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With the imminent formation of a new government in Libya, there is great concern about  whether and how Muammar Gaddafi, his son Saif-al Islam and the head of military intelligence will face justice – all three having been made subject to arrest warrants by the International Criminal Court in June accused of murder and persecution.

There will be important questions too about how transitional justice will be pursued more broadly under a new regime. Will the country adopt a Truth and Reconciliation approach or look to bring more junior Gaddafi officials to justice through the courts? More widely still what kind of criminal justice and prison system might we expect to develop in a new Libya over the coming months and years?

We can get some indications from the record of the current head of the National Transitional Council (NTC) Mustapha Abdel Jalil who was  Minister of Justice for four years under Gaddafi until he quit in February this year in protest at the violent response to protests.    His loyalty to the regime had already been sorely tested; he tried to resign from the post in early 2010 at the Leader’s decision not to release detainees years after they had completed their prison sentences or been acquitted but was not permitted to step down. He worked hard to try to secure the closure of the notorious Abu Salim security prison, and undertake a proper investigation into the massacre that took place there in 1996- a cause in which he was joined by the Foundation run by Saif Gaddafi .

As a former senior judge, Jalil is committed to the rule of law but found his desire to see the implementation of  court orders frequently thwarted by his Leader and the Internal Security Agency.  He was able to oversee a programme of reform in the prisons run by his own department with help among others from the International Centre for Prison Studies based in London. Proposals to revise the Penal Code were well advanced by the time of the Arab Spring.

We should not however get carried away by an expectation that the new regime will necessarily usher in a criminal justice system fully compliant with international standards. The revisions to the Penal Code did aim to reduce pre trial detention,  limit the death penalty and introduce alternatives to short prison sentences. But alongside the proposed introduction of community service, the new Code’s principal penalties still included severance – the cutting off of limbs and whipping. Both  are widely considered to be violations of the right not to be tortured enshrined in the Universal Declaration of Human Rights; the Human Rights Council has found that flogging and amputation to be serious violations of the International Covenant on Civil and Political Rights. Accessory penalties were also envisaged which deprive offenders of various civil rights.

As for prisons, despite a building programme, conditions particularly in the dormitories were grossly overcrowded before the civil war. Some steps had been taken to reduce sentence lengths; for Libyan prisoners measures had been introduced to allow those whose death sentences for murder had been commuted to be released after 16 years (if there had been reconciliation with the victims’ family), and 25 years if not. Life sentenced prisoners could be released after 20 years. Drug offenders could be released after shorter periods. Prisoners over 70 and those who could recite the whole Koran could also be released.

As in many parts of the region, overcrowding is also regulated by periodic amnesties. There was a large release programme on the 40th anniversary of the revolution in 2009 and there is one annually after Ramadan.   New eligibility criteria were introduced allowing people to have an amnesty on more than one occasion, and those serving long sentences to be included if they have served ten years or half of their sentence.  Prisoners also have rights under the law to return home for up to 8 days a year after the first year if their behaviour has been good, particularly if they have not made escape attempts.  A deportation programme was also introduced for the large contingent of foreign national prisoners.

Despite the efforts to reduce congestion, prisons were often tense with hunger strikes and protests not uncommon, on occasion led by those prisoners whose amnesty applications had for whatever reason had been turned down. It is hard to imagine that the civil war has made them any more settled.

Experience of post-conflict reconstruction shows the importance of introducing, restoring or maintaining a functioning and rights compliant justice system in quick time. In countries where that system is closely associated with a fallen regime, that is especially hard to do in a way that does not risk on the one hand creating a security vacuum or on the other repeating the human rights violations of the past.

In Libya, there is the possibility of building on the positive steps taken before the uprising in the Justice run prisons at least. We can expect the new government to close Abu Salim, from where the NTC claim to have freed all prisoners in the last few days and disband the internal security agency. Let us hope that these are but the first steps to accelerating the programme of reform that will bring Libya more fully into the international fold.

The widespread looting and violence which scarred parts of English cities last week has led to a predictably harsh response from the authorities. At the time of writing about 1300 people have been charged with offences allegedly committed during the disturbances. Over half have been remanded into custody by Magistrates until sentences can be imposed by the Crown Courts. The sentences that have already been handed down appear to be well in excess of   “the going rate” for particular offences.

First offenders have been sent to prison for minor crimes on the margins of the rioting – 6 months prison for a young man who took  a bottle of water from a looted store on his way home; a mother-of-two  who slept through the riots but accepted as a gift a looted pair of shorts has received  five months in jail. Two young adults of previous good character received 4 years for inciting disorder on Facebook although no trouble occurred as a result. Many are concerned that these and other sentences show a lack of proportionality  and there have been reports of Courts being encouraged to ignore sentencing guidelines in order to pass exemplary deterrent sentences.

There are good reasons to be concerned about what the courts are doing. If sentences do not properly reflect the culpability of an offender and the harm they have caused they are inherently unjust. They run the risk of fuelling rather than overcoming the sense of alienation and disengagement from society which characterises many but not all of those involved in the unrest. As a result of disproportionately heavy sentences, the prison population which reached its highest ever level last week looks set to soar in a climate of budget cuts which are bound to impact on prison regimes.

There has been talk of offering opportunities for offenders to undertake forms of reparative activities in their communities once they come out of prison. For many of those least heavily involved and the youngest offenders, this could surely have been the first priority rather than an afterthought, an alternative rather than an addition to prison. The Sentencing Council which might usefully have  provided guidance to that effect  has been completely silent .

In its absence , we are seeing a substantial increase in the use and scope of imprisonment. There is a danger that this will not be limited to responses to the events of last week. History suggest that traumatic  national incidents can have a longer lasting impact – the murder of a  two year old James Bulger in 1992 triggered a decade long crackdown on juvenile crime . An inflationary impact on sentencing of all kinds cannot be ruled out in the coming months and years .

There is a more worrying impact on the rule of law. We rightly expect judicial institutions to do justice independently of the executive, consistently and fairly. If  they are  prepared to “tear up the rule book” they are arguably suffering the same loss of reason which no doubt overtook many of those whom they are sentencing.

Manuel Valle was sentenced to death, aged 27, on the 10th of May 1978 for murdering a police officer earlier that year. He is now aged 61 and still on death row in Florida awaiting execution after 33 years. He has been tried and sentenced to death three times, as his first two trials were found to have been unconstitutional.

According to the Florida Department of Corrections website, Florida’s death row cells are strictly solitary and are only 6 x 9 x 9.5 feet high. The prisoners are confined to their cells at all times except during the one hour a day they are allowed to spend in the exercise yard, once every two days when they can shower, or on the rare occasions they receive a visit. There is no prisoner-to-prisoner contact at all, and the guards are told not to talk to death row prisoners, to avoid prison guards humanising or fraternising with someone who they will eventually have to take to the execution gurney. The ‘exercise yard’ is extremely limited; an article in the New York Times in 2002 revealed that there is no gym equipment, and one prisoner described himself as ‘feeling like a lab rat walking around in a circle’. Mike Lambrix, who has been on Florida’s death row for 25 years, writes that ‘in my personal experience I can tell you that the conditions we must “live” under far exceed any objective definition of “cruel and unusual” punishment’.

Outside the USA, death row conditions are equally deplorable. In Kampala prison in Uganda,  for example, the death row that was built to hold 15 prisoners now holds 380. As many as 8 people can be crammed into these originally one-man cells. There is no toilet and it is very common for prisoners to die in their cells of diseases like tuberculosis and scabies.

Another problem in many countries around the world is the time prisoners have to spend in prison on capital charges before they are even tried and found to be guilty – or innocent. For example, Naheem Hussain and Rehan Zaman have been in prison in Pakistan awaiting trial on capital charges for seven years now, despite compelling evidence of their innocence. Similarly, Muhammad Hanif spent four years in a Pakistani prison awaiting trial for a crime he did not commit, before finally being acquitted.

The American Constitution’s 8th Amendment prohibits ‘cruel and unusual punishment’, however the United States Supreme Court OpenDocument has said that keeping someone on death row for a particularly long period of time (such as 33 years in Manuel Valle’s case) does not generally qualify as cruel or unusual. This is surprising, given the conditions on American death rows – and it is the opposite conclusion of that reached by the European Court of Human Rights, which concluded in 1989 that conditions on death row in the US state of Virginia violated the European Convention provision prohibiting torture and cruel, inhuman and degrading treatment.

Other jurisdictions around the world have, likewise, concluded that death row prisoners should not be punished twice, by being held on death row for extensive periods of time before they are executed. For instance, a Caribbean case found that, after five years on death row, a prisoner’s sentence should be commuted to life imprisonment. Likewise, the Islamic court of Pakistan stated that:

“From the time the trial court awards the sentence of death, at the end of an agonizing and protracted trial, up to the acceptance or rejection of his mercy petition by the President of Pakistan after dismissal of his appeal…, he has to pass through a distressing period of time awaiting confirmation of death sentence … The conditions in which a condemned prisoner spends a trying period extending over a few years are simply deplorable, inhuman and unpardonable. It may be legally justified for the State to detain prisoners pending execution of sentence, but there is no moral or legal reason whatsoever to subject such a convict to humiliation and disgrace … A prisoner who is serving a long sentence while awaiting disposal of his appeal against capital punishment is already passing through a distressing period. He has to be saved from further agony. … Disgrace and agony is alien to the concept of justice.
…A prisoner cannot be kept under a constant and unending fear of death in hostile surroundings for an uncertain period.”

‘Death row phenomenon’ or ‘Death Row Syndrome’ is an officially validated occurrence where the conditions on death row cause prisoners to suffer severe mental illness and depression, and to have suicidal feelings, for their entire time on death row before they are executed. Solitary confinement and extremely limited physical or emotional contact with others reduces prisoners to animals in cages waiting to be put down. Considering that Manuel Valle has been subjected to 33 years of this, surely he has already been punished enough and his execution, currently scheduled for 2 September 2011, serves no purpose except that of punishing him twice for the same crime.

Marcus Jones, Reprieve. Reprieve  a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives.

Work is underway at the United Nations to revise the Standard Minimum Rules for the Treatment of Prisoners (SMR’s). The current rules were first agreed by the UN in 1955 and were revised in the seventies. While they have limited direct force in international law, they have provided the basis for prison legislation and reform programmes in many of the 193 member states of the UN and are widely known, if not adhered to, among prison officials the world over .

The SMR’s are dated in some respects and could no doubt be improved, although the recent adoption of the Bangkok Rules has filled an important gap that existed in respect of the treatment of women in prison . But is a lengthy and uncertain process of revising a body of well understood standards a sensible priority at the moment?

It is true that prisons in many parts of the world are little more than a humanitarian disaster but this is hardly because the international rules are out of date. It is rather that governments and sometimes donors have given insufficient priority to ensuring basic prison standards are met and monitored. Under resourced prison systems are often forced to cope with the consequences of poorly functioning criminal justice processes and t alternative ways of preventing and responding to crime have in many countries been seriously neglected.

Some might argue that the process of forming a new set of standards may kick start reform programmes and that once revised standards are agreed they could provide a new tool for advocacy.  It’s true that the new European Prison Rules in 2006 stimulated a reform initiative in France although critics have argued that this  focuses primarily on increasing the country’s prison capacity. But it is hard to see cash strapped governments in low income countries suddenly affording a greater priority to prison reform as a result of a revised set of international norms particularly when in recent years higher income countries have appeared  all too ready to ignore international detention law and standards.

There may be thegreatest chance of  movement in Latin America where a powerful expert group undertook valuable and detailed work on a new set of draft SMR’s in the run up to last years UN Crime Congress in Brazil. But the challenges facing prison administrators in the region require substantial investments not only in prison infrastructure and staffing but in many cases more comprehensive reforms not only to criminal law but to broader social policy.

In sub-Saharan Africa, the often dire conditions in prisons stem in large part from overcrowding which in turn arises much of the time  from lengthy pre trial detention. Avocats Sans Frontieres has recently highlighted the problem in Uganda but a similar tale can be told in many other countries. Click here for more information

Former UN Rapporteur on Torture Manfred Nowak thought that greater priority on penal reform might be given if countries signed a new, more binding charter on prisoners rights along the lines of the UN Convention on the Rights of the Child.  Under the existing arrangements however , the 167 countries which are  parties to the International Covenant on Civil and Political Rights (ICCPR)  are  already supposed to  indicate in their regular reports  to the UN Human Rights Committee  how they are applying the SMR’s – earlier this year for example the Committee  recommended that Mongolia should establish an independent mechanism to monitor  places of detention and take measures  to eliminate the problems  of overcrowding in all its  prisons and to guarantee the full respect  for the SMR’s. Tthe 147 states who have ratified the Convention against Torture (CAT)  are under a further duty to  comply with the SMR’s in order to meet their  requirement under Article 11 to keep under systematic review  arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment . At the end of June the Committee against Torture recommended that Finland remedy the situation of overcrowding, (by   redistributing prisoners, accelerating judicial procedures and making more use of conditional freedom) and improve conditions for prisoners by installing sanitary equipment in all places of detention as soon as possible.

The Optional Protocol on the CAT (OPCAT) gives yet further teeth to the international community with the UN Sub committee able to visit any places of detention in the countries that have ratified (currently 60) and report on both conditions and mechanisms for inspecting them. While these reports are published only with the country’s consent, the OPCAT provides an opportunity to create on a global scale an institution along the lines of the Committee for the Prevention of Torture which does such important work in the 47 countries of the Council of Europe.

Given the range of UN bodies which should already be  playing a role in monitoring prison standards, it is perhaps not surprising that the proposed revision of the SMR’s does not, as far as is known, envisage the creation of another more  binding treaty as proposed by Professor Nowak. But the question remains whether it is necessary to revise the SMR’s at all?

The great danger of course is that the process may produce diluted standards  under which   prisoners are treated less favourably than  under the current SMR’s.  The existing rules which completely prohibit corporal punishment and limit the use of instruments of restraint may for example come under pressure from states which wish to retain the option of a harsher approach for certain prisoners . Rules which guarantee rights to observe religion may also be challenged – China for example places limitations on this. Some of the clearest and best known  rules may be made less prescriptive to give states more discretion in an era when reducing costs is likely to be a major pre-occupation..-An example here is the requirement that every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.

To be fair, a harsher approach does not seem to have prevailed during the drafting of most recent sets of standards agreed at the international level  (the Bangkok Rules in 2010) or the regional level  (the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas 2008 and the European Prison Rules 2006).   But while there is perhaps never an easy time to defend the rights of prisoners, a decade of much politicised and publicised insecurity combined with the post credit crunch  austerity creates a climate that  carries particular risks. Justice and Prisons will continue to work with international, regional, intergovernmental organisations and prison reform interest groups to seek the most positive outcome of the review process.  But in the meantime promoting and sustaining practical reforms on the ground should continue to be a priority if conditions of detention for the world’s ten million prisoners are to be improved.

While the pursuit of a definition of Rule of Law remains elusive and keeps many happy and occupied, the central place of criminal justice and of prisons  remains largely undisputed.

International law and standards provide a robust framework of norms. Yet ideas about the specific purpose of prison and nature of imprisonment vary greatly between and within different parts of the world.

Justice and Prisons’ experience is that the value of prisons in upholding the rule of law and in contributing to safe and flourishing societies is often undermined in policy and practice and that much greater priority must be given to prison reform, internationally, nationally and locally.

One paradox is that although imprisonment can contribute to preventing offending of some types in certain locations, crime can all too often be displaced into prisons themselves. Recent events in El Rodeo Prison in Venezuela illustrate all too depressingly the devastating consequences of ill thought out social and justice policies that lead to prisons becoming places where those for whom the state has responsibility to detain safely, are instead exposed to great insecurity.

Another paradox is that while prison systems are responsible for implementing the decisions of the courts, much of what happens in prison is not lawful. Prisons are often so inadequately funded, managed and operated that those detained inside them are forced to experience conditions and treatment that subvert many of the basic tenets of law and breach the duty of care owed by the state.

There are many inspiring and pioneering efforts to combat these symbiotic issues; some focus on seeking to improve the conditions and regimes for prisoners, to develop the training of staff and to make prisons more open and transparent institutions. Other initiatives seek to rationalise the use of imprisonment both as a remand measure and as a sentence.

One recent success has been the reduction in the use of imprisonment for children in England and Wales, explored further here.

Justice and Prisons aims to identify and promote innovative and systemic reforms like this – particularly those which illustrate how practical changes can reinforce the Rule of Law and how prison can be helped to play its proper role in society.