1 November 2020.
Many of us working in the criminal justice sector were dreading, but not surprised by, the arrival of positive cases of Covid-19 in prisons in mid-July. Covid was already a reason we were using for people to be released on bail and for having sentences reflect the increasingly harsh prison environment brought by the pandemic.
The rising level of fear and anxiety for prisoners and their families was, and is, completely understandable. With COVID having reached the prison population the risk is real. It is plain to see that prisons are a vulnerable environment with hundreds of people being detained in close confined quarters, concerns around hygiene standards and access to masks, being but some of the issues creating fertile ground for the virus to grow – and it is. Access to essential health care is vital.
Exacerbating the concern is that many prisoners are already in poor health and susceptible to illness when they come into contact with the justice system. A high proportion of people detained have various underlying physical and mental health issues, and their needs are often complex. Prisons are not places just filled with violent hardened criminals that one might imagine are best locked away.
Many are either victims themselves, have been diagnosed with significant physical, psychiatric and mental conditions, are children, are our Aboriginal and Torres Strait Islander people, are from refugee backgrounds, are homeless or are stuck in a cycle of poverty, unemployment and disadvantage. Therein frequently lies a collection of traumatic, unfair and abusive stories.
Aside from the higher risk of contracting the virus in the prison system, the Covid era has also brought significantly harsher conditions for those currently on ‘remand’ or serving sentence in Victorian prisons. Being on remand in custody is the period spent awaiting the determination of one’s matter where bail in the community has not been granted. Remand prisoners may be awaiting a bail application or it may have been refused. It’s important to note, these people have not been found guilty as yet and the presumption of innocence is still very much in play.
As a protective measure, all prisoners, including children, are being tested and quarantined in isolation for 14 days as soon as entering the prison population. And whilst a necessary health step, it doesn’t make the actual reality of being effectively in solitary confinement for days on end any easier. Thereafter, and particularly if prisons are in ‘lockdown’, prisoners may remain separated and have severely limited ‘yard time’ for fresh air and exercise.
Personal or social visits have been suspended across both adult and children’s prisons, and access to rehabilitative programs has been affected. Such conditions are particularly onerous on children who cannot see any family and have limited access to education and treatment services. It’s now more important than ever to keep children out of custody whenever possible.
Compounding the isolation and uncertainty, is that prisoners’ access to their lawyers has also had new challenges. Given the huge increase in phone calls and online communications, contacting and talking with clients can take time (and even a phone call can be cancelled at short notice if a prison goes into lockdown) and there can be delays in seeking instructions for bail applications and the hearing of matters. And when there is contact, discussions often occur in pressured environments. In most circumstances, face-to-face instructions are no longer being sought, and phone calls are not always effective with people under such significant stress or with underlying complex needs.
Whilst acknowledging there must be restrictive steps taken for health measures and to prevent the spread of this lethal virus, this new level of instability and fear complicates an already vulnerable environment. Amongst defence lawyers there is an ongoing urgency to ensure every effort is made to keep numbers inside as low as possible.
Some lawyers and advocates are calling for the release of children, those over 65, non-violent offenders and those coming to the end of their sentences to reduce prison numbers. Such practices have been implemented in international jurisdictions, such as the USA, in a bid to bring the numbers down and reduce the potential spread.
Prisons are inevitably lonely places at the best of times. Part of their purpose is to punish and deter, but there is also an important rehabilitative role for prisoners to be treated and supported for a myriad of often complex social, mental and addiction issues. During this pandemic, the transformative role of prisons is questionable or even diminished and is risking people being released back into society in a worse state than when they entered.
Most in the justice system are desperate to put the brakes on the cycles of crime that see people going in and out of the revolving prison door. But for those needing support in the community or on being released, COVID-19 has had a huge impact on community services’ ability to provide counsel for issues such as abuse, trauma, grief, mental health, addiction and anger management. Every one of us can understand that phone counseling or video appointments have limitations and restrictions, and may not have the same rehabilitative or therapeutic impact as face-to-face sessions.
Coupled with rising unemployment levels and ensuing poverty, the pandemic is causing enormous strain on people and their ability to cope, and the consequences for society’s mental health, addiction and family violence will inevitably lead to greater offending.
Imprisoning a person is not a decision the government or judiciary makes lightly. Particularly during COVID-19, there is a critical need to get the balance right. The dignity of each and every individual, especially our most marginalised, whose voices have long been muffled, deserves the right, even demands, that they are seen through the lens of this critical health crisis. Now more than ever our prisons must be seen as a last resort.
Clare Johnstone (professionally Stone) is a mother at Burke Hall, and has been a criminal lawyer working with the marginalised for the last 15 years. The opinions above are her views alone.