PRI’s Policy Director, Andrea Huber, looks at the some of the major trends – national, international, the good, the bad and the ugly – in criminal justice and penal policy over the last few years. This blog was first published by the Human Rights Centre at the University of Essex.
If there is a criminal justice trend of international dimension it is the growth of the world prison population, including an increase of life and long-term sentences, of imprisonment for drug-related offences and of women prisoners. In terms of prison management, tendencies to build larger prisons and an increased interest in the involvement of private companies are noticeable trends. On the positive side, there is a movement towards the abolition of the death penalty and some progress in the development of standards relating to criminal justice, although their realisation in practice remains strikingly low on the agenda of states who adopted them in the first place.
An estimated 10.2 million people were in prison in 2013, according to the World Prison Brief, representing an increase of 20% in the last 15 years, explicable neither by the general growth of the world population nor by an increase in crime.
Countries with decreasing numbers of prisoners are rare exceptions. Numbers have fallen in Sweden, Russia, some former Soviet Union countries. More representative of the global trend, the Americas and Asia have seen sharp rises in their prison populations, with growth rates of 380% in Brazil, for example, 277% in Indonesia and 250% in Thailand. In Europe the increase has been more moderate – with the exception of countries such as the Netherlands, where the prison population has tripled since 1992.
While there are national and regional discrepancies, the increase in life- and long-term sentences and of imprisonment for drug-related offences are two drivers of this trend.
The ‘war on drugs’, a buzz phrase for the harsh penal policies used to tackle the problem, has undoubtedly played a major role in increasing the number of prisoners. Criminalisation of use and possession, as well as mandatory and lengthy prison sentences, have been popular policies in the last decades. The proportion of drug-related offenders in many prison populations is staggering, representing, for example, 70% of all prisoners in Indonesia, 58% in Thailand and more than half in the US and Mexico.
Yet, statistics show that 83% of persons in prison have been charged with or convicted for use and/ or possession only, doing little to disrupt drug trafficking networks and organised crime, while studies suggest that deterrence is marginal at best compared to the wider social, cultural and economic factors.
The ‘war on drugs’ has also been identified as one of the key drivers for the increase – at a faster rate than men – of women amongst the global prison population. While the world’s female population grew by 16% between 2000 and 2013, the number of women in prison increased by 40%.
This has been attributed, at least in part, to the greater ease with which low-level drug crimes can be prosecuted and the typically minor role women play in drug trafficking networks, in particular as ‘drug mules’. For example, while in Ecuador 33.5% of the male prison population was imprisoned for drug offences, the figure was 77% for women. Plea bargaining deals and provision of assistance to the prosecution have also been found to be instruments that benefit male offenders more than females.
At the same time, the “feminisation of poverty” is likely to play a role in the spike of numbers of women in conflict with the law. While the number of women who are family heads is increasing, they still face discrimination in the labour market, inequality of salaries and are typically employed – if at all – in precarious and uncertain types of work such as part-time and temporary labour.
While women are still a minority in prison populations, non-nationals, racial and ethnic minority groups are usually over-represented, not only because of an increase in people’s movements from one country to another generally, but presumably also because of discriminatory practice. For example, while the Maori population represented 15.4% of New Zealand’s population in 2012, they made up 51.3% of the prison population.
Although statistics need to be treated with caution, fewer children have been found to be in prison in 2013, according to UNODC. Yet at the same time there is a deplorable trend of countries reviewing – and lowering – the minimum age of criminal responsibility, in particular respective legislation has been triggered by individual cases of serious crimes committed by minors.
In terms of prison management, detention facilities vary enormously in size and nature, but there seems to be a trend towards larger prisons (“Titan prisons”) with capacities of 2,000-3,000 individuals, suggesting an approach that has little to do with humanisation of prison conditions or a focus on rehabilitation. The inflationary use of ‘high-security’ and ‘Super-max’ prisons, both more or less disguising high degrees of isolation if not solitary confinement, can be seen as just another facet of this approach.
It is interesting that in terms of responsibility for the management of prisons, there are two somewhat contradictory trends.
On the one hand, responsibility for running prisons is increasingly moving away from Ministries for the Interior to Ministries of Justice, which are considered and found to deliver more humane treatment and more effective rehabilitation, and to increase professionalism by separating the investigation and prosecution of crime on the one hand, and supervision of sentences on the other.
At the same time, what used to be considered a key function of the state is increasingly outsourced to the private sector, in the more appealingly sounding form of “public-private partnerships” or forthright corporate ‘profit-making’. The type and scope of such arrangements vary, from building and running prisons in their entirety to the more limited functions of maintenance and catering. Delivery of probation and rehabilitation services and electronic monitoring also has been outsourced in some countries. The increasing appeal of privately financed prisons to states short of public funds has turned the penitentiary into a billion dollar industry. One can muse about whether such gold veins of capitalism, including a constant supply of cheap convict labour, will help turn the tide of ever increasing imprisonment.
It is safe to say that the global economic crisis had an adverse effect on penal policies, not only with regard to resources invested in criminal justice systems and the maintenance of prison facilities, but also due to cuts to social welfare and family policies despite their potential, amongst other benefits, to prevent individuals from ending up in prison in the first place.
Funds might be better invested in crime prevention, alternative sanctions, rehabilitation and reintegration, but are eaten up by an – ever increasing – number of prisons, prisoners and prison staff. A vicious cycle.
Considering the boost in new technologies in the last decade, criminal justice systems appear to be trailing behind – except for the dubious blessings of super-max and Titan prisons. Video, internet and skype are used only reluctantly to improve case management, prisoner contact with their families and access to education, and while scanners are standard at the tiniest airport, prisoners – and their visitors – still have to endure humiliating body searches far too regularly.
Where new technologies are applied, this often seems to be motivated by a desire to save money rather than a determination to improve criminal justice and prison conditions. Too often modern channels of communication replace human contact, rather than supplement it. CCTV monitoring, while having a meaningful use in preventing ill-treatment and torture during interrogations and in providing safety and security in detention, too often is accompanied by a reduction of qualified staff – and/ or applied intrusively. Electronic monitoring has some appeal as an alternative to imprisonment, but there is no such thing as a magic potion when it comes to delivering justice. The impact of electronic monitoring on the person tagged (and also on others around them) is often underestimated and its increasing use and popularity carries a significant risk of net-widening, i. e. imposition on individuals for whom otherwise a criminal measure or sanction would not be considered justified.
Surprisingly, while developments at national level are largely sobering, some progress has to be noted at the international level. In 2010, the UN Bangkok Rules were adopted, finally acknowledging that women prisoners have specific characteristics and needs, which to ignore does not deliver gender equality. The key importance of legal aid for the delivery of fair trials was recognised by the adoption of the UN Legal Aid Guidelines and Principles on access to legal aid in criminal justice systems in 2012. Lastly, a process has been started, in 2012, to update in a number of outdated areas the 1955 UN Standard Minimum Rules for the Treatment of Prisoners, which unsurprisingly have become inconsistent with human rights and criminal justice standards developed in the last 60 years.
Regional standard-setting mechanisms, while still entirely lacking in Asia, have raised their profile, too. The African Commission on Human and People’s Rights just recently adopted guidelines on the use and conditions of police custody and pre-trial detention; the African Committee of Experts on the Rights and Welfare of the Child drafted its first ever General Comment, and dedicated it to the children of incarcerated parents – the silent victims of criminal justice systems in Africa and all over the world.
The implementation of international standards adopted previously, in particular the Optional Protocol to the Convention against Torture, once more demonstrates that the “devil is in the detail” – or in the case of human rights standards in their implementation. Since its adoption, 72 countries have ratified the Optional Protocol and 55 have established National Preventive Mechanisms (NPMs), indicating a positive trend towards acknowledgement of the necessity of systems of oversight. Yet, the enthusiasm has been limited, mostly, to states in Europe and Latin America, and a large number of countries went down the path of just tagging the respective Ombudsperson’s office as an NPM – and ticking the box.
Sadly, hardly any boxes can be ticked when it comes to penal policies. Even though some progress has been made away from a retributive to a preventive and rehabilitative approach in the last decades, there still hasn’t been a tidal turn. The wave of unnecessary incarceration continues to sweep more and more people into prison.
For a more detailed study on this topic, see our discussion paper The use and practice of imprisonment: current trends and future challenges, first presented at the Crime Commission in April 2013 and updated for the Crime Commission 2014 in May.
At the Crime Congress in Qatar in April 2015, we will launch a new annual publication based on this discussion paper, which will provide an update on global developments in penal reform and criminal justice each year. More information will be available on our website over the next year.
This publication has inspired a series expert guest blogs on our website to celebrate both PRI’s 25th anniversary and to prepare for the run-up to the Crime Congress. Blogs will be published on the 25th of each month from May 2014 to April 2015, each addressing an interesting trend or criminal justice challenge.
Read more about the blog series and the annual publication here