Although the exact purpose of prisons differs from country to country, rehabilitating individuals who are a danger to society, punishing and hence deterring people from the commission of crimes, and ensuring public safety are some of the fundamental aims of the prison system which can be widely agreed upon.

Due to the outbreak of COVID-19, countries have taken steps to prevent the spread through different sorts of policies and orders. Citizens have been told by their respective governments to stay home and avoid crowded areas. Some countries implemented lockdown measures and policies making it mandatory to abide by stay-home or movement orders. Whilst most people are able to take these preventive measures in protecting their health and safety, there are vulnerable groups of people who are unable to protect themselves through the implementation of these measures, one of them being prisoners and those in detention. 

Governments recognise the vulnerability of prisoners to the virus and have since taken action to prevent the spread of it in prisons. For example, Iran took the lead in releasing over 50,000 prisoners to reduce overcrowding. Countries such as Brazil, Turkey, and Poland have done the same. The UK has also responded to prison reform organisations, vowing to release prisoners who are not a threat to society. The underlying reason for these releases is the longstanding issue of overcrowding in prisons.

Overcrowding means that prisoners are unable to practice social distancing and are particularly at risk of contracting deadly viruses. These releases of prisoners pose important questions– if governments are able to release these carefully selected prisoners, was it necessary to place these offenders in overcrowded prisons to begin with? Do crimes fit the punishment prescribed? Could there perhaps be a better way in which governments could deal with these offenders? If there are, are these unnecessary custodial sentences imposed on citizens of member states a violation of Article 3 of the Universal Declaration of Human Rights (UDHR) and Article 5 of the European Convention of Human Rights (ECHR) which give rights to liberty? This article seeks to examine these questions.

FACTS ABOUT CRIMINAL JUSTICE SYSTEMS

It is important to recognise that what is regarded as a crime and what punishment should be prescribed to different crimes defers from one country to another. While one country might regard carrying firearms as a right, another could deem it a criminal offence. Every country has its own hierarchy of crimes. Theoretically, in a perfect democracy, the majority has the freedom to dictate the laws regulating society, set what behaviours are considered unlawful, and prescribe the undesirability as well as the seriousness that should be placed on these conducts.

However, in the real world, the freedom to do so is done at the expense of appalling prison conditions and high costs to taxpayers. The UK’s Ministry of Justice produced a 2019 Report showing that the annual expenditure for prisons and the costs incurred per prisoner are approximately £3.4bn and £41,000 respectively. As there are high prices attached to incarceration, both figuratively and literally especially in the current crisis, it is only right that governments reflect on the criminal justice system and the use of custodial sentences on varying severity of crimes. 

COVID-19 AND PRISON RELEASE

In response to the virus, many countries, such as the United States, have developed a set of criteria and methods in determining which prisoners to be released to ensure public safety. These usually consist of prisoners that are non-violent and pose low-risks to society. Conditions such as tagging and home-confinement have been attached to released prisoners. This suggests that countries are incarcerating offenders who are “low-risk” and “non-violent”. In England and Wales, a 2019 report showed that 69% of prisoners were incarcerated for committing non-violent offences. Given the high cost mentioned, perhaps governments should adopt and continue the very methods they have implemented beyond the pandemic in holding offenders responsible for their crimes. The question then turns to the importance of imprisonment and whether other methods of punishment are able to fulfil the purposes of incarceration.  

NON-VIOLENT CRIMES AND THE NEED FOR CUSTODIAL SENTENCES

Deterrence

One of the main functions of prisons is to deter criminal behaviour. The argument goes that it is through incarceration that people are deterred from committing crimes. However, research from various nations demonstrates that it is the certainty of punishment rather than the severity of punishment that produces a stronger deterrent effect. In the research commissioned by the British Home Office, the Institute of Criminology at Cambridge University concluded that there is no basis to find that increasing the severity of sentences is capable of enhancing deterrent effects. Rather, it was found that the certainty of punishment was associated with deterrence. Whilst this still means that the certainty of imprisonment would deter criminal activities, it also means that mere certainty of other sorts of sanctions would be effective at producing effects of deterrence. 

Rehabilitation and Public Safety

Research suggests that short prison sentences that are lesser than 12 months are less effective as compared to community sentences when it comes to reducing reoffending. Yet, in 2019, more half those who were in custody in the UK were given sentences amounting to 6 months or less. In Kenya, approximately 40% of prisoners are held in prisons pre-trial, where a large number were arrested for petty offences which would render sentences of 6 months or less. 

Studies have been conducted to examine the effects of imposing long periods of imprisonment. It was found that longer prison sentences were associated with an increase in recidivism. Similarly, higher rates of recidivism were found in imprisonment as compared to community-based sanctions which generally requires lower costs to maintain. This is because imprisonment encourages institutionalisation and promotes reoffending. Naturally, with high recidivism rates, the threat to public safety similarly heightens.

PRISON SYSTEMS AND HUMAN RIGHTS

Thus far, it has been argued that prisons are overcrowded, incubators of the virus, ineffective, and unnecessary for some crimes. The ECHR, signed by 47 member states of the Council of Europe requires member states to give effect to the rights and freedoms included in section 1 of the ECHR. This includes Article 5 – the right to liberty. 

Article 5 aims to ensure that no one is deprived of liberty in an arbitrary manner. Nevertheless, it gives scope to deprive liberty where one is lawfully convicted for a crime. This means that in theory, there is no violation of human rights. However, although member states are afforded the freedom to deprive the liberty of offenders where a custodial sentence is imposed, as argued, member states should not freely impose incarceration upon offenders. This will ensure states are not depriving offenders of their liberty when such deprivation is excessive and unnecessary. 

Although criminals should be punished and held accountable for their criminal behaviours, it is also true that through incarceration, taxpayers are themselves punished by needing to bear the burden of maintaining expensive prisons and suffer the inadequacies of prisons in rehabilitating offenders. 

Cher is an aspiring barrister and a first-year LLB student at the University of Bristol. She is currently the Vice President of the University of Bristol Bar Society and a Student Advisor at the University of Bristol Law Clinic.

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