PRISON REFORM: Correctional system needs correction - Part II:

Spirit of reform, not retribution

Jeevan Thiagarajah

Security Forces personnel outside the Welikada prison. Pictures by Saman Sri Wedage

• Establish case co-ordination committees to keep the local criminal caseload under constant review.

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

• Legislate for effective alternatives to a prison sentence in appropriate cases

• Inform public opinion and justice agencies on the limited and specialist role of prison in respect only of the most dangerous and incorrigible offenders.

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

• Develop and pilot constructive alternatives to custodial sentences, such as community service, education and rehabilitation programmes designed to equip offenders to make a positive contribution; and encourage ordinary members of the public to play a role in community sentences.

• Promote the wider use of alternative dispute resolution in appropriate criminal matters and encourage the judiciary to consider such options as a first step in all matters, especially as concerns women and young persons in conflict with the law.

• Pilot referral mechanisms from the court to the community (and vice-versa).

• Invite judicial officers to conduct a periodic census of prisons to determine who is detained and whether continued detention is both lawful and appropriate.

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

• Avoid legislation that imposes minimum terms of imprisonment without conducting an in-depths study into the likely impact of such legislation (on police practice, on the court caseload, on the prison population - as well as comparative experience in other countries).

• In post-conflict countries, amnesties or early release should be considered as part of the process of achieving reconciliation.

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

• Provide for time spent in detention awaiting trial to be automatically deducted from the sentence imposed by the trial court.

• Provide that like offences, or a series of offences, that occurred in the same time period are joined together (rather than left 'pending' in other courts) and that any sentence runs concurrently (rather than consecutively).

• Reduce sentence lengths where they are disproportionate to the harm caused.

• Ensure consistent sentencing practice by: providing guidance to sentencers; and making use of supervised or conditional release, particularly for non-violent offenders.

• Request judicial officers to screen the remand caseload on a regular basis to make sure that people are remanded lawfully, their cases are being expedited, and that their status as detainees is appropriate.

• Explore the use of alternative accommodation (other than prison) to vulnerable groups, especially to women, women with babies, young persons, refugees and foreign nationals, the aged, terminally and mentally ill.

• Enforce custody time limits, so that where a period has elapsed and the detainee has not caused the delay and is prejudiced thereby, s/he should be released with or without conditions.

Policeman injured in the prison attack being taken for medical treatment

• Make provision for sentenced prisoners to have their sentences commuted to a non-custodial option, such as a fine or community service.

• Streamline appeal processes.

- The prisons might consider the following:

• Referring lists of appropriate cases to the courts for commutation of sentence.

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

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

• Allocate appropriate resources to the responsible body or institution charged with monitoring any early release mechanism, such as probation or parole.

• Legislate for a system of privileges in prisons to reward good conduct to enable prisoners to progress through the prison system and so facilitate their reintegration back into society.

• Make provision for half-way houses, educational homes, day-time training centres, other arrangements for early release in appropriate cases. In order to apply policy to practice the prisons might consider the following:

• Developing a privilege system to reward good conduct by providing for a reduction in sentence; permitting week-end release and home visits; and to work outside the prison in the community by day.

• Partnering with civil society organisations and faith-based groups to provide facilities and/or support services (in half-way homes, educational homes and various centres).

• Developing risk assessment mechanisms in the prisons so that those assessed to constitute a low risk to society are not held in close confinement.

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

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

• Treat rather than punish drug addiction and mental disorder by: providing health care and social welfare support; treatment centres; as well as training to police officers and members of the judiciary to identify such offenders and divert them away from the criminal justice system.

• Decriminalise possession of small amounts of controlled substances for personal use and require instead such persons to attend treatment centres.

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

• Piloting community-based 'drug' courts and diverting away from the criminal justice system persons with drug dependency problems who require specialized treatment.

• Passing sentences on drug-dependent persons that enable them to access treatment programmes.

- The prisons might consider the following:

• Partnership with civil society organisations and faith-based groups to extend drug treatment services in the prisons;

• Referring lists of such cases to the courts.

Human Rights Commission

The text though exhaustive makes perfect sense and could be guide in these troubled times. Our own Human Rights Commission after a visit several months back at a follow on meeting had reportedly recommended the following:

To limit the numbers of remanded-Legislative changes to expand the number of bailable offences, guidelines to police to work in terms of bailable offences where possible and recommend bail, guidelines to magistrates to allow bail whenever possible, guidelines to magistrates to ensure that records are kept of all those remanded, with reminders of when they should be produced again, and rulings that limit continuing remand for no good reason, guidelines to magistrates not to allow postponements except for good reason, with the JSC maintaining records of statistics of case completion by magistrates, guidelines to police to proceed expeditiously with investigations, with provision that bail must be permitted after a limited period unless a threat to society is shown to be likely, better coordination between agencies responsible for prosecution (Attorney General's Department, Police, Government Analyst) so that cases are not postponed for lack of material that could be expedited - and also to limit the wastefulness that occurs when for instance the Government Analyst travels miles only to be told that other government agencies have asked for postponement;

To deal humanely and productively with those convicted of offences-Legislative changes to promote rehabilitation and community service as alternatives to incarceration, guidelines to police and the Attorney General's Department to pursue such alternatives, guidelines to magistrates to use such alternatives, and to ensure records of subsequent processes, strengthening of rehabilitation mechanisms - the experience of the Commissioner General of Rehabilitation with regard to former combatants should be taken into account, and also the very helpful suggestions made by the Drugs Control personnel who attended the meeting, development of psycho-social interventions, both for those being rehabilitation and also for those incarcerated (for whom also rehabilitation mechanisms should be put in place), development of education and training facilities for those who have been incarcerated as well as those in rehabilitation (again the experience of the CGR could be employed for this), establishing a reintegration process for those who have been rehabilitated (as well as for those incarcerated) to track their progress and assist if necessary when they are back in society.

The human rights of citizens who unfortunately become inmates of correctional facilities must be taken seriously. Our National Human Rights Action Plan approved by Cabinet last year has a section too on prisons. Though late it is imperative to ensure the words correctional facilities' means what it says.

Concluded