Non-custodial measures are recommended to ease prison overcrowding in COVID-19 era
Legal experts say judicial process is facing big challenges during COVID-19 outbreak and recommend “gender-responsive non-custodial measures” as a means to ease prison overcrowding. Female inmates are usually jailed for drug or non-violent crimes. During the past 20 years, the women prisoner population has jumped by over 50 percent while the men prisoner population has risen by just 20 percent. Relevant authorities therefore are recommended to consider alternatives to imprisonment and pay attention to physical and mental differences of men and women. Legal experts now are pushing for a criminal-justice reform with aim to build the sustainable society of the future.
Prof. Dr. Kittipong Kittayarak, executive director of Thailand Institute of Justice (TIJ), says, “Criminal justice process and prison system are now facing inevitable challenges, as COVID-19 outbreak exposes long-entrenched problems in the judicial sector. These problems remain unsolved even after having persisted for decades. Among these problems is chronic density at correctional facilities whereby members of vulnerable groups such as the elderly, those with underlying health problems, and women, are affected.”
It has been reported lately that an American inmate died of COVID-19 just weeks after giving birth to her baby. She was the first woman prisoner to have caught the fatal coronavirus disease during her pregnancy and succumb to it. Her death has brought the attention of judicial organisations across the world to “prison overcrowding” both in regards to its short-term impacts and long-term impacts, as well as the need to change concepts behind sentencing in criminal justice process.
In the wake of COVID-19 outbreak, it is noticeable current criminal-justice concepts and processes have failed to deliver sustainable solutions to society. Obstacles in the concept and process therefore should be urgently addressed so as to ease long-lasting problems from prison overcrowding. COVID-19 impacts, moreover, have nudged judicial officials to reflect deeper on challenges, purposes of imprisonment, and non-custodial measures that are more effective and respond well to the goal of returning ex-convicts to the society. Among such measures are Gender-Responsive Non-Custodial Measures, which take into account the background of prisoners, mostly women, who had been abused or a victim of violence as well as the specific needs of women who are physically and mentally different from male inmates. For example, female inmates have a period every month. Some female inmates, meanwhile, are pregnant during imprisonment and some others have to care for their dependent children. Overall, female inmates’ needs are different from those of male inmates.
Prof. Dr. Kittipong Kittayarak, executive director of Thailand Institute of Justice (TIJ), adds that, “Several researches have suggested that imprisonment should be the last resort in the criminal justice process, especially in regards to women offenders, most of whom are convicted of just minor offences and are not involved in violent crimes.” He says many countries, so far, have not yet paid adequate attention to gender differences. For example, they have yet to seriously look into the victimisation of women, women’s responsibility for family, and specific physical and mental needs of women.
During the past decade, the number of pre-trial inmates has risen by 30 percent. There were nearly three million pre-trial inmates in the world in 2017. In some countries, the number of pre-trial female inmates equals or exceeds convicted women prisoners. It should also be noted that the number of pre-trial female inmates has risen rapidly in some countries and has even been higher that of pre-trial male inmates.
Ms. Miwa Kato, director of Division of Operations, the United Nations Office on Drugs and Crime (UNODC), says, “Researches show the global population of female inmates, covering girls and women, has jumped by 53 percent during the past two decades as a result of poverty, discrimination and victimisation. Over the same period, the global population of male inmates has risen by just 20 percent.” She emphasises that the figures underline the urgent need for the international community to recognise the importance of “alternatives” to imprisonment and take into account women offenders’ backgrounds and needs.
During the past 10 years or ever since “Bangkok Rules” were introduced as the standard minimum rules for the treatment of women prisoners, two challenges have persisted. They surround: 1. Gender-responsive perspectives; and 2) Non-custodial measures. The world’s judicial process has faced these challenges but it has not yet been able to solve them. The existence of these challengers thus underlines the importance of “reforming criminal justice process,” a foundation for sustainable society of the future.
“In the face of the world’s changing context, judicial organisations and officials around the world should deeply recognise the need to solve problems in the criminal justice process. Is imprisonment excessively used? Reinterpretation of crimes should address punishments and causes of crimes too,” Ms. Miwa says.
Ms. Sabrina Mahtani, a human rights lawyer and a drafter of Toolkit on Gender-Responsive Non-Custodial Measures, says “non-custodial measures” should be considered at every stage of the criminal justice process. She points out that the Toolkit on Gender-Responsive Non-Custodial Measures provides guidelines and procedures on gender-responsive non-custodial measures to judges, public prosecutors, defendants’ lawyers, probation officers, medical workers, media, and civil society organisations for the purposes of curbing unnecessary imprisonment of female offenders and making imprisonment the last resort in criminal justice.
The toolkit has three parts: 1) Identifying the needs of female offenders and the causes of their crimes; 2) Non-custodial measures for female offenders that are in line with regional and international standards, with case studies on good practices in some countries; and 3) Guideline on treatments of female offenders in special categories such as female offenders who are survivors of gender-based violence, foreign women who are survivors of human trafficking and prostitution, and women arrested on drug charges.
These legal experts aired their views during a recent webinar which was held through a collaboration between the Thailand Institute of Justice and the United Nations Office on Drugs and Crime (UNODC) as an international forum for the exchange of opinions, information, tools and experiences in support of gender-responsive non-custodial measures. These measures, after all, can help reduce the spread of COVID-19 in prisons and contribute to judicial reform in the long run. The goals are to fulfil the United Nations’ Sustainable Development Goals namely Goal 5: Achieve Gender Equality, Goal 16: Peaceful and Inclusive Societies; and Goal 17: Partnerships to Achieve the Goals.
If you are interested in Toolkit on Gender-Responsive Non- Custodial Measures, you may download it at https://www.tijthailand.org/highlight/detail/-launch-of-the-toolkit-on-gender.