7. Too many people are imprisoned for too long, especially during pretrial detention, and in conditions that do not meet minimum international standards. A perfect storm of overcrowding, chronically neglected infrastructure and high incarceration rates creates the conditions for cruel, inhuman or degrading treatment or punishment, including in its most severe form, as torture.

8. Prisons are under pressure in many countries, as a result of too many demands and insufficient resources, and consequently administrators struggle to manage facilities safely, humanely and respectfully.

9. Prison populations continue to be largely composed of members of economically disadvantaged and otherwise marginalized communities, including large numbers of low-level drug or drug-adjacent offenders. The link between poverty and prisons is a clarion call for States to comprehensively review their criminal legal systems.

10. There is suffering inherent in imprisonment as punishment for committing a crime. Depriving someone of their liberty, one of the essences of human life, is under-estimated as to its severity. Treatment and conditions within prison are not intended to be an additional hardship or penalisation and must never be degrading, inhuman or cruel.

11. Too often prisons are places where people are left to languish for years. The prison system must be properly resourced and should operate as an integral part of the criminal justice system. Most people who are incarcerated can be rehabilitated.

12. Crime prevention, diversion and the use of alternatives to imprisonment, including at the pretrial stage, must remain priority areas for the prevention of torture and other ill-treatment.

13. Regular and transparent monitoring by independent and impartial entities also provides a main way of preventing torture or other ill-treatment in prisons, and of reinforcing positive practices and identifying needed changes. Such monitoring can be carried out through national preventive mechanisms established under the OPCAT, as well as by national human rights institutions, international or regional bodies, parliamentarians and civil society organizations.

16. Prisons are often harsh and complex environments to manage, in particular when they operate without the necessary human, physical and financial resources. While investing in prisons is rarely high on political agendas, especially in difficult economic times or when resources are stretched, that situation must change in order to ensure that prisons do not become incubators for crime and corruption, lead to high rates of recidivism, or become places where humans are “warehoused” to waste away and never fulfil their potential. Neglecting prisons and failing to treat prisoners as human beings have serious ramifications for society and do not keep the public safe.

18. Information about the prison population, as well as crime trends and statistics, are key to good decision-making and require prison registries and records to be updated, accessible and searchable. As the prison system is only one part of the criminal justice system, there needs to be good communication flow between the relevant ministries, administrations and personnel.

19. Staff are the most valuable resource available to prison administrations. Prison work is physically and psychologically draining and may be dangerous. It requires people with diverse capabilities. Yet, staff often do not receive the training, recognition or rewards they deserve, including decent pay and conditions. It is the Special Rapporteur’s recommendation that prison staff should be remunerated for their service on salary scales and conditions equivalent to those of the armed or social services in order to recognize the valuable contribution that prison officials make to society. The salaries and employment conditions of medical personnel working in prisons should be aligned with those of such personnel in the public health services. Retention and opportunities for promotion and for gaining qualifications need to be part of human resource management strategies. To alleviate burnout of prison officers, it has been recommended that they should be encouraged to take sabbaticals or rotation periods out of the prison service.

20. Some prison administrations use temporary, short-term staff contracts, which can increase the risk of abuse and neglect of detainees because of a lack of training or preparedness among such staff in handling various scenarios. Detainees suffer when there is a shortage of trained staff. It leads to prisoners spending more time being confined in their cells, reduced visiting hours, fewer activities and rehabilitation opportunities, and cancelled court hearings and medical appointments owing to a lack of available escorts.

21. An appropriate prisoner-to-staff ratio is essential for effective prison management. Prisoner-to-staff ratios vary greatly across the globe, from 1:1 to as high as 28:1. There is no international standard governing prisoner-to-staff ratios. Practice shows that where there is a relatively low prisoner-to-staff ratio, there is less violence, as well as improved conditions, attitudes and well-being of prisoners and prison staff alike.

22. Many prisons are highly violent and volatile sites. The Special Rapporteur is particularly concerned at the growing number of facilities in which authorities have lost partial or complete control, with gangs ruling instead and prisoners taking discipline and security into their hands. Gangs are one of the biggest threats to prison management globally. Responses to the problem must be based on a firm understanding of why gang rule has prevailed. Reasons include the active use by authorities of criminal subcultures for maintaining order, through direct affiliation, complicity and inertia.

23. In terms of prisoner-staff relations and staff attitudes, “dynamic security approaches” are encouraged, whereby professionally trained staff engage and interact with prisoners in order to identify and anticipate problems before they escalate, thus creating mutual trust. Such approaches operate in addition to physical and procedural security arrangements. They help reduce the stress of prison life and prevent violence. At times it is only a matter of inputting an ethic of care and pride into the system or a particular prison. In other instances, institutional changes will be required.

24. Many States rely on private companies for designing, building and managing prisons, or for carrying out specific prison functions. States bear responsibility for the acts and omissions of private contractors. The Committee against Torture considers that personnel in detention centres that are privately owned or run act in an official capacity on account of their responsibility for carrying out the State’s function, including with regard to the obligation to monitor and take all effective measures for preventing torture and ill-treatment. The Special Rapporteur has visited private prisons that have infrastructure superior to that in public prisons, as well as private prisons that have allowed profit-driven objectives and contract incentives to undermine minimum standards. The Special Rapporteur warns against making assumptions about private entities, as certain functions may be suited to specialist or even non-State actors.

25. Private entities should follow the same rules as public entities and prisoners should enjoy the same rights in private prisons as those applicable in public prisons, otherwise a two-tier system could emerge where it becomes a lottery as to the conditions in which a prisoner will be held.

26. The Special Rapporteur recommends that:

(a) Governments undertake prison reforms, alongside broader criminal justice reforms. Such reforms should involve all relevant State actors, including judges and prosecutors, in the light of their responsibilities to prevent, and avoid possible complicity in, subjecting prisoners to torture or inhumane conditions. Such reforms also need to address financial, human and technical resource questions. National human rights institutions, national preventive mechanisms, civil society and representatives of different prisoner groups should be consulted;

(b) Prisons be primarily considered as places where criminal behaviour is corrected in a positive way and prisoners can break the vicious cycle of involvement in criminal activity and reintegrate into the community;

(c) States review national legal and regulatory frameworks for compliance with international standards and best practice, and ensure those frameworks are publicly accessible;

(d) Prison authorities pursue an active recruitment policy aimed at employing a staffing profile representative of the local community. Good terms and conditions, including security of tenure, are key to recruiting and retaining suitable staff. Prison staff should be remunerated and compensated for their services on salary scales and with conditions equivalent to those of the armed or social services. The salaries and employment conditions of medical personnel working in prisons should be aligned with those of such personnel in the public health services;

(e) States ensure that the prisoner-to-staff ratio in all prisons is sufficient for enabling positive prisoner-staff relations, regular one-to-one communication and a safe environment for all. Prison administrations should differentiate in their reporting between the number of all types of staff and of custodial staff per prisoner;

(f) States ensure, when outsourcing the management of prisons to private entities, that contracts reinforce human rights, are audited to remove incentives for cutting corners on treatment, are subject to public reporting requirements, and allow for unannounced inspections by external and independent monitoring bodies.

OPPORTUNITIES FOR REHABILITATION

46. The lack of investment in meaningful activities and rehabilitation may fail to break the cycle of recidivism and falls foul of international standards. Some detainees have access to almost no activities because they are locked in their cells for almost the entire day. 56 Others have little incentive to get out of bed.  Work and education programmes often only provide for rudimentary skills rather than equipping people with marketable skills upon release. The Special Rapporteur has met many prisoners, including juveniles, who pleaded for work or training opportunities that would prepare them for work outside prison and allow them to break from crime. The Special Rapporteur emphasizes that dignity-led rehabilitation does not require extensive resources.

47. Successful rehabilitation should involve engagement with the local community regarding the importance of accepting offenders back into the community.

48. Although the needs and risks of each offender should be individually assessed, there are many activities that can be carried out in groups. Survivors of abuse, trafficking in persons and torture may require specialized programmes or treatment. Gender- and age-responsive plans should take into account physical health, mental capacity and neurodiversity. Such an approach would also help eliminate discrimination in the provision of rehabilitation services. For example, older individuals, in particular those who have been in the system for extended periods, face the bias that they cannot be rehabilitated or reintegrated, or that they are not worthy of the expenditure of resources to do so.

51. Vocational training and work provide prisoners with valuable skills, confidence and improved self-esteem that reduces the risks of recidivism.

52. The Special Rapporteur recommends that:

(a) States allocate appropriate resources so that all prisoners spend a reasonable part of their day outside their cells, engaged in meaningful activities;

(b) States ensure that the requirement for rehabilitation is included in prison policies and laws, and planning, and is properly resourced.

REDUCING OVERCROWDING

53. Some prisons are so overcrowded that prisoners have to take turns sleeping on a bare floor or side by side on the ground. Some are forced to sleep standing up, in a kneeling position, under beds on the floor or in the toilet. Overcrowded dormitories breed dangerous prison subcultures and gangs. The struggle for space and resources within prisons create circumstances in which torture, violence and corruption thrive.

54. International and regional bodies have found that certain degrees of overcrowding amount to cruel, inhuman and degrading treatment or even a form of torture.

55. The Special Rapporteur has observed instances of blatantly overcrowded facilities that are not officially considered as such because of the way personal space is defined and measured. A common standard used is the number of beds for the number of prisoners but this was often calculated at the time the prison was constructed and, if no renovation has taken place, then often no recalculation has been performed on the basis of current standards of required space per person. The Special Rapporteur estimates therefore that many more prisons than those reported are, in fact, overcrowded.

56. Even where capacity has not been exceeded at the national level, there may be regions, individual facilities or parts of facilities that are operating above capacity. The Special Rapporteur observed severe overcrowding in dormitory-style cells even when appropriate space was available elsewhere in the prison; sometimes such overcrowding is the direct consequence of staff shortages, as prisoners are placed in fewer cells in order to allow for more effective monitoring.

57. The Special Rapporteur endorses the minimum space-per-person ratio elaborated by ICRC. The Special Rapporteur notes the slightly more generous standard applied by the CPT. States should strive to meet the higher of the two specifications. The Special Rapporteur recommends further that the more generous standards should be applied in any new buildings.

58. The responsibility for overcrowding falls to a range of actors within the criminal justice system. The use of pretrial detention is one of the major causes of prison overcrowding. In some countries, there are more people detained in pretrial detention than those serving prison sentences.

59. The Special Rapporteur recalls that the State’s role of guarantor of the rights of persons deprived of liberty applies to all relevant public authorities within the area of their competence, including prosecutors when requesting a custody ruling, and judicial oversight of the sentence of deprivation of liberty. Officials become responsible when they knowingly or foreseeably transfer a prisoner to an institution in which the conditions are cruel, inhuman or degrading. The Special Rapporteur recommends that information on overcrowding levels should be included in pre-sentencing reports presented to court and that States should implement warning systems. It is also recommended that magistrates and judges visit prisons regularly to view the levels of overcrowding and conditions. Such initiatives could solve overcrowding at very low or no cost.

63. The Special Rapporteur recommends that:

(a) Prison authorities publish their methodology for measuring capacity, and report accurately and regularly on detention conditions and overcrowding levels to policy and decision makers and monitoring bodies;

(b) States establish a legal procedure through which prosecutors requesting incarceration and judges ruling on the same are provided with up-to-date information on the capacity of various institutions, and the range and number of alternatives to detention and placements that are available;

(c) Judges, prosecutors and other decision makers regularly visit prisons to witness the conditions first-hand, including any overcrowding;

(d) States implement an early warning system through which the prison service can alert all relevant actors, including judges and prosecutors, when a prison is near or over capacity, so that a response protocol can be instituted;

(e) States ensure, where prisons are privately managed, that contracts do not incentivize overcrowding, for example through payment based on the number of prisoners in a given facility;

(f) States establish lines of communication between different entities, while at the same time preserving the separation of powers.

WOMEN AND GIRLS

64. Despite making up only 6,9 % of the global prison population, women and girls are being imprisoned at a faster rate than men; and because of the relatively small number of women and girls in prisons, the conditions in which they are held, and opportunities for rehabilitation, may be more limited. Most women and girls are in prison for non-violent minor offences, such as property and drug offences. In many jurisdictions, it is always, or nearly always, women and girls who are incarcerated for “moral crimes”, such as adultery and extramarital relationships, and witchcraft and sorcery, as well as the criminalization of abortion. Women and girls may also receive heavier penalties than men and boys for the same crimes.

65. There is a call for the greater use of non-custodial measures for women and girls.

66. Many women prisoners are victims of horrific domestic and sexual violence. Violence and the infliction of trauma and abuse may continue behind prison walls. Different incarceration and treatment policies, services and even infrastructure are required to address women’s distinct needs and ensure their protection.

68. Owing to the lower number of women and girls in prison, opportunities for them to engage in rehabilitation activities are often less varied and of poorer quality than those offered to men and boys. Women may be only offered gender-stereotypical courses, such as sewing and handcrafting, which may carry limited potential for earning a living wage. Countering such stereotypes requires offering women skills-building in more viable professions.

69. Many women in prisons are primary caregivers to children. Both the exposure of children to detention settings and the separation of children from their incarcerated mothers have adverse consequences. Non-custodial sentences are preferable where possible and appropriate, and the decision to allow children to stay with their mothers in detention should be based on the best interests of the child, also taking into account the child’s preference, according to his or her age and level of development.

71. Where incarceration is unavoidable, the length that a child can stay with the mother in detention should be limited. Most countries establish specific age limits, typically between 2 and 6 years of age, which are the formative years where bonding with a parent is important for healthy development, for a child’s admission into a place of detention and also place restrictions on the length of permissible stay. Factors that may be taken into consideration when deciding whether a child should stay in a detention facility with the mother include breastfeeding needs, lack of alternative childcare solutions, suitability of prison accommodation for the child’s development, health of the child, protection of the child’s safety, full parental responsibility and ability to exercise parenthood, length of the sentence and the caregiver-child relationship before entering the prison.

74. Gender-specific health care goes beyond pregnancy and giving birth. The Bangkok Rules provide that the accommodation of women prisoners should have the facilities and materials required to meet women’s specific hygiene needs. Some prisons still do not provide adequate access to menstrual products.

75. Health services in detention must also ensure appropriate care for women’s health and for changes in older women. In particular, the stressful and confined environment of prison can exacerbate the symptoms of perimenopause and menopause. Most prisons do not allow for easy access to common lifestyle interventions that alleviate menopausal symptoms, such as layered clothing, cool drinks and frequent showers. Women may experience discipline as a result of emotional or psychological symptoms associated with menopause and for their attempts to manage hot flushes. Overcrowding in cells can make heat unbearable for women experiencing menopausal symptoms and they may not be granted access to facilities that could provide relief for their symptoms.

76. Although everyone needs access to water for bathing, women who are menstruating, going through menopause, pregnant or have children with them in prison may need additional access. When considering the appropriateness of imprisonment for women, judges should take into account such factors as pregnancy, the impact on any children and the effects of menopause or other age- or health-related issues.

77. The Special Rapporteur recommends that:

(a) States promote gender-responsive options for diversionary measures at the pretrial and sentencing stages within legal systems;

(b) Prison authorities provide more gender-sensitive and trauma-informed health services and rehabilitation programmes for women;

(c) States engage actively and positively in the process for developing a global strategy for implementation of the Bangkok Rules.

CHILDREN AND JUVENILES

79. The primary goal should always be to keep children out of prison. This can be achieved through educational, economic, familial, social, psychological and other interventions, including legal interventions. Children should be housed in residential, rather than prison-style facilities, that are child-friendly and appropriate to their age and stage of development. Incarcerated adolescents commonly experience poor health across a range of physical and mental health domains, and show consistently poorer health profiles than non-detained adolescents in comparison studies.

80. Children should be placed in facilities as close as possible to their family’s place of residence in order to maintain contact with their family, unless that is not in the child’s best interest, and have frequent contact with the wider community. They have a right to education and should receive vocational training when appropriate. The number of girls in prisons remains small and, as a consequence, prisons are particularly ill-equipped for their needs, leading to girls often being detained in adult facilities, in breach of rule 11 (d) of the Nelson Mandela Rules.

81. Disciplinary measures such as corporal punishment, placement in a dark cell, solitary confinement or any other punishment that may compromise the physical or mental health or well-being of the child should be strictly forbidden. Restraints may only be used when a child poses an imminent threat of injury to himself or herself or others and only after other means of control have been exhausted. The Special Rapporteur has included the use of spit hoods and other restraints in the list of inherently cruel instruments.

82. It is particularly traumatic for children approaching the age of majority when they do not know if or when they may be moved to an adult prison. At least six months in advance of reaching the age of majority, and in close consultation with the child and his or her family, guardian or other representative, appropriate authorities should conduct a needs and risk assessment that takes into account all relevant factors, including the rights and needs of the other children in the youth facility, the suitability of prison in view of any underlying conditions, and the avoidance of disruption to any continuing education or vocational training. Depending on the profile of children deprived of their liberty, some States run youth facilities that extend beyond the age of majority. This recognizes that the needs and vulnerabilities of children do not change when they reach the age of majority. It also helps minimize disruption to supportive relationships that young people have formed with youth justice services.

83. It is important to note that youth detention facilities can be as appalling and detrimental to children as adult prisons. Youth prisons have reported overuse of lockdowns, leading to incidents of self-harm and suicide. Although residential facilities are preferable, such facilities must differ from a prison in more than name. There must be an accompanying change in staff mindset and training oriented towards the rehabilitation and release of young people.

86. The Special Rapporteur recommends that:

(a) States develop national action plans on the treatment of children in criminal justice systems, including prisons, with clear benchmarks on how to sustainably reduce the number of children detained;

(b) States update national laws and policies to be in compliance with international standards related to children in conflict with the law, incorporating the general comment No. 24 (2019) of the Committee on the Rights of the Child.

Furthermore, the Special Rapporteur calls on the international community to consider updating the Havana Rules and the Beijing Rules.

PRISONERS WITH NEURODIVERGENT CONDITIONS

97. Prison environments are unfamiliar and can be startling, on account of jangling keys, banging metal doors and gates, strange or loud sounds, smells and unnatural lighting. The behavioural response of neurodivergent prisoners to such environments can be misconstrued by staff as aggression, indifference or intoxication, leading to the unfair treatment or punishment of such prisoners. The Special Rapporteur notes that the threshold for what constitutes ill-treatment may be lower for neurodivergent prisoners.

98. Prisoners with neurodivergent conditions include those with attention deficit disorder, autism, speech and language difficulties, tic disorders and brain injuries. Although such conditions may co-occur with mental illnesses, it must be understood that they are different from mental health conditions, and thus may give rise to different needs and accommodations.

99. Although more research is required in this area, people with neurodivergent conditions have been documented in high numbers among prisoners.

100. Initiatives that could be undertaken include increasing staff awareness of neurodivergence, including how to identify possible conditions, the use of individualized care plans and the provision of one-to-one support for prisoners with learning needs. Having specialized staff would be best practice. A growing range of autism accreditation programmes and resources for prisons are available that provide suggestions for reasonable adjustments to the prison environment and to activities for autistic people, such as attending the gym at quieter times, allowing autistic prisoners to have ear defenders to drown out noise, and taking prisoners beforehand to facilities where education or workshops will take place so that they can familiarize themselves with the setting. Reasonable accommodations for prisoners with neurodivergent conditions need not be financially burdensome if the prison is already well managed.

101. Other steps to adjust sensory stimuli and reduce overload for neurodivergent individuals could be introduced. These may include using dimmable light bulbs, providing earplugs and other noise reduction methods, allowing sensory items or fidget toys and adopting neurodiversity-informed communication methods.

102. The Special Rapporteur recommends that:

(a) States undertake research on neurodiversity in relation to prisons and devise recommendations and guidelines in that regard;

(b) Prison authorities include neurodiversity screening as part of individual assessments, sentence planning and rehabilitative programming.

CONCLUSION

103. The Special Rapporteur underscores the urgent need for prison reform globally.  

The Special Rapporteur urges States to undertake such reforms not in isolation, but with the full engagement of the wider criminal justice system.

The Special Rapporteur is ready to assist States to usher in a new modern era of just and humane prison practices and management

Source – Current issues and good practices in prison management. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Alice Jill Edwards. Human Rights Council. Fifty-fifth session 26 February–5 April 2024 Agenda item 3 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development.