Nasrul Ismail writes that the poor health of prisoners, together with the poor living conditions found in prisons, put this population at an increased risk of COVID-19. He argues that suspending short sentences and providing for the early release of certain prisoners will allow the government to manage the potential magnitude of the issue.
The turn of the new decade saw global society enter what has been described as the “worst public health crisis for a generation”. The novel coronavirus pandemic has pushed governments into rapidly developing unprecedented measures in order to contain the spread of the virus. These responses all have something in common: prioritising the protection of vulnerable individuals with underlying health conditions. Yet although meeting the ‘vulnerable’ criterion, the prison population appears to have been side-lined from mainstream discussions.
Prisons as coronavirus incubators
Prisons, by their very nature, are isolated and contained. However, once they enter these institutions, infectious diseases spread rapidly. To date, at least nine prisons across England and Wales have registered confirmed cases of COVID-19, although the number is suspected to be higher; epidemiologists have predicted that six in ten detainees could become infected, with a death rate of 1% across the prison population being forecast.
Prisons are particularly susceptible to this coronavirus due to the poor health of their inhabitants. They are a prime target because of prisoners’ risky behaviours (e.g. smoking and drug-taking), being immunocompromised, and the presence of bloodborne viruses and tuberculosis. Environmental factors further intensify these problems. Even prior to COVID-19, overcrowded prisons had been detrimental to prisoners’ health. The latest statistics show that approximately 98% of adult prison places were in use and with prisoners living in close proximity to one another, the risk of transmitting pathogens is very high. Whilst suspected coronavirus cases were isolated, some individuals can spread infection even prior to developing symptoms. As such, outbreaks can spread easily – and rapidly – in overcrowded prisons.
The capability of prisons to fight coronavirus is affected by minimum standards of cleanliness and infection control compliance not being met. Furthermore, there are no plans to stop prisoner transfer between institutions in England and Wales.
How can governments ensure safe and secure prison environments during this pandemic without violating the rights of those in their care? To date, the policy response has resulted in restrictions of movement within and to prison establishments, prisoners’ activities being restricted to only shower, phones and exercise, and no social visits from friends and family members. Whilst these measures might be considered practical, prison riots in San Vittore prison in Milan, Unidad Penitenciaria in Argentina and La Modelo prison in Colombia indicate that they are unsustainable. The blanket restriction of movements and visits, as well as poor prison conditions, can also trigger fear and anxiety amongst prisoners.
A more viable and sustainable way to limit the spread of coronavirus in prisons is to reduce the current prison population. This requires the implementation of two proactive strategies: suspending short sentences and ordering the early release for older and female prisoners.
With regards to suspending short sentences, a key underlying fact is that England and Wales have the highest incarceration rate in Western Europe, despite recent decades of declining crime levels. The push towards longer sentences, in addition to the use of community sentences, has also contributed towards the high rate of imprisonment. Despite a shrinking budget (22% overall since 2010), prisons have been stretched to breaking point, and we are now reaping the consequences.
To reverse this trend requires new thinking and operational space by the government, for example moving the most vulnerable prisoners to less-crowded parts of the establishment, ‘cohorting’ (i.e. the gathering of potentially infected cases into a designated area), and reducing the extent to which prisoners mix. Other jurisdictions have implemented such measures. For instance, the Washington District Attorney now prioritises serious violent crimes in order to lessen the burden. With the UK government being inclined towards easing prison population pressure, suspending short sentences is a clear way forward.
Secondly, the early release of older and female prisoners could also help lessen overcrowding, which is a key risk factor of coronavirus. The global rise in ageing prison populations, longer sentencing, and delayed parole reflect the ageing populations in developed countries. Another growing minority group is female prisoners, eight in ten of whom commit non-violent offences (e.g. theft) and therefore generally attract short custodial sentences.
Many of these older and female prisoners do not pose security or public protection threats; releasing them early could improve prison population management. New York and Los Angeles have already freed vulnerable prisoners amid the coronavirus outbreak. Similarly, Spain and Iran have followed suit so as to reduce virus transmission amongst prisoners and staff. The recent ministerial intention that prisoners could be released on temporary licences or transferred to bail hostels, whilst modest, could see more than 9,000 prisoners being freed on the grounds of exceptional circumstances.
Reducing the prison population also demonstrates compliance with international policy and legal obligations. The Mandela Rules impose a duty of care on the state to protect prisoners’ health, since when an individual is deprived of their liberty, there is no other alternative but to rely on the authorities to protect their health.
Furthermore, this avoids triggering legal actions from prisoners. Legal cases such as Yarashonen v Turkey and Alimov v Turkey demonstrate that a state is in breach of Article 3 of the European Convention of Human Rights (prohibition of torture, inhuman or degrading treatment or punishment) when it fails to contain frequent outbreaks of contagious diseases, chronic overcrowding, unacceptable cleanliness levels, poor medical interventions and the psychological fear of contracting diseases. Reducing this population not only improves the capacity of prisons to deal with coronavirus outbreaks, it is also necessary, proportionate, and deferential towards individual dignity.
Acknowledging that the coronavirus pandemic is the ‘worst public health crisis for a generation’ and that vulnerable populations with underlying health conditions need utmost protection, the current crisis forces us to reflect on how we manage the prison population in England and Wales. Coronavirus is largely preventable; suspending short sentences and providing for the early release of older and female prisoners will provide the government with increased capacity to deal with the magnitude of the issue.
Nasrul Ismail is Lecturer in Criminology and an ESRC PhD Researcher in Public Health at the University of the West of England.
All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image credit: by visuals on Unsplash.