The Impact of Covid-19 on Prison Conditions and Penal Policy

Frieder Dünkel, Stefan Harrendorf, Dirk van Zyl Smit, Frieder Dunkel, Stefan Harrendorf, Dirk van Zyl Smit, Frieder Dünkel, Frieder Dunkel, Stefan Harrendorf, Dirk van Zyl Smit

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9780367769734
• eBook ISBN: 9781000553611
• Topic: Social Sciences
• Subtopic: Criminal Law
• Index: Social Sciences

The Impact of COVID-19 on Prison Conditions and Penal Policy presents the results of a worldwide exchange of information on the impact of COVID-19 in prisons. It also focuses on the human rights questions that have been raised during the pandemic, relating to the treatment of prisoners in institutions for both juveniles and adults worldwide.

The first part brings together the findings and conclusions of leading prison academics and practitioners, presenting national reports with information on the prison system, prison population rates, how COVID-19 was and is managed in prisons, and its impact on living conditions inside prisons and on reintegration programmes. Forty-four countries are covered – many in Europe, but also Argentina, Brazil, Chile, Colombia, Perú, Costa Rica, Canada, the USA, Kenya, South Africa, China, India, Japan, Australia and New Zealand. In the second part, thematic chapters concentrate explicitly on the impact of the pandemic on the application of international human rights standards in prisons and on worldwide prison population rates. The book concludes by drawing out the commonalities and diverging practices between jurisdictions, discussing the impact of measures introduced and reflecting on what could be learnt from policies that emerged during the pandemic. Particular attention is paid to whether "reductionist" strategies that emerged during the pandemic can be used to counteract mass incarceration and prison overcrowding in the future.

Although the book reflects the situation until mid 2021, after the second and during the third wave of the pandemic, it is highly relevant to the current situation, as the living conditions in prisons did not change significantly during the following waves, which showed high infection rates (in particular in the general population), but increased vaccination rates, too. In prisons, problems the pandemic raises have an even greater impact than for the general society.

Revealing many notable and interesting changes in prison life and in release programmes, this book is essential reading for students and scholars of penology, criminology, law, sociology and public health. It will also appeal to criminal justice practitioners and policy makers.

1 Introduction

Frieder Dünkel, Stefan Harrendorf and Dirk van Zyl Smit

DOI: 10.4324/9781003169178-1

1 Aims and history of the book project

The pandemic caused by COVID-19 has had a major impact on prisoners, one of the most vulnerable groups in all societies. This timely book presents the results of a worldwide exchange of information on the situation in prisons in 48 countries or jurisdictions since the beginning of the pandemic in February/March 2020. It focusses on the human rights questions that have been raised during the pandemic, relating to the living conditions of inmates in prisons worldwide.

The main goals of the book are to:

• Create new legal and penological knowledge about the measures introduced to reduce prison population rates and manage persons in custody during the pandemic;
• Provide accurate and contextualised information by authors from and with expertise in specific penal systems;
• Generate knowledge about the different approaches of jurisdictions across the globe;
• Analyse the role of human rights law and standards in the response to COVID-19 by national, regional and international authorities and bodies; and
• Explore the potential for reductionist penal reform post-COVID-19, built on expanded diversionary measures, non-custodial alternative sanctions and early release mechanisms that emerged during the pandemic.

The information presented follows from an initiative taken by Frieder Dünkel at the University of Greifswald in April 2020. At that time, dramatic changes to prison policy were becoming visible, as prison authorities throughout the world struggled to deal with the impact of COVID-19 on their institutions. Many countries had ceased executing short sentences of imprisonment, as they recognised that they create a huge influx of new inmates, thus increasing the danger of infection inside prisons. Furthermore, contacts with the outside world through visits and short-term prison leave were suspended or restricted, which had a major impact on the resettlement process based on a gradual transfer from prisons into society (Dünkel et al., 2019).

From mid-April 2020, the initiators of the present study started to circulate a questionnaire to an international network of prison researchers and practitioners. Early questions about reactions to the COVID-19 pandemic were as follows:

“Is consideration being given to, or are practices being introduced in your country of:

1. not executing certain prison sentences (probably short-term sentences);
2. releasing certain groups of offenders (short-term prisoners such as fine defaulters, elderly prisoners, female prisoners with children, etc.) and bringing forward early release (with or without home detention);
3. restricting contacts with the outside world (visits, prison leave);
4. expanding internet or mobile phone communication;
5. making other changes due to the COVID-19 pandemic in prison regimes (living conditions in general, solitary confinement, quarantine for incoming prisoners, reduced working or recreational activities, therapies, etc.); and
6. introducing changes in prison or penal law with regard to the issues mentioned above?”

As Mulgrew and van Zyl Smit point out in Chapter 47, the “WHO, UN Office for Drugs and Crime, the SPT, CPT and UN High Commissioner for Human Rights have all stressed the human rights principles that should guide the review of restrictions on prison regimes: restrictions implemented in response to COVID-19 must be necessary, evidence-based, proportionate to the health emergency, non-arbitrary, respectful of human dignity, have a legal basis and be restricted in time.” The pandemic has led to major restrictions on prisoners’ rights, and it is evident from the perspective of international human rights that these restrictions must be proportionate and limited in time. This book provides the basis for an evaluation of the recommendations of human rights organisations during the pandemic.

As summarised in Chapter 49 of this book, many countries drastically reduced activities in prison. Some countries closed down their prison work facilities and restricted communication of prisoners by locking them in their cells, sometimes for 23 hours a day. This can be seen as inhuman and degrading treatment according to international human rights standards and the standards set by the CPT (see also for the jurisprudence of the European Court of Human Rights, van Zyl Smit and Snacken, 2009). Other countries found ways of limiting contacts between prisoners, by requiring them to wear masks and to keep a fixed distance from other inmates. However, some countries reported that they did not have enough masks, neither for prisoners nor for staff members. As a result, in some cases, staff members refused to go to work as they did not feel safe.

Restrictions did not become more severe everywhere. From the beginning of the pandemic, some German prisons with open regimes started to use prison leave of from two weeks up to six months to send prisoners home for a time. There had been provision for such prison leave in Federal state prison laws for some years, but the regulations had almost never been applied in practice. Turkey, the country with the highest prison population in Europe, moderated the Law on the Enforcement of Sentences in April 2020 already, expanding early release, the transfer to open prisons and the execution of sentences under home detention. About one third of the prison population was sent “on leave” to home detention (see Akdeniz and Aydinoglu, Chapter 44). These examples demonstrate that COVID-19 made things possible that were unthinkable before. The same happened with allowing video calls through internet platforms or with mobile phones handed out to prisoners, which had been taboo before the pandemic.

In sum, we found many interesting changes in prison life and in resettlement programmes, both in a good and in a bad direction. Many of these need to be explored further, in a comprehensive but critical way.

2 Outline and methodology of the present study

The book does not only focus on changes inside prisons and of prison policy, but also explores the possibilities for a wider change in penal policy from a reductionist perspective – the aim to reduce prison population rates and, especially, the influx of prisoners who face short-term imprisonment (pre-trial as well as sentenced prisoners). The COVID-19-induced pandemic has illustrated that many countries overuse imprisonment. It is not always a measure of last resort, but also used for persons sentenced for minor or petty offences, such as shoplifting, fare evasion, drug possession for personal use and traffic offences. The German practice of incarcerating fine defaulters is an extreme and much debated example (see Dünkel and Morgenstern in Chapter 18). The pandemic has demonstrated that the non-execution of such sentences can be managed without losing trust in the legitimacy of penal law. One of the aims of the book is to illustrate that imposing and executing such prison sentences is unnecessary. The so-called back-door strategies to reduce prison populations by extending early release schemes and the use of home detention (not necessarily coupled with electronic monitoring (EM)) may be seen as a way out of unjustified mass incarceration, too (see Padfield, van Zyl Smit and Dünkel, 2010; Herzog-Evans, 2014; Dünkel et al., 2019). However, mass supervision by the overuse of probationary supervision or EM should also be a matter of concern (see the “COVID-19 related statement” released by the Council for Penological Co-operation (PC-CP) of the Council of Europe on 17 April 2020; as to EM, see Dünkel, Thiele and Treig, 2017).

The methodology used for this comparative study is a classical one, relying on individual country reports on the one hand and overarching, comparative chapters on the other (for a discussion of the advantages and disadvantages of such a methodology, see Chapter 49). In its first part, this book brings together the results and ideas of leading prison academics and practitioners (see Chapters 2–45). The book presents national reports about the impact of the COVID-19 pandemic on prisons and penal policy in 48 countries/jurisdictions, most of them in Europe. But the important non-European jurisdictions of Argentina, Brazil, Chile, Colombia, Perú and Costa Rica (South and Central America), Canada and the USA (North America), Kenya and South Africa (Africa), China, India and Japan (Asia), as well as Australia and New Zealand (Australasia), are also represented. Together, they cover a large majority of the worldwide prison population. The reports by leading scholars and practitioners in prison research in their countries reveal the dynamics of the COVID-19-induced crisis and discuss how it was and is managed inside prisons and in penal and penitentiary policy.

The national book chapters in the first part (Chapters 2–45) of the book follow broadly the same outline:

1. Introduction – general situation of the prison system
   (Prison population rates and the general penal climate; expansionist or reductionist policies before COVID-19; prison overcrowding; general assessment of living conditions; developments after the emergence of COVID-19; COVID-19 infections and deaths of prisoners and prison staff members with reference to the development of the pandemic in the general society)
2. Prison and penal policy concerning the execution of prison sentences during the COVID-19-induced crisis
   (Non-execution of certain prison sentences [short-term sentences, sentences for fine defaulters]; early release schemes; release of certain groups of offenders such as elderly or female prisoners; penal law reforms in this context, e.g. expanding alternative “community sanctions” or early release; in addition, reforms in administrative and penal law: Criminalisation of non-compliance to COVID-19-induced contact restrictions inside and outside prisons)
3. Restrictions of contact with the outside world
   (Visits; prison leave; transfers to open prisons and prison regimes; etc.)
4. Restrictions inside prisons
   (Work; recreational activities; time spent outside cells; lock-up times in cells; isolation of certain prisoners)
5. Compensatory measures
   (Including more frequent and longer telephone calls; use of mobile phones; internet communication; etc.)
6. Legal basis for restrictions and relaxations of the prison regime
   (Prison law regulations and legal changes; accountability of prisons; involvement of judges, ombudspersons, inspectors; role of international human rights standards; jurisprudence of courts controlling restrictions and/or granting compensatory measures)
7. Returning to normal
   (Possible long-term effects of COVID-19 on the prison regime and on penal and prison policies; lessons learned)

In the second part of the book, thematic chapters concentrate explicitly on several aspects of the impact of the pandemic in prisons and in penal and penitentiary policy. The treatment of prisoners of the international courts by the different “host” countries and international detention facilities is addressed by Roisin Mulgrew in Chapter 46. In Chapter 47, Roisin Mulgrew and Dirk van Zyl Smit explore whether the COVID-19-related restrictions conform to international human rights standards (and how ways can be found of limiting the interaction of prisoners by means other than strict isolation or lockdown in solitary confinement. In Chapter 48, Catherine Heard considers the worldwide prison population rates before and during the pandemic and lessons to be learnt about over-incarceration and its consequences for prison health. Frieder Dünkel, Stefan Harrendorf and Dirk van Zyl Smit summarise the national reports and draw out the commonalities and diverging practices between jurisdictions (and some suggested reasons for these), the impacts of measures introduced and also differences between what was proposed and what actually transpired. They also explore positive changes of prison life that should be preserved such as expanded forms of contact with the outside world through digital devices and internet communication (Chapter 49). Finally, in Chapter 50, Frieder Dünkel and Sonja Snacken raise the question of what can be learnt from the experience with reducing the prison population in order to prevent the spreading of COVID-19 in prisons. They reflect on general issues of prison and penal policy, proposing a reductionist approach of penal moderation to counteract mass incarceration and prison overcrowding beyond the pandemic crisis in the future.

Researching the impact of a major international pandemic on prisons while it is happening is not without its challenges. Initially, when drafting the book proposal and while our contributors were writing the substantive chapters, we thought that by the end of December 2020, the pandemic would have been overcome and that we would be returning to “normal.” However, before the book was finalised, the world experienced a second and, in many countries, also a third wave of COVID-19. When we completed this introduction in July 2021, infection rates had decreased in many parts of the world, especially in the northern hemisphere, while vaccination rates were on the rise. At the time of correcting the proofs for this introduction in January 2022, however, the world has seen several more waves of COVID-19. A third round of (booster) vaccination is currently being administered, and it is still unknown when this global crisis will be truly over. Therefore, some of the conclusions might be preliminary. However, we tried to bring the accounts up to date as far as possible, for most country chapters until the end of March 2021. For some chapters, it was possible to update data partially up to January 2022.

References

• Dünkel, F., Pruin, I., Storgaard, A., and Weber, J. (2019) (Eds.): Prisoner Resettlement in Europe. Abington, Oxon: Routledge.
• Dünkel, F., Thiele, C., and Treig, J. (2017) (Eds.): Elektronische Überwachung von Straffälligen im europäischen Vergleich. Mönchengladbach: Forum Verlag Godesberg.
• Herzog-Evans, M. (2014) (Ed.): Offender-release and Supervision: The Role of Courts and the Use of Discretion. AH Oisterwijk: Wolf Legal Publishers.
• Padfield, N., van Zyl Smit, D., and Dünkel, F. (2010) (Eds.): Release from Prison. European Policy and Practice. Cullompton: Willan Publishing.
• van Zyl Smit, D., and Snacken, S. (2009): Principles of European Prison Law and Policy. Penology and Human Rights. Oxford: Oxford University Press.

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Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Acknowledgements
• 1 Introduction
• 2 Australia
• 3 Austria
• 4 Belgium
• 5 Brazil
• 6 Canada
• 7 Chile
• 8 China
• 9 Latin American prisons during the COVID-19 pandemic: the cases of Colombia, Bolivia, Perú and Argentina
• 10 Costa Rica
• 11 Croatia
• 12 Czech Republic
• 13 Denmark
• 14 England and Wales
• 15 Estonia
• 16 Finland
• 17 France
• 18 Germany
• 19 Greece
• 20 Hungary
• 21 India
• 22 Ireland North and South
• 23 Italy
• 24 Japan
• 25 Kenya
• 26 Latvia
• 27 Lithuania
• 28 The Netherlands
• 29 New Zeland
• 30 North Macedonia
• 31 Norway
• 32 Poland
• 33 Portugal
• 34 Romania
• 35 Russia
• 36 Scotland
• 37 Serbia
• 38 Slovakia
• 39 Slovenia
• 40 South Africa
• 41 Spain
• 42 Sweden
• 43 Switzerland
• 44 Turkey
• 45 The US government’s response to COVID-19 outbreaks in federal, state, and local corrections
• 46 International prisoners and the pandemic – seeking release, improved conditions and family contact before international criminal courts
• 47 International human rights and COVID-19 in prisons: medical isolation and independent oversight
• 48 Prison populations before and during the pandemic: lessons from COVID-19 about over-incarceration and its consequences for health
• 49 Summary analysis of the state of prisons and penal policies before, during and after the COVID-19 pandemic
• 50 What could we learn from COVID-19? – A reductionist and penal moderation approach665
• Index