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COVID-19: Civil liberties and the role of the state

Prisons and human rights in the time of COVID-19

Steven Caruana

Steven Caruana highlights that strategies to prevent a further spread of COVID-19 have to extend to the prison population – a part of our community that is already vulnerable to mental and other health impacts – while ensuring this is done with respect for human rights and dignity.

The COVID-19 pandemic has cast an uncomfortable spotlight on prisons around the world. With as many as 120 countries operating at over 100% of their capacity , coupled with unhygienic conditions and the impracticality of social distancing, preventing outbreaks in prisons has become a near impossibility without significant reductions to prison populations.

Some jurisdictions have started to react to this realisation. In Scotland [PDF, 200KB] for example, the government intends to use recently endorsed emergency powers to release short-term prisoners, following the rest of the UK, other European countries and several US states who have already released low-risk prisoners in response to coronavirus.

Even self-described ‘law and order advocates’ such as Rick Raemisch, former Head of Corrections in Wisconsin and Colorado, have recognised that ‘we need the release of prisoners who can safely be moved to other settings and provide social distancing for those who remain.’

Preventing outbreaks has become a central part of the overall public health response to COVID-19 and the United Nations Office on Drugs and Crime [PDF, 200KB] has pointed out that ‘the scenario of a rapidly increasing transmission of COVID-19 within prison systems will have an amplifying effect on the epidemic within the general public.’

In the United States , where cases have eclipsed every other country, the Cook County Jail in Chicago has reported 235 detainees currently positive for COVID-19 and another 192 recovering. At the Rikers Island Jail in New York City, 367 inmates have tested positive for the virus. At the Terminal Island Federal Correctional Institution in Los Angeles another 570 have tested positive. Other western countries have seen similar outbreaks including Canada and the United Kingdom.

The Australian context

Australian prisons have remained relatively untouched by the pandemic apart from a few cases linked to guards or healthcare workers. However, despite the curve continuously flattening, epidemiologists believe an outbreak in an Australian prison could rapidly change that .

Although Australia has not released any prisoners, NSW has made emergency legislative amendments enabling the Commissioner of Corrective Services to grant parole to certain low-risk inmates. The NSW Attorney-General, Mark Speakman, has recognisied these extraordinary powers as being ‘necessary to respond to the grave risks posed by the COVID-19 pandemic and to control physical contact in places of detention.’

In the NT, the Corrections Commissioner Scott McNairn, has also suggested he is considering using existing powers to ‘try and get as many prisoners out of the prison system safely, [while] still ensuring public safety.’

All jurisdictions in Australia have imposed adjustments to their normal regimes and have ceased social visiting to prisons. It is likely more measures may come into place if a suspected case is confirmed. National Cabinet has agreed that all jurisdictions will adhere to the Communicable Diseases Network Australia (CDNA) interim guidance in their management plans. While some restrictions are necessary, The Office of the High Commissioner for Human Rights (OHCHR) and the WHO [PDF, 300KB] have contended that ‘authorities need to ensure that all such measures respect human rights.’

Balancing quarantine and human rights

Queensland Corrective Services (QCS) introduced new isolation protocols following a Wolston Correctional Centre officer testing positive to COVID-19 while off duty. The protocols require all new prisoners entering high security centres to be placed into isolation for 14 days with no time out of cell. Commissioner Peter Martin APM acknowledged the move as ‘a significant departure’ from usual procedures but justified it by highlighting the fact that ‘overseas prisons are seeing the terrible impact this pandemic can have within a prison environment.’

Similar measures have also been adopted by Corrections Victoria with the establishment of ‘protective quarantine units’ at all intake prisons aimed at people who have been out in the community and bring the risk of exposure with them into custody. Comparable isolation measures have also been put in place by Corrective Services NSW.

This practice, known as ‘routine intake quarantine’, stands in contrast to the Communicable Diseases Network Australia’s position [PDF, 2.6MB] that for new admissions, even in a declared outbreak, it ‘does not mean the facility has to go into complete “lock down”.’ The WHO has also discouraged the use of ‘routine intake quarantine’ suggesting instead that it is more cost-effective to have newly admitted individuals screened and notes that unnecessary medical isolation has negative impacts on mental health.

The point of negative mental health impacts is a particularly relevant consideration with the Australian Institute of Health and Welfare’s 2018 prisoner health study [PDF, 9.5MB] finding that ‘prison entrants (26%) were twice as likely to score high or very high levels of psychological distress [using the K10 scale] as the general population in 2017–18 (13%).’ The QLD Productivity Commission found in its 2019 inquiry into imprisonment and recidivism [PDF, 5.5MB], that ‘almost half of all Queensland prisoners are likely to have been previously hospitalised for mental health issues and/or have a history of child neglect.’ The QLD Human Rights Commission additionally observed in its 2019 report into women in prison [PDF, 2.2MB], that the prison mental health service had ‘very limited capacity to service the high-needs, female prisoner population.’

In its 2019 investigation into solitary confinement [PDF, 2.8MB], the Victorian Ombudsman ‘was not satisfied that separated prisoners receive adequate meaningful human contact in terms of interaction with staff, contact with other prisoners and the outside world, and access to purposeful activity.’ This was also the case in the Victorian Ombudsman’s 2017 investigation into the Dame Philip Frost Centre [PDF, 0.9MB] where ‘staff confirmed they were not always able to offer all prisoners the minimum entitlement required by the Nelson Mandela Rules and the Corrections Act.’ In NSW, the Inspector of Custodial Services remarked in its 2020 review of minimum security facilities [PDF, 7.1MB] that ‘NSW has the lowest reported average out-of-cell hours in Australia.’

Noting the above deficiencies identified in QLD, NSW and Victoria’s corrections systems prior to COVID-19, it is now even more essential that any isolation measures applied must be taken, as expressed by the UN Subcommittee for the Prevention of Torture (SPT) [PDF, 0.3MB], ‘on the basis of an independent medical evaluation, proportionate, limited in time and subject to procedural safeguards.’ This is especially relevant because, as the WHO emphasises, ‘people in prisons and other places of detention are not only likely to be more vulnerable to infection with COVID-19, they are also especially vulnerable to human rights violations.’

This is another significant concern, recalling that in its 2018 investigation into corruption risks in QLD prisons [PDF, 1.7MB], the QLD Crime and Corruption Commission (CCC) found ‘a correlation between less out-of-cell time with more CCC allegations related to QCS staff.’ In NSW, the Independent Commission Against Corruption noted in a 2019 investigation [PDF, 1MB] that Corrective Services NSW had a history of misreporting use of force incidents that had been a ‘concern for many years’ and reiterated that ‘persons deprived of their liberty must still be treated with humanity and with respect for the inherent dignity of the person.’ Human Rights Watch have also recently reminded us that ‘lockdowns put people with psychosocial or cognitive disabilities – already at risk of being manipulated or abused by others – at heightened risk of violence.’

As the above jurisdictional examples suggest, even at the best of times, prisons are failing to meet the minimum standards required to safeguard the human rights of those placed into situations of seclusion or isolation. As the possibility of COVID-19 outbreaks in Australian prisons and other places of detention becomes more substantial, jurisdictions looking to make departures from usual procedures will need to counterbalance those measures with a significant investment in increased transparency, resourcing, external accountability and other procedural safeguards.

A greater need for independent oversight during the crisis

External scrutiny of prisons is no new concept. The 1978 Report of the Royal Commission into New South Wales Prisons ( Nagle Royal Commission ) [PDF, 47.7MB] found that ‘subject to the needs of proper administration and security, they [prisons] should at all times be open to scrutiny by the public, interested bodies and the media. The more prisons are open, the less the risk of abuses in the system being hidden.’

The importance of this independent oversight to places of detention during COVID-19 is being increasingly recognised internationally and nationally. Statements have been issued by organisations such as the WHO , SPT [PDF, 0.3MB], UNODC [PDF, 0.2MB] and UNICEF [PDF, 1MB]. In Australia, over 400 legal practitioners and criminal justice experts [PDF, 0.4MB] called for increased monitoring under OPCAT as part of a suite of measures to protect vulnerable prisoners:

‘In emergency situations, such bodies have a key role to play in assessing and recommending measures to prevent and contain the virus while respecting human rights and dignity. Even under such pressure as the current COVID-19 pandemic, authorities cannot let fear of contagion jeopardise the human rights of those deprived of liberty.’

While the ACT, WA and NSW Inspectorates have been transparent about their monitoring plans , no oversight agency has so far made public comment on concerns about the current regimes in place in response to COVID-19. Neither have any made comment about resuming in-person visits.

In NSW, the importance of the oversight of prisons has been enshrined in emergency powers legislation by ensuring the Inspector of Custodial Services and NSW Ombudsman are exempt from visitor restrictions. In Victoria however, there is less certainty, with the emergency measures bill granting the Corrections Commissioner the ability to prevent any ‘visitor’ (as defined by s33 of the Corrections Act and including (g) an Ombudsman officer) from entering a prison.

By contrast when New Zealand moved to Alert Level 4, the Secretary of Justice designated the Chief Ombudsman’s inspectorate role as an ‘essential service.’ New Zealand Ombudsman, Peter Boshier, emphasised the importance of oversight, saying, ‘I firmly believe that independent monitoring is essential during these unprecedented times. It provides confidence to the New Zealand public that our most vulnerable people are being treated fairly.’

Revaluating public perceptions of prison

The Nagle Royal Commission candidly observed that, ‘generally, the public has scant knowledge of, and pays little regard to, prisons… It accepts the view that those who have offended against the law should be away, out of sight and out of mind.’

Where prisons typically are regarded by the public as places for community protection, the COVID-19 pandemic has turned this upside down and forced us to admit that their closed conditions and the treatment of prisoners within them have become the antithesis of community protection. Gregg Gonsalves, an epidemiology professor at Yale School of Public Health, has frankly commented that ‘it’s nearly impossible to provide infection control in these settings… If you wanted to set up a situation that would promote rapid transmission of a respiratory virus, you would say prison: it’s close quarters, unsanitary, individuals in frequent contact.’

We have been forced by this current crisis to recognise what Justice Nagle recognised in 1978, that ‘prisons belong to the community…  it must not be forgotten that those considered "less worthy" are nonetheless the responsibility of society.’ If we are to protect the community, we need to recognise the vulnerability of prisoners and make substantial investment into protecting them both now and beyond this pandemic.

Steven Caruana is a coordinator for the Australia OPCAT Network, a coalition of over 90 non-government organisations, academics, statutory officer holders and interested individuals. Steven is also involved in policy development for the regulation of aged-care facilities and the monitoring of designated mental health units in New South Wales.