The international community has been showing welcome interest in how to improve prisons. A new International Committee of the Red Cross (ICRC) publication Towards Humane Prisons sets out principles for prison design which complement the technical planning guidance produced by the United Nations Office for Project Services (UNOPS) in 2016. The last three years have seen the UN’s Office on Drugs and Crime (UNODC) publish handbooks on managing high risk and violent extremist prisoners, developing prison-based rehabilitation programmes and combating corruption in prisons. Civil society organisations have been active in producing guidance documents on matters such as tackling the mental health needs of prisoners, and undertaking inspections after serious incidents have taken place in prisons.
One important driver of these developments has been the Nelson Mandela Rules (NMR) – revised standard minimum rules adopted by the UN General Assembly at the end of 2015. Both the lengthy process of revision and the launch of the rules have helped to raise the profile of the harsh and damaging prison conditions which prevail across much of the world. The NMR themselves have highlighted the need for countries to modernise their prison laws, invest properly in infrastructure and personnel and improve training for those who work in prisons.
If prison reform activities are to stand any chance of success, what’s needed now is a similar exercise in respect of alternatives to prison. As the ICRC guide puts it “Considering the human, social and financial costs of detention, prison should only be used as a last resort and that alternatives to detention should be more seriously explored and developed”. Penal Reform International’s latest Global Prison Trends study reports that the use of non-custodial measures has expanded in recent years, particularly for low-level offending; but crucially it points out that there is not necessarily a correlation between reducing prison population rates and increasing community sanctions.
While many countries have fines, probation, community service or suspended sentences on the books, their use by the courts and implementation on the ground vary enormously. Alternatives to pre- trial detention for suspects awaiting trial and systems of parole for prisoners serving long sentences are also patchy, often failing to play the role they should.
There are international norms on alternatives in the form of the UN Standard Minimum Rules for Non-custodial Measures, the so called Tokyo Rules, dating from 1990. These aim to promote the use of alternatives to prison, provide minimum safeguards for persons subject to them and encourage greater community involvement in the treatment of offenders. But the Tokyo Rules are little known and need both publicising and updating.
There is scope for instance in reflecting recent developments in restorative justice which enable offenders to make amends to the victims of their wrongdoing; and for revised rules to stress the need for better ways of dealing with alleged and convicted offenders with special needs and vulnerabilities- such as people with mental health and addiction problems whose conditions can be worsened by imprisonment. The current rules make no mention of electronic monitoring – or tagging- which plays a growing role in many jurisdictions.
If there’s a strong case for targeted revisions to the Tokyo Rules, there’s also an opportunity coming up. The 14th United Nations Congress on Crime Prevention and Criminal Justice will be hosted by the government of Japan in 2020, albeit in Kyoto rather than the capital city. But 30 years after the rules were adopted, it would be a highly appropriate forum in which to promote the use of alternatives to prison. There may not be time to complete any revision process by then, but there is certainly time to start one
The draft agenda for the Congress includes an item on integrated approaches to challenges facing the criminal justice system. Of these challenges, prison overcrowding is among the largest. It’s not one that can be solved by prison building, however humane that may be.
JUL