By Bronwyn Nayor

This blog is based on a paper delivered at a  Castan Centre forums on prison overcrowding on 6 November 2014. A version of this paper with footnotes can be downloaded from SSRN.

What is happening in Victorian prisons?

Two features of Victorian imprisonment should be of immediate concern. First is the major increase in prisoner numbers in the last couple of years, and the second, clearly related but separate, is that the existing prisons have been unable to accommodate this increased population satisfactorily, so our prisons (and at times police cells) are seriously overcrowded.

First, the numbers. There has been a recent huge increase in numbers of people in Victorian prisons. According to an October 2014 report by the Victorian Ombudsman, there were 6140 prisoners in Victoria, with 7169 expected by June 2015, that is, another 1000 prisoners are expected to enter the system over next 8 months. This has to be seen in the context of the recent history of imprisonment in Victoria. Victoria has been widely regarded in Australia as a low-imprisonment state, one whose practices were admired among prison reformers and administrators. From 2002-2005 the prison population sat around 3600.  Then from 2005 to 2014 we saw annual increases resulting in the current 70% increase on the 2005 population.  Of greater concern, almost half of that increase was in the last 2 years.

Second, the overcrowding. Many Victorian prisons are having wings extended, some have refurbished containers being used for accommodation, and a new prison has been commissioned – the projected Ravenhall men’s prison, which was to have been a 500 bed facility, then 1000 and now has additional scope to hold 1300 prisoners. It is not due to open in 2017.

So from being a low-imprisonment state we have become a hugely expansionist site of incarceration, holding prisoners and remandees in substandard conditions.

Causes for this increase include more people coming into prison, and more people staying in prison longer.   First, more people are being remanded in custody, and not getting bail.   A recent Sentencing Advisory Committee study found that the proportion of the prison population that was on remand – ie unconvicted or unsentenced – rose from 16.3% in 2002 to 20.4% in 2012.  To look at it another way, sentenced prisoner numbers increased by 31.3% in that ten year period, but the number of prisoners on remand increased by 72.3%.  At the same time, more people are coming into prison because of the abolition of suspended sentences and of home detention, and because of increases in penalties and new obligations on courts to impose extended periods in custody.

Further, people are serving a greater proportion of their sentences now.  Radical changes to the parole regime in Victoria in 2013 led to a 96.2% increase in refusals of parole in one year.  This is a serious issue: more prisoners are now serving their maximum sentence, without the benefit of a period released on supervised parole as occurs in most comparable countries.  A ‘reform’ ostensibly aimed at keeping the community safer by not releasing people early is having the opposite effect, of releasing people without the support structures provided by parole, leaving them more likely to reoffend.

Increased imprisonment is not inevitable

What must be realised is that increased imprisonment – and prison overcrowding – is not inevitable.  It is now widely recognised that there is no clear relationship between crime rates and imprisonment rates.    Crime rates in Victoria have fluctuated – there have been increases overall currently, but some specific crimes such as homicide have reduced, and the rate of crime in the current (2013/14) financial year rate is still 1.6% lower than 10 years ago.  Meanwhile the rate of imprisonment has grown exponentially.

Research around the world has found no clear direct link between prison rates and crime rates.   In some countries crime rates and imprisonment rates rise and fall together, in other countries they move in opposite directions, and in others again they rise and fall without any apparent connection.   What is more clearly related is the rate of imprisonment and level of social inequality. Greater welfare spending, and more egalitarian politics, for example, do seem to correlate with lower levels of imprisonment.

The fact that imprisonment rates are not related to any changes in crime rates shows clearly that the use of imprisonment is a policy choice by governments.   There are countries that have made intentional decisions to reduce their reliance on imprisonment. A striking example is Finland, where the decision was made in the 1960s to cut the imprisonment rate to bring the country into line with its Scandinavian neighbours, by such measures as reducing sentence lengths overall, legislating to prevent the use of custody for a range of non-violent offences, and introducing early release on parole.  The imprisonment rate went from 150/100,000 in the 1960s to around 60/100,000 in the 1990s.   More recently Texas has closed two prisons due to falling prisoner numbers.

In Victoria, the numbers in prison could be cut by reducing the use of remand for people awaiting trial, bringing back a strong and effective parole regime for supervised release, and developing more alternative non-custodial punishments.

Human rights and overcrowding in prisons

The focus of this paper is on the implications of overcrowding for the operation of prisons.  But it must be emphasised that prisons are inherently harmful to detainees, no matter whether they are comfortable or overcrowded.  The international evidence is clear: people do not generally leave prison better than they entered.  They are also more and more likely to return: overall reoffending rates in Victoria are increasing – from 33.7% in 2009-2010 to 39.5% in 2014. Indeed NSW research showed that imprisonment is more likely to lead to reoffending.

It is therefore vital that incarceration is a punishment of last resort.  Even if governments allocated billions of dollars to new prisons – which they seem willing to do – this will not make imprisonment a desirable correctional option.  The money could be better spent addressing the issues underlying criminal activities, such as mental illness, acquired brain injuries, drug addiction, and family disfunction.

Nonetheless, given that governments continue to use prisons as a political choice, it is clear that overcrowding risks all sorts of additional harms.  As the UN noted in a recent international publication with the Red Cross on reducing prison overcrowding:

… overcrowding is the root cause of a range of challenges and human rights violations in prison systems worldwide, threatening, at best, the social reintegration prospects, and at worst, the life of prisoners.

Recognised harms from overcrowding include pressures on sanitation and nutrition, risks to physical health such as the spread of communicable diseases, increased challenges to prisoners’ mental health and to management of mental health issues in prisons, increased levels of violence (between prisoners, and between prisoners and staff), and increased risk of suicide.

The Victorian Ombudsman identified in 2011 the ‘grossly inadequate number of psychiatric beds for the treatment of prisoners with mental health conditions’, and was highly critical of the lack of improvement in his 2014 Report.

The increased suicide risk from overcrowding was highlighted by the UK Prisons Inspector in his most recent annual report.  He found that ‘prisoners were living in overcrowded conditions in two-thirds of the prisons inspected’, and made the link with increasing rates of suicide, observing that ‘suicides were the “most unacceptable feature” of overcrowding, understaffing and lack of safety.’  He reported a ‘69% increase in self-inflicted deaths in the financial year 2013-14, to 88. …the highest figure in a decade.’

Overcrowded prisons also limit prisoners’ access to education, to work, to training, and to the range of programs prisons offer to try to change offending patterns, such as alcohol and drug programs and cognitive behavioural skills etc.

What does a ‘human rights’ perspective on prisons, and prison overcrowding, offer?

A human rights focus reorients the analysis: it makes the person affected a claimant, and not a beggar.   Prisoners are entitled to human rights, as humans. They do not need to plead for special compassion or consideration.

This is particularly significant in the context of widespread community and government ambivalence (to say the least) about whether prisoners actually have rights.  There is still an argument that people lose their ‘human rights’ by committing crime.  In the old days it was said the prisoners/felons suffered ‘civil death’.  This means that they lost their civil rights upon conviction.  Essentially, all rights were lost, other than rights which a government could choose to give. By contrast, in recent years the official position is that prisoners do in fact retain all rights ‘other than those inevitably lost by reason of their incarceration’.

But what does this mean?  And what does it mean when prison facilities are overcrowded?

Human rights regimes

Australia is of course famously backward in its implementation of the usual internationally- accepted human rights.  Australia has ratified all the main treaties – ICCPR, CAT, CROC, CRPD etc.  But we have no national human rights legislation and no direct way of enforcing any of the rights in those treaties.

This was demonstrated in a case some time ago where a prisoner in South Australia tried to directly enforce the ICCPR in a complaint about prison overcrowding, where single cells had been converted to double bunk cells, leading to increased tensions and a lot of violence, and mixing of smokers and non-smokers. The judge agreed that the prison conditions amounted to a breach of the right to humane treatment under the ICCPR. However he was unable to give effect to the relevant provisions as they had not been incorporated into Commonwealth or state legislation.

So where formal human rights are recognised, does it help?

International experience

Most countries in the world (including Australia) have ratified the ICCPR and the CAT treaties which between them specify a number of civil and political rights important to prisoners such as:

• The prohibition on cruel, inhuman or degrading treatment or punishment
• Right to humane treatment
• Right to life
• Equality right
• Protection of family life

The European Convention on Human Rights sets out equivalent rights for the countries of Europe.  Unlike the ICCPR, however, European Convention rights can be enforced by litigation in the European Court of Human Rights, and this litigation offers useful examples for us to consider.

‘Cruel, inhuman or degrading treatment or punishment’

Some conditions arising out of overcrowding have been held to amount to cruel, inhuman or degrading treatment or punishment (CIDTP), which is a breach of the ICCPR and CAT.  Cases have concluded that significant combinations of conditions of overcrowding may amount to CIDTP, including shared cells, lack of personal space, lack of privacy, poor toilet and sanitary arrangements, exposure to violence, and lack of health care and rehabilitation.   In the 2010 Canadian case of Trang the Canadian Supreme Court concluded that extended periods of overcrowding ‘led to strain, physical illness, violence, infractions of prison rules, and post-release recidivism’ and that in the specific circumstances of the case the overcrowded conditions amounted to cruel and unusual treatment.

The positive right to humane treatment

There is also a positive right to humane treatment.   This has been held to mean that people held in prisons should not be subjected to ‘any hardship or constraint other than that resulting from the deprivation of liberty’ and that ‘respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons.

The UN Human Rights Committee, the body that oversees the ICCPR, has concluded that particular cases of overcrowding have breached this positive obligation.

This right is generally not seen as depending on the availability of material resources.  The European Court of Human Rights for instance has said that a responsible government must ‘organise its penitentiary system in such a way as to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties.’

Of course it’s one thing to say there has been a rights violation – it’s another to provide a useful remedy.

In some of these cases compensation or damages are awarded.  This may be useful for the individual, and may provide an incentive to governments to avoid future payouts.  Compensation does not, however, address the systemic issues which lead to overcrowding.

The European Court when it finds a rights violation also strongly recommends to relevant governments that they need to – for example –  fix their prison buildings.

Unlike some other rights issues in prisons however, such as excessive use of segregation, availability of specific education programs or foods, prison overcrowding is generally outside the control of prison management.   Courts sentence people to prison pursuant to legislation and prisons have no choice but to accommodate them as best they can with the available resources.

An important point in Collins case was the Court’s assumption that, even if they wanted to, courts cannot grant relief where it is practically impossible; that is, they cannot order the Government to spend money on building more cells.  However it should be noted that in the Victorian case of Benbrika, involving the trial of people charged with terrorism offences, the Supreme Court was at least willing to demand a change in the way prisoners attending their trial were managed. In that case the judge stopped the trial until the defendants were moved to a prison that was closer to the court and less restrictive.

The most famous example of a court actively intervening in the management of prisons came out of long running litigation about human rights violations against groups of prisoners held in Californian prisons.  The Eight Amendment – prohibiting cruel and unusual punishment – was argued in a series of civil rights cases related to the harms resulting from overcrowded Californian prisons.  Ultimately the US Supreme Court, in the case of Brown v Plata, ordered the State of California to reduce prison overcrowding from almost double capacity to a mere 137% capacity – to give effect to the right to be free from cruel and unusual punishment.

Victoria

The Victorian Charter incorporates the main rights set out in the ICCPR. There has been no direct litigation under the Charter in relation to overcrowding, although the Supreme Court has been critical of the lack of resources in a case relating to a prisoner with a mental illness.  In that case, the prisoner was being held in prison but should have been in the secure forensic facility at the forensic psychiatric facility, Thomas Embling Hospital. Bongiorno J observed that ‘his continued incarceration in a prison would appear to be contrary to the spirit, if not the letter of the Charter of Human Rights and Responsibilities’.

Identifying human rights breaches from overcrowding may not take us very far in Victoria. There is no direct remedy for rights violations under the Victorian Charter.  Further, issues like pressures on health services, pressures on accommodation and access to programs are the result of government policies and consequential sentencing/parole decisions, so are difficult to litigate over.

Courts can respond to harmful prison conditions indirectly in sentencing, where these would affect the individual more than it would others in the prison population, although this is not a remedy for overcrowding generally.  For example in DPP v Foster and Ors the court reduced the sentence for young men who were being held in segregation and likely to be held in these oppressive conditions after sentence.  The Court noted the risk that these conditions would exacerbate mental health problems; the fact that the prisoners were young; and the fact that the lock down regime was close to being cruel treatment. The court also called for a review of the regime, although without any direct reference to the Charter.

Monitoring human rights

It may be that pressure from external agencies is needed.  This is where monitoring and audit can play a vital role. The Victorian Ombudsman, for example, in addition to its general powers to respond to complaints and initiate inquiries, has specific powers to monitor administrative actions to ensure they comply with the Charter. This has led to several powerful reports – on the youth justice precinct, on prisoner health, and on deaths in custody.

Other states have effective independent prison inspectorates, such as the WA Office of the Inspector of Custodial Services.

The picture of human rights, and of monitoring for rights protections in Australia, has been rightly described as a ‘patchwork’.  Whilst there are some useful avenues, it is clear that human rights need better protection. One important step would be for Australia finally to ratify the international Optional Protocol to the CAT (OPCAT).

Australia signed the Protocol in 2009, but has not ratified it. OPCAT requires national and international monitoring structures, in particular:

• a comprehensive body of monitoring agencies across all states and nationally, which employ human rights principles to address rights violations, individual and systemic, and report publicly on findings; and
• opening all places of detention – including prisons – to inspections by the UN’s SubCommittee on the Prevention of Torture (SPT).

The Committee for the Prevention of Torture (a European equivalent) and SPT regularly highlight overcrowding and work with governments to address the issues identified.

Ratification and implementation of OPCAT has been promised – but has stalled. We need to get it back on track. It won’t solve the problems of the overuse of imprisonment, or overcrowding in prisons, but it provides an important lever to make sure these issues don’t become ‘the new normal’.

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