The outbreak of the coronavirus pandemic exposed the globally broken criminal justice system. The removal of an individual's liberties is not synonymous with their human rights. Change is needed, argues Vicki Prais.

Nelson Mandela famously said that, "No one truly knows a nation until one has been inside its jails. A nation should be judged not by how it treats its highest citizens but its lowest ones". It is with this in mind that the fifth Annual Report of the HM Chief Inspector of Prisons for England and Wales, Peter Clarke, makes for such worrying reading. In the report, the Chief Inspector highlights deep-seated problems within the general prison estate (men, women and children) including excessive time locked in cells, self-harm, suicide and mental health issues, rising levels of violence, overcrowding and poor living conditions to name but a few. The Chief Inspector dedicates a substantial section of the report to the impact of the pandemic on the lives and human rights of people in prison and raises particular concern about the suspension of social visits, excessive time in cells (23 hours a day was not uncommon) and limited access to work, training and educational opportunities.

The advent of COVID-19 has shone a light on an already broken and beleaguered criminal justice system and has exposed its structural inequalities.

There are currently over 11 million people in prison globally on any given day according to Penal Reform International's latest Global Prison Trends Report 2020 (GPT 2020). The issues and concerns raised by the Chief Inspector of Prisons resonates internationally. The problem of overcrowding is a pervasive one with around 102 countries reporting prison occupancy levels of over 110 per cent according to the GPT 2020. Prisons remain inherently dangerous and violent environments and evidence suggests that violent incidents are on the rise globally. According to a 2019 report by the UN on Human rights in the administration of justice, one of the main causes of serious injury and death in situations of deprivation of liberty, is due to acts of violence and the use of force by officials (be it police officers or corrections officers).

The provision of health care in many prisons globally remains deeply inadequate even in high income countries. For instance, Portugal was recently criticised by the UN Committee against Torture with respect to a shortage of mental healthcare services across the prison estate.

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People in prison do not lose their human rights simply by virtue of being deprived of their liberty. There is a robust legal framework in place protecting the rights of people in prison – most importantly the UN Standard Minimum rules for the Treatment of Prisoners 1955 (the UN Nelson Mandela Rules), a set of non-binding standards, which set out a minimum universal standard for the treatment of prisoners and contains rules that pertain to all aspects of prison life. The rules were recently updated and unanimously adopted by the UN in 2015. Most importantly, the Mandela Rules are grounded in principles of compassion, dignity and with respect for human rights at its core.

Moreover, international human rights treaties including the UN Convention against Torture and the International Covenant on Civil & Political Rights (ICCPR) protect the rights of persons deprived of their liberty. In particular, the ICCPR calls on State parties to treat persons deprived of their liberty "with humanity and respect for the inherent dignity of the human person".

Yet, many governments around the world have failed to meet their international human rights obligations and people in prison remain marginalised, excluded and extremely vulnerable to human rights abuses.

So, what is the way forward? Now is the time for governments around the world to recalibrate their thinking on criminal justice systems more widely and to adopt a rights respecting and humane approach to imprisonment. This not only includes meaningful policy change but also serious financial investment. All too often, funding for criminal justice and penitentiary systems is deprioritised. Funding for prisons is perilously low; recent analysis by Penal Reform International shows that government expenditure in prisons across 54 countries usually amounts to less than 0.3 percent of their gross domestic product (GDP). The food budget per day per prisoner in Kazakhstan, Cambodia and the Central African Republic is as low as one euro per day. And less funding and investment has knock-on effects: it can lead to drastic under-staffing, fewer rehabilitation opportunities, reduced access to healthcare services and a more dangerous and volatile prison environment.

Nor is prison always the right option. In many cases, non-custodial sanctions and measures may be more appropriate such as for women offenders who can serve their sentence closer to home and retain important family ties. Such measures help to reduce both overcrowding and re-offending and are often more cost effective.

Peter Clarke told Newsnight on 20 October 2020, 'we all need hope in our lives, so do prisoners'. Whilst these difficult issues will not be solved overnight, we owe it to Nelson Mandela to make a start.

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