Nelson Mandela famously said that, “No one truly knows a nation until one has been inside its jails. A nation should be judged not by how it treats its highest citizens but its lowest ones.” The advent of the COVID-19 pandemic poses many human rights challenges but none more so than for those in prisons, deprived of their liberty. For this vulnerable community, the human rights impact of the pandemic is amplified and felt all the more acutely, especially given states’ positive obligations under international human rights law to protect those in its custody. These wider human rights challenges have been well-documented by intergovernmental organisations (IGOs) including the World Health Organisation (WHO), the UN Office of the High Commissioner for Human Rights, and the Council of Europe as well civil society organisations working on prison reform and criminal justice.
There are currently over 11 million people in prison globally on any given day according to the latest Global Prison Trends Report 2020 from Penal Reform International. The spread of COVID-19 within the prison estate globally has been rapid and is of grave concern with reported cases in Canada, Iran, Pakistan, Moldova, and the United States to name a few. Women’s prisons have not been immune from the outbreak and the shocking figures speak for themselves: for example, in Joliette Institution for Women in Quebec, Canada some 60% of the prisoners have been infected with COVID-19. The outbreaks in the prison setting presents a public health challenge on a vast scale as these individuals will, in due course, return to the wider community. The imperative to “get it right” for prisoners should weigh heavily upon authorities, and interventions in prison will invariably impact upon the wider health of the community at large.
This article examines the situation of the women’s prison population, which has specific needs and is especially vulnerable in detention, amidst the COVID-19 crisis. In criminal justice systems that are traditionally gender blind, how have women in prison fared during the global pandemic?
INTERNATIONAL LEGAL STANDARDS FOR PRISONS
There is a robust legal framework protecting the rights of prisoners—most importantly the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), a set of non-binding standards, which set out a minimumuniversal standard for the treatment of prisoners and contains rules that pertain to all aspects of prison life. [1] There are some 122 rules in total. The Mandela Rules were adopted by the UN General Assembly (UNGA) in 1957 and were subsequently revised and re-adopted unanimously in 2015. These rules govern every aspect of a prisoner’s life including admission to prison, access to healthcare services, accommodating special needs, contact with the outside world, permissible and non-permissible punishments, day-to-day activities, and eventual release from prison. Further, the Mandela Rules contain precise rules pertaining to prison management, including rules on discipline and sanctions, prison staff employment and training, and record-keeping. Most importantly, the Mandela Rules are grounded in principles of compassion and dignity.
The rights of women accused of and imprisoned for crimes are set out in the UN Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders, known as the Bangkok Rules, which were unanimously adopted by the UN in 2010. These 70 rules set out gender sensitive international standards for the treatment of women offenders and prisoners in detention (including those in pre-trial detention or post-sentence). Importantly, the Bangkok Rules do not replace the Mandela Rules but are an adjunct to them, providing additional human rights protections to women and girls in conflict with the law. These rules, as the name suggest, also address the issue of gender sensitive alternatives to imprisonment.
WOMEN IN PRISON: AN OVERVIEW
According to Jackie Turton, Professor in the Department of Sociology at the University of Essex, “it has long been acknowledged that our criminal justice system was originally designed by men, for men and that it is still largely dominated by men. As a result, women get slotted in to a framework that treats them like men, and fails to recognise some key differences and complexities.” Put simply: women’s experience of prison and incarceration is palpably different than men’s.
The female prison population continues to grow exponentially around the world; it currently stands at approximately 700,000, which accounts for a 50 percent rise in numbers since the year 2000. The majority of women are imprisoned for non-violent crimes (for example, drug-related offences, petty crimes, and economic offences). Many female offenders typically come from disadvantaged backgrounds with histories of poverty, low education, homelessness, complex health needs, substance dependence, or early trauma, including physical or sexual abuse.
In addition to the heightened risk of physical and sexual abuse for women in prison, they are also more prone to self-harm and suicide and receive sub-par healthcare. Women also face discrimination in terms of rehabilitation and reintegration opportunities. A recent UN Global Study on Children Deprived of Liberty found that girls are particularly vulnerable to violence, including when in police custody and pre-trial detention. Another recent report by the Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions found that sexual violence in detention is a “persistent problem” in many countries.
PRISON HEALTH IS PUBLIC HEALTH
The right to health does not stop at the prison gates. This is clearly provided for under binding international human rights law as well as the Mandela Rules. Yet it is widely accepted that people in prison are in poorer health than those in the wider community. In particular, infectious diseases run rampant inside prisons, including Tuberculosis (TB), HIV, and Hepatitis C; estimates say that 2.8 percent of prisoners live with active TB, much higher than 0.2 percent of the general population. People in prison also age at a faster rate than in the wider community, and the “greying” of the prison population (commonly categorised at age 50 plus) has trended upward in recent years. The overwhelming poor health of people in prison combined with an ageing population makes those in prisons particularly vulnerable to COVID-19.
The situation is exacerbated by prison healthcare systems, which, in many parts of the world, are poor, under resourced, and stretched to capacity at the best of times. As noted by the Global Prison Trends Report 2020, in Bangladesh there are some ten doctors for a total of 86 prisons across the country. Poor healthcare is also an issue in more developed countries, including those in Europe. The UN Committee Against Torture recently criticised Portugal for its poor prison healthcare services. Poor prison conditions and overcrowding only exacerbates the problem with sub-standard hygiene and ventilation systems in many prison facilities. In 22 countries, prisons operate at over 200 percent occupancy rate.
COVID-19 will put these systems under even greater strain as it becomes difficult to provide the requisite healthcare to manage the outbreak of a virus. In many prisons, access to the essentials like soap, water, and hand sanitiser is limited, and prisoners cannot apply social distancing measures in a meaningful way—it is simply a luxury not afforded to them.
The situation for women in prison is even more acute. Women need additional support for reproductive health issues, including menstruation, pregnancy, pre and postnatal care, and menopause. They may also have increased health needs because of their backgrounds, which can include drug use or sex work. In terms of healthcare, the Bangkok Rules are clear that prisons must provide incarcerated women with equivalent healthcare to that of the wider community, including access to gender-specific care.
The imprisonment of mothers with children brings its own challenges not least of which is ensuring adequate resources and infrastructure for babies and children. There are approximately 19,000 children living in prison with their mothers according to the UN Global Study on Children Deprived of Liberty.
PANDEMIC-SPECIFIC CHALLENGES
The pandemic has had a distinct impact on incarcerated women. One of the most pressing issues is the suspension of visits by family members in a bid to stem the spread of the virus in prison. Many countries, including the United Arab Emirates, the United States, and Bangladesh, have implemented such restrictions. International human rights standards, though, emphasise the importance of contact with the outside world for people in prison. For women in particular, the Bangkok Rules note that such contact should be “encouraged and facilitated by all reasonable means”. These visits are a critical lifeline for women who rely on them for essential items including food, clothing, and hygiene products. Moreover, such visits allow for all-important contact between women and their children. Some facilities are establishing alternate measures to enable family contact through emails and video calls. For example, in Trinidad and Tobago women in one maximum-security facility, Golden Grove, may receive one ten-minute video call every two weeks.
In the interim, it has fallen to welfare organisations to step in and provide support to women in prison. In March 2020, Kenyan authorities suspended visits to their 107 prison institutions, and, at the time of writing, this suspension remains in place. In response, the Faraja Foundation, a Kenyan-based humanitarian NGO, works closely with the Kenya Prison services to provide toiletries to women prisoners. In addition, the Foundation has established an e-counselling service offering psychosocial support to prisoners and prison staff as a support tool through the crisis.
In some cases, the lack of adequate healthcare has led to tensions in women’s prisons. In Greece, women prisoners at the Eleonas’ Womens’ Prison burned mattresses and called for measures to protect their health and reduce overcrowding after a detainee died of suspected COVID-19.
Some authorities appear to be doing their best to take the necessary preventive measures to protect women in prison. In Kenya the authorities have purchased gloves and facemasks and have set aside an isolation room to quarantine women prisoners presenting with COVID-19 symptoms. In addition, new arrivals to the women’s prison will be quarantined for 14 days, educated on safe hygiene practices, and then checked by medical professionals and certified fit before being released into the general population. However, there are attendant risks with quarantining prisoners and any such measures should be managed carefully to ensure that prisoners are not subject to solitary confinement, which, under the Mandela Rules, is defined as 22 hours or more a day “without meaningful human contact”.
Such measures should only be applied on the grounds of medical necessity and they must comply with key human rights principles of legality, proportionality, oversight, time-limitation, and non-discrimination. In Canada, there have been worrying reports that prison officers are using Structured Intervention Units (formerly known as Segregation Units) to isolate women who are ill, clearly raising questions around compliance with international human rights standards.
But the pandemic affects not only women in prison but also prison staff and healthcare professionals working with prisons, some of who are also women. The authorities have a responsibility to staff to ensure that they are working in a safe environment, and the risks to prison staff of contracting COVID-19 are very real. In the United States alone over 5,000 state and federal correctional officers have contracted the virus. Infected prison staff present a clear risk to those incarcerated with whom they work, and, on the contrary, healthy staff may also work in close proximity to prisoners with COVID-19. As such, both staff and those in prison should be provided with the adequate soap, hand sanitiser, and, where necessary, personal protective equipment (PPE).
A worrying by-product of the pandemic has been the exploitative use of prison labour to make masks or hand sanitiser gel. While exploitative prison labour is not new, this wave has hit women particularly hard. A recent report documented women prisoners in Lo Wu prison in Hong Kong working six days a week for shifts of six to 10 hours, including night shifts. The women prisoners complained about the low wages (approximately £80 per month), which fall far below the minimum wage, and the impact on their own health. The Mandela Rules make clear that prisoners should not be held in slavery or servitude.
POLICY RECOMMENDATIONS
IGOs and civil society organisations have issued guidance, recommendations, and policy briefings on the control of COVID-19 in the detention setting and the protection of prisoners’ human rights. [2] Most recently, the WHO, UNAIDs, UN Office of Drugs and Crime, and the UN Office of the High Commissioner of Human Rights issued a joint statementon COVID-19 in prison and other closed settings in which they call on political leaders to note the heightened vulnerability of prisoners. Of particular note, these bodies ask political leaders to “guarantee that adequate preventive measures are in place to ensure a gender-responsive approach” to the pandemic. In a similar vein, the Council of Europe’s Commissioner for Human Rights has called for particular attention to vulnerable detainees. Penal Reform International, a leading civil society voice on criminal justice, has urged the criminal justice sector to be guided by key principles of equality, transparency, humanity, and to “do no harm” in managing the pandemic.
In response to the pandemic, many states have taken urgent measures to decongest their prisons through early release, temporary release, or commutation of sentences. In Iran, prisons released of over 85,000 incarcerated persons. Afghanistan released 10,000 prisoners in March 2020. In Ethiopia, the President recently signed an amnesty decree to release more than 4,000 prisoners for those imprisoned up to three years for minor offences and those with under a year left of their sentence. The Kenyan authorities likewise have released 5,000 prisoners convicted of petty offences or with six months left of their sentence to decongest prisons—to date, 10 women prisoners have benefited from this initiative. Italy, France, and Turkey have adopted similar measures.
Whilst women in prison are strong candidates for early release, there have not been general calls for all women prisoners to be released. Rather, efforts have focused on releasing certain categories of vulnerable women, including pregnant women, those breastfeeding, young mothers, women with chronic health conditions, and women over 50. International institutions, including the UN and WHO, as well as civil society organisations like the Elizabeth Fry Society and the International Drug Policy Consortium, have strongly endorsed the calls to release vulnerable women.
Governments appear to be listening. In Ethiopia, for example, the authorities have indicated that pregnant women and mothers with babies will be released. In early April 2020 the UK Ministry of Justice announced the “End of Custody Early Release Scheme,” which—subject to a risk assessment—would see the temporary release of pregnant women who they deem do not pose a risk to the public. Women incarcerated with their infants should also be released subject to the same risk assessment. These women are still at risk, however, of being recalled to prison so long as they continue to serve a sentence. The actual figures are modest. As of 11 May 2020, the UK had released some 21 pregnant women.
Many during this time strongly advocate for the use of non-custodial measures—like bail, electronic monitoring, house arrest, monetary fines, suspended sentences, community service orders, and probation—as a way to ease and prevent prison overcrowding. Non-custodial measures are particularly applicable to the three million people in pre-trial detention globally. The UN General Assembly adopted the UN Standard Minimum Rules on the use of Non-Custodial Measures known as the Tokyo Rules on 14 December 1990 with the aim of establishing a set of principles to promote the use of non-custodial measures, like those mentioned. These options are available both pre-trial and post-sentencing. The Bangkok Rules prioritise the use of non-custodial measures for women offenders, calling on states to develop “gender specific options for diversionary measures and pretrial and sentencing alternatives”. In particular, the Rules recommend non-custodial measures for pregnant women and those with dependent children.
The pandemic provides an opportunity for criminal justice authorities to promote non-custodial measures—not only for this time but also into the future. International human rights bodies, including the Council of Europe Commissioner for Human Rights and the Inter-American Commission on Human Rights, support such measures. The WHO has called for “enhanced consideration” to be given to non-custodial measures at all stages of the criminal justice process. India, for example, has released 1,700 women on interim bail and parole in eight states in light of COVID-19’s spread.
CONCLUSION: BEYOND THE PANDEMIC
As many commentators have noted, the pandemic has shined a light on an already weak and broken criminal justice system and exposed its structural inequalities. According to Florian Irminger, Chief Executive of Penal Reform International:
Prisons systems globally were at crisis point before the coronavirus pandemic. Now prisons across the world are ticking time bombs set to be devastated by this virus because of overcrowding, lack of basic healthcare, limited access to water, …and inhumane living conditions.
Now is the time for governments around the world to recalibrate their thinking on criminal justice and redouble their efforts to improve the treatment of prisoners in line with international human rights standards. This not only includes meaningful policy change, robust contingency planning, and the adoption of a rights-based approach to prison management but also financial investment. Funding for prisons is perilously low; recent analysis by Penal Reform International shows that government expenditure in prisons across 54 countries usually amounts to less than 0.3 percent of their gross domestic product.
Further, the COVID-19 pandemic offers a golden opportunity for prison authorities to fully integrate a more gendered approach into their system and to think carefully as to whether the incarceration of women is always necessary in light of other holistic and gender sensitive, community-based options.
Many are talking about “recovering better” from the COVID-19 crisis, and this should certainly be the case for people in prison. If our new normal is focused on reducing inequalities and improving rights for all, then how we treat people in prison—women in particular—must be part of that conversation. The promising practices adopted in light of the pandemic should not just be for the now but should set a precedent going forward and become entrenched practice.
FOOTNOTES
[1] UN Standard Minimum Rules for the Treatment of Prisoners, adopted by the UN GA 70/175 on 17 December 2015. Eight substantive areas were revised in 2015: Respect for prisoners’ inherent dignity; medical and health services; disciplinary measures and sanctions; investigations of deaths and torture in custody; the protection of vulnerable groups; access to legal representation; complaints and independent inspection of prisons and the training of staff.
[2] See: Inter American Commission on Human Rights, “The IACHR urges States to guarantee the health and integrity of persons deprived of liberty and their families in the face of the COVID-19 pandemic,” 31 March 2020; Penal Reform International, Briefing Note, Coronavirus: Healthcare and human rights of people in prison, 16 March 2020; Council of Europe, Commissioner for Human Rights, Covid-19 pandemic: urgent steps are needed to protect the rights of prisoners in Europe, 6 April 2020; UN Human Commissioner for Human Rights, Covid-19 pandemic – Informal briefing to the Human Rights Council, 9 April 2020; World Health Organization, Preparedness, prevention and control of Covid-19 in prisons and other places of detention – Interim Guidance, 15 March 2020; UN Office on Drugs and Crime, Position Paper – Covid-19 preparedness and responses in prison 31 March 2020; Inter-Agency Standing Committee, Interim Guidance – Covid-19:Focus on Persons Deprived of Their Liberty, March 2020, World Health Organization and Office of High Commissioner for Human Rights
Vicki Prais is a human rights lawyer and independent human rights consultant specialising in the rights of prisoners, penal reform and dignity behind bars. She has over 20 years professional experience of working in the not-for-profit sector, Intergovernmental organisations, the UK government (UK Foreign & Commonwealth Office) and academic institutions. She is committed to improving the treatment of people in prison and their conditions of detention.