Wednesday, 17 August 2016

Reflections on Prison Overcrowding

How best to eliminate the scourge of overcrowding in the world’s prisons? Two countries much in the news are promising different solutions with Turkey planning to release 38,000 "ordinary" criminals (if only to make room for alleged coup plotters) and the Philippines substantially increasing its capacity to reduce the squalor so shockingly revealed at Quezon City jail.

Neither approach generally finds favour with prison reformers; amnesties are seen to erode the rule of law and encourage corruption;  prison construction uses limited resources better spent in other ways and risks the induced demand effect:“if you build it, they will fill it”.

More favoured strategies include systematic efforts to reduce the use of pretrial detention and the development of alternatives to prison sentences.  There is much to be said for both of these. Many of the most congested prisons are those holding large numbers of suspects awaiting trial. The measures outlined in PRI’s recent Ten Point Plan – including diversion of minor cases, time limits for court cases, pretrial release options and effective file management- could all help to ease demand for prison places: and the development of sentencing options such as probation or community service which place burdens on offenders without depriving them of their freedom can help ensure that petty offenders at least are kept out of jail. 

While both these approaches are necessary – and in certain circumstances amnesties and prison building have a role to play too- they are not sufficient. This is particularly true in Africa where prison reform has struggled to have an impact. On that continent, overcrowding is little short of a humanitarian disaster.  Some countries which have reduced the use of pre-trial detention – Malawi is an example- still have grossly overcrowded prisons albeit on the sentenced rather than remand side. Others which have implemented community service orders have seen limited impact on prison populations.

On a recent visit to Uganda, I saw a thousand plus prisoners in Jinja’s pre- trial prison, built for 300. We were told that 106 were charged with petty offences but the vast majority had allegedly committed serious crimes such as murder, rape and robbery. Improved pre-trial justice would bring them to trial quickly but those convicted would face long sentences, generally served in full. Alternative sanctions as currently constituted might divert the petty offenders from the penal system but even if the law allowed it, would not be accepted by courts or the public as an adequate response to more serious criminality.  

A much more robust form of alternative sentencing has been developed in neighbouring Rwanda. In the aftermath of the 1994 genocide, conventional legal responses were simply impractical given the scale and gravity of the problems to resolve. Alongside the creation of Gacaca community courts, an innovative form of Travail d’Interet General (TIG)  was introduced - an intensive community service order undertaken as part of a prison sentence. Rather than stay at home and do unpaid work for a few hours a day which is the model of community service in place in the rest of East Africa,  the genocidaires - so-called tigistes- were based in camps doing a full working day six days a week. This enabled substantial infrastructure projects to be completed- including construction of roads, homes for vulnerable people (including genocide survivors) and school dormitories. The Rwandan government have claimed that up to 2013 more than $50 million worth of work had been done Prisoners have been released much earlier than they would have been and have learned skills to help them resettle. The prison population has been stable for the last six years.

The Rwanda model has not been without critics, in respect of living conditions, health and safety concerns and ability of tigistes to stay in contact with families- in short whether it is in fact a second prison or form of forced labour. The tigistes seem to prefer it to spending longer in prison; and the more tangible community benefits make it more appealing to courts and public alike

Rwanda’s 2012 Penal Code extended TIG to all offenders who have committed an offence which is punishable by a term of imprisonment of up to 5 years.  The limit  is two years in Uganda and lower is several countries.

Policies developed after Rwanda’s exceptional horrors may not seem relevant to other contexts. But by showing that people guilty of some of the worst crimes can be punished in part at least through reparation in the community , the TIG model offers the prospect that increased development need not always entail greatly increased imprisonment. As long as the rights of participants are respected, it could be tested as a way of  replacing or shortening prison sentences and contributing to major public works elsewhere in Africa and beyond.

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