No one is unaffected by Covid-19, but prisoners and detainees are acutely vulnerable to its impact, and their current treatment forces us to ask whether government responses are adequate.   

UNHYGENIC PRISONS RISK THE SPREAD OF COVID-19

 Over the past two months, both Human Rights Watch and the Council of Europe’s Commissioner for Human Rights have released statements outlining the risks posed by coronavirus to detainees across the globe.

 The heightened vulnerability of prisoners during the pandemic can be ascribed to the high-risk environments in which they live, forced into closed proximity with others. Detention centres are frequently unhygienic, poorly ventilated and overcrowded. All these factors foster a breeding ground for the highly contagious virus.

For most, following the basic World Health Organisation (WHO) guidance of regular hand washing and social distancing is straightforward.

Prisoners, however, must rely on prison authorities providing adequate access to sanitation if they wish to minimise their exposure risk.

Although Rule 24 of the Nelson Mandela Rules requires that medical provisions in prisons are of the same standard as those available in the community, Penal Reform International has stated that this is not the case under ordinary circumstances and even less so during the Covid-19 crisis.

Moreover, prisoners have “a greater underlying burden of disease” according to WHO guidance on prevention and control of Covid-19 in prisons. Persistent exposure to unhygienic conditions, poor nutrition, smoking, and immune systems weakened from escalated stress are all factors which increase prisoner vulnerability to illness.

The risk of infection is therefore amplified in these environments, not just for prisoners but also for staff and visitors, due to the highly contagious nature of the virus.

INTERNATIONAL BODIES ARE ADVISING GOVERNMENTS ON HOW TO RESPOND

Resultantly, NGOs across the world have advocated for prisoners to be considered in efforts to curb the spread of Covid-19, but are governments listening?

On 15th March 2020, the WHO released interim guidance on preparedness, prevention and control of Covid-19. This included preventative measures for inside prisons and other places of deprivation, such as personal protection measures, use of masks, environmental cleaning and disinfecting and a case-by-case assessment of restricting visitation rights and access.

As discussed, these measures are much harder to implement in over-crowded facilities than in free communities.

On 25th March 2020, the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment published advice, which holds paramount the protection of the rights of prisoners, their families and detention and health-care staff. It addresses the increased violence, decline in mental health and ultimate loss of life caused by the existing measures in place and calls on States to make further changes to their legal framework.

Most notably, these guidelines call for the reduction in prison populations where possible through “early, provisional or temporary release”.

When adapting criminal justice policies to decongest jails and so limit the spread of Covid-19, proportionality demands that the severity of the crime committed is balanced against pre-existing health conditions, pregnancy and familial relations.

It has been further stated by the Council of Europe’s Commissioner for Human Rights that detainees who remain in prison must be treated in a “non-discriminatory, necessary, proportionate, time-limited and transparent” manner, meaning the previous WHO guidance should still be taken into consideration and implemented.

A CLOSER LOOK AT THE USA, THE UK, AND TURKEY

States across the globe, particularly more advanced countries like the USA, UK, Turkey, and Chile, have adapted their justice systems to allow for this early release measure, but not without fault or complication.

In the UK, more than 400 immigration detainees have been released, but there are increasing concerns that the Home Office is failing to follow through with its obligations to accommodate them. Detention Action and Medical Justice, both UK-based charities, have stated that there is a greater responsibility on the Home Office to ensure that after release, newly-released detainees are provided with accommodation and support so “they can comply with the requirements for social distancing and self-isolation.” It seems the system of reviewing each individual’s circumstances on a ‘case-by-case basis’ is not as fool proof as intended and leaves many without a decision or as vulnerable as they were inside the detention centres.

Meanwhile in the USA, issues of discrimination and racial bias are unfolding in the government’s order to the federal prison system to grant early release. The order states that the prison system can only prioritise early release for those who pass (that is, score as low as possible) on a risk assessment algorithm called PATTERN. This algorithm, introduced by the First Step Act in 2018, has allegedly not been fully tested or independently used prior to the pandemic.

According to an internal assessment conducted by the Justice Department “only 7% of black men…would be considered low risk enough to get out using PATTERN”. This is compared to 30% of white men, evidencing the inbuilt bias of the assessment. An algorithm as such prevents the proportionality and discretion called for in the UN guidance from being truly exercised. Instead, because of inherent inequalities and bias that exist throughout the different stages of the criminal justice system, many incarcerated people across the country will be left inside, despite being more vulnerable to Covid-19.

Similarly, in Turkey, a country known for its drastically overcrowded prisons, there are growing concerns that the recent amendments made to the Law on the Execution of Sentences and Security Measures exclude many who should be considered for release. These include people in pre-trial detention, a measure invoked when there are no alternative means to custody. In these cases, the prospect of early or temporary release would bring a different, but hugely necessary, form of justice to many.

These examples show that tokenistic adjustments for prisoners in the coronavirus era fall well short of mitigating the risks of the virus. States must review their policies for structural bias, and ensure that vulnerable detained populations are adequately cared for at this time.

Leela is a recent LLB graduate from King’s College London. She currently works in the legal charity sector and has a keen interest in women’s rights, discrimination and privacy.

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