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The IBA’s response to the situation in Ukraine
Around the world, prisons struggling with ongoing overcrowding have become hotbeds for the spread of Covid-19. In the absence of effective strategies by authorities to combat this crisis, courts have been forced to step in to determine the level of protection afforded to inmates.
In May in the United States, Ohio District Judge James Gwin claimed prison authorities had made ‘only minimal effort to get at-risk inmates out of harm’s way’. He was ruling, for a second time, on a lawsuit filed on behalf of four inmates at the Federal Correctional Institution Elkton, where nine inmates have reportedly already died from Covid-19.
The original suit alleged conditions in the low-security facility were unconstitutional and inhumane and, in his first ruling on the case, Judge Gwin had ordered the prison to evaluate vulnerable prisoners for early release or transfer.
The prison authorities initially identified 837 eligible inmates, but later said only five were suitable for release. Revisiting the case, Judge Gwin issued a renewed order on 19 May. He claimed authorities had made ‘poor progress in transferring subclass members out of Elkton’, and went on to reinforce his original order, demanding the 837 eligible prisoners be transferred out of the facility.
Regional Representative North America, IBA Criminal Law Committee
But the conditions debated in this case are not unique to Ohio. In fact, Chicago’s Cook County jail has been described as the largest-known source of Covid-19 infections in the US.
The US Supreme Court (the ‘Court’), meanwhile, is beginning to rule on cases regarding the conditions within many other prisons. Some cases will force the Court to determine whether facilities are violating the constitutional rights of prisoners to be protected from cruel and unusual punishment in the context of the Covid-19 pandemic.
Brian Michael, the IBA Criminal Law Committee’s Regional Representative for North America, says there is clearly ‘a need to improve conditions in many prisons across the US, and the rights of inmates must be given prompt and appropriate attention during a health crisis that appears to be having a disproportionate impact on their health and safety’.
But he notes ‘many of the inmates who have secured release in the US have been the result of individual case-by-case determinations made by various courts, which is inherently an inefficient manner to seek relief for inmates given the prison population in the US’.
In mid-May, the World Health Organization (WHO) and the United Nations’ global health organisations issued a joint statement, writing: ‘in light of overcrowding… a health response to COVID-19 in closed settings alone is insufficient’.
The statement calls for government efforts to create ‘release mechanisms for people at particular risk of COVID-19… as well as other people who could be released without compromising public safety, such as those sentenced for minor, non-violent offences’.
But Michael – who is also a Los Angeles-based partner in King & Spalding’s Special Matters and Government Investigations practice group – says that ‘divergent political views regarding inmate rights and public safety pose hurdles for prompt, far-reaching actions’.
This divergence was highlighted when the Trump administration attempted to block Judge Gwin’s first Ohio injunction. The administration unsuccessfully appealed to the US Supreme Court, with the Solicitor-General arguing the Ohio injunction ‘would impose a constitutional six-feet-at-all-times rule’ and require the release of prisoners from facilities that had made considerable Covid-19 mitigation efforts. He added that the order ‘threatened public safety and amounted to unwarranted judicial interference with prison administration’.
For Michael, ‘While it may not be within a court’s authority to weigh in on a matter of routine prison administration, there is nothing routine about the current pandemic’.
‘It is well-within the mandate of US courts to step in where conditions may violate the US Constitution’s prohibition on cruel and unusual punishment and present an imminent threat to the health and safety of inmates’, he tells Global Insight.
The WHO joint statement also urges ‘political leaders to consider limiting the deprivation of liberty, including pre-trial detention, to a measure of last resort, particularly in the case of overcrowding, and to enhance efforts to resort to non-custodial measures’.
Diane Floreancig, an associate at August Debouzy in Paris, says that ‘under French law, alternatives to detention should be given priority for short sentences, but a true reduction in prison numbers also depends on the approach to criminal policy’.
She highlights that French law states that each prison cell should have a single occupant, but according to the French Controller-General for Places of Deprivation of Liberty, the occupancy rate was generally above 110 per cent prior to the Covid-19 pandemic. Floreancig says the European Court of Human Rights has reprimanded French authorities for prison conditions several times, including as recently as January.
In early May, the Controller-General reported that, at the end of April 2020, prisons had an overall occupancy rate of less than 100 per cent. They commented that the passing of this symbolic bar demonstrates that it is possible to reduce overcrowding in prisons effectively and rapidly when the political will exists.
Floreancig hopes ‘that this pandemic may lead to the pursuit of efforts to reduce overcrowding in prison’.
However, some states are instead increasing detentions, sentencing people who break Covid-19 quarantines to jail time. On 9 April, the IBA’s Human Rights Institute released an open letter of intervention to the President of El Salvador, where people detained on such grounds face confinement for 30 days. The Supreme Court of El Salvador has passed judgments calling for an end to the practice in light of the inadequate detention conditions, but with no effect.
In the letter, IBAHRI Co-Chairs Michael Kirby and Anne Ramberg wrote that ‘The rule of law must prevail throughout times of crisis and it is imperative that the El Salvadorian government upholds the decisions enacted by the Supreme Court.’