The Government must act to prevent COVID-19 becoming a medieval form of punishment, or a death sentence.
On 20th April 2020 there were 81,347 prisoners in England and Wales. On the same date the Secretary of State for Justice, Robert Buckland QC, told parliament’s Human Rights Committee that 13 prisoners had died with COVID-19 since the outbreak. He confirmed that 280 prisoners had tested positive, although he accepted some prisoners may not have been tested. Over half of prisons in England and Wales had confirmed cases of COVID-19iii.
Politics, prison and COVID-19
A stark juxtaposition exists between the release of prisoners and ‘keeping criminals off our streets’, a central tenet of the Conservative election manifesto. Measures to address COVID-19 in prisons through release are therefore minimal. The Government will likely rely on plans for the more socially palatable but largely untested and inadequate options of extra accommodation and staffing. This is partly because early and temporary release are completely unacceptable to significant portions of our society; instead of protecting prisoners from COVID-19, we would rather use it to punish them.
The reality of the overuse of prison for petty, persistent and non-violent crime is often invisible in public discourse. Of those sent to prison in 2018, 69% had committed a non-violent offence and 46% were sentenced to serve six months or less (here). News articles published during the existing pandemic have generally been silent on such statistics. Some publications have sought to fuel punitive sentiment by providing commentary on the release of dangerous offenders and wholly failing to engage with the substance of the Coronavirus Restricted Temporary Release scheme (CRTR). No Category A or restricted prisoners, nor registered sex offenders or those serving sentences for terrorist offences, are eligible for release under this scheme. Those suitable for release under the CRTR scheme must already be eligible for release on temporary licence under Prison Rule 9. A list of those ineligible can be found here.
The statistics referenced above, on the regular use of prison for non-violent offences, are at odds with public opinion. The homogenisation of the prison population, frequently perpetuated in the media, gives credence to the belief that offenders are a cohort of violent individuals. Prisoners are dehumanised and ‘othered’. This perception supports traditional notions of punishment, epitomised in the adage: ‘If they can’t do the time, they shouldn’t have done the crime.’
Putting aside moral and philosophical debates about the purpose and effects of different forms of punishment, it is well-established that the British state does not lawfully impose corporal punishment: to do so would contravene the Human Rights Act 1998, no matter the offence for which a person is serving a prison sentence.
Some portions of society would sooner see prisoners suffer and die from COVID-19 than entertain the possibility of release of offenders who are deemed not to pose a risk to society. ‘Doing the time’ should not involve inflicting punishment by way of pandemic. This is not to suggest release of all prisoners; instead release of low-risk offenders is crucial to protect the health of the entire prison population and prison guards.
Despite the legal prohibition on corporal punishment, if the Government continues on its current trajectory, COVID-19 will become a grotesque form of corporal punishment against serving prisoners.
Prisoner release and COVID-19
The Ministry of Justice’s strategy to address COVID-19 in prisons comprises a ‘mixed plan of release, extra accommodation and staffing‘. Last week following an administrative error which facilitated the accidental release of six prisoners, the temporary release scheme was suspended . All six offenders, who were eligible for the scheme but were released too early, returned compliantly.
Analysis of the proposed measures indicates that they will be fatally insufficient. Official expectations were that up to 4,000 prisoners will be released the CRTR scheme. In reality, significantly fewer are likely to be eligible due to strict guidelines and the risk assessment. The Prison Governors Association has therefore expressed reservations, suggesting the decisions taken have not been ‘brave’ enough to combat the issue of COVID-19 in prisons.
Also last week a judicial review was launched against the Secretary of State for Justice. The solicitors Bhatt Murphy, acting for joint claimants the Howard League for Penal Reform and the Prison Reform Trust, stated in a letter before claim that the government has failed to respond effectively ‘to the obvious need… to substantially reduce the prison population to save lives and avoid a public health catastrophe both within prisons and beyond’. The letter can be read in full here.
Bob Neill, the chair of the Justice Select Committee, has described prisons as ‘a potential hotbed for viral transmission’, stating that ‘they are overcrowded, understaffed and often dirty. By their very nature, it is impossible to enforce social distancing in prisons. In February, 71% of prisoners were living in prisons considered ‘crowded’. The wary two-metre shuffle between bystanders on the street is a luxury of which many people are unaware.
In March 2020 Detention Action launched a judicial review relating to the safeguarding from COVID-19 of those held in UK Immigration Removal Centres. The legal challenge was supported by expert evidence from Professor Coker, an Emeritus Professor of Public Health at the London School of Hygiene and Tropical Medicine, which is particularly relevant to prison conditions:
‘The experience of COVID-19 on cruise ships suggests that a scenario where 60% of detainees become infected is plausible and credible… Many of the elements that facilitate spread on cruise ships which have had transmission of COVID-19, such as poor ventilation, challenging sanitation conditions, limited space and passengers being confined to their cabins for lengthy periods are the same as exist in immigration detention centres.’
Release of prisoners is vital to slow the spread of the pandemic in the prison estate. Evidence given to the Justice Committee by Jo Farrar, chief executive of HM Prisons and Probation Services, suggests that 15,000 prisoners will need to be released for prisons to be ran in accordance with Public Health England guidelines. The existing measures do not go far enough.
Given what is required in order to avert a public health catastrophe, the criteria for those to be considered for release should be widened to include many more of those convicted of non-violent and petty crimes. Temporary release should be considered alongside early release and the imposition of sentences under 6 months should be suspended. Without swift action, sentences will continue to entail severe costs to the physical and mental health of prisoners, along with the risk of death. This is not something that our society should be prepared to tolerate.
This article is adapted from a piece written for the Socialist Lawyer magazine in April 2020