper_COVID-19_in_prisons.pdf>.

[17] ‘Short prison sentences are postponed due to the coronavirus’ (Foreigner.Fi, 19 March 2020) <https://www.foreigner.fi/articulo/coronavirus/short-prison-sentences-are-postponed-due-to-the-coronavirus/20200318213547004863.html>.

[18] Timothy Williams et.al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars’ (The New York Times, 20 May 2020) <https://www.nytimes.com/2020/03/30/us/coronavirus-prisons-jails.html>.

[19] ‘Coronavirus: Healthcare and human rights of people in prison’ (16 March 2020) Penal Reform International <https://cdn.penalreform.org/wp-content/uploads/2020/03/FINAL-Briefing-Coronavirus.pdf>.

[20] Commentary on the United Nations Standard Minimum Rules For Non-Custodial Measures (The Tokyo Rules), United Nations (1993) <https://www.ncjrs.gov/pdffiles1/Digitization/147416NCJRS.pdf>.

[21] ‘Responses to the COVID-19 pandemic’ (02 September 2020) Prison Policy Initiative <https://www.prisonpolicy.org/virus/virusresponse.html>.

[22] ‘DR Congo: Prisons Face Covid-19 Catastrophe’ (Human Rights Watch, 17 April 2020) <https://www.hrw.org/news/2020/04/17/dr-congo-prisons-face-covid-19-catastrophe>.

[23] ‘Letter before claim under the pre-action protocol for judicial review by Howard League for

Penal Reform and Prison Reform Trust’ (28 April 2020) <https://howardleague.org/wp-content/uploads/2020/05/Governments-response-letter-to-Bhatt-Murphy-Howard-League-and-PRT.pdf>.

[24] SM Najmus, ‘Bangladesh starts releasing prisoners amid pandemic’ (AA, 3 May 2020) <https://www.aa.com.tr/en/asia-pacific/bangladesh-starts-releasing-prisoners-amid-pandemic/1827739>.

[25] ‘Prevention Measures in European Prisons against COVID-19’ (Europris, 18 May 2020) <https://www.europris.org/irish-prison-service/>.

[26] ‘Ministry of Justice : Department of Prisons (FR), Prevention Measures in European Prisons against COVID-19’ (Europris, 3 June 2020) <https://www.europris.org/ministry-of-justice-department-of-prisons-fr/>.

[27] ‘Scottish Prison Service (UK)  Menu, Prevention Measures in European Prisons against COVID-19’ (Europris, 16 June 2020) <https://www.europris.org/scottish-prison-service-uk/>.

[28] ‘COVID-19 Preparedness’ (4 September 2020) California Department of Corrections and Rehabilitation <https://www.cdcr.ca.gov/covid19/>.

[29] John Hendel, ‘Federal prisons make inmate calling, video visits free during pandemic’ (Politico, 14 April 2020) <https://www.politico.com/news/2020/04/14/federal-prisons-make-inmate-calling-free-186383>.

[30] ‘Inmate access to legal counsel during COVID-19’ Correctional Services Canada <https://www.csc-scc.gc.ca/001/006/001006-1035-en.shtml>.

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