In recognition of the risks to prison populations from COVID-19, many governments made commitments when the pandemic was first announced in March 2020 to reduce their prison populations to ease overcrowding and disperse people held in custody. Measures mainly involved exceptional release mechanisms, including amnesties, pardons, commutations, and early and temporary release schemes, including compassionate release. Many release schemes targeted high-risk groups including older people, those with specific health conditions or disabilities, pregnant women and mothers with young children, in line with guidance from the World Health Organization. Many also included people in pre-trial detention and those serving short sentences or nearing the end of their sentence.
As much as 40 per cent of the prison population was released in Turkey (114,460 people), 30 per cent in Jordan (around 6,000 people) and over 15 per cent in Catalonia (Spain), Cyprus, Norway, Portugal, France and Slovenia. Over 40,000 people were released in Ethiopia and over 68,000 temporarily in India, about 14 per cent of the total prison population. Some of the largest reported releases were in jurisdictions with no official, supporting data, including 104,000 people serving sentences in Iran, and 62,000 people in Iraq, including both sentenced and pre-trial detainees. In Indonesia, the prison population decreased by 12 per cent between January and April 2020, notably because of COVID-19-related emergency releases. By the end of October 2020, 82,000 people had been released in the Philippines, mostly from remand.
At least 475,000 people were released from prison across 53 jurisdictions from March to July 2020.
Despite obvious benefits of release measures, many targets for decreasing prison populations were missed, and far fewer people than needed to prevent transmission in prisons were released. A regional survey in Latin America found that between March and June 2020, five out of 26 prison systems released less than 1 per cent of their prison population, and nine released between 1 and 5 per cent. In South Africa by July 2020, less than 6,800 of the estimated 19,000 people that would be eligible had been released on parole. Others were said to have been hindered by bureaucratic or practical issues, such as difficulties achieving sign-off from relevant bodies during lockdown or insufficient supply of electronic monitoring devices to facilitate house arrest.
Barriers to the success of these schemes varied across countries and regions. Where there is chronic overcrowding, the measures did not reach far enough. In Malawi, it is estimated that the number of people imprisoned was reduced by just over 12 per cent through emergency releases, but with prisons operating at 260 per cent capacity, this was not enough to effectively reduce the risk of outbreaks. The second wave of COVID-19 has resulted in more than 300 people in prison contracting the virus, but the true numbers are expected to be much higher.
Any benefit of release schemes was cancelled out in some countries where COVID-19 offences led to detention pre-trial or at the sentencing stage. In Morocco, arrests for breaching COVID-19 regulations, mostly of young males, led to a new increase in the number of people in prison, despite releases by high pardon including children, women, and the elderly. In Uganda, 833 people were released by Presidential pardon, but the continued detention of suspects and the suspension of most court hearings meant the prison population more or less remained the same. There has also been no discernible change in Cambodia’s prison population, with the release of people keeping pace with the numbers of new arrivals in detention.
Changes in political sentiment saw U-turns on emergency release schemes in several countries, including England after six people were mistakenly released. Media reports of negative public opinion also led to changes like in Argentina where protests against prison releases were held in the capital in April 2020 and within weeks court decisions to release high-risk groups were reverted and no more releases were offered to at-risk individuals.51 Courts in some countries ruled on the emergency release of detainees. In Pakistan, the Supreme Court in April 2020 overturned lower courts’ decisions to release people on bail due to the pandemic. This meant that in Sindh province, for example, 90 per cent of the 500 people released in March were returned to jail, and the prison population increased by 21 per cent from April to December 2020.53 In the US, however, successful litigation efforts, including by the American Civil Liberties Union, resulted in a number of court orders and settlements including in the state of North Carolina where 3,500 people will be released early as a result of a lawsuit challenging prison conditions during the pandemic.
The outcomes of reducing prison populations during the pandemic for disease control and healthcare provision have been the subject of various studies, although further analysis would be required to understand the longer-term impacts. One study in the US state of Texas found a correlation between crowdedness and viral spread; prisons operating at 94 – 102 per cent capacity had higher COVID-19 infection rates and more deaths than those at 85 per cent. Another US study found efforts to depopulate a large urban jail r educed transmission by 56 per cent, with a subsequent 51 per cent decrease in transmission when single-cell occupancy was increased.
A key concern that emerged regarding mass releases was related to support for those released (see Rehabilitation and reintegration). Many of the schemes also imposed multiple overly burdensome conditions to be eligible for release, even where release was temporary or limited to those nearing the end of their sentence. This excluded many people who faced high risk of infection and harm in prison, despite the fact they may pose little or no risk to society, or who would be released in a matter of months in any case. People in prison for drug-related offences were automatically excluded from release schemes in 28 countries, regardless of the nature or circumstances of the offence or the risk of reoffending – Sri Lanka even excluded people ‘addicted to drugs’. Women were also directly or indirectly excluded in many countries (see Women).
At least 27 European countries reduced their prison population in the first months of the pandemic in 2020; some are now increasing.
Although decongestion measures initially decreased occupancy in many prisons, the sense of urgency to reduce prison populations seemed to fade away by mid-2020. Reductions in some countries, like the UK, have also been attributed at least in part to reduced inflow to prisons while court processes were disrupted. As court processes resumed and prison systems got to grips with new intake procedures, people have been sent to prison at pre-pandemic levels, or in some cases at higher levels. When prisons reopened in Nigeria in August 2020, 9,900 people were newly admitted. By September 2020, the downward trend in the prison population was reversed in 12 countries in Europe which had higher rates than in June; the rate had stabilised in 22 countries, and only two – Bulgaria and Montenegro – had fewer people in prison in September than June. In France between July 2020 and January 2021, the prison population increased by 6.7 percent (approximately 4,000 people), as did overcrowding in short-term and pre-trial facilities from 110 to 120 per cent.
Issues around access to justice, legal representation and due process have affected detainees’ abilities to be released at the end of their sentence or under regular early release schemes. In Hungary, for example, new legislation adopted at the beginning of the pandemic restricted in-person attendance at court hearings, including those where decisions would be made on non-custodial sentences, release from prison and probation measures.
See a complete list of references in the full report, Global Prison Trends 2021.