COVID-19 and Prisoners' Rights

Professor Juan Mendez

Professor Juan Mendez

The pandemic has forced most governments to impose restrictions of the exercise of individual and collective rights.  If those restrictions are temporary and proportional to the need to prevent spread of the Covid-19 disease, they are in general justified as a matter of international law.  The right to health and the fundamental right to life provide a principle of necessity, both to legitimize restrictions but also to provide tools to judge when in fact those restrictions as applied are justified or if instead they cross the line into arbitrariness and even despotism.  One crucial factor in determining both the reasonableness and the lawfulness of restrictions is that they must not be discriminatory.

In that regard, persons deprived of liberty around the world are suffering because of actions and inaction of governments, purportedly in response to the Covid-19 pandemic.  Jails and prisons have been effectively shut down to outside visits by family members, lawyers, independent monitoring agencies and civil society organizations.  There has been very limited testing for the virus and – worse – the results are often not made public, and they cease altogether as soon as the figures cause justified alarm.  In most detention centers there is no provision of water, soap, disinfectants or cleaning products.  In many cases, inmates who test positive for Covid-19 are placed in indefinite solitary confinement, in violation of explicit norms in the Standard Minimum Rules for the Treatment of Prisoners, now called the Nelson Mandela Rules.  Also in violation of these universal standards, inmates do not receive the quality of care that is available in the greater community.

In response to this state of affairs, the most authoritative organs of interpretation of State obligations regarding the treatment of persons deprived of liberty have issued detailed recommendations on how to respond to the pandemic.  The UN Subcommittee on Prevention of Torture, the European Council’s Committee on the Prevention of Torture and the Inter-American Commission on Human Rights have all published helpful commentaries to give effect of fundamental and non-derogable rights of all detainees to life and to health care.  [In a recent article I wrote for the Colombian blog La Silla Vacia, in collaboration with Vanessa Drummond, of WCL’s Anti-Torture Initiative, and Veronica Hinestroza, we highlighted the need for urgent application of those standards in Latin American countries].

The health crisis imposes itself on a pre-existing human rights crisis in prisons.  Long-standing overcrowding has led to diminished quality of services and benefits, as well as to torture and ill-treatment and ghastly incidents of violence.  As expected, the closure of establishments to outside controls and the secrecy in which authorities operate is leading to new outbursts of violence among inmates and to brutal repression.  To be sure, there have been announcements, in the US and in many other countries, about measures to relieve the pressure of overcrowding.  But the announcements are vague and there is great lack of transparency about their execution.  In the US, it appears that much of the reduction in rates of incarceration has happened in jails, where inmates do not spend long periods of time as a matter of course.  In prisons, instead, there seem to have been little change in the numbers incarcerated or in the treatment they receive.  In Latin America, several courts have issued guidelines for the decongestion of prisons, but corrections officials and lower courts have been reluctant to apply them.  In Argentina, an immediate backlash has been fueled by the media warning of increase in violent crime.  Those dire predictions have not materialized, but the campaign has succeeded, for now, in slowing down or stopping a more rational policy.

If all crises are also opportunities, this should be the occasion to rethink the obsession with preventive detention that for decades has been the principal factor in overcrowding and in the deterioration of conditions of detention.  It is important to insist that persons remanded to preventive detention or serving time after conviction lose some rights but only in respect to freedom of movement.  In all other respects they are entitled to respect for their human dignity, to health care, to physical and mental integrity and to life.  In addition, it must be emphasized that repressive policies not only condemn inmates to contagion, illness and in too many cases death. They also adversely affect national policies of prevention of disease, because viruses freely circulating in closed quarters inevitably break out into the society through corrections staff, service providers and others.

There is a growing agenda for advocacy in favor of persons deprived of liberty: the health crisis must be met by advocating the following:

  1. A review of preventive detention, to return to the human rights standard that it should be the exception and not the rule;
  2. The need to develop alternatives to incarceration, especially for non-violent crimes, and to include technological means to ensure compliance with court orders, as well as reasonable bail standards;
  3. As a matter of urgency, the release of prisoners from custody should be accelerated by sending the infected to hospitals; and by the orderly release of those inmates in high-risk groups such as the elderly or those with existing health conditions that make them vulnerable to Covid-19, as well as those closer to the end of their sentences and who have shown good behavior;
  4. For those inmates that will remain in custody, it is essential that the State effectively guarantees provision of prevention items: soap, water, disinfectants and adequate food with adequate control measures, to allow visits by families, lawyers and national and local mechanisms for the prevention of torture and ill-treatment; testing and tracking for the virus, with the date duly made public.