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NEWS

Commentary: Selective release of people in prison undermines efforts to contain COVID-19

FairTrialsAdmin - April 25, 2020 - COVID-19 Updates, Commentary, Prisoner releases, Extended pre-trial detention

Jurisdictions around the world are waking up to the grim reality that in the COVID era, incarceration poses a mortal risk to people who reside and work in prisons. People in prison suffer from underlying health conditions at rates greater than that of the population at large, and they are unable to isolate themselves from each other to reduce infection. The risk to health and life does not start and end behind bars – seriously ill people in prison often rely on the same medical providers as everyone else, particularly in the case of intensive care that is not usually available in prison medical units. Explosions of cases in prison inevitably put pressure on the same health systems on which we all rely.

Efforts to reduce the incarcerated population have achieved up to 30% reductions or more in some localities, but in many others, failure to release sufficient numbers has resulted in a catastrophic spread of the virus. Cook County Jail in Chicago, USA, for example, has the world’s highest known concentration of COVID cases, at a rate 30x higher than its surrounding county, despite a modest reduction in the jail’s population. There is an urgent need to continue and speed up the release of incarcerated people, but certain classes of prisoners have been made ineligible for release: notably, those convicted of certain classes of offences, and pre-trial detainees. Any failure to consider these populations for large-scale release undermines efforts to contain the virus’ spread.

Fair Trials recently signed onto a letter calling on Turkish authorities to correct its failure to consider people being held in pre-trial detention in its release efforts – currently, only people who are sentenced are eligible for release. Up to 45,000 people or more could be released under Turkey’s proposal, but with people in pre-trial detention making up nearly half of the jailed population, the failure to consider their release considerably undermines mass release efforts. The exemption of pre-trial detainees is particularly perverse given these people are legally innocent, and are often held in worse conditions than sentenced people.

Often, this distinction is made because decisions on pre-trial detention are within the ambit of individual judges, rather than prison or corrections administrations, raising potential conflicts in separation of powers between the judiciary and the executive and administrative branches if the latter attempt to influence judicial decisions on release. In Spain, for example, those convicted of third degree, but not second degree offences can be released, due to the fact that detention in second degree cases is a judicial, rather than administrative, decision. But leaving decision on release up to a case-by-case decision by judges may be too slow and cumbersome to achieve public health aims, and can create arbitrary differentials in treatment as between judges. In some places, significant reductions in pre-trial populations have been achieved through directives to police and prosecutors to avoid arrest and prosecution of many offences and to refrain from requests for pre-trial detention. But these successes are far from universal.

Even within the sentenced population, restrictions on who may be released are limiting the ability to contain the public health risks in many jurisdictions. In many European jurisdictions, for example, early release has been limited to those with 6 months or less left to serve (as in Belgium and Norway). Irish authorities have refused to release elderly, vulnerable people serving sentences for sex offences against children. Countries including Turkey and Spain have also restricted release for prisoners who are detained for political activities, including politicians, civil society actors and journalists, to the consternation of the Parliamentary Assembly of the Council of Europe. In the USA, efforts have been patchy, and most orders to release people have stopped short at those convicted of “violent offences,” or have prioritized certain classes of prisoners. But the concept of a “violent offence” is a term of art – many offences so classified are not what an ordinary person would understand as violent. These include, for example: purse snatching, embezzlement, and some drugs offences. From a public health perspective, pre-exempting some prisoners from consideration for release undermines the effectiveness of decarceral measures, leaving over 40% of people in prison (over 50% of US state prisoners) ineligible for release. Neither is public safety achieved, since people convicted for violent offences have some of the lowest recidivism rates.

The virus will spread exponentially among people who cannot maintain distance from each other and who often lack access to sanitation, as people in prison do, regardless of the reason for their imprisonment. In an infectious disease emergency, discrimination feeds the disease. Nothing less than an extreme reduction in the detained population – much more drastic than we have yet seen --can protect our public health. No class of prisoners can be exempt from this life-threatening calculus. To this end, Fair Trials has produced a guide for lawyers working to get clients released from pre-trial detention.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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