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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.

Prisons are a disaster in many parts of the world. In the USA and parts of Europe, punitive sentencing places often intolerable burdens on the custodial system and those who work in it; in Africa, failures to meet basic needs mean detention can be a death sentence for the sick and weak; in Latin America many so called self- governing prisons are run on principles of extortion and violence while in Asia brutality is often enshrined in extremely harsh regimes. While there is a growing consensus on how to improve prisons, relatively few countries have taken the necessary steps to reduce overcrowding, develop appropriate infrastructure or recruit and train the necessary staff in modern management.

This year has seen one or two rays of light   – particularly American initiatives to move away from imprisonment as a default response to wrongdoing.   Could these herald a new dawn for prison reform?

There are three reasons why creating effective and humane penal systems should take on a much greater priority in the coming year. First the UN recognised in 2015 that sustainable development depends on access to justice for all and the creation of accountable and inclusive institutions including police, courts and prisons.  The UN’s torture committee also pointed out the nexus between poverty, discrimination and imprisonment with the poorest and most marginalized individuals or groups most likely to come into contact with criminal justice one way or another.

The UN Sustainable Development Goals (SDGs) which aim to end poverty and hunger, ensure healthy lives and promote lifelong learning need to have places of detention in their sights. This is not only because of the concentrations of suffering and need prisons contain but the opportunities they provide for more positive outcomes. Prisons can do much more to produce food, teach skills or even promote enterprise- although in almost all countries these development benefits can be much more cost effectively achieved through investment in alternative sanctions such as community service rather than prison building.

Alongside the adoption of this overarching humanitarian case for prison reform, 2015 has also seen the UN relaunch the human rights case for improving the response to people in conflict with the law. The Nelson Mandela Rules adopted by the General Assembly last week emphasise that all prisoners should be treated with the respect due to their inherent dignity and value as human beings, with no prisoner subjected to, and all prisoners protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification.

The Rules include important revisions to the 1955 Standard Minimum Rules (SMR’s) in respect of healthcare in prisons, investigations of deaths in custody, disciplinary measures, professionalisation of prison staff, and independent inspections. The revised Rules also introduce for the first time in international standards a limitation on the use of solitary confinement and provide guidance on the use of searches, notably strict regulation of intrusive searches of prisoners.

Despite signing up to these standards, why, it might be asked, should the international community make any more effort to meet them than they have with the existing SMR’s?  One reason is a growing recognition that while there may be costs to treating people decently in prison, there are greater costs in not doing so. As the UN Special Rapporteur has said “Torture only breeds more crime and more terrorism” and poor treatment falling short of torture has adverse consequences too.

The most extreme example of prisons aggravating rather than reducing insecurity is often during and after conflict. It is widely accepted that Daesh was in large part formed inside Camp Bucca, the US detention centre in Iraq. While detaining former combatants is perhaps the most challenging task of all for prison systems, meeting basic standards and applying principles of good management are a minimum requirement if detention is to be part of the solution rather than add to the problem.

In other parts of the world, while the consequence may be less threatening than in the Middle East, if treated badly, many people exit prisons less well equipped to stay out of trouble  than when they enter. Lacking skills, resources or support and embittered by their experience inside, ex-prisoners the world over go back to crime in alarming numbers.  As well as being right on humanitarian and human rights grounds, prison reform which improves prospects of reintegration can therefore produce concrete social benefits in the form of less reoffending.

Donors are increasingly looking at ways to strengthen global peace, security and governance. The UK’s Department for International Development announced its new objectives last month, the first of which involves addressing the causes of instability, insecurity and conflict as well as tackling crime and corruption. These say DfID are “fundamental to poverty reduction overseas and will also strengthen our own national security at home”.

Ensuring that prisons in all countries are seen as legitimate institutions which do what they can to fulfil their international mandate of reformation and social rehabilitation should be recognised by all governments as an important component in strategies to achieve these aims.  
What is needed is, first, an emphasis on ensuring that prison is used as a last resort- a wide range of alternative measures should be available for dealing with less serious defendants and offenders with detention reserved for those for those who represent a danger to society.  Second within prisons,   conditions and treatment need to provide not just security but opportunities for change.

The final UN SDG concerns strengthening the means of implementing the other 16 goals and revitalizing the global partnership for sustainable development. On prisons, exchanging knowledge and information on effective policies and practices and providing technical assistance which apply them appropriately in countries that wish to introduce change are often essential elements of reform strategies.  But the process needs a big push from the world’s leaders. One way would be to make 2016 the international year of prison reform.

In a recent report on over incarceration and overcrowding, the UN Commissioner for Human Rights has argued that that custodial sentences should be imposed as measures of last resort and applied proportionately to meet a pressing societal need.   A recent visit to East Africa illustrated that much more needs to be done if that is to be achieved in the region.

One 22 year old Tanzanian explained that he had been sentenced for watching television during the day- his offence seemed to be one of “idleness”.  Although his punishment was community service, this had only been imposed after he’d spent four days in prison. Throughout Africa prison appears regularly used to punish these kind of colonial era offences or for failures to comply with contemporary government regulations whether about conducting business, (such as operating a club without a licence) or obtaining fuel (such as making charcoal in the forest).

Most of the Kenyan cases we heard about involved illicit alcohol- brewing it, selling it, getting drunk on it even carrying it.  A presidential decree in July urged a crackdown on so called secondary alcohol and this is being vigorously enforced by local administrators. The country has a serious problem with drinks known as Changaa or Mugacho which, when adulterated have led to deaths by poisoning, blindness and what was described to us as a failure by men to carry out their husbandly duties.  But some at least of the drinks play a role in traditional customs at weddings, parties and other gatherings.

More than a third of the 300 women (and their 50 babies) we saw in Meru prison had been committed for a failure to pay large fines imposed for alcohol related offences of one sort or another.  While many are likely to see their sentences commuted to community service through a High Court “Decongestion Programme”, using criminal justice to crack down on the problem has created additional hardships on those who make their living by producing it and put considerable pressure on an already overstretched prison system.

 

Evidence of illicit alcohol outside a Kenyan court

The prison system still suffers from the persistent problem of excessive pre- trial detention; almost 800 of the 1200 men locked up at Meru were awaiting trial. Some were charged with serious and non bailable crimes but more than half, according to the Superintendent, were facing charges for petty offences. One barrier to their release is that magistrates worry about being thought corrupt if they free a defendant. Another is that, if they do so, the police are unwilling to pursue him should he flee. The result is unaffordable bail and routine remands in custody, sometimes for longer than any likely sentence.

 

Some defendants choose to bear the miserable conditions rather than change their plea, either through determination to maintain their innocence, fear of mob justice in the community or to benefit from the limited food and shelter unavailable to them outside. Judicial reform and performance management initiatives in both Kenya and Tanzania look so far to have failed to tackle some of the underlying dysfunction in the countries’ criminal justice processes. Indeed it may have made things worse. One magistrate told us his target of completing 250 cases a year provided a disincentive to adjourn cases for a report on an offender’s suitability for an alternative sanction.

There look to be some relatively easy prison reform wins; Kenya has no remission or parole, and Tanzania does not even subtract time spent on remand from the length of prison sentences.  Taking action on these are the kind of steps the UN Commissioner wants states to take to prison  overcrowding so that they “comply with their international obligations, and  guarantee detainees the dignity inherent to every human being”

Prison conditions in much of the world are nothing short of a humanitarian disaster. Take Brazil where the world’s attention is currently focussed. More than half a million prisoners are crammed into a system designed for 350,000, about two fifths of whom are awaiting trial. Many of the institutions designed to uphold the rule of law are life –threatening. While the extent of violence, and risks of riots and fires may be higher than in most countries, Brazil’s jails are far from unique. At a seminar organised by the Open Society Foundations last week, experts catalogued the wholly inadequate buildings and catastrophic levels of hunger, ill health and corruption inside them which characterise prisons in poor countries.

The aim of the seminar was to map out a strategy for international actors to help to address these problems. Of course any intervention must be based on a diagnosis not only of symptoms but the underlying problems. Any prescription must be based on compliance with international standards, coordination with national and international stakeholders and the involvement of civil society. Vulnerable groups and prisoners with special needs also need priority attention. But what should be done?

Based on experience of reform initiatives in many countries, Justice and Prisons proposed a framework of intervention comprising four levels of progressively intensive activity. These are as follows

Level 1 Small-scale Equipment and Infrastructure Improvement such as

Repairing creating perimeter security to make better use of space to reduce congestion

Purchasing of beds, mattresses, mosquito nets, fans, kitchen equipment

Donating furniture or equipment for vocational training or books for education

Level 2 Capacity Building through

Training of staff on human rights and making change happen and incorporating modules in training school curriculum for entrants and managers

Development of needs and risk prisoner assessment and classification system

Technical assistance with updating prison law rules and regulations

Level 3 System Improvement by

Streamlining case file management processes

Solving prisoner transportation problems

Funding mobile court sessions/Piloting court-prison video links

Obtaining screening equipment for infectious diseases

Establishing model prisons

Level 4 Criminal Justice Reform via

Reducing demand for pre- trial detention

Developing alternatives to short prison sentences

Building sustainable processes for parole and early release

Reviewing the penal code and sentencing practice

Justice and Prisons would be interested to hear views on whether this framework could be a helpful way of thinking about reform efforts and would stimulate much needed action in this neglected area.

During an event to mark Penal Reform International’s 25th anniversary, Vicky Pryce, former Government senior economist and former prisoner shared her analysis of the costs of imprisonment. Her blend of experience t made for a compelling account. She argued that the amount of money the state spends on imprisonment is too much and could produce much better outcomes for offenders, their families and communities if it were used in other ways.

There are dangers in saying spend less on prison. Such a reductionist approach seems to be behind the recent announcements that savings of £2,200 per prisoner per year must be made in England and Wales. This crude calculation is inspired by the reported costs incurred by private company G4S in running Oakwood, the UK’s largest establishment with more than 1600 prisoners.

Not for the first time, the UK government has decided on criminal justice policy and operations that rely only on counting money. Not even value for money, simply that cheapest must be the best. There is no apparent reflection on the government’s own watchdog, the Chief Inspector of Prisons, whose recent report on Oakwood quoted a prisoner saying ‘you can get drugs here but not soap’.

There is no doubt that appropriate use of money, cost benefit analysis and cutting of waste are important components of good governance and sage fiscal policy. But simply to take the least amount as a suitable target is simply too simplistic and damaging for so many. Serious efforts to reduce the numbers behind bars and the lengths of sentences would produce much more in the way of economy, efficiency and effectiveness.

But perhaps Government policy is not just about the money; maybe there is social political philosophy that inspires such decisions, a fundamental approach where punishment is the Government’s priority outcome for those found to be in conflict with the law. In such an approach aims to reduce offending, promote safer and more prosperous societies are at best rhetoric. Or maybe it is a matter of hoping to convince some voters that government is tough on crime and offenders and not a penny will wasted on them.

A race downwards to the lowest cost and the lowest standards really does nothing to convince that a government is intent on anything other than taking decisions that are not only economically suspect and harmful, but also do damage to those who pass through prison, their families and the communities to which they return. How will the Treasury calculate that cost?

The role of the private sector in the management of prisons is a controversial topic. While experience has largely been limited to high and medium income countries, in recent years a number of poorer nations have shown interest in the potential benefits of public private partnerships (PPP’s) in the prison field. Inadequate prison infrastructure and limited availability of funds to improve it can make the involvement of the private sector attractive. But is it a sensible road to go down?

The World Bank has published a paper by Justice and Prisons which looks at the evidence about the impact of such partnerships and offers some conclusions about the promise and risks attached to such initiatives. There are of course a range of models in operation around the world- from prisons which are financed, built and run by private companies under contract to government, to mixed systems in which custodial functions remain the responsibility of state employees.

The paper finds the evidence is mixed about whether private prisons produce value for money and improved performance and identifies some of the negative impacts they may have on the wider prison and criminal justice system. The paper concludes that while specific evidence from low income countries is limited, there may be significant additional risks attached to private prisons where robust legislative and regulatory frameworks are less developed or their application is weak.

Justice and Prisons believes that the starting point before the consideration of private sector involvement in prisons must be a full analysis of the infrastructure and processes required by a country in its criminal justice system in order to meet international norms and standards and contribute to development goals. Within such a framework, in many countries community based alternatives to pre-trial detention and to short prison sentences are likely to prove more economical and effective than prison expansion.

When new prison places are genuinely required, and a  PPP is the preferred way forward, there needs to be a genuinely competitive procurement process that results in a contract that is sufficiently flexible to allow for changes over time. The contract should transfer an appropriate level of risk to the private sector and provide for robust measures for monitoring performance and penalizing noncompliance. The relationship between private sector institutions and those in the public sector must be clearly planned and put into place in such a way that is not detrimental to existing operations. In addition, clear plans must be included in the contract, outlining responsibilities for dealing with emergency situations—disturbances, fires, hunger strikes, and other crises—that can often arise in prison environments.

Consideration also needs to be given to whether the private partner has the sufficient capacity, skills, and capability to deliver the project more efficiently than the government. The government, for its part, should have the competence, expertise, and willingness to oversee the project, and should not use PPP’s as a strategy to allow it to abdicate its responsibility to adequately and justly house its incarcerated citizens.

Private sector involvement carries  risks  both for  the state and for people in prison. Before it is considered , rigorous analysis must be undertaken, first , of the  need for criminal justice reform, which may reveal that  increasing prison capacity is not  the only option; and second  where more prison places are  required , of  the appropriateness of PPP  as a mechanism for providing them.

The problems facing the world’s ten million prisoners seldom receive much serious or sustained attention in the media so it is all the more disappointing that the usually sensible Economist should have published a somewhat superficial article on the subject last week. Its overall thesis – that prisoners enjoy greater rights in poor countries than rich – is highly questionable, ignoring the stark reality that in most of the world, prisons are little short of a humanitarian disaster. Several of the examples give highly misleading impressions of contemporary penal contexts and cultures.

To characterise China for example as offering a blossoming of opportunities for prisoners to work, retrain and help local people is a travesty of the tradition of forced labour that still dominates penal philosophy there. Claiming that prisoners in the Philippines are among the few in the world allowed to surf the web, flies in the face of last year’s US State Department report that opportunities for prisoner recreation, learning, and self-improvement remained scarce in the country’s prisons – not surprising given the lack of basic infrastructure, inadequate nutrition and poor medical care available there. While Tanzania may be on the verge of taking the welcome step of introducing conjugal visits, the system as a whole there remains harsh and life-threatening with allegations of inhumane treatment by staff.

There are many important questions facing prisons around the world. How can they cope with what UK judge Lord Woolf called the cancer of overcrowding and the fact that in many countries most of those in prison are not sentenced or even convicted? What is to be done about the mass escapes from prisons in fragile and post conflict states and the organised assaults designed to free terrorist prisoners in parts of the Islamic world? How best to deal with prison gangs which govern many parts of prisons in Latin America and former Soviet countries? Combating torture, corruption and epidemics of ill health remain the priority for prison reform the world over.

The Economist piece is right to highlight some key dimensions of prison policy- the importance of health and education measures in prisons; the way levels of inequality and political discourses impact on policy debates; and the effects of austerity on the use and practice of imprisonment. But these and many others deserve a much more rigorous analysis than they have hitherto received.

One of the surprise announcements in the recent speech by UK Justice minister Chris Grayling was a review of the secure facilities for juvenile offenders and a promise to make education more central to the work that they do. He expressed concern at both the costs – five times the fees at a private school -and poor outcomes of the current system. Encouragingly in developing his policy he wants to listen to people in the education world not just the security world.

If he is serious about this , the most obvious step would be to move responsibility for youth custodial facilities out of the Ministry of Justice and into the Department for Education and to set up a new agency to oversee how juveniles are locked up. In 1996 the then Chief Inspector of Prisons recommended that the Prison Service should relinquish responsibility for all children under the age of 18. The incoming Labour Government baulked at such a radical move, instead giving the newly created Youth Justice Board a role in commissioning places from a variety of providers. Today three quarters of under 18’s those locked up are still in prison service Young Offender Institutions (YOI’s)  , with the rest , including all of those under 15  held in local authority secure units or privately run secure training centres .

While there have been improvements in YOI’s, recent inspection reports are troubling, showing that custodial institutions have problems in meeting some of the very basic needs of juveniles, let alone producing more positive outcomes.

The Chief Inspector of Prisons reported in 2010/11 that in three establishments, external nutritionists had been consulted but young men said they frequently felt hungry. At Feltham YOI last year many areas of the establishment had poor standards of cleanliness, including residential units and cells, the grounds, the segregation unit and health care. At Wetherby YOI  there was inadequate access to showers with the lack of daily showers particularly affecting those who worked in dirty areas . Surveys conducted by the Inspectorate have found just under a third of young men and just over a fifth of young women in YOIs reporting that they had felt unsafe at some point while in prison. In 2009, inspectors described Cookham Wood YOI as frightening. In most establishments, the use of force by staff to control young people is frequent and, in some, bullying between young people is a serious problem. An inspection at Feltham conducted after the 2011 riots found the introduction of some young people to gangs and a violent culture in prison, which they had not previously experienced.

Some of the practices undertaken in custody such as routine strip-searching raise questions of decency   and mar efforts by reception staff to reassure new arrivals for whom arriving in custody is a daunting experience. While  inspectors find that most young people say that staff treat them with respect young men from black and minority ethnic groups report less favourably. The Chief Inspector has noted that  some young people are  very negative about the way they are  treated.

Efforts to educate young people and influence them to stay out of trouble in the future are likely to be ineffective in institutional environments where some young people do not have enough to eat, cannot keep themselves clean, do not feel safe and are not treated with respect. Children and young persons under 18 represent  less than five per cent of the prison population;  an organisation whose key priority is to prevent the escape of dangerous adult criminals cannot be expected to provide the level of care, supervision and support required by teenagers.

A commitment to remove under 18’s from prison and a transitional plan to develop more appropriate community based and secure arrangements would be a truly radical step. The sustained fall in the numbers of young people in custody over the last five years provides an opportunity to achieve it.  Mr Grayling should seize it.