Analysis of prisoner releases in response to Covid-19 and pro bono opportunities
DLA Piper, Paris
A recent report concludes that swift targeted action was taken in the first months of the Covid-19 pandemic to reduce prison populations globally. The report, prepared by pro bono attorneys at the international law firm, DLA Piper, with the support of the Association for the Prevention of Torture, analyses government action in 53 jurisdictions worldwide. It documents how governments reduced the number of incarcerated individuals to mitigate the impact of the Covid-19 pandemic via early release programmes and/or the slowing of new prison admissions.
Overcrowding and poor sanitary conditions are common in prisons globally. According to the report, by the end of 2019, over 124 countries admitted to exceeding their maximum prison occupancy rates. Such conditions, beyond violating prisoners’ basic rights to safe and clean accommodation, risk aggravating the spread of Covid-19 and contributing to its disproportionate impact on marginalised individuals. In this respect, the report was commissioned primarily to assist policy makers across jurisdictions identify best practices aimed at protecting the health and safety of prisoners as well as correctional staff and society at large. Governments are encouraged to rely on its findings to create or expand prisoner release programmes to address the continued risks posed by the Covid-19 pandemic vis-à-vis some of the most vulnerable members of society. Even taking into account the measures taken as set out below, by 5 November 2020, more than 283,332 prisoners had reportedly contracted Covid-19 across 115 countries with more than 2,537 prisoners in 39 countries having died from the disease.
Beyond improving government responses to prison reform to manage the effects of the Covid-19 pandemic, the report can have wide reaching implications and potentially contribute to sustainable reductions in overcrowding in the long term. The finding, for example, that following early release, recidivism rates remained low in the short-term, offers ammunition to activists and comfort to government officials working on the issue of prison reform generally and outside of the context of the Covid-19 pandemic. This is all the more so when, as the report describes, despite there being ‘international commitments to decongest prisons’ since at least 1985, ‘little progress globally has been made.’
The remaining paragraphs describe – in summary form – the report’s findings, including some key numbers, the legal basis for release, release eligibility, support measures and conclusions on recidivism.
Though in some cases data was lacking and jurisdictions published data of varying levels of detail, the report nevertheless confirms that in the 53 jurisdictions studied, over 475,000 people were released from prisons and other places of detention between March and July 2020 (this figure also includes those prisoners who will be required to go back to prison after a set period of time). The largest prison release schemes took place in Ethiopia, India, Indonesia, Iran and Iraq. By December 2020, the report estimated that prisoner release programmes in the 53 jurisdictions will have exceeded one million people.
Legal basis for early release
While some governments were able to use existing legislative and regulatory mechanisms, others implemented new programmes, via executive powers or legislation.
In general, the report found that the decision to release a prisoner due to the Covid-19 pandemic was based on three key criteria (commonly applied in combination by the jurisdictions reviewed): (i) the nature of the offence committed; (ii) the nature or status of the prisoner’s sentence; and (iii) whether the prisoner had particular vulnerabilities. The prisoners released were those convicted of non-violent or minor offences and, therefore, posed no great risk to their communities. Serious violent offenders and sexual offenders were generally ineligible for release but only 25 per cent of jurisdictions expressly excluded prisoners at risk of, charged with, or convicted of domestic violence. Given that many countries reported increased rates of domestic violence during the Covid-19 pandemic, the report has recommended that such risks be taken into account in the decision-making framework for early release. This could thus be a particular focus for immediate advocacy efforts and reform.
Another notable point is that 85 per cent of jurisdictions required prisoners eligible for early release to have served a minimum period in prison or be close to their release date. This, tied with the fact that recidivism rates – at least in the short term – were low (as set out in further detail below) can potentially support prison reform efforts aimed at reducing the rates of incarcerated individuals even outside of the Covid-19 pandemic by shortening their sentences when a bulk of the sentence has been served (if this is not already a policy in a given jurisdiction).
Furthermore, around 62 per cent of jurisdictions studied took into account the vulnerability of prisoners in their decision to release them early. Namely, these jurisdictions focused on those who were particularly vulnerable to Covid-19, including the elderly and those with chronic health issues. A quarter of jurisdictions also released female prisoners, pregnant or breastfeeding prisoners and mothers with children living with them in prisons given their vulnerable status.
Support measures were available in about 70 per cent of jurisdictions studied, although it is unclear whether and to what extent such programmes were accessible in practice during this period. Few jurisdictions launched new support programmes to respond to the increased numbers of released prisoners and the specific circumstances of the Covid-19 pandemic including lockdowns, increased unemployment rates and increased pressure on existing mechanisms of social support. For example, in South Africa, the government responded to the Covid-19 crisis by implementing a programme that provided special social grant funds to prisoners released on parole and additional community corrections officers were deployed to work with new prisoners on parole to ensure their successful reintegration into society. Further, the South African government expanded their social assistance programme to ensure released prisoners were able to access an unemployed social assistance package.
The report also highlights how half the jurisdictions studied undertook measures to reduce new prison admissions, which also contributed to decreasing the situation of prison overcrowding.
The report concludes that at least in the short-term, recidivism rates were low for prisoners released early. By way of example, Indonesia reported that 106 prisoners reoffended out of approximately 38,000 who were released. In South Africa, only seven of the 6,791 prisoners who were released on parole breached their parole conditions and were rearrested. In France, the Justice Minister confirmed the prisoners who were released did not commit further offences requiring reincarceration and, accordingly, expressed that the programme would continue after the public health crisis.
Despite limitations in time and scope and the available data set, the results of this study remain promising and demonstrate that when there is a concerted political will to decrease prison populations, action can be taken to do so in such a way that does not lead to reoffence. This study should not only serve as guidance to all stakeholders involved in prison reform, including pro bono attorneys, non-governmental organisations and governments, to promote the safety of vulnerable populations during the pandemic by advocating for and adopting the best practices described throughout to reduce prisoner populations but it should also contribute to the necessary conversation exploring ways to reduce the elevated levels of incarceration in the long term.
 DLA Piper, ‘A global analysis of prisoner releases in response to COVID-19’, December 2020, available at: www.dlapiper.com/~/media/files/insights/publications/2021/03/dla-piper-prison-population-during-covid-19.pdf?la=en&hash=F5C1EBBA0D3D86BDDA58FAC87DB9EF3CAE3815DF.