The New South Wales government has just announced legal changes for the early release of some prison inmates in an attempt to minimise the spread of COVID-19 behind bars.
Laws introduced in state parliament today will allow the Corrective Services Commissioner to make orders permitting inmates to be released on a date which is earlier than their non-parole period if the commissioner is satisfied it is “reasonably necessary” to do so.
While introducing the laws, Attorney General Mark Speakman said the “extraordinary measures are only to be used to respond to the threat of COVID-19, and would allow the Commissioner… to prioritise vulnerable offenders and others who pose a low risk to the community for consideration for conditional release”.
The announcement has divided the community: with some expressing the view that inmates with or at risk of the virus should stay or be contained within the prison system, while others believe that those who are particularly vulnerable – such as the elderly and frail – should be released if they are judged not to be a danger to the community, adding that authorities have a duty of care not to put such people at risk in a place where it is difficult to contain any outbreak.
Prisons and Disease
There are over 45,000 people currently in prisons and youth detention facilities in Australia; more than 13,000 of them in New South Wales alone.
Prison is a close quarters environment, with many prisoners in tight proximity with one another as well as corrections staff. This provides a ‘ticking time bomb’ for the spread of COVID-19.
In Wuhan, China, the origin of the COVID-19 outbreak, prisons were a key source of transmission for the disease. In Wuhan Women’s Prison, 297 prisoners were infected – many of whom went on to transmit the virus to staff and family members.
Australian prisoners are also at a particular high risk of complications as a result of infection.
According to the Health of Australia’s Prisoners Report 2018, one-third (30%) of Australian prisoners have a chronic physical health condition, with around 22% of prisoners suffering from chronic asthma and more than 1 in 5 (22%) prison entrants testing positive for hepatitis C antibodies.
This means that our prisoners are not only more likely to be infected with COVID-19 but are more likely to require specialist health interventions once infected.
According to data from the 2017–18 period, prisons in Australia operate at 116% of design capacity, meaning that there are more people in prison than the prisons were designed to accommodate.
This means we are staring down the barrel of a major health crises in Australian prisons which current correctional institutions are not capable of managing adequately.
The NSW proposal will identify a “class of inmates” prescribed by regulations to be released early on parole in response to the outbreak.
It’s anticipated this will include elderly prisoners and those with serious health conditions, who are more likely to suffer serious complications if infected.
Will the Public Be At Risk?
It is natural for the general public to be concerned that the release of prisoners into the community may put others at risk of violence. However, this misunderstands the current composition of Australia’s prison population.
Around a third of prisoners are currently unsentenced (on remand), either awaiting trial or a sentence hearing.
Moreover, amongst prisoners that have been sentenced, only around half (49%) have been convicted of a physically or sexually violent offence (including homicide, assaults, rape and kidnapping).
For the rest of the prison population, illicit drugs related (15%), theft (10%) and other non-violent charges constitute their most serious offence.
Offending patterns also differ by sex, with nearly 1 in 4 (22%) female prisoners imprisoned for drug-related offences.
This means that there is a significant proportion of the prison population that pose little to no risk of violence to the community, and should be release immediately in response to COVID-19.
Does NSW Go Far Enough?
Many jurisdictions overseas have released prisoners back into the community as a result of the pandemic including Ireland, the United States, Iran and the United Kingdom.
The NSW changes are a welcome step, but they arguably do not go far enough in limiting the spread of the virus in prisons.
The current proposal is constrained by individual orders being made by the Corrective Services Commissioner for a select group of prisoners.
What is required is a larger scale move towards the decarceration of prisoners who can be easily dealt with in the community.
Many current prisoners can be placed on Community Corrections Orders to allow for their behaviour to be monitored whilst they serve their sentence.
Moreover, ‘high risk’ or potentially dangerous offenders could be ordered to home detention and tracked with electronic monitoring devices.
These orders are not a ‘get out of jail free’ card for offenders and many conditions can be placed to ensure compliance with certain goals of rehabilitation and restoration.
Ultimately, in order to adequately tackle the harms of COVID-19 we need to consider major changes to our prison system. As Professor Thalia Anthony from the University of Technology Sydney put it:
In a pandemic, the health of the general population is intrinsically linked to the health of the detained population. Immediate attention to the health needs of prisoners is necessary to contain the spread of coronavirus.
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Jarryd Bartle practised as a criminal defence lawyer before moving on to specialist consultancy. He has written for several publications including The Guardian, VICE and The Conversation, covering a range of criminal justice-related topics.