Prison reform: Correctional system needs correction

Jeevan Thiagarajah

The events, incidents and the toll following the riots at Welikada underscores a tragedy within. For the past five years the largest segment constituting the inmate population is made up of persons held for substance misuse if not sale of substances. Close on 65 percent make up this segment of whom 50 percent are married.

Another 5,000 or so persons are held for excise offences. Out of approximately 27,000 persons held across the country annually the number who constitutes those with ‘criminal records' come in as the third segment. It is well known Colombo prison is close on 400 percent overcrowded.

Rioting Welikada prison inmates. Picture by Saman Sri Wedage

The cumulative islandwide remand admission statistics are 2007-85,532, 2008-100,258, 2009-90,055, 2010-88,320. On average 249 persons were being remanded per day during the four years. The total number who spent time awaiting Trial islandwide in 2010 were 12,493 as at 31.3.2010, 13,396 as at 30.6.2010, 12,900 as at 30.9.2010 and 13,196 as at 31.12.2010. With our courts clogged with cases Trial periods are long for those in custody before sentences are imposed. The daily average for convicted prisoners in 2010 was 13,094 while for remandees it stood at 13,890. Overall the inmate population is a mix of convicted and remanded in close of equal measure. This is mixed population of unfortunate citizens are in our prisons.

The country has an Act dating from 2007 which allows persons misusing substances to seek treatment voluntarily or for court ordered treatment when produced by the Police. We have to date a practice which dispatches substance misusers to prisons and not for treatment. In a women’s detention facility detained under the Vagrance Ordinance, out of a total of 160 inmates, 71 are need of psychiatrict treatment, with 10 in a severe state with on going efforts at suicide and extreme boisterousness. Why they should be in detention and not in a specialised medical care facility remains to be answered. Their medication is currently administered in the evenings by a civilian who has studied upto the 8th standard. Some are detained with no release date prescribed. All in detention are by orders of court. It follows magistrates need to be fully abreast of the condition of the detainee and the facilities.

Legal advice

The prisons have scores of persons who would do anything to lay their hands on substances if they are addicted, joining them are remandees, convicts and long term prisoners. Given the huge volume of cases handled by courts, dates for hearings other than to renew remand are spread out.

The task of the officials manning the prisons is daunting. Recent press reports have noted instructions from the JSC for magistrates to visit prisons regularly.

The sad events recently is a manifestation of a problem which requires several helping hands.

One such source of guidance is in the Dhaka Declaration on Reducing Overcrowding in Prisons in South Asia. The participants included judges, lawyers, senior prison management and academics, along with international, regional, and national non-governmental organizations who attended the conference. The two days of deliberations produced the Dhaka Declaration on Reducing Overcrowding in Prisons in South Asia (set forth below).

Extracts of the Declaration are worthy of mention - it recognises that prisons are increasingly overcrowded; that alternative sanctions to prison are limited in practice; many women and men await their trials in prison because they are too poor to access legal advice or meet the terms set by the court for bail; often excessive and arbitrary use of pre-trial detention; those in prison include the mentally ill and chemically addicted in need of specialist treatment; poor and marginalized in need of appropriate legal assistance; Noting that prison should be a remedy of last resort reserved for those who are a present threat to society and that the use of imprisonment has drastic consequences for the families of those detained and their communities; Recalling the minimum standards laid down in the United Nations Standard Minimum Rules for the Treatment of Prisoners and the emphasis on restorative justice approaches in appropriate cases set out in the United Nations Standard Minimum Rules for Non-Custodial Measures (the Tokyo Rules); Emphasising the importance of a criminal justice policy that seeks to prevent crime while at the same time limiting the growth of the prison population and encouraging the use of alternatives to imprisonment such as community-based sanctions and measures, where appropriate, implemented through a prolonged and concerted strategy of penal reform.

The participants at the conference affirmed that the following elements should be included in any penal reform strategy to reduce prison overcrowding:

1. As imprisonment is a sanction or measure of last resort, it shall only be used when the seriousness of the offence would make any other sanction or measure clearly inadequate.

2. As pre-trial detention is a measure of last resort, it shall be used only in accordance with international standards and norms which dictate that the application of pre-trial detention occurs in a transparent and rational manner.

3. Increasing prison capacity shall not be adopted as a long term solution to the problem of prison overcrowding.

4. The following specific steps shall be taken to reduce overcrowding:

(a) Minor offences, where appropriate, shall be diverted away from the criminal justice system to alternative modes of resolution applicable in all our societies.

(b) Pre-trial/under-trial detention shall be used less frequently and for shorter periods. Alternatives to pre-trial detention shall be made available in law and sufficiently funded and practised. Custody time limits shall be set down and enforced by the court.

(c) Non-custodial measures shall be used wherever possible.

(d) Where a sentence of imprisonment is unavoidable, regard shall be had to the period of time an accused person may already have spent in pre-trial detention; and the sentence passed shall be for the shortest possible time period.

(e) Early release, whether conditional or unconditional, shall be allowed wherever it is justifiable to do so, including parole.

(f) Chemically addicted, mentally disordered and other seriously ill offenders shall be treated.

(g) Special arrangements shall be made to keep young offenders out of adult prisons as well as other closed institutions.

(h) Under no circumstances shall anyone be held in prison on the pretext of ‘protective’ or ‘safe’ custody.

5. The following measures shall be introduced to assist in taking the specific steps to reduce overcrowding:

(a) The operation of the criminal justice agencies shall be co-ordinated so that they work together in combating overcrowding.

(b) Legal services (including law students and paralegals) shall be made available in all prisons and at all stages of the criminal justice system.

(c) Constructive alternatives to custodial sanctions and measures shall be developed and applied at the pre-trial, trial and post-trial stages as an effective alternative to custody and preventing crime.

(d) The public shall be informed of the steps taken to reduce prison overcrowding and the reasons for doing so.

(e) Prison administrators shall develop effective means to measure and track the number of people and the length of time they have been incarcerated both pre- and post-trial.

(f) Foreign nationals held in prison for immigration reasons or after any sentence has expired shall be repatriated to their home countries.

6. Where conditions of overcrowding persist in prison, special care shall be taken to ensure that all prisoners are still treated with human dignity and constant monitoring shall be undertaken by a national prison inspection mechanism.

Draft plan of action

As a matter of policy, the government might consider taking the necessary measures to:

• Reduce the flow of cases into the criminal justice system.
• Legislate to decriminalise offences that disproportionately impact on the poor and vulnerable.
• Promote community policing practices and community programmes to enhance public trust.

In order to apply policy to practice the courts might consider the following:

• Reduce pre-trial detention by: making greater use of unconditional or conditional release orders, such as bail programmes; strictly enforced custody time limits; and speeding up the criminal justice process by:

- informing the community about the bail programme and involving community members in the programme;

- conducting regular reviews of caseloads and dismissing those that are old or vexatious;

- requesting judicial officers and prosecutors to visit prisons and reviewing the awaiting trial population;

- avoiding unnecessary delay in the disposition of cases by releasing on bail those who have overstayed in custody pending the outcome of any investigation; and

- speeding up the execution of orders or decrees granting awards to victims.

To be continued