Laws that criminalise acts associated with poverty and survival are a key driver of rising prison populations and overcrowding.
Around the world, the poorest and most marginalised members of society continue to be over-represented in prisons and criminal justice systems. Many countries continue to enforce laws that lead to imprisonment for acts associated with poverty and survival with little connection to public safety. This unnecessary overuse of imprisonment continues to drive up national prison populations and overcrowding. For example, in Sri Lanka, where prisons are operating at 190% of official capacity, latest figures show 74% of all convicted persons in 2020 were imprisoned due to the inability to pay fines.
Such laws disproportionately affect those who experience discrimination and social exclusion because of their status, including people experiencing homelessness, informal traders, sex workers and LGBTQ+ persons. The offences of vagrancy or idleness still exist in at least 42 countries in Africa, criminalising people who do not have a means of subsistence and cannot ‘give a good account’ of themselves, allowing the police to arrest such people without a warrant. In many countries the penalty for vagrancy can be up to 6 months’ imprisonment and in some, such as Cameroon, up to 2 years. Begging is also widely prohibited across the region, with maximum penalties ranging from 1 month to 7 years’ imprisonment.
At least 42 countries in Africa criminalise people with no fixed address or means of subsistence.
This year marks two decades since the Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms recommended the decriminalisation of various offences including vagrancy-related offences. Moves have accelerated in recent years to reform these laws, including the adoption of the Principles on the Decriminalisation of Petty Offences in Africa, setting out a new legal standard for all African countries, and the mobilisation of the Regional Campaign to Decriminalise Petty Offences. In the past year, the Lagos State in Nigeria agreed to pilot the decriminalisation of petty offences and in Uganda, a task force has been established to work towards decriminalisation of petty offences, championed by the Uganda Human Rights Commission and including other government agencies involved in law enforcement and law reform.
Reforms are also being led through court action in Africa and beyond. The Malawi High Court in June 2021 heard a case challenging the constitutionality of police ‘sweeping’ exercises which involve arbitrary arrest practices and result in detention without evidence of any offence having been committed. In August 2021, Nigeria’s Federal High Court, in a case relating to raids conducted in April 2019, held that the arrest of the women without cause and the cruel and inhumane treatment they experienced violated their constitutional rights. The Court also issued an injunction restraining the police and other law enforcement entities from arresting women in such circumstances. The case follows a similar judgment in December 2019. In Brazil, reports have increased recently of people being arrested for theft of food, energy, or water, including one women arrested for stealing discarded food from a restaurant’s rubbish bin, and another woman who was imprisoned for more than 100 days, accused of stealing (public) water. In October, the Superior Court of Justice, in releasing a woman who has lived on the street for at least 10 years who had been imprisoned for stealing food and a soft drink (amounting to US$3.84), acknowledged the woman’s state of need and that she had committed ‘starvation theft’.
New research has pointed to discrimination against people in prison without a fixed address in the implementation of COVID-19 release measures. In Belgium and Portugal, for instance, people in prison without a residence in the community were excluded from release measures during the pandemic. On the other hand, where a place to live was not a criteria and releases were implemented without adequate preparation, this resulted in cases of homelessness at release from prison. This was seen with extraordinary pardons in Portugal, where public and civil society organisations collaborated to provide accommodation. In Latvia, those released from prison that do not have a place to live can stay at social rehabilitation centres; however, access to these centres was also restricted during the pandemic.
People experiencing homelessness have been particularly affected by COVID-19 laws.
People involved in sex work continue to be criminalised and imprisoned disproportionately in a number of countries. This has led to efforts to decriminalise sex work over the past year, including in Australia where the state of Victoria became the third state to decriminalise sex work, with the changes and repeal of the current sex work licensing system expected to come into full effect by December 2023. In the US, a bill to decriminalise sex work in the state of Oregon failed to pass in June 2021, but two similar bills have been tabled in New York, where the Manhattan district attorney’s office has said it will no longer prosecute prostitution and requested that 914 open cases be dismissed, as well as 5,080 cases charging people with loitering for the purpose of prostitution.
Even where sex work is not prohibited, sex workers face high risk of detention and ill-treatment. A recent mapping of legislation on sex work in 11 countries in Latin America and the Caribbean found that, although sex work is not prohibited in any of the countries, those working on the streets experience institutional violence, including arbitrary or illegal arrest and detention in Costa Rica, Honduras, Nicaragua, Panama, and Paraguay. For sex workers detained in Peru, usually illegally, demands for bribes or sexual relations in exchange for release was found to be common.