COVID-19: Civil liberties and the role of the state
Prisons and human rights in the time of COVID-19
Steven Caruana highlights that strategies to prevent a further spread of COVID-19 have to extend to the prison population – a part of our community that is already vulnerable to mental and other health impacts – while ensuring this is done with respect for human rights and dignity.
The COVID-19 pandemic has cast an uncomfortable spotlight on prisons around the world. With as many as 120 countries operating at over 100% of their capacity, coupled with unhygienic conditions and the impracticality of social distancing, preventing outbreaks in prisons has become a near impossibility without significant reductions to prison populations.
Some jurisdictions have started to react to this realisation. In Scotland [PDF, 200KB] for example, the government intends to use recently endorsed emergency powers to release short-term prisoners, following the rest of the UK, other European countries and several US states who have already released low-risk prisoners in response to coronavirus.
Even self-described ‘law and order advocates’ such as Rick Raemisch, former Head of Corrections in Wisconsin and Colorado, have recognised that ‘we need the release of prisoners who can safely be moved to other settings and provide social distancing for those who remain.’
Preventing outbreaks has become a central part of the overall public health response to COVID-19 and the United Nations Office on Drugs and Crime [PDF, 200KB] has pointed out that ‘the scenario of a rapidly increasing transmission of COVID-19 within prison systems will have an amplifying effect on the epidemic within the general public.’
In the United States, where cases have eclipsed every other country, the Cook County Jail in Chicago has reported 235 detainees currently positive for COVID-19 and another 192 recovering. At the Rikers Island Jail in New York City, 367 inmates have tested positive for the virus. At the Terminal Island Federal Correctional Institution in Los Angeles another 570 have tested positive. Other western countries have seen similar outbreaks including Canada and the United Kingdom.
The Australian context
Australian prisons have remained relatively untouched by the pandemic apart from a few cases linked to guards or healthcare workers. However, despite the curve continuously flattening, epidemiologists believe an outbreak in an Australian prison could rapidly change that.
Although Australia has not released any prisoners, NSW has made emergency legislative amendments enabling the Commissioner of Corrective Services to grant parole to certain low-risk inmates. The NSW Attorney-General, Mark Speakman, has recognisied these extraordinary powers as being ‘necessary to respond to the grave risks posed by the COVID-19 pandemic and to control physical contact in places of detention.’
In the NT, the Corrections Commissioner Scott McNairn, has also suggested he is considering using existing powers to ‘try and get as many prisoners out of the prison system safely, [while] still ensuring public safety.’
All jurisdictions in Australia have imposed adjustments to their normal regimes and have ceased social visiting to prisons. It is likely more measures may come into place if a suspected case is confirmed. National Cabinet has agreed that all jurisdictions will adhere to the Communicable Diseases Network Australia (CDNA) interim guidance in their management plans. While some restrictions are necessary, The Office of the High Commissioner for Human Rights (OHCHR) and the WHO [PDF, 300KB] have contended that ‘authorities need to ensure that all such measures respect human rights.’
Balancing quarantine and human rights