Report of the Workshop

STRATEGIES AND BEST PRACTICES AGAINSTOVERCROWDING
IN CORRECTIONAL FACILITIESTwelfth United Nations Congress on Crime Prevention and Criminal Justice
Salvador, Brazil, 12-19 April 2010

United Nations Asia and Far East Institutefor the Prevention of Crime and the Treatment of Oﬀenders(UNAFEI)
March 2011
TOKYO, JAPAN1

The views expressed in this publication are those of the respective presenters and authors
only, and do not necessarily reﬂect the views or policies of the United Nations, UNAFEI, or otherorganizations to which those persons belong.

2

PREFACE
Overcrowding in correctional facilities is one of the gravest problems occurring in many parts of
the world, and aﬀects both developed and developing countries. On the basis of this recognition, theWorkshop on Strategies and Best Practices against Overcrowding in Correctional Facilities wasconvened on 16 April 2010, Salvador, Brazil, within the framework of the Twelfth United Nations
Congress on Crime Prevention and Criminal Justice (Congress).
The United Nations Asia and Far East Institute for the Prevention of Crime and the Treatmentof Offenders (UNAFEI), established in 1962 by agreement between the United Nations and theGovernment of Japan, located in Tokyo, which has the longest history of all the institutes comprising
the United Nations Crime Prevention and Criminal Justice Programme Network, was responsible forthe administration of this Workshop as an oﬃcial component of the Congress, and played an active rolein its organization and preparation.
The Workshop aimed to describe the nature and extent of prison overcrowding, to analyse thereasons for it and to propose what can be done to relieve it. Many countries have adopted measures
to address the multiple problems created by overcrowding in correctional facilities and to mitigate theeﬀects of overcrowding. The Workshop, consisting of four Presentations and three Panel discussions,offered an opportunity for government representatives, experts and practitioners to exchange
information on strategies and best practices for reducing overcrowding in correctional facilities, and it
ended by addressing how to build political, judicial and public support for reducing overcrowding andlimiting the use of imprisonment.
The present publication is a compilation of the summary of all the presentations and discussions of
the Workshop, and all the reference papers made available to the Workshop. It is our great pleasure to
publish this comprehensive report of the Workshop to further disseminate its outcomes for countries
aﬄicted with prison overcrowding.
I would like to express my sincere appreciation to all the moderators, presenters and panellists of
the Workshop, 16 prominent experts from all over the world who are active in various internationalfora, without whose strenuous contribution the Workshop would not have been such an outstanding
success. Furthermore, I owe my gratitude to the International Centre for Criminal Law Reform andCriminal Justice Policy for its co-operation in organizing the Workshop, and to all the individuals whose
unselﬁsh eﬀorts behind the scenes contributed signiﬁcantly to the realization of both the Workshop andthis publication.
Finally, I am convinced that this publication is essential reading material for all those who areinterested in prison overcrowding, including criminal justice practitioners, policy makers, andacademics. I am also conﬁdent that it will serve as a valuable reference source for international, as
well as local, training activities.

Masaki Sasaki
Director, UNAFEI
March 20113

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CONTENTS
INTRODUCTION ……………………………………………………………………………………………… 7
Background paper on the Workshop on Strategies and Best Practices against
Overcrowding in Correctional Facilities (A/CONF.213/16) ………………………………………… 9Workshop Programme on Strategies and Best Practices against Overcrowding
in Correctional Facilities …………………………………………………………………………………23
EXECUTIVE SUMMARY OF THE WORKSHOP …………………………………………………………25
OPENING REMARKS BY THE DIRECTOR OF UNAFEI ………………………………………………33
PAPERS AND CONTRIBUTIONS …………………………………………………………………………35
Presentations
Mr. Rob Allen (UK) …………………………………………………………………………………39
Dr. Tapio Lappi-Seppälä (Finland) …………………………………………………………………43
Professor Dr. Dr. h. c. Hans-Jörg Albrecht (Germany) …………………………………………65
Mr. Elias Carranza (ILANUD) …………………………………………………………………… 131
Dr. Nsimba Masamba Sita (UNAFRI) …………………………………………………………… 139
Panel I
Dr. Kittipong Kittayarak (Thailand) ……………………………………………………………… 151
Ms. Elinor Wanyama Chemonges (Uganda) …………………………………………………… 169
Mr. Cliﬀord Wayamuka Msiska (Malawi)………………………………………………………… 173
Mr. Toshihiro Kawaide (Japan) …………………………………………………………………… 179
Professor Dr. Dr. h. c. Hans-Jörg Albrecht (Germany) ……………………………………… 183
Sir David J. Carruthers (New Zealand) ………………………………………………………… 185
Panel II
Dr. Ela Wiecko Volkmer de Castilho (Brazil) …………………………………………………… 199
Ms. Maria Noel Rodriguez (ILANUD) …………………………………………………………… 211
Mr. Soh Wai Wah (Singapore) …………………………………………………………………… 219
Ms. Christine Glenn (UK) ………………………………………………………………………… 225
Panel III
Dr. Kittipong Kittayarak (Thailand) ……………………………………………………………… 235
Mr. Soh Wai Wah (Singapore) …………………………………………………………………… 237
Dr. Nsimba Masamba Sita (UNAFRI) …………………………………………………………… 245
Ms. Christine Glenn (UK) ………………………………………………………………………… 251
Dr. Mario Luis Coriolano (SPT) ………………………………………………………………… 253
CONCLUSIONS AND RECOMMENDATIONS ………………………………………………………… 261
CLOSING REMARKS BY THE DIRECTOR OF UNAFEI …………………………………………… 263
ANNEX ……………………………………………………………………………………………………… 265
List of Participants (Moderators, Speakers and Panellists). ……………………………………… 267
List of Experts in the Preparatory Meetings ………………………………………………………… 269
Photograph ……………………………………………………………………………………………… 271

56

INTRODUCTION

Background paper on the Workshop on Strategies and Best Practices
against Overcrowding in Correctional Facilities***

Workshop Programme on Strategies and Best Practices
against Overcrowding in Correctional Facilities7

8

Background paper on the Workshop on Strategies and Best Practices
against Overcrowding in Correctional Facilities (A/CONF. 213/16)
Summary
The reduction of prison overcrowding, although complex, should be a high priority. This paper
reviews factors contributing to that problem, such as criminal justice policies that give excessive
weight to punishment or may not have been adequately assessed for impact; lack of alternatives toimprisonment and of sentencing policies and guidelines encouraging the use of non-custodial measures;
inefficiency and delays within the justice process; challenges faced by the poor and vulnerable inaccessing justice; lack of social reintegration programmes and postrelease support to prisoners; andinsuﬃcient prison infrastructure and capacity.

I. Introduction
1. The rapid growth of the prison population constitutes one of the most challenging problems facedby criminal justice systems worldwide. According to the International Centre for Prison Studies,more than 9.8 million people, including sentenced prisoners and pretrial detainees, are held in penal
institutions throughout the world.1 The World Prison Brief2 prepared by the Centre, indicates thatthe prison population has risen in 71 per cent of the countries surveyed (in 64 per cent of countries
in Africa, 83 per cent in the Americas, 76 per cent in Asia, 68 per cent in Europe and 60 per cent in
Oceania). Prison population rates, measured as the number of prisoners per 100,000 of the general
population, vary considerably among diﬀerent regions of the world, within regions and among prison
facilities within countries.
2. According to the World Prison Brief, 114 of the 191 countries for which data had been collected
had a rate of prison occupancy above 100 per cent (indicating overcrowding). Of those, 16 countries
had rates of prison overcrowding3 above 200 per cent, while 25 countries reported rates of between
150 and 200 per cent. According to Penal Reform International, the size of prison populations in
Europe on average exceeds official capacity by 30 per cent, while the average prison occupancy
rate in the United States of America is 107 per cent. In Bangladesh, the prison population stands at
288 per cent of oﬃcial capacity, the highest rate in South Asia. Kenya has the highest rate of prison
overcrowding in the world, with prison occupancy at 337 per cent of capacity.
3. Participants at the Tenth United Nations Congress on the Prevention of Crime and the Treatmentof Oﬀenders, held in Vienna in 2000, and the Eleventh United Nations Congress on Crime Prevention
and Criminal Justice, held in Bangkok in 2005, recognized the importance of containing the growth andovercrowding of prison populations by promoting safe and eﬀective alternatives to incarceration anddeveloping restorative justice policies.
4. Participants at the four regional preparatory meetings for the Twelfth United Nations Congress on
Crime Prevention and Criminal Justice4 recognized that occupancy of prison facilities was exceeding
capacity and that overcrowding was an acute and widespread problem worldwide and recommended
that the Workshop on Strategies and Best Practices against Overcrowding in Correctional Facilities
1
2
3

4

Roy Walmsley, World prison population list , 8th ed. (London, King s College, International Centre for Prison
Studies, December 2008). Available from www.kcl.ac.uk/depsta/law/research/icps/downloads/wppl-8th̲41.pdf.
Available from www.kcl.ac.uk/depsta/law/research/icps/worldbrief/ (last accessed on 8 February 2010).
The term prison overcrowding generally refers to situations in which the rate of prison occupancy is
above 100 per cent of prison capacity. However, the way in which prison capacity is measured varies fromcountry to country, depending on the space allocated for each prisoner in accordance with national legislation
and administrative rules. Comparisons of overcrowding levels can therefore be misleading. The impact ofovercrowding depends not only on the amount of space allocated to each prisoner, but also on the amount of timeeach prisoner can spend engaged in activities outside his or her cell. The scope of the present paper does notextend to measures that can be taken within prisons to mitigate the eﬀects of overcrowding.
Reports of the Latin American, Western Asian, Asian and Paciﬁc and African regional preparatory meetings for
the Twelfth Congress (A/CONF.213/RPM.1/1, A/CONF.213/RPM.2/1, A/CONF.213/RPM.3/1 and A/CONF.213/
RPM.4/1, respectively).

9pay particular attention to the development of comprehensive, coordinated, multisectoral andsustained strategies and policies involving all stakeholders in the criminal justice system.
5. For over 50 years, the United Nations has developed standards and norms to encourage thedevelopment of criminal justice systems that meet basic human rights standards. Prison overcrowding
may hinder compliance with such standards, with a resulting negative impact on prisoners, theirfamilies, prison systems and the community as a whole. In addition, failure to respect the right to a fairtrial may contribute to an increase in the number of pretrial detainees and convicted persons and thus
in the size of the prison population.
6. The earliest of the United Nations standards and norms, the Standard Minimum Rules for
the Treatment of Prisoners5 contains provisions relating to the rights of prisoners and minimum
requirements regarding conditions of detention, which may be compromised by overcrowding
in prison facilities. The Body of Principles for the Protection of All Persons under Any Form ofDetention or Imprisonment (General Assembly resolution 43/173, annex) and the Basic Principles for
the Treatment of Prisoners (Assembly resolution 45/111, annex) expand on those standards. Other
United Nations instruments highlight the importance of non-custodial measures and of the use of
imprisonment and pretrial detention as last-resort options that could assist in reducing the numbersof persons sent to prison (United Nations Standard Minimum Rules for Non-custodial Measures (theTokyo Rules) (Assembly resolution 45/110, annex)). The United Nations instruments that speciﬁcallyaddress unnecessary or unnecessarily prolonged pretrial detention, which often contributes toprison overcrowding, include the Universal Declaration of Human Rights (Assembly resolution 217
A (III)) and the International Covenant on Civil and Political Rights (Assembly resolution 2200 A(XXI), annex). Instruments such as the basic principles on the use of restorative justice programmes
in criminal matters (Economic and Social Council resolution 2002/12, annex) encourage the use ofrestorative justice, which facilitates the use of alternatives to pretrial detention (pretrial diversion) and
imprisonment. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice(the Beijing Rules) (Assembly resolution 40/33, annex) and the United Nations Rules for the Protectionof Juveniles Deprived of their Liberty (Assembly resolution 45/113, annex) provide exclusively forchildren and juveniles in conﬂict with the law and set out guidelines for the administration of juvenile
justice and for institutions in which juveniles are conﬁned.
7. Regional instruments also highlight the serious problems posed by prison overcrowding,including its potential to undermine the rights of prisoners, and provide for effective alternatives
to imprisonment in policy and practice as a viable long-term solution to prison overcrowding (theKampala Declaration on Prison Conditions in Africa (Council resolution 1997/36, annex); the Kadoma
Declaration on Community Service (Council resolution 1998/23, annex I) and related recommendations
on prison overcrowding; the Arusha Declaration on Good Prison Practice (Council resolution 1999/27,
annex); and the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System) in
Africa.
8. Overcrowded prison conditions violate prisoners basic rights, undermine the safety of prison
staff and that of the general public and weaken the ability of the prison system to meet prisoners
basic healthcare, food and accommodation needs and to provide rehabilitation programmes, education,
training and recreational activities. Overcrowding hinders the ability of prison authorities to manage
prisons eﬀectively, address prisoners social reintegration needs and ensure that their treatment meetsthe requirements set out in United Nations standards and norms, and may create an unsafe working
environment for prison staff. It may also preclude an accurate census and effective classification ofprisoners. Prisoners who do not have access to treatment programmes are more likely to reoffend
following their release. The cost to society of failure of prisoners to reintegrate into the community issigniﬁcant, both ﬁnancially and in terms of public safety.
510, Volume I (First Part):
Nations publication, Sales No. E.02.XIV.4 (Vol. I, Part 1)), sect. J, No. 34.

(United9. Many countries have adopted measures to address the multiple problems created by overcrowding
in correctional facilities 6 and to mitigate the effects of overcrowding. The Workshop offers an
opportunity for government representatives, experts and practitioners to exchange information on
strategies and best practices for reducing overcrowding in correctional facilities. Specifically, theWorkshop provides a forum for:(a) The consideration of strategies to improve the fairness and efficiency of the criminal justiceprocess;(b) The review of good practices and strategies in improving access to justice for the poor andvulnerable;(c) The review of good practices with respect to decriminalization, pretrial diversion, restorative
justice at all stages of proceedings and alternatives to imprisonment, and assessment of the impact ofsuch practices on prison overcrowding;(d) The consideration of possible strategies for expanding the use of early release measures;(e) The identification of effective programmes for the prevention of recidivism as a means of
reducing prison overcrowding.

II. Factors contributing to prison overcrowding
10. The reasons for the growth of prison populations worldwide are numerous and vary from region toregion and from country to country. A range of social and economic factors and policies, the existenceor lack of social support networks and health-care services in the community, crime prevention
measures, the development of the criminal justice system, societal perceptions of crime and the roleof imprisonment in countering crime all have an impact on the size of those populations. Other factors,
such as excessive use of imprisonment, corruption, harsh social policies and growing income inequality
can also have a considerable impact on the size of prison populations. In most countries, these factors
have a cumulative eﬀect. A multidisciplinary and comprehensive strategy is therefore needed in orderto address them eﬀectively.
11. For the purposes of the present paper, the key causes of overcrowding may be summarized asfollows: (a) the ineﬃciency of the criminal justice process; (b) punitive criminal justice policies and theoveruse of detention and imprisonment, particularly at the pretrial stage; (c) inadequate legislative
provision for non-custodial measures and sanctions and lack of clear sentencing policies and guidelines
encouraging the application of such measures and sanctions; (d) challenges faced by large sectors ofsociety, especially the poor and vulnerable, in accessing justice; (e) ineﬃcient measures to prevent
recidivism; (f) lack or underuse of release programmes; and (g) inadequacy or lack of prison facilities
and resources.

A. Inefficiency of the criminal justice process

12. Prison overcrowding is often the result of problems and ineﬃciencies in the criminal justice system
including ineﬀective or delayed investigation, the limited use of pretrial release provisions, ineﬃcient
case management practices, limited resources within the prosecution service and the judiciary andthe lack of provision for or limited use of summary proceedings.7 These problems contribute to casebacklogs in courts, unacceptably long delays in completing investigations and committing cases totrial, multiple and often unnecessary court adjournments and excessive delays in trial proceedings
and case dispositions, all of which have been identified as factors contributing to lengthy pretrial
6
7

In the present paper the term correctional facilities is used to include all prisons and pretrial detention facilities,
although the latter do not have a correctional function.
For the purposes of the present paper the term summary proceedings refers to simpliﬁed procedures which
accelerate the trial process with the objective of ensuring greater efficiency in the criminal justice system
and minimizing costs. Generally, summary proceedings are used in the lower courts, usually for lesser
criminal offences, and constitute fast-track proceedings whereby certain formal procedures are dispensed
with or streamlined. In Canada, for example, the amendment of relevant national legislation has involved the
hybridization of oﬀences under the Criminal Code that had previously been strictly indictable. Such hybridization
allows prosecutors to choose summary proceedings in appropriate cases, thus avoiding the more complicated11detention periods.8 There are instances in which the period of pretrial detention exceeds the lengthof the sentence likely to be imposed. In many jurisdictions, pretrial detainees account for a signiﬁcant
proportion of the prison population.9
13. Lack of cooperation among criminal justice agencies such as the police, prosecutors and courts,
compounded in some cases by poor information exchange, is also a key concern. One of the underlying
causes of such challenges is the lack of accurate and up-to-date information on individuals held in penal
establishments.
Without accurate records, prison authorities have insuﬃcient information concerning the identities ofprisoners and are unable to track the case ﬁles of those prisoners. In the case of pretrial detainees,
the lack of accurate records, including records of the dates of court hearings, can lead to considerable
delays. The presence of a complete, accurate and accessible prisoner ﬁle system is a prerequisite foreﬀective policymaking and prison management.

B. Punitive criminal justice policies and the overuse of detention and imprisonment

14. Punitive criminal justice policies have had an impact on the growth of the prison population andprison overcrowding in many countries. Research in some countries indicates that the increase in thesize of prison populations is attributable to causes often unrelated to crime rates.10 In many cases theincrease in the use of imprisonment appears to be a consequence of punitive penal policies that may
be ad hoc and driven by short-term political exigencies. Courts in many countries are more likely
now than a decade ago to sentence oﬀenders to imprisonment and impose longer sentences.11 In somecountries, the increased use of life sentences with or without parole for a wider range of crimes isa growing trend. In many countries, non-violent offenders who have committed minor crimes are
imprisoned rather than dealt with at the ﬁrst stage of the criminal justice process by way of a caution,ﬁne, suspended sentence or restorative justice measure.
15. Certain criminal justice policies have been identiﬁed as major factors contributing to increases inprison populations and to prison overcrowding, including extension of the range of oﬀences to which
the penalty of imprisonment applies and the introduction of longer terms of imprisonment for certain
offences.12 Policies that require convicted offenders to serve more time in prison, such as the shift
from indeterminate to determinate sentencing, the increase in the number of mandatory minimum
sentences13 and the elimination of the practice of awarding good time to prisoners, can contribute toovercrowding. Community pressure also plays a contributory role; within communities concerned withsafety and security, there may be de facto support for legislation and policies that contribute to prison
overcrowding, including the extensive use of pretrial detention. The pressure that citizens exert on
Governments, often through the media, to penalize oﬀenders is one of the reasons why prisons remain

8
9
10
11
12

13

12

procedures for indictable oﬀences (such as a preliminary hearing (committal hearing) or trial before judge andjury). Hybridization oﬀers a way to simplify and accelerate the trial process in cases relating to lesser oﬀences andwarrant summary proceedings. For a review of a number of reforms implemented in inquisitorial criminal justicesystems with the aim of accelerating criminal proceedings, inter alia, by reducing the formality of criminal trials
and streamlining the investigatory process, see Albin Eser, The acceleration of criminal proceedings and therights of the accused: comparative observations as to the reform of criminal procedure in Europe , Maastricht, vol. 3, No.4 (1996).
Human Rights Watch,(New York, 2006), available from www.hrw.org/reports/2006/guinea0806/.
United States Department of State, Country reports on human rights practices: Senegal (2007), available fromwww.state.gov/g/drl/rls/hrrpt/2007/100501.htm.
Over-use of imprisonment: causes, consequences and responses ,, vol. 55,
July 2006, p. 5.
Ibid.
David Beck-Brown, The high cost of prison overcrowding ,, 27 April 2006 (available
from www.davidbeck-brown.com/literaryarts̲cost̲of̲prison̲ overcrowding.shtm); see also Patrick Kinkade,Matthew Leone and Scott Semond, The consequences of jail crowding ,, vol. 41, No. 1(1995), pp. 150-161.
Julia Sloth-Nielsen and Louise Ehlers, Assessing the impact: mandatory and minimum sentences in South
Africa ,, vol. 14, December 2005, pp. 15-22.

the primary instruments of punishment.14 Community pressure may also make parole boards reluctant
to grant oﬀenders early release or may hinder the establishment of programmes and services to assist
oﬀenders in successfully reintegrating into the community.
16. Policies relating to criminal procedures during the investigation and trial process and provision
for bail or pretrial release can have a signiﬁcant impact on prison populations. The lack of legislation
or failure to enforce existing legislation relating to the criteria for placing persons in pretrial detention
can limit access to bail and other pretrial release options. Remand prisoners may be imprisoned forlengthy periods as a result of policies and practices that cause unnecessary delays and ineﬃciency inthe justice process. In some jurisdictions, suspects are expected to be brought before the court withina speciﬁc period. However, there may be no limit as to the number of times the police may obtain an
extension on that period while completing investigations. As a result, persons may be detained forlengthy periods without charge.

C. Inadequate provision for non-custodial measures and sanctions

17. In many countries, national legislation provides only for limited alternatives to imprisonment;
where such alternatives exist, courts are often reluctant to use them, generally preferring
imprisonment. Limited use of non-custodial measures may be part of a criminal justice policy that ispunitive as a whole, or could be related to failure to reform legislation owing to lack of resources,
lack of training for judges and the absence of clear sentencing guidelines encouraging the use of noncustodial measures.
18. Sentencing policies that encourage the use of community-based programmes but do not establish
any obligation to develop and sustain such programmes are ineffectual and do nothing to alleviate
prison overcrowding. Where such alternatives to imprisonment exist, sufficient resources arenecessary to support non-custodial measures and to supervise oﬀenders in the community.

D. Issues concerning access to justice

19. The absence of a proper and eﬀective legal representation system can contribute to the size ofprison populations. Accused persons without representation may face a higher risk of being detained
until the date of the hearing or trial or until being incarcerated upon conviction, even in cases involving
minor offences. Lack of representation is also one of the causes of delays in the criminal justiceprocess. The number of legal counsels or paralegals available to represent or assist accused persons
at police stations, in court or in prison may be low, particularly in remote areas. In many jurisdictions,poor and vulnerable persons have inadequate access to legal assistance that could help them to remainin the community until the hearing or trial date or to appeal for an alternative to imprisonment uponconviction.

E. Inefficient measures to prevent recidivism

20. Absent, limited or ineffective rehabilitation measures for offenders, both in the community andin prison, can have an impact on recidivism rates. The lack of reintegration programmes withincorrectional facilities can impede the successful reintegration of offenders into the community,
thus increasing the likelihood of recidivism, which may in turn have a significant impact on prison
populations. In some jurisdictions, the fastest growing segment of the prison population comprises
oﬀenders who have violated the terms of their parole or probation.15 However, consideration should
also be given to the possibility that conditions attached to probation or parole may be too strict andtherefore diﬃcult for oﬀenders to comply with, and that in some jurisdictions, the only option available
to the authorities in the event of a breach of those conditions is to order that the oﬀender return toprison, in some cases to serve the remainder of his or her sentence, however minor those breaches
14 Jeremy Sarkin, ed.,, Ohio University Research in International Studies, Africa
Series (Athens, Ohio, Ohio University Press, 2008), p. 2.
15 Yvon Dandurand and others.
(Vancouver, International Centre for Criminal Law Reform and Criminal Justice Policy, November 2008), p. 3.
Available from www.icclr.law.ubc.ca/ﬁles/books/Conditional Release Violations Final̲English.pdf.

13

may be (such as breach of curfew).

F. Lack or underuse of release programmes

21. In many jurisdictions, there is little provision for early release from prison, and where suchprovision exists, that mechanism is often underused due to resource limitations and other factors.
Ineﬀective or ineﬃcient parole systems or rigid parole rules that limit the number of cases in whichparole is granted contribute to large prison populations. The number of parole suspensions andrevocations depends not only on the behaviour of oﬀenders but also on the manner in which they aresupervised in the community and the legislative framework within which that supervision is carriedout.

G. Inadequate prison infrastructure and capacity

22. In many countries, prison facilities are in need of replacement or renovation. They do notadequately accommodate existing prison populations or increases in the number of prisoners. In many
post-conﬂict and transitional societies, the prison system has been destroyed or severely damaged.
Lack of investment in prison construction and renovation and delays in building new facilities
contribute to prison overcrowding and aggravate its eﬀects. Prison construction, where undertaken,
must be part of a comprehensive strategic plan to address overcrowding in prisons, inter alia, throughmeasures to decrease the number of persons incarcerated.

H. Other factors

23. Some regions have experienced a rapid increase in the size of their prison populations as a resultof a rise in crime rates that has a positive correlation with inequality, inadequate responses to poverty
and social marginalization.16 In many countries, the problem of prison overcrowding is exacerbatedby the fact that illegal migrants are often detained before being repatriated (even if, as in many cases
they have been living illegally in the country for a long time). In others, prisons have become the only
facilities available for persons with mental health problems.

III. Strategies to reduce prison overcrowding
24. Strategies developed to reduce prison overcrowding will vary according to the specific needsof individual jurisdictions. Best practices call for concerted and comprehensive eﬀorts on the part ofthe entire criminal justice system, involving the cooperation and coordination of all criminal justice
stakeholders. States should analyse their national criminal justice systems in the context of their
historical, legal, economic and cultural background. Speciﬁc strategies are: (a) to ensure a systemwide, integrated and sustained approach to the criminal justice process and related programmes; (b) to
improve the eﬃciency of the criminal justice process; (c) to ensure comprehensive sentencing policies;(d) to increase the use of alternatives to detention and imprisonment, on the basis of the principle ofimprisonment as a last resort and the principle of proportionality; (e) to strengthen access to justiceand public defence mechanisms; (f) to develop or strengthen, as appropriate, provisions for early
release; (g) to strengthen measures to prevent recidivism, such as rehabilitation and reintegration
programmes; (h) to increase prison capacity if absolutely necessary; and (i) to conduct researchand development activities relating to information systems for the justice and corrections sectors.
Strategies to reduce overcrowding should be gender-sensitive and should respond eﬀectively to theneeds of vulnerable groups.
25. The United Nations Office on Drugs and Crime (UNODC) has developed a number of tools andhandbooks that can serve Member States as practical guides in developing strategies, such as the
Criminal Justice Assessment Toolkit on custodial and non-custodial measures. It has also designed
speciﬁc tools to assist in the development of strategies to reduce overcrowding among female prisoners
16 See Pablo Fajnzylber, Daniel Lederman and Norma Loayza, Inequality and violent crime ,, vol. 45, No. 1 (April 2002); see also Elias Carranza and others,
Siglo XXI, 2009).

14(Mexico City,

and vulnerable groups in prisons, such as the Handbook for Prison Managers and Policymakers on Womenand Imprisonment17 and the Handbook on Prisoners with Special Needs.18 Furthermore, the Commission
on Crime Prevention and Criminal Justice, in its resolution 18/1, requested the Executive Director of
UNODC to convene an open-ended intergovernmental expert group meeting to develop, consistent
with the Standard Minimum Rules for the Treatment of Prisoners and the United Nations Standard
Minimum Rules for Non-custodial Measures (the Tokyo Rules), supplementary rules speciﬁc to thetreatment of women in detention and in custodial and non-custodial settings. The meeting, which washeld in Bangkok from 23 to 26 November 2009, endorsed a series of supplementary rules providing,inter alia, for greater use of alternatives to prison in the case of certain categories of female oﬀenders.
The draft rules will be before the Congress (A/CONF.213/17) for appropriate consideration and action.

A. Comprehensive criminal justice policies and programmes

26. Successful strategies to reduce prison overcrowding are based on an integrated and sustained
approach to enhancing the criminal justice process and are strengthened by in-depth understanding of
the nature of the crime problem, the eﬀective functioning of the criminal justice system and general
strategies for crime prevention. Comprehensive policies may include both crime prevention measuresand strategies that limit the reach of the criminal justice system, such as the use of decriminalizationor pretrial diversion, thus reducing the number of persons convicted and imprisoned. Informal andrestorative justice mechanisms have the potential to reduce court costs and case processing times andto provide communitybased forums for the resolution of cases. Policies should also discourage the useof criminal justice systems to deal with social issues such as mental health problems.
27. Strategies should cover the three stages of the criminal justice process: pretrial, trial andconviction. Measures to decrease the use and duration of pretrial detention include legislative andpolicy frameworks ensuring that police and pretrial detention are used only when absolutely necessary;
encouragement of the use of pretrial release options; the requirement that pretrial detention be
decided by a competent authority and for a determinate period of time; and the requirement that trials
be held within a reasonable period of time beyond which detention is not permitted. Strategies such asplea bargaining or mechanisms for entering early guilty pleas or for fast-track case management canencourage the early disposition of cases. Governments could consider creating small claims courts or
courts to hear cases involving minor oﬀences. A number of jurisdictions have developed specialized
courts designed to address the specific needs of certain groups of offenders and to provide analternative to the use of imprisonment. Oﬀenders who are mentally ill or dependent on drugs are oftencaught in an inescapable cycle of incarceration and release. Strategies that have used the authority of
the court to compel therapeutic intervention (such as drug treatment courts and courts that try cases
relating to violence in the family) have proved successful in this area.19

B. Improving the efficiency of the criminal justice process

28. One of the key challenges that must be addressed by strategies to reduce the prison population
is inefficiencies in the criminal justice process that have a direct impact on the size of the prison
population. Practices that contribute to prison overcrowding by creating backlogs of court cases andincreasing the number of pretrial detainees could be identiﬁed through a system-wide review.
29. Strategies must also seek to reduce the time between commencement of proceedings and theirconclusion with a final judgement; impose time limits (e.g. under statutory or constitutional law)for the conclusion of investigations and trials; review rules of procedure and court rules; improvejoint investigations by and communication between the police and prosecution services; improvecourt administration, including automation, scheduling, case-tracking and casemonitoring schemes;
enhance case management; and streamline pretrial processes such as disclosure, admissions and

17 United Nations publication, Sales No. E.08.IV.4.
18 United Nations publication, Sales No. E.09.IV.4.
19 John Weekes and others,2007). Available from www.ccsa.ca.

Canadian Centre on Substance Abuse (Ottawa, March15

case conferences. Strategies that might be explored include the creation of new courts, particularly
in rural areas; the allocation of resources to increase the capacity of the criminal justice system; theintroduction of summary proceedings;20 the creation of opportunities for oﬀenders to enter early guilty
pleas; greater legal representation for oﬀenders; more eﬃcient case management; improved schedulingand notiﬁcation processes; and strengthening of the role of paralegal professionals in facilitating theprocessing of cases.
30. Initiatives to improve the eﬃciency of the criminal justice process require a concerted eﬀort on thepart of the entire criminal justice system, which may require training for police, prosecutors, judges,
staff of correctional facilities, communitybased non-governmental organizations and other agencies
and organizations. The Chain Linked Initiative, which is being implemented in a number of African
States, involves cooperation between courts, prosecutors, prisons, social services, local community
leaders and non-governmental organizations. Participants in the initiative hold regular meetings,
conduct joint prison visits and have developed and distributed agreed performance standards, whichhave been successful in expediting the processing of cases and the release of detainees found to havebeen imprisoned unlawfully.21 Regional and national conferences involving all justice stakeholders
serve as useful forums for the examination of ways to improve the administration of justice and for thedevelopment of interagency cooperation. For example, UNODC, the International Centre for Criminal
Law Reform and Criminal Justice Policy and the United Nations Mission in the Sudan (UNMIS) are
jointly supporting the capacity-building and reform eﬀorts of the Southern Sudan prison service. While
those activities are focused on supporting the prison service, they also include the strengthening ofcooperation among relevant stakeholders in the justice system in identifying key issues and drawing up
strategies for developing alternatives to imprisonment.
31. Justice systems should be supported by good information management systems providing
up-to-date and easily accessible information on cases, accused persons and convicted offenders.
The Handbook on Prisoner File Management ,22 published by UNODC, highlights the importance of
maintaining accurate prisoner ﬁles as a means of ensuring compliance with international treaties andstandards. Effective caseflow management can help to expedite the hearings of pretrial detainees,
facilitate the identification of convicted persons eligible for early release and ensure that adequate
supervision and services are provided to persons released. Participants in the four regional preparatory
meetings for the Twelfth Congress considered the special challenges posed by the fact that, in recent
years, foreign nationals have tended to account for a large proportion of the prison population in
many countries. Some of the practices suggested as a means of alleviating this problem include split
sentences, programmes for the exchange of foreign prisoners and regional schemes for the transfer ofsuch prisoners.23 The transfer of foreign prisoners to their countries of origin should be conducted inaccordance with international standards and, to the extent possible, in line with the Model Agreementon the Transfer of Foreign Prisoners.24

C. Comprehensive sentencing policies

32. Comprehensive sentencing policies, based on enabling legislation can provide guidance to courtsand encourage the use of alternatives to imprisonment. The cost to society of imprisonment inrelation to the costs of other options should be taken into account when designing sentencing policies.
Legislation and policies based on the principle of imprisonment as a last resort and the principle ofproportionality can limit the overuse of imprisonment and contribute to a reduction in the size of prison
20 See footnote 7 above.
21 Personal Reform International,, version 7, October 2005.
Available from www.penalreform.org.
22 United Nations publication, Sales No. E.08.IV.3.
23 The requirement that prisoners must consent to the transfer ensures that transfers are not used as a method of
expelling prisoners or as a means of disguised extradition (A/CONF.121/10, para. 14).
24
(United Nations publication, Sales No. E.86.IV.1), chap. I, sect.
D.1, annex I.

16populations. Policies might include the provision of non-binding guidance to the courts on judicial
discretion, the establishment of ﬁxed upper limits and ﬂexible lower limits for penalties or the adoptionof legally binding sentencing guidelines that establish priorities with regard to the use of imprisonmentand require courts to determine penalties in accordance with the limits of available prison capacity.
33. Such policies can help to minimize the use of mandatory sentences so that mitigating factors canbe given greater consideration at the time of sentencing. The incarceration of oﬀenders who do notpose a substantial threat to society, in conditions that undermine their human rights and endanger
their mental and physical health and overall well-being, is not conducive to successful rehabilitation orreintegration. Sentencing policies should set out clear provisions relating to the social rehabilitation of
oﬀenders. Some countries have introduced sentencing processes that provide for the introduction ofpre-sentence reports, which allow judges to consider a variety of options. Various restorative justiceapproaches can also be designed to provide for non-custodial alternatives. Sentencing policies should
also address the impact of recidivism on prison populations.

D. Increasing the use of alternatives to detention and imprisonment

34. Relevant international instruments recommend that criminal legislation provide for a wide range
of non-custodial sanctions applicable to diﬀerent types of oﬀence and to the individual circumstancesof the offender (e.g. rule 8.1 of the Tokyo Rules). The availability of a range of alternatives toimprisonment is clearly necessary as a ﬁrst step towards increasing the use of non-custodial sanctionsin practice. In the UNODC Handbook of Basic Principles and Promising Practices on Alternatives to
Imprisonment,25 the basic principles central to understanding alternatives to imprisonment at every
stage of the criminal justice process are introduced and promising practices implemented throughout
the world are described (see boxes 1 and 2).
Box 1
Good practices in India and South Africa
A pilot bail information scheme designed to reduce the use of detention in South Africa for persons
unable to pay bail has reduced the number of persons in pretrial detention and improved thefunctioning of the courts in several pilot locations. The general view among those involved in thescheme is that it has produced positive outcomes.a
In India, a pilot project to implement a prison visitors programme and a rights monitoring campaign
designed to discourage the use of detention and to expedite trials, has reduced the number of
persons detained while awaiting trial.b
a Louise Ehlers, Frustrated potential: the short and long term impact of pretrial services in South Africa , in(New York, Open Society Justice Initiative, 2008), pp. 121-140.
b R. K. Saxena, Catalyst for change: the eﬀect of prison visits on pretrial detention in India ,(New York, Open Society Justice Initiative, 2008), pp. 57-69.

35. Alternatives to imprisonment that might be considered when reviewing sentencing legislationand policies include suspended sentences, probation, community service, fines, compensation,
conditional sentences, home detention with or without electronic monitoring, verbal sanctions
and restriction of certain rights. In some jurisdictions, probation is a widely used alternative to
imprisonment. The popularity of probation is due in large measure to its versatility. The durationand conditions of probation can be tailored to the oﬀender s needs and circumstances and, similarly,
the level of supervision can be adapted to the danger posed by the oﬀender. Probation oﬃcers may,in addition to providing supervision, help persons under community supervision gain access totreatment programmes, such as programmes on violence prevention and substance abuse management
and programmes targeting sex offenders through a cognitive skills approach. In many European
jurisdictions and in North America, the expansion of electronic surveillance programmes, including
25 United Nations publication, Sales No. E.07.XI.2.

17

electronic monitoring and tagging , has increased the number of offenders who can be supervisedin the community. Probation services have also been expanded to include specialized units providing
community-based supervision for higher-risk oﬀenders, including sex oﬀenders.26
Box 2
Good practice in Kyrgyzstan: criminal justice reform in 2007
On 25 June 2007, Kyrgyzstan adopted a number of amendments to its Criminal Code, Code of
Criminal Procedure, Penal Enforcement Code and to seven other laws. The changes introduced
new alternatives to imprisonment, expanded the use of existing alternatives and reduced the lengthof sentences applicable to certain oﬀences. The right to decide to arrest a person was transferredfrom the prosecutor to the courts. As a direct result of those changes, the prison population of
Kyrgyzstan decreased dramatically from 15,249 in July 2006 to 9,797 in July 2009. That decrease
was attributable largely to the reduction of prison sentences and the easing of conditions for early
conditional release.
36. However, in low-income countries where alternatives such as probation and electronic
surveillance programmes would entail an unmanageable ﬁnancial burden, simpler alternatives, suchas suspended sentences, home detention, compensation and fines (calculated on an equitable basis)
may be preferred options. Unpaid work (community service) is also a possible alternative to shortprison sentences. Many jurisdictions provide for a range of penalties applicable in cases in which
enforcement of a sentence has failed, and explicitly provide for imprisonment only as a last resort.
UNODC is working in Afghanistan to increase the use of alternatives to imprisonment by encouraging
the use of those alternatives which are already provided for under relevant legislation but which are
not being used. The initiative is based on a comprehensive needs assessment outlined in Afghanistan:
Implementing Alternatives to Imprisonment, in Line with International Standards and National Legislation,
published by UNODC in 2008. As part of that process, UNODC has led the review of the Code of
Criminal Procedure of Afghanistan and has also recommended that national legislation provide for agreater number of alternatives to pretrial detention.
37. Capacity-building and awareness-raising are needed in order to increase the use of alternative
measures by police, prosecution services and the judiciary. However, one of the key concerns
regarding the development of alternatives to imprisonment is that a greater number of persons will
require supervision by the justice system.
38. The availability of adequate resources to implement non-custodial measures is essential to any
strategy to reduce overcrowding in correctional facilities. Civil society, including non-governmentalorganizations, can play a pivotal role in the use of community-based alternatives to imprisonment. Oneof the key challenges is to devise strategies to engage the community, sustain community involvement
and promote public acceptance of schemes that allow offenders to remain in the community.
Involvement of the community in schemes to reduce prison overcrowding through alternatives toimprisonment is not only cost-eﬀective but also serves to strengthen reform eﬀorts. Activities to raise
public awareness of the eﬀectiveness of community sentences can increase public acceptance of suchalternatives. The design of alternative measures for specific groups of offenders, such as pregnant
women, mothers of young children, elderly persons and prisoners with disabilities, should also be
considered.

E. Strengthening access to justice and access to public defencemechanisms

39. Good defence lawyers, an effective public defence system, access to legal representation andinformation on available legal aid signiﬁcantly improve the administration of justice and may reduce
the number of persons in prison. Legal counsel or paralegals27 can help to ensure that cases are heard
within the legally mandated time frame or, failing that, that the accused person is released; in addition,
26 Curt T. Griﬃths,

18, 3rd ed. (Toronto, Nelson Education, 2010).

they can counsel prisoners on the benefits of pleading guilty early and provide them with accurate
and up-to-date information. They play an important role in reducing prisoner anxiety and stress byincreasing the legal literacy of prisoners and detainees. The provision of free legal aid can help toensure that all individuals have access to legal advice. A further strategy to ensure that prisoners insituations of overcrowding have access to justice is to strengthen access to civil law procedures, classactions or compensation schemes.

F. Developing or strengthening provisions for early release

40. Early release mechanisms can reduce prison overcrowding and facilitate social rehabilitation andreintegration. The Tokyo Rules encourage the use of postsentencing alternatives in order to avoid
institutionalization and to assist oﬀenders in their early reintegration into society including, furloughand halfway houses, work or education release, various forms of parole, remission and pardon. Openprisons should also be considered. Parole or conditional release provides the State with the possibilityof imposing conditions specifically tailored to the needs of the individual offender and to assist theoffender in the transition from imprisonment to a law-abiding life in the community. Amnesties,
pardons and prerogatives of mercy have also been used to reduce prison populations, particularly incases in which persons convicted of a petty oﬀence have been imprisoned or remanded for long periods
or the oﬀender is chronically or terminally ill.
41. Legislation and policies should provide clearly for the possibilities of parole and early releaseand the conditions for such release. The scope of early release programmes could be extended insuch a way as to make early release part of the normal process of sentence enforcement. It is also
necessary to ensure adequate supervisory resources, programmes and facilities within the community
and to develop and adopt appropriate risk assessment instruments, which can be of use in identifying
oﬀenders who may be eligible for early release. In jurisdictions where prisoners must apply for parole
in order to be considered for such release, they should be encouraged to do so. Such procedures
may allay public concerns about community safety and provide a mechanism whereby oﬀenders are
informed at an early stage as to what they must do to qualify for early release and how they must
behave in order not to forfeit their eligibility. Criteria used as the basis for early release decisions,such as good behaviour in prison, should be clear and fair. Parole revocation procedures might deﬁne
speciﬁc criteria for revocation, such as the commission by the oﬀender of a new or repeat oﬀence whileon parole, and could grant the appropriate authorities discretion to decide on partial revocation.
42. Administrative infrastructure is likely to be required in order to facilitate and monitor compliancewith conditions for early release. Those conditions might include the payment of compensation or
reparation to victims; treatment for drug or alcohol problems that played a part in the commissionof the offence; participation in work, education or vocational training; participation in personal
development programmes; or compliance with an order to refrain from contact with a certain personor to stay away from a certain place. The use of early release programmes and services to provide
support to those released can facilitate successful reintegration into the community and help to reduce
recidivism.

G. Effective measures to prevent recidivism

43. Comprehensive measures to prevent recidivism are important in reducing the number of persons
in prison. Offenders may face social, financial and personal challenges, such as mental illness or
substance abuse or addiction, that make it difficult for them to avoid returning to criminal activity.
Essential features of a broader crime prevention effort include providing skills training, education,
treatment programmes and psychological support for oﬀenders in the community and for prisoners,
and establishing programmes to assist oﬀenders released from prison in becoming law-abiding citizens.
Research shows that rehabilitation programmes yield better results when implemented in community
settings. Strategies should include increasing the effectiveness of education, vocational training,social reintegration assistance and rehabilitation programmes oﬀered to prisoners and of community
27 See footnote 7 above.

19

reintegration and supervised release programmes. Vocational training, education and rehabilitation
programmes comprise a key component of the majority of the prison reform programmes implemented
by UNODC in developing and post-conflict countries and areas such as Afghanistan, the occupied
Palestinian territories and Southern Sudan.
44. Reintegration programmes emphasizing the importance of preparing prisoners for release andof the continuity of treatment interventions before and after release have been introduced in a
number of jurisdictions.28 The aims of such programmes are to integrate the various elements ofthe criminal justice response, develop partnerships with communities and integrate institutional andcommunity-based interventions to form an unbroken continuum. Case management plays a key role inindividualizing treatment in prison and facilitating social reintegration.
45. Rehabilitation and reintegration programmes may involve the participation of justice personnel,social workers, educators, non-governmental organizations and community volunteers. Suchprogrammes must prepare not only the prisoners themselves but also their families and the wider
community for their return to the community. Public education is a key component of any strategy
designed to increase community involvement in community-based programmes for oﬀenders and exoffenders. The Tokyo Rules encourage the organization of conferences, seminars, symposiums andother activities and the utilization of the mass media to stimulate awareness of the need for public
participation.

H. Increasing prison capacity

46. While it is sometimes necessary to increase prison capacity, experience has shown that theconstruction of new prisons alone is unlikely to provide a sustainable solution to prison overcrowding.
In addition, the construction and maintenance of new prisons is expensive and therefore places a strain
on possibly limited resources.
47. Where new prisons are essential, their construction should be accompanied by a comprehensive
strategy to reduce the number of persons sent to prison in order to achieve a sustainable solution
to the continuing growth of the prison population. The creation or strengthening of essential prison
infrastructure can provide an opportunity to improve prison conditions, prison security and observanceof the human rights of prisoners. However, it also requires expansion of the capacity of the prison
service. Prison services should be available in remote areas so as to ease high congestion in prisonsin urban centres, make prisoner transfers more secure and less costly and reduce delays in the justiceprocess. Prisons should ideally be built in the vicinity of police buildings and courts so as to mitigate
the challenge of transferring prisoners between police custody, the courts and prisons.
48. The mobilization of resources for construction and renovation programmes can be challenging
for Member States. There is a need to strengthen cooperation between the prison service and thosestakeholders who are able to advocate for support and bring more visibility to the challenges facing
the prison system. Prison services should consider partnerships with other government agencies, suchas ministries of health or education. The establishment or support for the commercialization of prison
industries are possible ways of generating funds for the prison service and supporting rehabilitationeﬀorts through skills training, and they might be promoted through private investment, cooperation
with the private sector or the adoption of government policies that support such industries (e.g. in thearea of procurement). Institutions that monitor detention conditions, safeguard prisoners rights andprevent exploitation of prison labour could also play a role in mobilizing resources for prisons.

I. Conducting research and developing information systems

49. Successful initiatives tend to be those founded on empirical understanding validated by key

28 Curt T. Griffiths, Yvon Dandurand and Danielle, Canada, Public Safety Canada, Research Report No. 2007-2 (Ottawa, National Crime Prevention
Centre, 2007). Available from www.publicsafety.gc.ca/res/cp/res/̲ﬂ/soc-reint-eng.pdf.

20

stakeholders. It is therefore important to set up mechanisms for collecting information on how thecorrectional system operates and how resources are used. Jurisdictions should develop information
systems to document caseﬂow and procedures for gathering information on persons held in prisons.
That information can serve as the basis for evaluating the effectiveness of initiatives designed toreduce prison overcrowding; such evaluations in turn can be used in the development and applicationof relevant best practices. All available information should be readily comprehensible to all major
stakeholders. In addition, networks to facilitate the sharing of information among jurisdictions should
be developed in order to enhance reform initiatives. Governments should provide the necessary
knowledge basis for criminal policy planning and legislation by ensuring that proper research
infrastructure and resources are in place. Additional eﬀorts are needed to raise public awareness of
the way in which the criminal justice system functions and the various crime prevention strategies
available. The introduction of a system for the management of prisoner data is one of the components
of a number of UNODC prison reform projects in developing countries.

J. Comprehensive social policies

50. Crime is a social problem to which criminal justice systems can provide only a partial response.
Strategies to ensure fair social justice and social equality, reduce income inequality and preventsocial marginalization are needed in order to achieve a long-term and sustainable solution to prison
overcrowding. Policies and actions relating to crime and criminal justice must be comprehensive,
encompassing education, health, housing, employment and measures to combat violence.

IV. Conclusion
51. Overcrowding in prisons is a serious impediment to safe prison management, effective
rehabilitation of oﬀenders and compliance with United Nations instruments and standards relating to
the human rights of prisoners. Overcrowding in correctional facilities may lead to multiple humanrights violations, such as limitation of access to health care, nutrition and sanitation.
52. While the effectiveness of measures to counter overcrowding in correctional facilities varies
depending on the speciﬁc situation and criminal justice system of each State, such measures should in
all cases be part of a comprehensive crime prevention and criminal justice strategy.
53. Pursuant to the relevant United Nations standards and norms, the Workshop may wish to consider
the following:(a) Member States should recognize prison overcrowding as an unacceptable violation of humanrights that requires a ﬁrm response. Each Member State should determine the upper limit of its prison
capacity. Decisions to increase the number of prison places as a means of reducing overcrowding
should not be taken without consideration of ways to reduce demand for prison places, thus avoiding
an overall increase in the number of persons in prison;(b) Member States should consider reviewing, evaluating and updating their policies, laws
and practices in order to ensure their comprehensiveness and effectiveness in addressing prison
overcrowding;(c) The implementation by Member States of reforms and strategies to reduce overcrowding
should be gender-sensitive and should respond eﬀectively to the needs of vulnerable groups;(d) Member States are urged to conduct a system-wide review to identify inefficiencies in thecriminal justice process that contribute to detainees being held for long periods during the pretrial
and trial processes; to develop strategies to improve the efficiency of the criminal justice process
through, inter alia, measures to reduce case backlogs; and to strengthen access to justice and accessto public defence mechanisms;(e) Member States should regard pretrial detention as a last resort. Accordingly, they should
consider introducing time limits for detention, a mechanism for reviewing decisions to detain suspects,
restorative justice, mediation programmes and electronic monitoring in order to reduce the number of
persons held in pretrial detention and the duration of such detention;(f) Member States are urged to ensure that courts are provided with principled guidance on
sentencing, without infringing on their independence and discretionary freedom. Legislative or21

policy guidance should be given in a form that reﬂects the principle of proportionality in such a way
as to protect against unfounded severity and ensure the effective implementation of alternatives toimprisonment;(g) Member States are strongly encouraged to review the adequacy of legal aid and other measureswith a view to strengthening access to justice and public defence mechanisms, particularly for the poorand the most vulnerable;(h) Member States should encourage the participation of all relevant stakeholders in thedevelopment and implementation of national strategies and action plans against overcrowding;(i) Member States are urged to promote the participation of civil society organizations and local
communities in implementing alternatives to imprisonment;(j) Member States are encouraged to introduce measures that facilitate early release fromcorrectional facilities, such as referral to halfway houses, electronic monitoring and good time;(k) Member States should develop and strengthen research and data collection mechanisms inorder to evaluate the eﬀectiveness of reforms and strategies and to communicate that information to
the public.

22

Workshop Programme on Strategies andBest Practices against Overcrowding in Correctional Facilities
Dr. Sitona Abdella Osman (Alternate Representative, Sudan)
Mr. Adam Sadiq (Ambassador, Embassy of the Democratic Socialist Republicof Sri Lanka in Brazil)
Mrs. Maggie Jackson (Attorney-Generalʼs Department, Australia)
Professor Dr. Dr. h. c. Hans-Jörg Albrecht (Managing Director of the MaxPlanck-Institute for Foreign and International Criminal Law, Germany)
Dr. Tapio Lappi-Seppälä (Director of National Research Institute of Legal
Policy, Finland)

Chairperson:
Vice-Chairperson:
Rapporteur:
General Moderator:
Drafter:

Friday, 16 April: Morning Session
10:00-10:10
Opening
Introduction
Remarks
Presentations
10:10-10:30
10:30-10:50
10:50-11:10
11:10-11:40

11:40-12:30
Panel discussion I:
Moderator:
Panellists:

Chairperson
Ms. Claudia Baroni (Representative of the Secretariat)
Mr. Masaki Sasaki (Director, UNAFEI)(i)

Current Situation of Prison Overcrowding
Mr. Rob Allen (Director of the International Centre for Prison Studies, King's
College London)(ii) Causes of Prison Overcrowding
Dr. Tapio Lappi-Seppälä (Director of National Research Institute of Legal
Policy, Finland)(iii) Countermeasures against Prison Overcrowding
Professor Dr. Dr. h. c. Hans-Jörg Albrecht (Managing Director of the MaxPlanck-Institute for Foreign and International Criminal Law, Germany)(iv) Speciﬁc Situations in Middle and Low Income Countries
Mr. Elias Carranza (Director of the United Nations Latin American Institutefor the Prevention of Crime and the Treatment of Oﬀenders (ILANUD))
Dr. Nsimba Masamba Sita (Director of the United Nations African Institutefor the Prevention of Crime and the Treatment of Oﬀenders (UNAFRI))
Strategies for Reduction of Prison Populations through Diversion, Informal and
Restorative Justice and Alternatives to Pre-trial Detention
Mr. Rob Allen (Director of the International Centre for Prison Studies, KingʼsCollege London)
Dr. Kittipong Kittayarak (Permanent Secretary for Justice, Ministry ofJustice, Thailand)
Ms. Elinor Wanyama Chemonges (National Coordinator of the Paralegal
Advisory Services, Foundation for Human Rights Initiative, Uganda)
Mr. Cliﬀord Wayamuka Msiska (National Director of the Paralegal Advisory
Service Institute, Malawi)
Mr. Toshihiro Kawaide (Professor, Graduate Schools of Law and Politics, theUniversity of Tokyo, Japan)
Professor Dr. Dr. h. c. Hans-Jörg Albrecht (Managing Director of the MaxPlanck-Institute for Foreign and International Criminal Law, Germany)
Sir Judge David J. Carruthers (Chairman of the New Zealand Parole Board)

12:30-13:00
Discussion

23

Friday, 16 April: Afternoon Session
15:00-16:10
Panel discussion II: Strategies for Reduction of Prison Populations at the Sentencing and PostSentencing Stages
Moderator:
Professor Yvon Dandurand (Senior Associate, International Centre for
Criminal Law Reform and Criminal Justice Policy)
Panellists:
Dr. Ela Wiecko Volkmer de Castilho (Member of the Federal Public
Prosecution Service and National Council on Criminal and Penitentiary Policy,
Brazil)Ms. Maria Noel Rodriguez (Director of the Programme on Woman and Jail,
United Nations Latin American Institute for the Prevention of Crime and theTreatment of Oﬀenders (ILANUD))
Mr. Soh Wai Wah (Director of the Singapore Prison Service)
Ms. Christine Glenn (Parole Commissioner of Northern Ireland andImmigration Judge)
16:10-17:00
Panel discussion III: Strategies for Securing Support for Reduction of Prison Populations
Moderator:
Dr. Tapio Lappi-Seppälä (Director of National Research Institute of Legal
Policy, Finland)
Panellists:
Dr. Kittipong Kittayarak (Permanent Secretary for Justice, Ministry ofJustice, Thailand)
Mr. Soh Wai Wah (Director of the Singapore Prison Service)
Dr. Nsimba Masamba Sita (Director of the United Nations African Institutefor the Prevention of Crime and the Treatment of Oﬀenders (UNAFRI))
Ms. Christine Glenn (Parole Commissioner of Northern Ireland andImmigration Judge)
Dr. Mario Luis Coriolano (Vice President of the Subcommittee on Preventionof Torture and other Cruel, Inhuman or Degrading Treatment or Punishment(SPT))
17:00-17:50
Discussion
17:50-18:00
Remarks

Closing

24

Mr. Masaki Sasaki (Director, UNAFEI)
Professor Dr. Dr. h. c. Hans-Jörg Albrecht (Managing Director of the MaxPlanck-Institute for Foreign and International Criminal Law, Germany)
Chairperson

EXECUTIVE SUMMARY OF THE WORKSHOP
Executive Summary of the Workshop on“Strategies and Best Practices
against Overcrowding in Correctional Facilities”
I. Introduction
Workshop 5 of the Twelfth United Nations Congress on Crime Prevention and Criminal Justice washeld in Salvador, Brazil, on 16 April 2010. The Workshop focused on the topic of Strategies and Best
Practices against Overcrowding in Correctional Facilities , as mandated by the General Assembly
resolution 63/193 of February 2009.
The Workshop was organized by the United Nations Asia and Far East Institute for the Preventionof Crime and the Treatment of Oﬀenders (UNAFEI). In order to make organizational and substantive
preparations for the workshop, the organizer hosted three preparatory meetings in January 2009
(Tokyo), September 2009 (Tokyo), and April 2010 (Salvador), just prior to the Workshop.
The Workshop, held within the framework of Committee I of the Congress, was chaired by Dr.
Sitona Abdella Osman, Alternate Representative, Sudan, and assisted by a Moderator, Professor
Dr. Dr. h. c. Hans-Jörg Albrecht, Managing Director of the Max-Planck-Institute for Foreign andInternational Criminal Law, Germany, who facilitated the discussion throughout the Workshop. In
addition to the Rapporteur of Committee I, Mrs. Maggie Jackson, Attorney-General's Department,
Australia, the Workshop had as its Drafter Dr. Tapio Lappi-Seppälä, Director of the National
Research Institute of Legal Policy, Finland.
The work of the Workshop consisted of four presentations and three panels: Strategies for
Reduction of Prison Populations through Diversion, Informal and Restorative Justice and Alternatives
to Pre-trial Detention; Strategies for Reduction of Prison Populations at the Sentencing and Postsentencing Stages; and Strategies for Securing Support for Reduction of Prison Population, followed
by interaction with the ﬂoor. The selection of the topics of the presentations and the panels, containedin document A/CONF.213/16, was made in accordance with the issues and elements contained in the
Discussion Guide of the Congress (A/CONF.213/PM.1) and the reports of the regional preparatory
meetings for the Twelfth Congress (A/CONF.213/RPM.1/1, A/CONF.213/RPM.2/1, A/CONF.213/
RPM.3/1, and A/CONF.213/RPM.4/1).

II. Proceedings of the Workshop
A. Opening

The Workshop was opened by the Chairperson on the morning of 16 April 2010. This was followedby an introductory statement by Ms. Claudia Baroni, a representative of the Secretariat, whoreferred to the negative impact of overcrowding in correctional facilities and stressed the importanceof addressing prison overcrowding in a comprehensive and multisectoral manner. After her statement,
there was welcoming statement from Mr. Masaki Sasaki, Director of UNAFEI, who emphasizedthat the workshop will pursue the subject matter through a practice-oriented, comprehensive andintegrated approach, addressing possible eﬀorts at the legislative level and all stages of the criminal
justice process, including the rehabilitation of oﬀenders, instead of simply focusing on the causes andcountermeasures within the prison settings.

25

B. Presentations

The ﬁrst presentation was intended to show the audience the current situation of overcrowding incorrectional facilities and its impact on human rights and the administration of criminal justice. The
second presentation analysed the causes of the overcrowding. The third presentation was intended tofacilitate the audience's understanding of the overview of the measures to prevent overcrowding andalleviate its impact, which were elaborated in the three panels following the presentations. At the endof the presentation session, a joint presentation took place to present the speciﬁc situations in middle
and low income countries.

1. Presentation on “Current Situation of Prison Overcrowding”

In his speech, Mr. Rob Allen, the Director of the International Centre for Prison Studies, King's
College London, presented the current situation of prison overcrowding around the world. At
the beginning of his presentation, he introduced, with several stunning pictures, the devastatingconsequences of overcrowding in correctional facilities e.g. death caused by insufficient air, thespread of tuberculosis, and rioting. He pointed out the diﬃculty in measuring overcrowding because
there was no universal agreement on how much space should be allocated for each inmate. Using thedatabase of the International Centre for Prison Studies on occupancy level, the best available proxymeasure of overcrowding, he showed the occupancy rate of countries all over the world, some ofwhich exceeded 300 percent, although he pointed out that prison capacity may be designated in anarbitrary manner. He argued that while high rates of over-occupation were not necessarily linked
with high rates of imprisonment, they were related to high proportions of pre -trial detainees in prison
populations.

2. Presentation on “Causes of Prison Overcrowding”

The second presenter, Dr. Tapio Lappi-Seppälä, explored the causes of prison overcrowding andlisted the following factors: excessive use of pre-trial detention; punitive tough on crime policies;
lack of alternatives to imprisonment; rigid sentencing systems; restrictive and rigid early releasepractices and rigid revocation procedures; high reoﬀending rates, resulting from missing or inadequate
in-prison and community rehabilitation programmes; and criminal justice systems adopting tasks that
could be better managed by social, health and other services. He also pointed out that more general
structural and cultural factors such as public fears and concerns over safety and security, publicpressures, media impact, socio-economic equality and security, and political culture also aﬀect prison
overcrowding. At the end of his presentation, he introduced a promising Finnish example of prison
population reduction as a result of political will, without any notable eﬀects on national crime rates.

3. Presentation on “Countermeasures against Prison Overcrowding”

The third presenter, Professor Dr. Dr. h. c. Hans-Jörg Albrecht, argued that overcrowding
problems were associated with problems of governance, a weak economy and factors inherent tothe criminal justice system. He emphasized that projection of the prison population was importantand information systems were essential for that purpose. Although it was obvious that reductionof admission to prison and in the length of the stay was eﬀective in reducing prison populations, theconstituency for prisons was narrow, specialized and not influential, and implementation of thosemeasures was difficult. He discussed the following measures for preventing overcrowding: prison
construction and amnesty are effective in the short term, but avoid dealing with the causes ofovercrowding; impact assessment when introducing new sentencing legislation is an essential element
in good governance; prison litigation could become a means to and a part of prison reform; community
sanction and parole were successful in reducing prison populations, but revoking them might increasesuch populations. Finally, he called for well-designed and longitudinal research to identify the reasonsfor success and failure of these measures and to propose measures policy makers should take.

4. Joint Presentation on “Specific Situations in Middle and Low Income Countries”

The fourth presenter, Mr. Elias Carranza, Director of the United Nations Latin American Institutefor the Prevention of Crime and the Treatment of Oﬀenders (ILANUD), explained the current situationin the Latin American and Caribbean countries, in some of which the incarceration rate had doubled

26

or tripled since the 1980s and 1990s. He emphasized that inequality of income distribution had great
impact on crime and on prison overcrowding. He stressed that crime prevention and criminal justicepolicies should be accompanied by policies to reduce this inequality. He introduced constructive casesin Costa Rica and the Dominican Republic, which took a holistic approach to addressing overcrowding,including training of prison personnel and improving prison conditions.
The ﬁfth presenter, Dr. Nsimba Masamba Sita, Director of the United Nations African Institutefor the Prevention of Crime and the Treatment of Offenders (UNAFRI), explored the relationshipbetween Human Development and overcrowding in correctional institutions in African countries. He
pointed out that there was a negative correlation between them, with a few exceptions, and argued
that overcrowding in low Human Development Index countries is mainly the result of prolonged pretrial detention caused by ineﬃcient criminal justice procedure.

C. Panels
1. Panel I on “Strategies for Reduction of Prison Populations through Diversion, Informal and
Restorative Justice and Alternatives to Pre-trial Detention”

This panel was intended to explore effective and efficient measures to reduce overcrowding incorrectional facilities at the pre-adjudication stage. As previous presenters mentioned, large numbersof inmates under pre-trial detention is one of the dominant contributors to overcrowding, especiallyfor developing countries. Possible measures to reduce pre-trial detention are to reduce admission
to detention facilities and length of detention through diversion, informal and restorative justice,alternatives to pre-trial detention and speedy trial. Mr. Rob Allen moderated this panel and six
panellists made presentations.
The first panellist, Dr. Kittipong Kittayarak, Permanent Secretary for Justice, Ministry ofJustice, Thailand, introduced oﬀender treatment reform in Thailand. From 1996 to 2000, there wasa sharp increase in prisoner numbers, the largest proportion of whom were drug-related oﬀenders.
As a reform initiative in response to overcrowding, the Thai government introduced the following
measures: a drug diversion scheme accompanied by compulsory treatment programmes; restorative
justice interventions for juvenile offenders; and enhancing the scope of probation work. Several
lessons were drawn from the implementation of these measures. First, to convince the public
and policy makers, political dialogue, such as campaigning, is important. Second, co-ordinatedmanagement of the dual track diversion scheme, voluntary and compulsory treatment programmes, isneeded. Third, community participation is essential to support the programme as well as to persuadedrug addicts to undergo the programme. Fourth, a foundation including a legal framework, capacity
building and budget allocation is important to make these reform eﬀorts a sustained enterprise. In
conclusion, he emphasized that, being sustainable, these measures should be eﬀective in preventing
recidivism and promoting re-education and social protection; reducing overcrowding is not the primary
purpose.
The second panellist, Ms. Elinor Wanyama Chemonges, National Coordinator of the Paralegal
Advisory Services, Foundation for Human Rights Initiative, Uganda, presented strategies used in
Uganda to reduce the prison population. Speciﬁc intervention included: the use of alternative dispute
resolution, such as traditional justice mechanisms, Local Council Courts, and dispute resolution
by family and religious leaders; weeding out cases in which there is no possibility to proceed;
institutionalization of pro bono services to encourage faster case disposal; dispute resolution within
the formal justice system before commencement of formal trial; legislation in supporting use ofincarceration as a last resort; and legislative and policy amendments allowing lower courts to handle
cases, which quickens case disposal. She argued that the Paralegal Advisory Services programme
which addressed overcrowding in police cells and prisons, as well as delays in the criminal justicesystem, had been successful.
The third panellist, Mr. Cliﬀord Wayamuka Msiska, National Director of the Paralegal Advisory
Service Institute, Malawi, made a presentation on the success of paralegal services in reducing thenumbers of pre-trial detainees in Malawi. He argued that a practical, aﬀordable and eﬀective legal aid

27

delivery scheme should be established, especially for the poor, who need not only legal representation,
but also advice on bail or appeal, and support for mediation. Because the government cannot provide
legal representation in every case, prisoners should be empowered to represent themselves andparalegals can assist them in applying the criminal law and procedures appropriately in their own
cases and getting out of prison as soon as possible. Paralegals also facilitated screening the remandcaseload, which contributed to the reduction of overcrowding. He stated that paralegal advisory
services succeeded in reducing the prison population by over 5,000 and diverted over 80 percent ofjuveniles out of the criminal justice system.
The fourth panellist, Mr. Toshihiro Kawaide, Professor, Graduate Schools of Law and Politics, theUniversity of Tokyo, described countermeasures against prison overcrowding at the pre-trial stage inJapan. He listed the following factors that eased overcrowding at the pre-trial stage: restriction of theuse of pre-trial detention, including limitation of the period of detention before prosecution; speedy
trial procedure for minor oﬀences, where, with the defendant and defence counsel's consent, trial issimpliﬁed and sentence is restricted to imprisonment with suspension of execution or ﬁne; moderate
use of pre-trial detention; diversion in the phase of prosecution under the discretionary power ofprosecutors; and de facto restorative justice practice, where prosecution is suspended as a result ofcompensation by the suspect.
The fifth panellist, Professor Dr. Dr. h. c. Hans-Jörg Albrecht, discussed three types ofapproaches to reduce pre-trial detention, and its length; criminal procedure reform such as restrictionof conditions of pre-trial detention; introduction of alternatives to pre-trial detention such as electronicmonitoring; and improvement of case management to reduce case-backlogs and mandatory assignmentof defence counsellors. He pointed out that these measures could be eﬀective, but long-term eﬀect
should be evaluated to detect whether there were causal relationships.
The ﬁnal panellist of Panel I, Sir David J. Carruthers, Chairman of the New Zealand Parole Board,described the restorative justice process. He stated that there were many diﬀerent types of restorative
justice processes. In New Zealand, a restorative justice process for juveniles was introduced in
1989, and the number of custodial institutions for juveniles had dropped from 18 to four. Recently,
restorative practice was increasingly used not only in the criminal justice system but also in the
education system, and in workplace disputes and other types of community disputes. He argued that
overwhelming research showed that restorative justice signiﬁcantly contributed to the reduction in
the use of imprisonment. Several research studies pointed out that restorative justice had the eﬀectof reducing reoﬀending and also increasing victim satisfaction. Restorative justice methods introducedin school had succeeded in reducing expulsion and exclusion from school by 30 percent and eventuallycontributed to preventing crimes.

2. Panel II on “Strategies for Reduction of Prison Populations at the Sentencing and PostSentencing Stages”

In this panel, measures to alleviate overcrowding in correctional facilities at the sentencing andpost-sentencing stage were discussed. The possible measures are: appropriate sentencing such as
those based on sentencing guidelines and pre-sentencing reports, which can reduce the number ofadmissions to prisons; early release through parole and other measures, which can reduce the lengthof imprisonment; and institutional and community rehabilitation programmes, which can reduce
reoﬀending of released prisoners. Professor Yvon Dandurand, Senior Associate, International Centre
for Criminal Law Reform and Criminal Justice Policy, moderated this panel and four panellists madepresentations.
The first panellist, Dr. Ela Wiecko Volkmer de Castilho, Member of the Federal Public
Prosecution Service and National Council on Criminal and Penitentiary Policy, Brazil, presented theBrazilian experience in introducing alternatives to imprisonment. Although the use of alternatives toimprisonment had been increasing steadily since 1987, it did not reduce the Brazilian prison population.
She argued that the major contributors to this situation were: punitive culture; a common sense28understanding that imprisonment was the only eﬀective response to certain crimes; and Brazilian law,which prescribed imprisonment for about 1,600 oﬀences and restricted the possibility of replacementby alternative penalties. She underlined that to make alternative measures successful in reducing
incarceration, the following actions were necessary: to reduce the punitive paradigm through global
and coherent effort; to limit the number of prisoners detained in prisons; to apply the restorative
paradigm not only to minor offences but also other type of offences; to amend laws to enlarge thepossibility of application of alternative measures; and to implement the rights of equality and nondiscrimination in Brazilian society.
The second panellist, Ms. Maria Noel Rodriguez, Director of the Programme on Woman and Jail,
United Nations Latin American Institute for the Prevention of Crime and the Treatment of Oﬀenders(ILANUD), introduced two strategies discussed at the Latin American and Caribbean Regional
Preparatory Meeting for this Congress, in which ILANUD actively participated. The ﬁrst strategy was
to determine the maximum capacity of correctional facilities. There were three initiatives related to
this: Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas,
approved by the Inter-American Commission on Human Rights, which established minimum standards
for accommodation and stated that occupation over the maximum capacity should be prohibited bylaw; the standard proposed by the Latin American Standing Committee of the International Penal and
Penitentiary Foundation, which recommended that an impartial body should determine the maximum
capacity of each prison; and the project of Buenos Aires, Argentina, where an inter-ministerial bodydetermines the maximum capacity of each institution. The second strategy was increased use ofalternative measures to imprisonment. She described the practices in Uruguay, where 10 percent of
the prison population was released in 2005 because of serious overcrowding. The early release wasfollowed by individualized after-care such as provision of food coupons, transportation tickets andjob training. Of the released inmates, 25 percent were returned to prison; this percentage is much
lower than the average after usual release. At the same time, the use of house arrest was widened for
pregnant women, handicapped people and elderly people and a sentence redemption system throughwork and study was established.
The third panellist, Mr. Soh Wai Wah, Director of the Singapore Prison Service, described aholistic rehabilitative approach adopted by Singapore prisons to rehabilitate oﬀenders and to reduce
prison population though prevention of recidivism. Since 2000, Singapore has experienced a sharp
improvement in recidivism and prison population. He argued that this could partly be attributed to its
holistic approach to rehabilitation. In this approach, every prison oﬃcer took on the role of a personal
supervisor to the group of inmates in the cells under his or her charge and ensured that they attended
suitable rehabilitation programmes. There was a systematic in-care programme where prisoners went
through four phases - Admission, Deterrence, Treatment and Pre-release. Recognizing that aftercare
for ex-offenders was critical for successful reintegration, the Singapore Prison Service formed analliance with several other government and non-government agencies to help rehabilitate ex-prisoners.
This alliance was called the CARE Network and comprised social welfare agencies, including theministry responsible for welfare, the association for ex-prisoners, and a body for narcotics prevention
volunteers.
The fourth panellist, Ms. Christine Glenn, Parole Commissioner of Northern Ireland andImmigration Judge, emphasized that parole and the managed early conditional release of a prisoner
was one strategy to tackle prison overcrowding and also contributed to rehabilitation of offenders.
She underlined that parole was for public protection at its heart and also a part of human rights
engagement. Parole could be effective at tackling prison overcrowding and improving behaviour
in prison, although it was not a reward for that. She stressed that parole was not a soft option
even though it could be seen as one by public, media and victims. She listed the key factors of risk
assessment and the main indicators of risk: past behaviour and convictions; motivation for and attitude
towards oﬀending; access and proximity to victims; preparedness to use weapons; disinhibitors suchas alcohol and drugs; and situational triggers. Then, she described risk management strategies, which
consisted of external and internal strategies. The external strategies were to reduce triggers and29

opportunities of oﬀending through restrictive conditions such as curfew, electronic tagging, prohibitionof access to particular places and people; and to be delivered through external limits and controls suchas mandatory drug testing and attendance of a sex oﬀender programme. The internal strategies were
to be delivered through rehabilitation programmes such as victim awareness and anger management,
and restorative justice. In making risk assessment, protective factors should be considered, which
includes factors derived from oﬀenders themselves, their family and their community. In conclusion,
she stressed that although there were no no risk decisions, with robust information and supervision,parole was an eﬀective tool in managing overcrowding and in contributing to rehabilitation.

3. Panel III on “Strategies for Securing Support for Reduction of Prison Populations”

Panel III was aimed at discussing the strategies to secure the understanding and support of the
public and other stakeholders for the measures discussed in Panel I and II. Every detained oﬀender
returns to society sooner or later by bail, probation, parole, expiration of sentence, etc. If society
is not ready to accept offenders, it will become an impediment to his or her reintegration and will
increase the possibility of his or her reoffending. In addition, rehabilitation programmes and otherinterventions for oﬀenders that the government, especially those of developing countries, can oﬀer
are limited because of the lack of financial and human resources. NGOs, individual experts andcommunities can provide these resources and sometimes have better expertise in the speciﬁc ﬁelds
than the government. Lastly, as discussed in the presentations, public fear of crime and punitive toughon crime policies are one of the factors that cause overcrowding. To implement alternative measures
to detention and imprisonment, the understanding of the public and policy-makers is essential. Dr.
Tapio Lappi-Seppälä moderated this panel and ﬁve panellists made presentations.
The ﬁrst panellist, Dr. Kittipong Kittayarak, introduced the Thai experience in running alternative
programmes. First, he mentioned the initiative aimed at introducing alternative measures against
drunk driving through a nationwide comprehensive campaign. Probation was the least known agency,
he argued, and convincing policy-makers to advocate probation and allocate ﬁnancial recourses was key
to the success of probation. The Drink-Don't Drive Campaign was implemented to make probation
work more visible to the public. The campaign included community services by drunk drivers, whichwere speciﬁcally tailored to sensitize them to reform their behaviour and to satisfy the public view thatthe treatment of these oﬀenders should not be too lenient. Celebrities from popular TV shows havebeen involved in the campaign. Second, he emphasized the essential role of community participation.
In Thailand, Volunteer Probation Oﬃcers provided linkage between probation oﬃcers and community
members. Another measure to facilitate community participation was the Community Justice
Network, which was piloted in 2003 and is based on Thai tradition. It established partnership between
state and community and was responsible for community justice issues such as crime prevention,
alternative dispute resolution, aftercare and reintegration. Third, he underlined the importance ofthe legislative framework in making the reform initiative sustainable and the sharing of the researchoutcome with the public.
The second panellist, Mr. Soh Wai Wah, presented Singapore's collaboration with the community
to reduce recidivism through the Yellow Ribbon Project (YRP), which was a nation-wide initiative withthe aim of creating awareness in the public of the message of unlocking the second prison , to makethe public conscious of its role in the rehabilitation of ex-prisoners. Several activities were organized
to champion the YRP in Singapore, such as the annual 'Wear-A-Yellow-Ribbon' activity; the YRP Run;and the Yellow Ribbon Art Exhibition. He emphasized that the real ambassadors of the YRP were theex-prisoners themselves because involvement of ex-prisoners gave a human face to the perception of exprisoners. After six years of championing the YRP, on average, about 38 percent of the population had
worn a yellow ribbon on their shirt for a day. About six percent of the population had participated in a
Yellow Ribbon event, on average. There had been an increase by 13 times in the number of volunteers
involved in rehabilitation activities.
The third panellist, Dr. Nsimba Masamba Sita, explored the reasons for the success and failureof implementation of alternatives to imprisonment in Africa. First, the outcome depended on the30

effective involvement of the local community at the pre-trial and post-trial stages. This facilitatedeﬀective social rehabilitation and reintegration of inmates. Relatives, friends, neighbours and local
authorities should be involved in this process to reach a restorative outcome. The second aspect
was a shift from punitive and retributive logic to compensatory, conciliatory and therapeutic logic.
Restorative justice had already been used in practice, but needed to be better documented and folded
into the mainstream criminal justice system.
The fourth panellist, Ms. Christine Glenn, showed a video from the Parole Board for Englandand Wales used to promote its activities. She told of her experience at a victim's conference wherea victim said to her that parole was black arts because the victim had no idea how parole decisions
are made and who makes them. She emphasized the importance of educating the public and key
stakeholders, such as victims and judges, and explaining to them Parole Board activity so that theuse of parole can be facilitated. For that purpose, the Parole Board employed various programmessuch as inviting judges, ministers and other inﬂuential people to observe hearings for parole decisions
and developed a website. The video, which was shown at the Workshop, was made to show what the
Parole Board does.
The ﬁfth panellist, Dr. Mario Luis Coriolano, Vice President of the Subcommittee on Preventionof Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), focused on
responsibility and accountability in respect to prison overcrowding. He argued that inhumanesituations in prisons were caused by those at different levels of decision-making, such as those
involved in public policy, organizing institutions and sentencing. He underscored that the important
thing was how to limit the rate of imprisonment and who is to initiate the reduction of the prison
population and ensure the sustaining of such initiatives. He noted that some policies promoted bypoliticians resulted in increasing prison populations because they did not replace imprisonment withalternative measures but added to the number of imprisoned persons. He also stressed the importanceof independent bodies to monitor prisons and independent defence counsels in improving the humanrights of detained people. He argued that the capacity of each institution should be deﬁned by law or
superior regulations. He emphasized that it is important to detect who is responsible for accounting
how many people should be kept in a prison. With respect to the activity of SPT, he stated that coordination with other stakeholders is important and all relevant bodies should be on the same track.

D. Interaction with the Floor

After Panel I and Panel III, the chairperson invited the ﬂoor to make comments and ask questions.
After Panel I, Interventions were made by the representatives of Italy, Morocco, the RussianFederation, Azerbaijan, Brazil and the Dominican Republic, and the observers for the Friend World
Committee for Consultation and Penal Reform International. After Panel III, interventions weremade by the representatives of Canada, Brazil and Algeria, the observers for the International
Commission of Catholic Prison Pastoral Care, and an individual expert. They presented theirrespective national strategies to reduce overcrowding, such as increased access to justice, correctional
programmes, increase of prison capacity and legislative reform; referred to the beneﬁt of increasing
the use of alternatives to detention and imprisonment; and emphasized the importance of focusing onaccess to justice and restorative justice.

E. Closing

At the end of the workshop, Mr. Masaki Sasaki made closing remarks, where he indicated that
UNAFEI planed to further disseminate the outcomes of this workshop. This was followed by remarksby Professor Dr. Dr. h. c. Hans-Jörg Albrecht, who identiﬁed the following as conclusions emanatingfrom the discussion.
・・

Overcrowding in correctional facilities is: a serious obstacle to implementing standards
and instruments related to human rights; a serious risk to delivering services, inter alia
rehabilitative services; and a violation of human rights.
Crime is a social problem and can not be solved by criminal law alone. Good policy is social

31

・
・
・
・
・
・
・
・

policy.
Imprisonment should be a last resort.
The most effective countermeasures against overcrowding vary depending on the current
situation and criminal justice system of each State.
Measures against overcrowding should be comprehensive. There is no one single bullet thatcan solve the problem.
All alternative measures should be carefully designed and evaluated.
It should be deﬁned how many people can be detained without violating human rights.
In the case of pre-trial detention, provision of legal aid, including paralegal services, iseﬀective. It requires spending, but various research studies demonstrate that provision of legal
aid is less expensive than detaining a person in prison.
Measures against overcrowding cannot succeed without raising awareness among the public.
Although there are many blueprints, models and ideas about how to tackle and prevent
overcrowding and implement policies, overcrowding has remained a serious problem for
decades. However, practices presented in this Workshop can be implemented and succeed insolving this problem.

After these remarks, the Workshop was closed by the Chairperson on the afternoon of 16 April
2010.

32

OPENING REMARKS

Thank you Ms. Chairperson. Good morning distinguished delegates, and ladies and gentlemen.
As the director of UNAFEI, the United Nations Asia and Far East Institute for the Prevention of
Crime and the Treatment of Oﬀenders, it is my great honour and privilege to be here as a co-ordinatorof the workshop on Strategies and Best Practices against Overcrowding in Correctional Facilities.
Overcrowding in correctional facilities is one of the most serious and most pressing issues faced
in many parts of the world. It leads to deterioration in the living conditions of inmates and infringes
upon their rights, which are set out in various international instruments. It undermines the overall
eﬀectiveness and eﬃciency of the criminal justice system by, inter alia, hampering the provision of
appropriate correctional treatments aimed at the rehabilitation and social reintegration of oﬀenders, aswell as reducing recidivism.
In this workshop, UNAFEI would like to pursue the subject matter through a practice-oriented,
comprehensive and integrated approach, addressing possible efforts at the legislative level and allstages of the criminal justice process, including the rehabilitation of offenders, instead of simply
focusing on the causes and countermeasures within the prison settings.
I am hopeful that this workshop will present effective strategies to reduce overcrowding incorrectional facilities which, in turn, will enhance the prevention of crime. I would like to take thisopportunity to express my sincere gratitude and appreciation for the participation of the eminent
moderators, presenters and panellists of the workshop and for the co-operation of the International
Centre for Criminal Law Reform and Criminal Justice Policy in organizing this workshop.
Thank you very much.

33

34

PAPERS AND CONTRIBUTIONS
Presentations
Current Situation of Prison Overcrowding
Causes of Prison Overcrowding
Countermeasures against Prison OvercrowdingSpeciﬁc Situations in Middle and Low Income Countries***

Panel I
Strategies for Reduction of Prison Populations through Diversion, Informal
and Restorative Justice and Alternatives to Pre-trial Detention***

Panel II
Strategies for Reduction of Prison Populations
at the Sentencing and Post-Sentencing Stages***

Panel III
Strategies for Securing Support for Reduction of Prison Populations

35

36

PRESENTATIONS

Director, the International Centre for Prison Studies, Kingʼs College London***

Director, National Research Institute of Legal Policy, Finland***

Managing Director, the Max-Planck-Institutefor Foreign and International Criminal Law, Germany***

Director, the United Nations Latin American Institutefor the Prevention of Crime and the Treatment of Oﬀenders (ILANUD)***

Director, the United Nations African Institutefor the Prevention of Crime and the Treatment of Oﬀenders (UNAFRI)

37

38

Presentations

CURRENT SITUATION OF PRISON OVERCROWDING

1.

It is estimated that there are more than 10 million prisoners in the world and that each year
perhaps 30 million people enter prison establishments. Despite a number of international
treaties and instruments which should protect the rights of prisoners, such rights are routinely
violated. The UN Special Rapporteur on Torture told the General Assembly last year that inmany countries of the world, places of detention are constantly overcrowded, ﬁlthy and lack theminimum facilities necessary to allow for a digniﬁed existence. Moreover, tuberculosis and otherhighly contagious diseases are rife. Inter-prisoner hierarchies and violence are common featuresof many places of detention, and the guards often delegate their authority and responsibility toprotect detainees against discrimination, exploitation and violence to privileged detainees who, inturn, use this power to their own beneﬁt.

2.

Overcrowding is the most important reason for the failure of states to meet minimum standardsof decency and humanity. The aim of this paper is to describe briefly what we know about thestate of overcrowding around the world, before my colleagues go on to discuss causes and countermeasures.

3.

It is important to try to agree what we mean by overcrowding. It is relatively easy to recognise it
when we see it - situations where there is not enough room for prisoners to sleep; not the facilities
to provide sufficient food, health care or any form of constructive activities; insufficient staff toensure that prisoners are safe; the lack of accommodation to hold separately types of prisoners
who should be kept apart - women from men, juveniles from adults; untried from convicted; orlack of capacity to receive any more numbers so that emergency measures have to be taken - inthe form of amnesties, emergency accommodation or the holding of prisoners in police stations.

4.

If we think about these dimensions we realise that the problem of overcrowding exists in all sorts
of prison systems in rich and poor countries, common and civil law jurisdictions, and different
types of polity. In the UK emergency measures were introduced in 2007 and are still in place
to release prisoners 18 days early in order to free up space; in France last year violent protests
erupted when guards started industrial action against overcrowding. In California federal judges
have ruled that overcrowding is the chief impediment to adequate healthcare and ordered acap on the number of prisoners at two thirds of the existing level. In South America the Inter
American Court has issued mandates relating to overcrowding and the associated life threatening
problems here in Brazil (Urso Branco) and in Argentina (Mendoza). In some of the poorest
countries, particularly in Africa, congestion can lead to suﬀocation and death. Examples aboundof overcrowding leading to riots and mutinies, violence and corruption, damage to physical andmental health not just of prisoners but of staff as well. Overcrowding is not limited to adultprisoners. The Special Rapporteur found that far too many of the children whom he met on his
visits are held in severely overcrowded cells, under deplorable sanitary and hygienic conditions.

5.

It is possible to illustrate the current situation of overcrowding with reference to disturbing
descriptions of human misery from every continent. But it is important to go beyond specificexamples to build an accurate picture of the extent and nature of the problem globally.

6.

There is not however a straightforward way of measuring overcrowding because there is nouniversal agreement about how much space prisoners should have or the facilities to which theyshould have access. International standards state that each prisoner must have enough space,although deﬁnitions of adequacy vary from country to country and depend among other factors on

39

how much time prisoners spend in their cells. The UN Standard Minimum Rules do say that allcells and dormitories must have adequate heating, lighting and ventilation and that every detaineeor prisoner should have his own bed or mattress with clean bedding. But in the absence of abinding convention on prisonersʼ rights, we are short of comprehensive baseline information.
7.

The International Committee of the Red Cross (ICRC) has recommended minimum standards inrespect of these dimensions e.g. minimum space per prisoner of no less than 3.4 sq m1 and area
within the security perimeter of 20-30sq m per person. Minimum rates of air renewal and intensityof light have also been speciﬁed.2 But there is no systematic data available to assess whether theseobjective standards are being met or to enable comparisons to be made. There is even less data
about how prisoners perceive overcrowding. As the UN Rapporteur has said If cells are severely
overcrowded, not much privacy is left for individual detainees within the cells. But we know
little about how prisoners experience overcrowding.

8.

The ICPS World Prison Brief includes details of the occupancy levels in the prison systems of
191 countries. It does this by showing the oﬃcial (uncrowded) capacity of the prison system andpresenting the prison population total as a percentage of the capacity ﬁgure. This percentage isthe occupancy rate and it demonstrates whether a prison system holds more prisoners than it isintended to hold and, if so, by how much.

9.

The occupancy level is not the same thing as the level of overcrowding. But, it is perhaps the bestproxy measure of overcrowding that is available in the absence of detailed information about theamount of space that each prisoner has in their living accommodation.

10. There are some important caveats about this measure. First a system as a whole may have fewer
prisoners than it is intended to hold but individual prisons or parts of prisons may be overcrowded- sometimes severely so. For example Argentina and Russia report less than 100% occupancy but
it is well known that there is gross overcrowding in some penal institutions in those countries.
In a recent case at the European Court of Human Rights detention in a Russian remand centre
provided from 0.5 to 0.6 square metres of ﬂoor space per person. (Andreyevskiy v.Russia 2009).
In a similar vein, while Cameroonʼs total occupancy level may be 138 %, New Bell Prison in
Douala had four times the number of prisoners it was designed for when ICPS visited in 2008.
11. A total occupancy level in a large country may serve to mask sizeable variations between regions
or types of institution. The overall US occupancy level of 110% comprises 95% in local jails, 116%in state prisons and 162% in federal prisons. There is likely to be considerable variation too withineach category of prison - Californiaʼs prison population is about double capacity.
12. In most systems there tends to be more overcrowding among pre trial prisoners than among
sentenced prisoners. Indeed the requirement to keep pre trial detainees apart from sentenced
prisoners can lead to gross discrepancies in living space within one institution.
13. The second caveat is that countries can decide and sometimes change the designated capacity of a
prison. By moving a bunk bed into a cell the capacity doubles and 100% overcrowding disappears!
So it is possible for each prison in a prison system to hold fewer prisoners than its oﬃcial capacity,and for the prison systemʼs overall occupancy rate thus to be below 100%, but nonetheless forthe prison system to be overcrowded. This occurs when the oﬃcial capacity of the system is set
at a level that allows so little space per prisoner in the living accommodation that the prisons are
overcrowded despite the fact that they hold no more prisoners than the official capacity. Since
the official capacity of each prison system is set according to criteria decided by the country

1
2

40

Standards are higher in Europe
Nembrini, G. P. (2005)
Red Cross. Geneva: International Committee of theconcerned, it follows that those international comparisons of occupancy levels are far fromprecise.
14. Despite these warnings, prison systems that have occupancy rates exceeding 100% will (almost
certainly) have overcrowding in the system and the higher the rate the more likely that theovercrowding is of a serious nature. What does our data show?
15. First that in 60% of countries (114 out of 191) the prison system holds more prisoners than it isintended to hold. The official capacity is exceeded in 72% (28/39) of African countries on which
information is available, 70% (32/46) of countries in the Americas, 56% (9/16) of countries in
Oceania, 68% (17/25) of Asian countries and 44% (25/57) of countries in Europe.
16. Second in 41 countries (21%) the occupancy rate exceeds 150%, meaning that the prison system
is more than 50% overcrowded. The extent of overcrowding is greatest in African prison systems.
The occupancy rate is over 150% in 41% (16/39). A similar level of severe overcrowding is present
in 19% (3/16) of the countries in Oceania on which information is available, in 28% (7/25) of Asian
countries, in 28% (13/46) of countries in the Americas and 2% (1/57) of European countries.
17. Third, in 16 of the 191 countries (8%) the occupancy rate exceeds 200%, meaning that there areat least two prisoners accommodated in the space intended for one. Nine of these countries are in
Africa (Benin, Burundi, Côte d’Ivoire, Kenya, Mali, Rwanda, Sudan, Uganda and Zambia), two in
Asia (Bangladesh and Pakistan), four in the Americas (Ecuador, El Salvador, Haiti and St Vincent
and the Grenadines) and one in Oceania (French Polynesia).
18. The table below summarises prison occupancy rates by continent.
Under 100%
AfricaAmericas
Asia
EuropeOceania
Total

11
14
8
32
7
72
(39%)

100% but under
120%
4
8
4
16
4
36
(20%)

120% but under
150%
8
11
6
8
2
35
(19%)

150% but under
200%
7
9
5
1
2
24
(13%)

200% and over

Total

9
4
2
0
1
16
(9%)

39
46
25
57
16
183
(100%)

19. As a way of leading to further considerations of causes and countermeasures, I would conclude
by pointing out that our data suggests two important elements of the problem. First the countries
that have the highest rates of over-occupancy do not tend to have particularly high rates ofimprisonment per head of population. Of the 14 most overcrowded countries where detailed
comparison is possible, it is only El Salvador whose prison population rate exceeds 150 per
100,000. By contrast several have relatively low rates of imprisonment.
20. This might suggest that the way to address the problem is to build more prison capacity. But theother interesting finding is that the most overcrowded countries generally have high rates of pretrial detention. Of the 16 most overcrowded systems, 7 have prison populations of which morethan half are waiting for trial and it is more than 35% in a further four.
21. The table below shows the prison population rate and percentage of pre-trial detainees in the 16
countries with the highest occupancy rates3

3

These statistics were taken from World Prison Brief Online at 11 February 2010. Statistics are not necessarily
from the same year but represent the most recent figures available.

41335.1
307.1
302.4
264.2
255.3
249.5
240.8
223.3
223.3
223.0
218.0

Prison population rate (per100,000 of the national
population)
83
66
51
129
45
55
273
117
52
91
56

215.9

153

N/A

207.3

120

35.3

205.0

346

21.8

202.7
202.4

126
593

44.4
26.9

Occupancy rate(%)

Country
Haiti
Benin
Bangladesh
BurundiSudan
Pakistan
El Salvador
Kenya
Mali
UgandaCote DʼIvoire
French Polynesia(France)
ZambiaSt Vincent and the
Grenadines
EcuadorRwandaPre-trial detainees (% of prison
population)
78.0
79.6
69.0
68.0
c.10
66.1
35.9
43.3
88.7
56.0
28.5

22. Looked at the other way round, of the 20 countries with the highest rate of pre trial detention
14 have high rates of occupancy - over 120% . What this suggests is that the route to addressing
overcrowding is to improve the functioning of the criminal justice process.
23. The table below shows the occupancy rate in the 20 countries with the highest percentage of pretrial detainees4
Country
Liberia
Mali
Benin
Haiti
Niger
Bolivia
Congo(Brazzaville)
Paraguay
Nigeria
Bangladesh
BurundiIndia
Pakistan
Cameroon
MonacoHondurasPhilippines
Uruguay
Seychelles
LebanonPre-trial detainees (% of prison
population)
97.3
88.7
79.6
78.0
c.76
78.4

Occupancy rate(%)
136.3
223.3
307.1
335.1
64.6
165.5

c.70

N/A

69.5
69.3
69.0
68.0
66.6
66.1
65.6
64.0
63.5
63.3
63.1
63.0
62.5

116.3
84.1
302.4
264.2
135.7
249.5
137.4
44.4
140.0
156.4
133.6
76.3
120.9

24. This is particularly true in respect of countries emerging from conflict. Until the disaster,Haiti had the highest level of over-occupation and while data is diﬃcult to obtain, overcrowding
situations in Liberia, Rwanda and DR Congo can amount to humanitarian emergencies. Like allsuch emergencies, the response must include short term relief and the development of longer
term sustainable solutions.
442

These statistics were taken from World Prison Brief
at 11 February 2010. Statistics are not necessarily
from the same year but represent the most recent ﬁgures available.

CAUSES OF PRISON OVERCROWDING

I. INTRODUCTION
Imprisonment rates

An unprecedented expansion of penal control has occurred in recent decades in diﬀerent parts of
the world. Since the mid 1970s imprisonment rates in North America have increased nearly ﬁvefold. A
similar increase occurred in many other countries during the 1980s and 1990s, in Africa, Asia, Europe
and Oceania. During the last 15 years (1992-2008), in two out of three (63 %) countries, imprisonment
rates increased by at least 10 %. The steepest increases exceed 200 %. Changes in prisoner rates bycountry from 1992-2008 are shown in ﬁgure I.1 (measured as percentages).

Figure I.1. Changes in national imprisonment rates per 100 000 population in 1992-2008 by country (ICPS)

Another distinct feature is a huge variation in the size of the prison population in diﬀerent countries(counted per 100 000 population.). Imprisonment rates by country are presented in ﬁgure I.2 below.

43Figure I.2. Imprisonment rates per 100 000 population in 218 countries 2007/8 (ICPS)At the top of the scale remains the US with 760 prisoners/100 000 pop. The lowest ﬁgures, around10-20, can be found in the smaller (mostly Western) African countries, as well as in some micro-states(Liechtenstein, San Marino, Faeroe Islands, Tuvalu, Nauru, Timor Leste). The overall mean lies
around 165 prisoners / 100 000.1
Regional analyses within continents show the lowest overall rates in Europe (mean 144) with thefigures ranging regionally from 56 in Scandinavia to over 300 (Russia and the former Soviet Union
region). In Africa (mean 111) the ﬁgures range from 50 in Western Africa to 250 in Southern Africa, in
Asia (mean 158) between 110 (South-Central Asia) and a little below 200 (Central-Asia) . The Highest
overall ﬁgures are found in the Americas (mean 282) ranging between 200 (South America) and 750(USA, and 350 Canada included).

Occupancy and overcrowding

The increase in the use of imprisonment has resulted in severe overcrowding. In this paper,
overcrowding is given a technical definition with the help of the statistical occupancy rate.
Overcrowding means simply that the number of prisoners exceeds the official prison capacity (over
100 % occupancy rate). For the moment, this is the only available measure for wider comparisons
between countries. The main problem with this measure is that the extent of overcrowding in thissense depends heavily on national/local standards. County which allow four prisoners in one cell may
report free space if some cells are occupied by only three prisoners, while countries with single-cellaccommodation as a norm may report overcrowding with much less objective overcrowding. Neither
does this measure take into account diﬀerences in space, or in other prison conditions.
This means that the following figures of overcrowding are in most cases the absolute minimum
ﬁgures. Using more substantial criteria - for example those imposed by the CPT - ratings for prison
overcrowding would most probably look much worse.
More substantial criteria would refer for example to spatial density (sq meters /person), social
density (number of persons in one space), and privacy (the time individuals can spend on their own).
Subjective criteria of overcrowding would also include feelings of helplessness and stress, etc.
144

Data is obtained from the ICPS (International School of Prison Studies, Kingʼs College, London) website. At the
moment there is information from 218 countries. See http://www.kcl.ac.uk/schools/law/research/icps. Theseﬁgures contain raw imprisonment rates on a speciﬁc day (not as annual averages). They do not take into accountthe diﬀerences whether ﬁgures in individual countries include juveniles detained in juvenile institutions, persons
in drug treatment or mental health facilities, immigrants and foreigners detained on the basis of immigration
laws. These adjustments are possible only for a limited number of countries (see Lappi-Seppälä 2008 and SPACE I
2009).

However, for the moment there is no data of these measures for comparative purposes. Neither isthere agreement on international standards of what constitutes prison overcrowding. The Council ofEurope Prison Rules has no provisions for the minimum space in the EPR (as there is the risk that theminimum will become a norm, see Zyl Smit & Snacken 2008 p.131 ﬀ). The CPT has emphasized thatthe acceptable minimum space depends also on the quality of the space and the time to be spent in
the cells. Nevertheless, according to the CPT, the absolute minimum would be 4 sq meters in sharedaccommodation and 6 sq meters in single cells, which is more than can be found in several countries
across the world.
Figure I.3. shows the distribution of countries according to the level of occupancy rate. Rate 100 %means that all prison places are in use. Rates exceeding 100 % demonstrate that prisoners have been
inhabited more densely than the oﬃcial enforcement policy would indicate.

Figure I.3. Occupation rates (% of total prison capacity) in 185 countries 2007/8 (ICPS)

The data from ICPS indicates that more than two out of three countries have an occupancy rate ofover 100 %. The average global occupancy rate is 122 %, exceeding the overall capacity by more than
one ﬁfth. In the worst cases the number of prisoners exceeds the number of prison places by three toone. Figure I.4. displays occupancy rates by region.

Figure I.4. Occupancy rates (% of total prison capacity) by regions 2007/8 (ICPS)

45

Occupancy levels differ systematically. All European regions are below 100 %, while all African
regions are above 100 %, and most of them over 150 %.

Factors contributing to overcrowding and overuse of imprisonment

Technically, overcrowding results from the fact that the justice system is sending more people toprison, and for longer periods, than the prison capacity allows. The immediate cause of overcrowding
is either overuse of imprisonment or insufficient prison capacity.2 Also the remedy is simple: send
fewer oﬀenders to prison and/or for shorter periods, or build more prisons. But which would be themost preferable way to proceed?
Prison construction hardly provides a sustainable solution to the overcrowding problem. Prisons
usually tend to get ﬁlled once they have been built. Also the CPT has concluded that the expansion ofprison capacity to tackle prison overcrowding has not been successful (see Zyl Smit & Snacken 2008
p.89 and 132).
The search for remedies needs to draw attention also to those factors that contribute to the generaluse of imprisonment. There are also substantial reasons to be worried, not only about overcrowding but
also of overuse. The consensus represented in the UN standards and norms urge member states to use
prison as a last resort (see the UN Handbook on alternatives to imprisonment). Also, the social costsof extensive use of imprisonment are well documented in research literature (Garland 2001).
The following examines in more detail the reasons behind both overcrowding and overuse of
imprisonment with the help of comparative statistics from the ICPS and two other data bases.3 Since
causal explanations are highly problematic in explaining the functioning of complex social institutions,such as criminal punishment, the following discusses instead direct causes of factors contributing toovercrowding and overuse of imprisonment .

II. OVERCROWDING AND THE ROLE OF PRE-TRIAL DETENTION
The overall share of pre-trial prisoners of all prisoners is 32 %. However, this share varies between
diﬀerent regions from 15 to 55 %, and among single countries from 0 to close to 100 %. Figure II.1.
displays these diﬀerences by regions.

2

3

46

Which of these alternatives is stressed, depends, of course, of each and everyone's own point of view. There is,perhaps, even less agreement on what constitutes overuse than overcrowding (see above). It is fundamentallya value judgment. However, this judgment can be given reasons related to the social and economic costs involvedin the use of imprisonment, as well as its relative cost-effectiveness, as compared to other available crime
prevention strategies.
Three samples are employed. The ﬁrst contains all 218 countries in the ICPS database. The second covers top 100
countries ranked according to the UN human development index. Third sample includes 25 industrialized countries
with more detailed information on possible background variables. The sample includes 16 in Western Europe,
three in Eastern Europe (Czech Republic, Hungary, and Poland), two Baltic countries (Estonia, Lithuania), andfour Anglo-Saxon countries (United States, Canada, New Zealand, and Australia). Samples and sources aredescribed in more detail in Lappi-Seppälä 2008.

Figure II.1. Pre-trial rates (% of all prisoners) by regions 2007/8 (ICPS)

These differences are reflected also in differences in occupancy rates. We may confirm this bycomparing the share of pre-trial detainees occupancy rates.
Table II.1. Pre-trial rates and occupancy rates by selected regions
HIGH PRE TRIAL REGIONS
Occupancy
Pre trial %rate %LOW PRE-TRIAL REGIONS
Occupancy
rate %Pre trial %Central Africa

173

53

Scandinavia

94

19South-Central Asia

203

53

North America

91

18

Western Africa

149

51

Central-Eastern Europe

94

16South America

141

51

Oceania99

16

Eastern Africa

170

42

Central Asia

78

15

47

Figure II.2. Pre trial rates and occupancy rates by regions 2007/8 (ICPS)The overuse of pre-trial detention is one major factor contributing to prison overcrowding. Thisapplies to most countries in all African regions. The situation is exceptionally bad also in South Central
Asia and in parts of South America. The scatter plots below illustrate the association between theshare of pre-trial detainees and occupancy rates by individual countries.

EcuadorMexicoBahamasUnit. Arab Emir.
MoroccoLibya
Sri Lanka
Suriname
Peru
PanamaDominican Repub.
LebanonUruguay
Honduras
Cameroon

Prisoners /Occupancy % Pre trial %
pop
126
146
44,4
209
134
41,5
407
129
43,0
238
159
45,9
167
198
46,5
200
142
47,7
129
193
51,5
356
163
55,0
153
192
61,3
293
143
61,3
189
188
61,8
159
121
62,5
244
134
63,1
161
140
63,5
139
296
65,6

Figure II.3. Pre-trial rates and occupancy rates by countries 2007/8 (ICPS)

The higher the share of pre-trial detainees in prisons, the higher the occupancy levels. The upper
right corner in the ﬁrst plot displays countries with over 110 % occupancy rates and more than a 40
% share of pre-trial prisoners. In these countries especially, the reducing of the use and length of
pre-trial detention would work eﬀectively against overcrowding. The separate table on the right lists
countries with a pre-trial rate exceeding 40 %, occupancy rate exceeding 120 % and imprisonment rate
exceeding 120 prisoners / 100 000.

48

The use of pre-trial imprisonment is not the only factor behind high occupancy rates. The upper left
corner in ﬁgure III.3. holds countries with high occupancy rates, but low pre-trial rates. Thus, quite
often overcrowding is just a result of the overuse of imprisonment, or a result of insuﬃcient prison
capacity (depending on oneʼs point of view on this issue). If high occupancy rates coincide with highoverall prisoner rates, one might be inclined to support more the former than the latter interpretation.
The table in the appendix divides countries according to the overall levels of incarceration andoccupancy rates (see appendix).

III. THE RELEVANCE OF CRIME
What is the impact of the level of crime and criminality on overcrowding and the general use of
imprisonment? In advance one could imagine several mechanisms: prisons are used as a consequenceof crime, and it would be only natural that the number of sentenced oﬀences would reﬂect also theoverall use of imprisonment (overcrowding). Imprisonment is also used as a means to reduce crime.
Therefore the views of policymakers on trends of crime (and the eﬀectiveness of imprisonment), may
well have an eﬀect on policy decisions.
The following correlation table III.1. takes a brief look at the statistical associations between
imprisonment rates and crime rates. Crime is measured using several indicators: The UN survey
data for total recorded crime in 44 countries (row 1), health statistics data (mainly WHO) data forcompleted homicide in 192 countries (row 2), data from victimization studies in assault worldwide (68countries, row 3) and for 10 crimes in the EU (29 countries, row 4). In addition, the impact of crimeon imprisonment is examined using conviction statistics both from the UN surveys and the European
Sourcebook (Space I, rows 5-6).
Table III.1. Bivariate correlations between crime and imprisonment rates
PRISONERS / 100 000(2007/8, ICPS)COUNTRIES
N

1. Total reported crime /100 000 (2004, UN)-0,36*

44

2. Homicide /100 000 (completed, WHO, UN)

,031

192

3. Victimization % assault % (ICVS, van Dijk 2009)

0,06

68

4. Victimization % (EU ICS, prevalence 2005, 10 crimes)

0,14

29

5. Convictions 2004 / 100 000 (total, UN)

-0,08

34

6. Convictions 2003 (traﬃc excluding, Space I)

-0,21

20

*. Correlation is signiﬁcant at the 0.05 level (2-tailed).
**. Correlation is signiﬁcant at the 0.01 level (2-tailed).

49

Figure III.1 Reported crime, victimization and imprisonment rates

The only statistically significant correlation is a negative one. Total reported crime is inversely
associated with the number of prisoners (more crime, less prisoners). This may well be partly a
result of diﬀerences in reporting practices (developed Western countries report more crimes). Healthstatistics on lethal violence are usually deemed to be the most reliable sources for comparisons. They
cover also the largest number of countries. However, the correlation is close to zero. Victimization
studies give a more reliable picture of the true level of crime less serious forms of crime. However,neither the worldwide victimization ﬁgure for assault, nor the European victimization ﬁgures for 10
oﬀences correlate with prisoner rates. The same applies to conviction data. The number of convictions
and prisoner rates are at best negatively correlated, if at all (see rows 5-6 in the table).
A tentative conclusion is that neither reported crime nor victimization is systematically reﬂectedin the levels of incarceration. Also, trends in the use of imprisonment and trends in crime may diﬀer
without a seemingly constant pattern, as is indicated in following comparisons.

50

Figure III.3 Prisoners and Reported Crime in Finland, Canada and the United States 1980-2005 per 100,000
population (1980=100). Source: National Statistics

In Finland, total reported crime went up when prison trends were declining. In England & Wales
both crime trends and prison rates were going up (but not simultaneously). In the US, crime trends
remained ﬁrst stable and then declined, as the prison ﬁgures were rising. The Canadian crime trend
looks much like the one from the US, but the imprisonment curve is totally diﬀerent.
These and other similar comparisons indicate that general crime trends do not explain the overall
use of imprisonment. This does not preclude the possibility that in some countries drugs and drugrelated criminality may give a speciﬁc proﬁle for those countries' prison problems. Neither does thispreclude the possibility that in some countries concerns of serious and visible forms of crime have asubstantial impact also on prison policies.

IV. BEHIND PRISON OVERCROWDING I - MACRO LEVEL FACTORSHigh prison rates and overcrowding are not automatic results of a high level of crime or
increasing crime trends. We may find high-crime countries with high imprisonment rates, but also
high-crime countries with low imprisonment rates and no overcrowding. And we may ﬁnd low-crimecountries with high imprisonment rates, but also low crime countries with low imprisonment rates.
One explanation for these diﬀerences is that diﬀerent systems react diﬀerently to trends in crime.
Some systems may be more prone to respond to changing crime trends by altering their prison
policies, other systems may be less sensitive to changes in crime and try to respond by alternativemeans.
Another closely related explanation is that the level of imprisonment is affected by other factors,
and not by crime (or by public impressions of crime). These other factors may relate to macro levelstructural factors, such as social, economic and political structures. But they may also relate to theindividual countries' speciﬁc histories and local circumstances.
This section takes a look at the first group of factors. The next one gives some examples ofcountry-speciﬁc micro level factors.
Criminological research provides a variety of theories oﬀering explanations for diﬀerences in penal

51

severity and the use of imprisonment. Most of the in depth studies are conﬁned to a small selection of(usually Western) countries. Comparisons covering a larger numbers of countries, on the other hand,are often impaired by the availability of data.
None of the analyses so far have been able to produce a simple explanation for global penal
differences, and one may doubt whether they ever will. However, it has been possible to detect
factors which seem to explain a large proportion of the diﬀerences in the use of imprisonment in many
developed industrialized democracies. Still, it remains open to what extent these explanations apply todeveloping countries. One may need to pay attention to diﬀerent things in explaining penal policies inNorthern Europe, in Latin America, or in Africa. Being aware of these risks, the following gives someexamples of interesting associations between imprisonment and selected social, political and economic
factors.

Economic wealth

Building prisons is expensive, so it is natural to assume that an increase in economic resources will
at some point contribute to the increased use of imprisonment. But, one may also assume that after
reaching a certain level of economic wealth, also other measures and strategies become available,
should politicians wish to use them.
These assumptions have also some empirical support. The direction of the correlation seems to be
dependent on the general level of economic prosperity.

Figure IV.1 Prisoner Rates and GDP. GDP under and over 15,000 $.
Sample 100. Outliers US and Luxemburg removed.
Source: Sourcebook 2006 complemented, IMF

In poorer countries with GDP below $15,000 the association is positive (more money means
more prisoners), whereas in rich democracies the correlation changes direction (more money, fewer
prisoners - except in the US). Building prisons is expensive, and having a positive correlation makes
sense from this point of view.4 At some point, however, the accumulation of economic wealth becomes
negatively associated with penal severity. In general, wealthy nations seem to be less punitive, with
one obvious outlier - the United States.
This does not apply to overcrowding (occupancy levels). Here the general rule is that increased
452This fact is reﬂected also in recent trends in the use of imprisonment among developing countries. Johnson (2008,p.51) observes how developing countries in the Asian region are now constructing the required infrastructure forroutine based use of imprisonment, resulting in a rapid increase in the use of imprisonment in those regions.

wealth is weakly associated with less overcrowding both in poorer and richer countries.

Social indicators and general well-being

Along with economic wealth the use of imprisonment is affected by a number of social factors.
Indicators that measure the general well-being seem to be closely connected also with the quality andseverity of criminal justice. These factors include economic and social equality and the extent of social
protection provided by the state.
One measure of social equality is income distribution. There is a clear positive correlation between
income inequality5 and prisoner rates among the EU-member states. The correlation is somewhat
weaker but still significant among OECD countries, but much weaker and non-significant among
countries outside the EU and/or OECD.
Correlations between Imprisonment rates 2008/7 and income inequality (Gini-index
Corr. (Pearson's)
mid 2000s)

Countries N

EU Member state

0,60**

24

OECD member

0,37*

29

Not EU member

0,13

64

Not OECD member

0,11

69

Total

0,27*

88

*. Correlation is signiﬁcant at the 0.05 level (2-tailed).
**. Correlation is signiﬁcant at the 0.01 level (2-tailed).

Figure IV.2 Gini-Index and Imprisonment Rates 2000. EU-countries and Non-EU -countries
Source: Sourcebook 2006 complemented, ICPS, LIS, WB

The scatter diagram shows that the weaker correlation between income equality and prisoner rates
outside the EU is mainly explainable by six outliers, ﬁve from the former Soviet Union countries andby the US.
Other indicators measuring social security and social justice seem to cohere with less use of
imprisonment. Comparative data is unfortunately available only mainly from the OECD countries.
That evidence indicates clearly that increased investments in welfare (either in absolute terms or as
percentages of the GDP) associate with lower imprisonment rates.
5

The fairness of income distribution is measured by the Gini-index. The index expresses to what extent the real
income distribution diﬀers from the ideal and fair distribution (0=total fairness, 1=total unfairness). On theassociations between income inequality and imprisonment, see also Killias 1986 and Tham 2005.

53

Figure IV.3 Social expenditure and Imprisonment Rates: OECD countries.
Source: Sourcebook 2006 complemented, Eurostat

In the right lower corner are the countries with strong investments in welfare and low
imprisonment/occupancy rates. On the upper left corner we ﬁnd mostly Eastern countries.

Trust and legitimacy

It is also assumable that the legitimacy of the political system and conﬁdence in the legal systemand the severity of criminal justice may be intercorrelated. A legitimate system may get by with lesssevere sanctions, while a system in crisis may wish to uphold its credibility by increasing penalties.
And a legal system whose norms and procedures are experienced as fair and legitimate may becomplied with by the people because the system is felt to be worth following. The norms of criminal
law are followed out of legitimacy, and not out of fear. And in such a system the legislator may well beable to use more moderate sanctions.
Both assumptions get support among the developed countries, but less so among developing
countries.

Figure IV.4 Trust in Police and Imprisonment Rates. Sample 100, EU-countries and Non-EU -countries.
Source: Sourcebook 2006 complemented, WVS

The strongest association between social trust (trust in people) and institutional trust (trust inpolice and the legal system) and the use of imprisonment can be detected among European countries

54

14

Figure IV.4 Social trust and trust in legal system and Imprisonment Rates. Basic sample.
Source: Sourcebook 2006 complemented, ESS

Discussion

These tentative ﬁndings need several qualiﬁcations. Firstly, there are other factors which should
also have been included; among others, the political culture and diﬀerences in democratic structures. A
closer analyses would indicate that consensual democracies , as opposed to conﬂictual majoritarian
democracies associate with more moderate penalty levels and lower imprisonment rates (Lijphart
1999, Lappi-Seppälä 2008, Green 2008). Such democracies are also characterized by better politicaland economic equality, stronger welfare and lesser fears.
In fact, most of the key factors studied above are interrelated. Economic wealth, social security,
low fears, income equality and the quality of democracy seem all to sustain each other, and at thesame time promote moderation in penal policies. It is hard to say which of these comes ﬁrst, or which
is more fundamental. In any case, that would be a task of another study. But for the purpose of the
discussions in the workshop it may be enough to conclude that the building of a democratic state under
the rule of law, and promoting social equality, is also building a legitimate system of criminal justice.
And this system manages to fulﬁl its tasks with less use of imprisonment.
Or put the other way around: a high imprisonment rate is not a sign of a well functioning democracy
and trusted legal system, rather the opposite. At least the eﬀorts to uphold conﬁdence in the justicesystem by severe sanctions do not seem to carry very far. After all, the countries with high trust tend
to have low imprisonment rates, but countries with high imprisonment rates tend to have low trust.

V. BEHIND OVERCROWDING II: MICRO LEVEL CASE STUDY OF FINLAND
But if the use of imprisonment is determined by structural factors, where does it leave humanaction? This question is based on misunderstanding. Macro level structural factors do not determine
the outcome, they merely increase the probability of some type of policies (and they may make otherpolicies less probable). Still, they never dictate the end result. Structure is not determination (Lacey2008 p. 205), and there always remains room for choice. That can be seen just by looking at thecountries (above and below the regression lines) which have not followed the general patterns.
Studying these deviant countries may also give information of these speciﬁc local conditions thathave inﬂuenced the policy choices. A single country case-study from Finland may also illustrate how it
has been possible to swim against the tide, at times when other countries were moving in the opposite
direction. These experiences give also concrete examples of the causes of overcrowding, as well as ofproper countermeasures.

55

Social and economic backgroundA small country from northern Europe with only a little over 5 million inhabitants may seem too
remote a point for meaningful comparison. However, the nature of the problems is surprisingly
similar, once we look back at history. Today Finland is a prosperous and safe Nordic welfare state.
However, this was not always the case. During the last century Finland experienced a brutal civil war,
the harshness of the Second World War, heavy war compensations, severe social crises, and deep
recessions.
These social and political crises were reflected in the Finnish criminal justice system. At the
beginning of the 1950s, the prisoner rate in Finland was four times higher than in the other Nordic-countries. Our prisoner rates were on the same level as several countries in Northern and Southern
Africa and South America, including Brazil. Finland had almost 200 prisoners per 100,000 inhabitants,
while the ﬁgures in Sweden, Denmark and Norway were around 50. Even during the 1970s, Finland's
prisoner rate continued to be among the highest in Western Europe.
The first hand explanation for this relates to structural factors discussed above. Burdened with
political and economic crisis Finland had been unable to invest in criminal justice reform in a similarmanner to its neighbours. Consequently, the legislation became to lag far behind general societal
development. This discrepancy became more and more evident once Finland was joining the Nordic
welfare family in the course of the 1960s and 70s

Ideological and legislative background

Reasons behind overcrowding were partly ideological, as well. In the 1950s and early 1960s thecriminal justice system and imprisonment were seen as the key answer to the crime problem. The
strong reliance on the eﬀectiveness of imprisonment started to weaken during the 1960s. We began torealize the limitations of the prison system, ﬁrst just by comparing our prisoner rates and crime rates
with the other Nordic countries (see for example Christie 1968). The nature of the crime problem in
the Nordic countries was more or less the same, but there were huge diﬀerences in the numbers ofincarcerated people. This was deemed to be both irrational and inhuman.
Also, criminological research findings pointed at the same direction. Reoffending rates were
documented to be generally higher after imprisonment, compared to other sanctions. In Finland, as
well as in other Nordic countries, the conclusion was a general distrust of the overall eﬀectiveness ofcriminal sanctions, when compared to other means of crime prevention. As a consequence, attention
was directed to social and situational crime prevention strategies.
These findings may have relevance for today's discussions as well. Popular overreliance on thepreventive eﬀects of imprisonment (whether rehabilitation or deterrence) may still be one of the major
background factors behind high incarceration rates and high levels of overcrowding. Public policies
would beneﬁt from a lot of the systematic use of research evidence on relative cost-eﬀectiveness ofprison policies, as compared to social and situational crime strategies.
The simple technical explanation for the unduly high prisoner rates in Finland was, however, ouroutdated and overly severe criminal law. Political consensus was reached that the penal code should bereformed and our prisoner rates should also be reduced to be closer to our Nordic neighbours'. This, inturn, was motivated by the intensiﬁed Nordic cooperation in penal matters. This reform work started
in the mid 1960s and continued till the mid 1990s. This long-term programme can also be read as apart of a series of actions targeted against the major legislative causes of prison overcrowding.

Unnecessary criminalization and overuse of default imprisonment for unpaid fines

The ﬁrst target was the overuse of default imprisonment for unpaid ﬁnes, as well as the misuseof the criminal law as a means of social control. Criminal law should be used as a last resort, and notextend itself to areas that can better be dealt with by means of social and health policy. This advice
was not appreciated in Finland in the 1950s and 1960s when public drunkenness was still punishable by56

ﬁnes. And as these people were often unable to pay their ﬁnes, ﬁnes were converted to imprisonment.
This practice was both irrational and unjust. In 1969 public drunkenness was decriminalized (removed
from the criminal law), and the use of default imprisonment was also reduced. These reforms reduced
the prison population by almost one third.

Figure IV.3 The number of ﬁne defaulters in Finland 1950 2007 (absolute ﬁgures)
Source: Criminal Justice Agency.

Criminal justice systems may become seriously overburdened if they adopt tasks that suit better thesocial and health services. Prohibition serves as a historical example. Drugs and drug-related oﬀences
constitute a similar problem today. In many parts of the world drug-related oﬀenders constitute a large
proportion of the prison population. Any eﬀorts to remove drug users outside the realm of criminal
justice, or at least outside the prison system, may have a substantial eﬀect on overcrowding. This cantake place in the form of drug-courts or speciﬁc treatment contracts.

Severe sanctions for minor property offences

Punishments should be proportionate to the seriousness of the oﬀence. This fundamental principle
is the backbone of any criminal justice system appreciating the principle of Rule of Law. Still, it is notalways followed. Valuations of the seriousness of oﬀences change over time, but the legislature does
not always follow these changes.
This is what happened with theft offences in Finland. Theft was once a serious offence. It
threatened the social security of an individual in the 18th century, when personal possessions were thefoundation of a person's economy. This was no longer the case in the late 20th century, when losses
were covered by insurances, and the relative value of stolen goods was reduced as a result of thesurplus of consumer items.
But the theft law hadn't followed this development, and theft offences were punisheddisproportionally severely. In the early 1970s and 1990s theft oﬀences were devaluated, penal latitudes
were reduced and crime deﬁnitions were made more ﬂexible. And this brought also a change in our
prison populations. Another oﬀence with similar changes (but for diﬀerent reasons) was drunk-driving.

Mechanical recidivism rules

Reoﬀending rules have a signiﬁcant impact on courts sentencing practices. Up till the mid 1970s
Finland had mechanical recidivism rules which led to almost automatic aggravation of sentences after
a certain number of previous convictions. By allowing the court more discretion and by restricting
the role of reoﬀending in sentencing prison sentences for property oﬀences (where reoﬀending is mostcommon) were reduced.
Today mechanical reconviction rules are still one key factor behind overly long prison terms in57

several parts of the world. Sometimes rigid deﬁnitions for organized crime have the same impact (forexample stipulating that any oﬀence committed together by several persons is to be treated as a formof organized crime). As a result, a substantial part of prisoners may be serving unduly long sentences
for fairly trivial property oﬀences. This is much due to the fact that in this oﬀence type reoﬀending is
generally common and rigid recidivism sentencing provisions lead easily to unduly harsh penalties.

Rigid early release practices

Early release and parole procedures are another key factor affecting the extent of the use of
imprisonment. In the 1950s, and even into the 1960s, Finland had quite rigid early release provisions,which granted the possibility for parole only after six months of a prison term had passed. This
minimum time was gradually reduced to 14 days, and early release was made a semi-automatic practice
now reaching 99 % of all prisoners. Also, the rules of parole revocation were made more ﬂexible. All
these reforms had an immediate impact on the Finnish incarceration rates.
Today the pivotal role of parole and early release is demonstrated by those countries withincreasing prisoner rates as a result of the adoption of a determinate sentencing system. This eﬀect isescalated if prior sentencing practice remains the same, but prisoners are denied parole.

Juveniles in prison

Sending young oﬀenders to prison is unwise policy. Research tells us that re-oﬀending rates are
generally very high. Placing juveniles in prison creates thus a substantial risk for a prolonged prisoncareer.
This was one of the obvious drawbacks of the Finnish prison policy in the 1960s. Finland had several
times more juveniles in prison than its neighbours. The detrimental effects of prison for juveniles
became widely acknowledged during the 1970s. This also led to a strong reduction in custodial
sanctions for children under 18, both in law and in court practice.

Figure IV.5 The number of juvenile prisoners 1975 2007 (annual averages, absolute ﬁgures, remand included).
Source: Criminal Sanctions Agency

The large number of children in custody is a specific problem for a substantial number of highimprisonment countries. The share of juveniles under 18 of all prisoners may, in some cases, near
one tenth of the overall imprisonment rate, while in most low-imprisonment countries this shareranges between 1 to 2 %. Today several low-imprisonment countries prefer other than criminal justicesolutions in dealing with young offenders. According to the general Nordic youth justice model all
children under 15 and many of those aged 15-17 are dealt with using social welfare and child protection
measures, instead of the criminal law.

58More alternatives to imprisonment

The international movements of the 1970s towards alternatives to imprisonment began tohave legislative consequences first during the 1980s, and more widely in the 1990s. The Finnish
experiences, on the other hand, prove that visible results can be achieved just by using traditional
alternatives, such as ﬁnes and conditional sentences.
By the 1990s around two out of three prison sentences in Finland were imposed conditionally andﬁnes accounted for more than 60 % of all penalties imposed by the courts. It was unlikely that thesealternatives could be extended beyond that point. New alternatives were needed, and community
service served that purpose. Community service was adopted on an experimental basis in 1992 andmade permanent in 1995. As the statistics below show, the number of prison sentences fell, together
with the increase in the number of community service orders, between 1992 1997. In a short timecommunity service came to replace 35 % of short prison sentences of a maximum of eight months.

Figure IV.6 Imprisonment and community service in Finland 1992 2007 (court statistics).
Source: Statistics Finland

All in all, there is evidence from low imprisonment countries, such as Scandinavia and Germany
that frequent use of fines goes together with lower imprisonment rates. The same holds true fortraditional alternatives such as the conditional and suspended sentence, as well as more recent
innovations such as community service and electronic monitoring (especially in Sweden). Overall,a substantial part of the low imprisonment level in Scandinavia, Germany and Switzerland may be
attributed to the eﬀective implementation of non-custodial alternatives.
The lack of alternatives may obviously explain the overuse of imprisonment in countries whose
sanctions system operates mainly through imprisonment. Often this may also be a question of material
resources. New alternatives, such as community service and electronic monitoring, require a proper
infrastructure. But in such cases, it might be good to remember that there are also traditional
alternatives, such as fines and conditional and suspended sentences, which may contribute to thesystem with a much lighter infrastructure. These low-cost sanctions are available to most jurisdictions
without any major investments. And using shorter sentences does not require any infrastructure at all.

Prison rates and crime rates

These were by far not the only reforms that were carried out in order to bring down the Finnish
prisoner rates. Other important changes were made in provisions concerning pre-trial, preventive
detention, day-fine rules, conditional imprisonment, drunken driving, non-prosecution, etc. Also,
prison laws were reformed and new enforcement practices were adopted in order to ease theovercrowding problem (open prisons and prison furloughs).

59

The overall result of these reforms was a substantial reduction in the prison population from theexceptionally high level of 150 (p/pop) in the beginning of the 1960s, to the common Nordic level ofaround 60 in the early 1990s. This raises also the question of what were the crime preventive eﬀects ofthis steep decrease in the use of imprisonment. To evaluate this, we need to include the other Nordic
countries in the comparisons.
These countries have strong social and structural similarities. But they have diﬀerent penal history
on one point: in the exceptional fall of the imprisonment rate that took place in Finland from the
1950s. This provides an unusual opportunity to assess how drastic changes in penal practices in one
country have been reﬂected in the crime rates compared to countries (with similar social and cultural
conditions) which have kept their penal systems more or less stable. Figure VI.2 shows incarceration
and reported crime rates in Finland, Sweden, Denmark and Norway from 1950 to 2005.

Figure IV.7 Prison rates and crime rates in four Nordic countries 1950 2005.
Compiled from: Falck et al 2003 and national Statistics

There is a striking diﬀerence in the use of imprisonment, and a striking similarity in the trends inrecorded criminality. That Finland has substantially reduced its incarceration rate has not disturbed
the symmetry of the Nordic crime rates. These ﬁgures, once again, support the general criminologicalconclusion that crime and incarceration rates are fairly independent of one another; each rises and falls
according to its own laws and dynamics.

V. CONCLUSIONSThe title promised an answer to the question of causes of prison overcrowding
no simple answers are available.

. Unfortunately,

In several countries, overcrowding results simply from the overuse of pre-trial detention. Thisapplies especially to the African regions. In many of the African prisons suffering from severe
overcrowding, more than half of the prisoners are on pre-trial detention.
But besides the use of pre-trial detention one should look also for other reasons behind
overcrowding.
Against what one could assume, trends in crime seem to have less impact on the overall use of60

imprisonment. There is no general association between total reported crime and victimization. Nor do
the overall trends of reported crime associate systematically with changes in incarceration. The search
for the reasons for overcrowding and diﬀerences in the use of imprisonment must proceed beyond theanalyses of crime trends. This does not mean that crime is irrelevant, but the relevance of crime may
diﬀer, depending on other social and political factors.
The search for these background causes may take different routes. We may examine individual
countries and their histories. Or we may compare a larger number of countries in order to figureout what factors are common in high imprisonment countries, and what unites low imprisonment
countries. Both methods increase our understanding of the dynamics of penal change.
In a wider historical and comparative perspective, the general practice of punishment seems to beconditioned by macro level factors, including economic and social structures, political culture, andalso public sentiments and political legitimacy. This may appear disappointing for anyone wishing toinitiate a penal change. However, there is always room for political choice, even in this structurally
given environment. It is, still, in the hands of local governments and politicians to decide, what to do
and how to conduct domestic penal policy. In the end, it is up to political will.
This conclusion is highlighted by the case study from Finland. High incarceration was deﬁned at
the political level as a problem. The Finnish politicians also understood and accepted that the use of
imprisonment could be reduced without serious repercussions on the level of criminality, and they
acted accordingly.
One central element behind the success was a broad based approach to the problem. The reform
programme was grounded in research-based theoretical notions on the functions of the criminal justicesystem. Legislative actions were carried out on all fronts and of all levels of the criminal justicesystem: in criminal process, sanctions systems, speciﬁc oﬀences, sentencing principles, enforcement
and prison law, and juvenile justice. This was achieved with the close cooperation of all the key groups
in the criminal justice system.

Appendix. Countries by prisoner rates and occupancy levels (ICPS)
Prisoners /100000 (2008)-50

Occupancy rate %<75 %75-100 %101-110 %Andorra
Liechtenstein
SolomonIslands
Niger
GambiaFaeroe Islands(Denmark)
Nigeria
Iceland

Sao Tome e
Principe
Iraq
Vanuatu
Syria

AngolaAustria
BahrainBosnia andHerzegovina: Federatio
DenmarkJapan
FinlandSwedenGermany
GuatemalaIreland, Republic of
Samoa
Kosovo/Kos
CyprusMalta
Kiribati
Netherlands
NorwayPapua New Guinea
Switzerland
Tonga
Northern Ireland

Mauritania
Republic of Guinea

Total
111-150 %151-200 % Over 200 % <75 %Liberia
India
Nepal

Burkina
Faso

SierraLeone

Italy
Paraguay
Venezuela
FranceBelgium
Slovenia
Marshall Islands
Mayotte (France)
Madagascar
Bosnia andHerzegovina:
Republika
Croatia
Mozambique
Cambodia

SenegalIndonesia
Ghana
Malawi
Haiti
UgandaBolivia
Cote D'Ivoire
Pakistan
Congo (Dem 28 %Repub of)
Bangladesh
Benin

8%

51-10061

101-150

Cook Islands(NZL)
MonacoKyrgyzstan
Guernsey(United
Kingdom)
Tajikistan
Isle of Man(United
Kingdom)

Slovakia
Romania
JordanArmenia
Portugal
Fiji
Bulgaria
CanadaLesothoHong Kong(China)UK: Scotland
Macedonia
KuwaitTurkeyZimbabwe
Australia
Montenegro

Uzbekistan
SerbiaHungary
Colombia
Nicaragua
Brunei Darussalam
GreeceMyanmarEcuadorPhilipp.
New
Caledon.
Sri Lanka
Tanzania

BurundiKenya
Cameroon
Zambia22 %Greenland(Denmark)
Mauritius
Reunion(France)
PolandLuxembourg

JamaicaEngland & Wales
Guadeloupe
Lebanon
Malaysia
Albania
Martinique (MexicoHonduras
Spain
Libya
Uruguay
BrazilUnitedArab
Emirates
Peru
Algeria
MoroccoRwandaFrenchPolynesia
Iran

22 %

GuyanaCaymanGuam (USA)
St Lucia
Antigua andBarbudaFrenchGuiana/Guyane
South Africa
Botswana
Maldives
Dominica

Chile
ThailandPanamaBarbados
Suriname
El Salvador

16 %Belarus
USA

BahamasGeorgia
AnguilaSt. Kitts
and Nevis

Grenada

5%

12 %

27 %

11 %

9%

100 %

151-250
Macau (China)
Moldova
Azerbaijan
Northern Mariana
Dominican Republic
Islands (USA)
Turkmenistan
Gibraltar
New Zealand(United
Lithuania
Kingdom)Swaziland
Jersey (United
Namibia
Kingdom)
Argentina
Czech Republic
Costa Rica
251-400

Seychelles
Bermuda (UK)
LatviaOver 400

Total

11 %

Relevant litterature

Kazakhstan
AntillesPuerto Rico (USA)Trinidad and Tobago
Aruba(Netherlands)
Estonia
Singapore
Israel
Ukraine
St Vincent and
the Grenadines
BelizeRussian Federation
Virgin Islands
(UK)
30 %

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64

PRISON OVERCROWDING- Finding Eﬀective Solutions. Strategies and Best Practices Against Overcrowding
in Correctional Facilities -1. Introduction: General remarks
Prison overcrowding is a serious problem indeed; moreover it is an elusive phenomenon althoughnational and international actors have dealt with it for decades 1 . Overcrowding seems even to
represent a characteristic troubling the modern prison since its invention in the 19th century2. The
ongoing debates in California on how to resolve prison overcrowding demonstrate the problems prison
systems face when prisons are seriously overcrowded and the problems politicians face when looking
for a rapid way out of prison overcrowding3 under the double pressure of court orders and a severe
ﬁscal crisis. And it is certainly also fair to say that it is in general much easier to produce overcrowded
prisons than developing and implementing eﬀective ways to reduce prison populations. The debates
demonstrate, however, also, that the problem of prison overcrowding is located at an intersection
where several important policy and crime research related topics converge. These topics concern
criminal sentencing, the role of prison sentences and imprisonment in the system of criminal sanctions,the standards adopted when it comes to accommodating prisoners and providing adequate healthcare and rehabilitative services, the development of crime, in particular crime which attracts prison
sentences, the budget provided for prisons and prison construction as well as economic restraints andfinally general criminal policy determining the course of criminal law and punishment in a society.
Overcrowding somehow is associated with all of these issues, although it is not clear how these issues
interact and under what conditions they become effective in turning the course of the growth or
decline in prison populations. The cross-sectional nature of prison overcrowding is challenging becauseof the complexity coming with it4.
On the one hand overcrowding sometimes seems to emerge as a problem which remained hidden forlong time until it all of sudden puts policy makers under pressure, be it as a consequence of activities
1

2
3
4
5

See for example United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules) A/
RES/45/110, 14 December 1990; Prison Overcrowding Project: Etiology of Prison Populations - Implications
for Prison Population Projection Methodology. National Institute of Corrections, United States 1984; National
Institute of Corrections: Our Crowded Prisons. The Annals of the American Academy of Political and Social
Science. Vol. 478, Beverly Hills 1985; United Nations Economic and Social Council: International cooperation
aimed at the reduction of prison overcrowding and the promotion of alternative sentencing. Resolution 1998/23,
44th plenary meeting, 28 July 1998.
Mullen, J.: Prison Crowding and the Evolution of Public Policy. National Institute of Corrections: Our Crowded
Prisons. The Annals of the American Academy of Political and Social Science. Vol. 478, Beverly Hills 1985, pp.
31-46, p. 31.
Governor of the State of California: Prison Overcrowding State of Emergency Proclamation. Office of theGovernor, 10/04/2006.
See United Nations Economic and Social Council: Reform of the Criminal Justice System: Achieving Eﬀectivenessand Equality. Use and Application of United Nations Standards and Norms, Especially Concerning Juvenile Justiceand Penal Reform. Report of the Secretary-General, 2002.
See for example Amnesty International: Amnesty International's Concerns in Serbia, including Kosovo:
January-June 2009. www.amnesty.org/en/library/asset/EUR70/016/2009/en/f2e02aae-bf9a-4989-9d3d3545d077e604/eur700162009en.pdf, p. 4; CPT: Report to the Government of the United Kingdom on the visit
to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) from 18 November to 1 December 2008. Strasbourg 2009, pp. 20-21;
European Court of Human Rights, Judgment as of 22 October 2009 in the cases Orchowski v. Poland (application65

of human rights watchdogs or court decisions which ﬁnd serious violations of constitutional rights5.
On the other hand, rapid declines of the prison population seem to come often also as a surprise forcriminal justice administrators. The patterns of turning points in the course of prison populations
reﬂect to a certain extent the degree of stability of criminal justice policies and criminal sentencing andthe extent of their insulation from outside pressures.
Policies aimed at reducing prison overcrowding are faced with problems of how to introduce andto explain changes in sentencing practices or parole decision-making to a public which demands
increasingly for more security and often equates security with long prison sentences, incapacitation
and restrictive parole6. Many countries are exposed to economic and ﬁnancial hardships which bringwith it conflict-laden choices on where to direct scarce resources. Furthermore, policy makers
have to respect separation of power principles and thus are subject to normative constraints which
contribute to problems of eﬀective planning, close coordination and rapid adjustments of the use ofprison sentences and the ﬂow of prisoners7. The subsystems of criminal justice are independent fromeach other, the operations of subsystems like criminal courts in terms of sentencing decisions do notconsider the possible impact such decisions will have on the prison system8. Despite such problems
overcrowded prisons have stimulated attempts to develop instruments which provide projections orforecasts of the course prison populations will take in order to be able to make sound decisions onwhether to provide for more prison capacity or to close prisons9. But, projections of prison populations
are faced with well known problems of predicting the future, point to uncertainty and ultimately also
to self-fulfilling prophecies. Prison projections have been developed as a basis for policy making inparticular in the United Kingdom10, in the United States11, Canada12, Australia13 and New Zealand14.
Prison projection methodology, however, has not received much attention in other parts of the world.
Prison overcrowding can come as the result of a slow, steady and long term increase in the numberof prisoners, developing into a culture of chronic overcrowding 15; it can come also in a rapid move
upwards for example in the wake of collective violence and as a consequence of detaining scores of

6
7
8
9
10
11

12
13
14
15
16

66

no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) holding that the conditions under which theapplicants are detained establish a breach of Art. 3 of the ECHR and that where prison overcrowding reached acertain level, the lack of space in a prison could constitute the central factor to be taken into consideration under
Article 3; see also the judgment as of 26 May 2008 of the Polish Constitutional Court: the serious and chronic
nature of prison overcrowding in Poland can in itself be qualiﬁed as inhuman and degrading treatment; Article 248of the Polish Code of Execution of Criminal Sentences (which allows for departing from the minimum space of 3 m2
per prisoner) was incompatible with Article 40 (prohibiting inhuman and degrading treatment) of the Constitution.
See for example CAT: Summary record of the 622nd meeting: Argentina. 22/11/2004. CAT/C/SR. 622, No. 22.
Kaufman, G.: The National Prison Overcrowding Project: Policy Analysis and Politics, a New Approach The
ANNALS of the American Academy of Political and Social Science 1985; 478, pp. 161-172.
Albrecht, H.-J.: Particular Diﬃculties in Enforcing the Law arising out of basic Conﬂicts Between the Diﬀerent
Agencies Regarding the Best Suited Reactions upon Highly Sensitive Kinds of Crime. In: Council of Europe (Ed.):Interactions within the Criminal Justice System. Strasbourg 1988, pp. 41-82.
Miller, D.: Prison population projections. A review of methods used by state correctional agencies. Illinois Dept.
of Corrections, Bureau of Policy Development 1981; Blumstein, A.: Research on sentencing. National ResearchCouncil, Washington 1983, pp. 239.
Ministry of Justice: Prison Population Projections 2009-2015, England and Wales. London, Ministry of Justice
Statistics Bulletin, 28 August 2009.
See for example Minnesota Department of Corrections: Minnesota Prison Population Projections. Fiscal Year2008 Report. St. Paul 2008; according to PEW: Public Safety, Public Spending. Forecasting America's Prison
Population 2007-2011. Washington 2007, V, 42 states and the Federal prison administration have adopted prison
projections as instruments to instruct policy makers.
Boe, R.: A Medium-Term Federal Oﬀender Population Forecast: 2001 to 2004. Correctional Service of Canada,
February 2001.
Fisher, G.: Victoria's Prison Population: 2001 to 2006. Sentencing Advisory Council , Melbourne 2007.
www.justice.govt.nz/publications/global-publications/c/2009-2017-criminal-justice-forecast-report
Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 18
November to 1 December 2008. Strasbourg, 8 December 2009, pp. 20, 22, 68.
Amnesty International: Rwanda. The enduring legacy of the genocide and war. London 2004, pp. 3-4.

perpetrators for serious crimes as it was (and evidently still is) the case in Rwanda16. In the wake of
the Rwandan genocide 1994, approximately 120.000 persons suspected being involved in mass murder
have been detained in a prison system designed only for a small faction of this number and in face ofa criminal justice system capable to deal with only a few thousand cases per year17. Systems may be
aﬀected by prison overcrowding for short periods of time and manage to deal with it quickly; in somecountries overcrowding appears as an ebb and ﬂow phenomenon18 others suﬀer from overcrowding forextended periods of time and do not seem to ﬁnd eﬀective, sustainable solutions.
Strategies against overcrowding must be subject to thorough evaluation. It has been noted that theacid test of strategies against overcrowding is not what can be temporally or locally achieved but
what can be sustained19. The question of evaluation poses a myriad of (old) problems which are visible
in cost-beneﬁt research addressing sentencing options, prison and treatment regimes or studies on net
widening. Moreover, the quest for sustained eﬀects points to longitudinal studies and the availabilityof reliable data on various aspects of criminal justice and corrections, therefore also to significant
commitments on the side of reform and research communities.

2. How is Overcrowding Explained?
2.1 Introduction: Overcrowding Defined

The search for eﬀective solutions to overcrowding has to be preceded by the search for causes ofovercrowding and is dependent therefore on a deﬁnition of overcrowding. While at its essence, thesize of a prison system is a function of how many people are admitted to prison and how long theyremain there20, the deﬁnition of overcrowding and the determination of a situation of overcrowding
depends on a mix of normative and factual elements. Normative links to the deﬁnition of overcrowding
are provided by international and regional human rights instruments which prohibit cruel, inhuman anddegrading treatment and punishment and guarantee human dignity. Besides the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), the International
Covenant on Civil and Political Rights contains provisions that prohibit cruel, inhuman or degrading
treatment and punishment (Art. 7) and provides for a mechanism of monitoring prison conditions forexample through visits and reports of a Special Rapporteur. Regional human rights treaties reiterateinternational prohibitions of cruel, inhuman and degrading punishment as do national constitutions.
Sometimes national constitutions explicitly mention a prisoners right to adequate accommodation(for example the South African Constitution Art. 35, 2e which places adequate accommodation in
the context of conditions of detention that are consistent with human dignity ). In exceptional cases
national prison law deﬁnes the minimum square meters per prisoner (see for example Article 110 of
the Polish Code of Execution of Criminal Sentences). Moreover, a number of UN and regional soft
law instruments outline minimum standards as regards prison conditions (and prison accommodation)and serve as guidelines in judging infringements on the prohibition of cruel, inhuman or degrading
punishment, among them the Body of Principles for the Protection of All Persons under Any Form ofDetention or Imprisonment or the European Prison Rules21.
The problem of defining overcrowding is due to the lack of an internationally consented set of
17 PRI Rwanda: The contribution of the Gacaca jurisdictions to resolving cases arising from the genocide.
Contributions, limitations and expectations of the post-Gacaca phase. London 2010, p. 11.
18 Human Rights Watch: Prison Conditions in Indonesia. An Asia Watch Report. New York 1990, pp. 12-13.
19 Varenik, R.O.: Mixing Politics, Data, and Detention: Reﬂections on Reform Eﬀorts. In: Open Society Institute(ed.): Justice Initiatives. Pretrial Detention. New York 2008, pp. 172-183, p. 174.
20 Mauer, M.: The Hidden Problem of Time Served in Prison. Social research 74(2007), pp. 701-706.
21 Council of Europe: European Prison Rules. Strasbourg 2006, p. 47; see in particular rule 18.4: National law shallprovide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding ofprisons; see also Recommendation No. R (99) 22 of the Committee of Ministers to Member States Concerning
Prison Overcrowding and Prison Population Inflation, and UN Standard Minimum Rules for the Treatment of
Prisoners Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment ofOﬀenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV)
of 31 July 1957 and 2076 (LXII) of 13 May 1977, rules on accommodation.

67

criteria which could be used to construct an instrument that can be applied uniformly in measuring
overcrowding. In the evaluation of prisons with regard to overcrowding courts have adopted a case bycase approach which does not rely on a single indicator (like for example square meters available for anindividual prisoner), but consider a wide range of aspects in a process which after all weighs interestsof the prison administration, security, economics and individual rights of the prisoner. Overcrowding,of course, then refers to a multi-dimensional assessment as the core of the overcrowding problem islocated in the judgment whether proper prison regimes, related programs of rehabilitation, healthcare, safety of prison inmates as well as staﬀ and public security, kitchen and sanitary facilities, aswell as visiting programs and facilities for work and education and outdoor exercise may be operated
and delivered according to established standards under certain conditions of occupancy. Decisions of
the European Court of Human Rights on the space which should be available refer to guidelines set
by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment22. The CPT has stressed that a standard of 3 m2 per prisoner does not oﬀer a satisfactory
amount of living space and has recommended to adopt a standard of at least 4 m2 per prisoner. It
advised also that cells with less than 6 m2 should be taken out of service as prisoner accommodation23.
The Special Rapporteur has underlined that four square meters are in particularly not acceptable if(remand) prisoners are conﬁned for most of the time within the cell and remain in remand prisons forextended periods of time24. 7 m2 per prisoner might serve as an approximate and desirable guideline
for a detention cell, but establishing overcrowding from the perspective of an infringement of Art. 3 ofthe European Convention on Human Rights will be dependent on more than just an observation of lessthan 7 square meters being available for one prisoner. Length of time spent in an overcrowded prison
facility, possibilities to spend time outside the cell, participation at furlough programs, the deliveryof rehabilitative services and medical treatment as well as security issues will be taken into account,too. Insofar, overcrowding will also be dependent on the normative and cultural framework within
which overcrowding (in terms of infringements on basic rights) is assessed. The European Courtof Human Rights, however, has made clear that falling under a certain amount of space will always
raise an issue under the prohibition of torture and inhumane and degrading treatment or punishment.
The ﬁnding that a prisoner was placed in a cell which left 0,9-1,9 m? of space per inmate evidently
results in inhumane conditions of conﬁnement. In the judgment reference was made to aggravating
circumstances coming with overcrowding, in particular the necessity to sleep in turns, disturbancethrough general commotions and noise from a large number of inmates as well as the lack of real
privacy and risks of catching diseases as well as the length of confinement under overcrowded
conditions, while it was noted that a lack of intent to put prisoners into such conditions would not
exclude a ﬁnding of violation of the prohibition of inhumane and degrading treatment or punishment(Art. 3 ECHR)25. The European Court on Human Rights in recent cases in fact has stressed that space
itself could represent the central factor indicating an overcrowded situation which establishes aninfringement on the prohibition of inhuman treatment/punishment26. It does not come as a surprise
22 CPT: Report to the Government of Bosnia and Herzegovina on the visit to Bosnia and Herzegovina carried out by
the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)from 11 to 15 May 2009. CPT/Inf (2010) 11, Strasbourg, 31 March 2010, No. 24, 4 square meters per prisoner ina multi-occupancy cell; see also CPT Reports on the visit to Poland carried out by CPT from 30 June to 12 July
1996, on the visit to Albania carried out by the CPT from 9 to 19 December 1997", on the visit to Slovakia by the
CPT from 9-18 October 2000.
23 CPT: Report to the Polish Government on the visit to Poland carried out by the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 30 June to 12 July
1996. Strasbourg, 24 September 1998, No. 70.
24 Commission on Human Rights: Report of the Special Rapporteur, Manfred Nowak. Addendum. Follow-up to
the recommendations made by the Special Rapporteur. visits to Azerbaijan, Brazil, Cameroon, Chile, Mexico,
Romania, the Russian Federation, Spain, Turkey, Uzbekistan and Venezuela. E/CN.4/2006/6/Add.2, 21 March
2006, p. 57.
25 ECHR Kalashnikov v. Russia, Application No. 47095/99, Judgment, Strasbourg, 15 07 2002.
26 ECHR: Orchowski v. Poland, Application no. 17885/04), Judgment, Strasbourg, 22 October 2009;
Sikorski v. Poland, Application No. 17599/05, Judgment, Strasbourg, 22 October 2009.
27 Court references 2B1367 and 2B1368/09 in the Sheriff Court of Lothian and Borders at Edinburgh under the
Extradition Act 2003, Poland v. Adam Kropiwnicki, Prisoner in HM Prison Saughton, Edinburgh 16th December
2009.

68

then that concerns for systemic overcrowding and the risk of a violation of Art. 3 ECHR have beenraised in European Arrest Warrant proceedings27.
Approaches to the assessment of overcrowding under international and national laws and standards
amount roughly to a totality-of conditions test28 which essentially provides for a multi-dimensional
scale. This scale includes core conditions of adequate circumstances of detention/imprisonment29,
including the space available for a prisoner (and it embraces also a prison space per se test). The
smaller the space available, however, the more important becomes space in itself. The ruling of thePolish Constitutional Court30 holding that an emergency provision in the prison law which allows
suspension of the statutorily determined minimum space of 3 square meters is unconstitutional,
underlines that a minimum amount of space determines a baseline of overcrowding. In most countries
in Western Europe, where the tradition has been that each prisoner should be kept in a single cell,
overcrowding generally means having two or three prisoners living in a cell that was originallyconstructed to hold one person. However, single cell accommodation is not the rule in other regions.
In some countries in Eastern Europe throughout the 1990s overcrowding meant three prisoners having
to share one bed, sleeping in turns. The size of living accommodation is, of course, only one element
to be taken into account when considering whether a prison is overcrowded. The Anti-TortureCommittee of the Council of Europe has moreover stated that even with an occupancy level of 95%
of the total design capacity of a prison estate, it becomes diﬃcult or even impossible to deliver thoseservices which are required to ensure respect for inmates' human dignity31. Insofar, the deﬁnition of
overcrowding and its relevance for cruel, inhuman, degrading treatment/punishment as well as humandignity is subject to an ongoing discourse which reﬂects various concerns and interests.
Apart from courts and human rights monitors, prison administrations have adopted procedures andstandards which result in measures of prison capacity and with that also measures of overcrowding.
Such deﬁnitions refer basically to a number of prisoners actually imprisoned exceeding the numberof prison cells/beds which has been set as the maximum to be held in a prison. With a designatedcapacity the number of prisoners is established through administrative decisions for whom theprison can provide adequately for medical care, rehabilitative programs, education, personal safetyof prisoners and staﬀ32. Besides designated capacity, design, rated and operational capacity concepts
can be found. Design capacity refers to the number of inmates which in the planning process wasintended, operational capacity evidently means the number of prisoners which can be accommodated
without putting at risk basic objectives such as health, safety and security while rated capacity relies
on assessments by designated oﬃcials in a jurisdiction33.
Definitions of overcrowding thus require first of all the establishment of a maximum number ofprisoners which can be accommodated in a prison facility. The maximum number must be establishedon the basis of criteria consistent with human rights and minimum standards issued by the United
Nations or regional bodies. Deﬁnitions of overcrowding, however, will diﬀer among world regions andwill be dependent partially on whether single cell accommodation is adopted as a rule34 or communal
28 Chung, S.Y.: Prison Overcrowding: Standards in Determining Eight Amendment Violations. Fordham Law
Review 68(2000), pp. 2351-2400.
29 Steinberg, J.: Prison Overcrowding and the Constitutional Right to Adequate Accommodation in South Africa.
Paper commissioned by the Centre for the Study of Violence and Reconciliation, Capetown, January 2005.
30 Polish Constitutional Court, decision as of 26 May 2008.
31 CPT: Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by theEuropean Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)from 18 November to 1 December 2008. Strasbourg 2009, p. 20.
32 Griﬃths, C.T., Murdoch, D.J.: Strategies and Best Practices against Overcrowding in Correctional Institutions.
International Centre for Criminal Law Reform and Criminal Justice Policy: Vancouver 2009, p. 1.
33 Baker, J. et al.: A Solution to Prison Overcrowding and Recidivism: Global Positioning System Location of
Parolees and Probationers. - Innovative Tracking Systems. University of Maryland, 2002, pp. 31-32.
34 Coyle, A.: Managing prison overcrowding: A European perspective. Rencontre Européenne des Directeurs dʼ
Administration Pénitentiaire Ministère de Justice. Place Vendôme, Paris,11 July 2008. International Centre for
Prison Studies, London 2008.

69

cells and on the general prison designs and culture35, on the economic resources available and thedegree of elasticity which is demanded from prison administration by politicians, law makers andthe judiciary. However, imprisonment (and prisons) refers to criminal punishment which is the leastelastic when contrasting it with probation, day ﬁnes or other community sanctions. The question of
how much double bunking (or triple bunking) can be tolerated and for which time demonstrates theapparent need for elasticity and the corresponding need to monitor tightly its use in order to avoid
that short term relief strategies turn into long term overcrowding. Prison capacity therefore has been
assumed to be a slippery concept which expresses the need for elasticity and can be used to makeovercrowding more or less apparent36.
Problems of assessing occupancy rates from the perspective of overcrowding in many countries
are due to the lack of robust data on the number of prisoners detained and available (or designed) andadequate prison space. Reports on the basis of prison visits carried out by General Rapporteurs orcommissions provide for additional, but selective information, they may not compensate fully a generaldeﬁcit in valid and reliable (in particular longitudinal) data on prison systems.

2.2 Causes of Overcrowding

2.2.1 Where and When Does Overcrowding Occur?
Explanations of overcrowding have been preoccupied with the excessive use of prison sentences
and the overall growth of prison populations37. Insofar research has dealt rather with explaining prison
growth than ﬁnding answers to the question of how overcrowding may be explained. Evidently, it isassumed widely that overcrowding is strongly correlated with a heavy use of imprisonment38. The
most prominent example these days certainly concerns California exhibiting even by US standards anextremely high rate of imprisonment and at the same time extreme overcrowding which has resulted
in a court decision obliging the state of California to reduce its prison population by some 55.000
prisoners within three years in order to re-establish prison conditions not infringing on constitutionalrights of prison inmates (8th Amendment)39. In Europe, England/Wales may serve as an example for a
prison system which on the one hand is characterized by a strong increase in the number of prisoners
and top-ranked in Western Europe as regards the prisoner rate, and, on the other hand experiences
during the last years overcrowding in many prisons40.
However, a closer look at prison systems reveals that the correlation between the rate of
imprisonment and overcrowding is rather weak. Data from the Council of Europe Penal Statistics
2006 can be used for an analysis of prison occupancy rates of 42 European countries which are
members of the Council of Europe41. Data for 2006 allow for a basic description of occupancy rates
and the under- or over capacity operation of correctional systems. The data show that 17 correctional
systems in 2006 had occupation rates which are less than 95% of the actual capacity (Latvia, Monaco,
Northern Ireland, Turkey, Switzerland, Armenia, Azerbaijan, Republic Srpska, Iceland, Lithuania,
Liechtenstein, Luxemburg, Malta, Moldova, Russian Federation, San Marino, Slovakia). 14 countries

35 Giﬀard, C., Muntingh, L.: The Eﬀect of Sentencing on the Size of the South African Prison Population. Newlands
2006, p. 9.
36 Cox, G.H., Rhodes, S.L.: Managing Overcrowding: Corrections Administrators And The Prison Crisis. Criminal
Justice Policy Review 4(1990), pp. 115-143, p. 120.
37 Blumstein, A., Piquero, A.R.: Restore Rationality to Sentencing Policy. Criminology & Public Policy 6(2007), pp.
679-688.
38 Hartney, C.: US Rates of Incarceration: A Global Perspective. Research from the National Council on Crime andDelinquency, November 2006, p. 1.
39 In the United States District Courts For the Eastern District of California and the Northern District of California
United States District Court, Ralph Coleman et al.(Plaintiffs) v. Arnold Schwarzenegger et al (Defendants);
Marciano Plata et al. (Plaintiﬀs) v. Arnold Schwarzenegger et al. (Defendants), No. CIV S-90-0520 LKK JFM P;
No. C01-1351 TEH, August 4, 2009.
40 Gray, C., Elkins, M.: Projections of Long Term Trends in the Prison Population to 2008 8/01. England and Wales.
London 2001.
41 Aebi, M.F.: Council of Europeʼs Annual Penal Statistics. SPACE I. Strasbourg 2007, p. 18.

70report occupation rates which fall in between 95% and 105% of the oﬃcial prison capacity (Albania,
Bosnia, Czech Republic, Denmark, Estonia, Germany, Netherlands, Norway, Portugal, Romania,
Slovenia, Sweden, Macedonia, Scotland). Minor overcrowding (of less than 10%) is noted for two
countries (Austria, Georgia), while seven countries had a number of prisoners which exceeded prison
capacity by 10 to 30% (Ukraine, Poland, Belgium, Croatia, Finland, France, England/Wales). Three
countries are aﬀected by occupation rates ranging between 30-50% over the capacity (Spain, Italy,
Hungary) and the rates of another three (Greece, Cyprus, Bulgaria) were 50% above the number ofprisoners which oﬃcially can be accommodated in available prison cells.
Graph 1: Prisoner Rates (100.000) and Overcrowding in Europe

Source: Aebi, M.F.: Council of Europeʼs Annual Penal Statistics. SPACE I. Strasbourg 2007, p. 18 the figures
provided in SPACE I for England/Wales are evidently wrong and have been replaced by the figures provided by
NOMS: Population in Custody. Monthly Tables, October 2006, England and Wales. London 2006, table 4.

The correlation between prison occupancy rates and prisoner rates calculated for all countries
covered by the Council of Europe prison statistics amounts to -.153 (Pearsonʼs R) indicating a negative
correlation (which means that with an increasing prisoner rate occupancy rates are decreasing).
However, this is due to many of the Eastern European countries still providing for signiﬁcant oﬃcial
prison capacity despite signiﬁcant decreases in the number of oﬀenders actually sent to prison42. This
results in many of the Eastern European countries experiencing a rather low average utilization ofprison capacity. When taking Eastern European countries out of the calculation then, the correlationcoeﬃcient turns into the positive direction (.204). But, the coeﬃcient is not signiﬁcant and should be
42 See for example CPT: Report to the Latvian Government on the visit to Latvia carried out by the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 27
November to 7 December 2007. Strasbourg 2009, pp. 21-22, noting a significant reduction of the number ofprisoners since the last visit of the CPT to Latvia (from 8231 in to 6530 in 2007) and a number of prisoners well
below the maximum capacity of Latvian prisons.

71interpreted as demonstrating that overcrowding can come with both, low and high levels of prisoner
rates.
2.2.2 Occupancy Rates and Their Correlates
In order to look for broader patterns of possible correlates of overcrowding occupancy and prisoner
rates (as on display in the most recent World Prison Survey43) have been analyzed with introducing
various indices related to the economy, human development, social equality, state fragility, violence
and corruption. The analysis results in the correlation matrix on display below. The degree of
inequality is represented by the Gini index which measures (economic) inequality on the basis of the
distribution of family income in a country. The corruption related data were taken from the mostrecent Corruption Perception Index published by Transparency International. Violence data stemfrom statistics compiled by UNODC on the basis of criminal justice and health data. The Human
Development Index considers besides the Gross National Product life expectancy, the rate of literacy
as well as other economic and education related indicators. Finally, effectiveness and legitimacy
indices refer to security, economic, political and social dimensions which add up to the (total of) statefragility index44.
Table 1: Correlates of Prison Occupancy Rates
Variable
Prisoner Rate (100.000) R *Sig
Pretrial Detention % R
Sig
Foreigners % R
Sig
GDP Capita US$ R
Sig
Gini Index R
Sig
Democracy Index R
Sig
Violent Death / 100.000 R
Sig
Corruption Index R
Sig
Human Development Index R
Sig
State Fragility R
Sig
Eﬀectiveness R
Sig
Legitimacy R
Sig

Total
-.083
.341
.451
.000
-.140
.131
-313
.000
.226
.010
-162
.063
.355
.000
-318
.000
-450
.000
.378
.000
.390
.000
.318
.000

Europe
-.222
.147
-.014
.929
.085
.583
-.093
.596
.236
.123
-.251
.100
.411
.006
-.207
.176
-.350
.020
.440
.004
.395
.010
.452
.003

Africa
.098
.627
.210
.294
-.299
.214
-.263
.186
-.531
.005
.212
.288
.058
.772
-.158
.431
-.122
.587
.188
.558
.140
.488
.061
.764

South America
.097
.703
-.019
.030
-.148
.558
-.436
.070
.362
.154
-.306
.216
.512
.030
-.068
.788
-.233
.352
.338
.185
.384
.128
.243
.347

Asia
-.274
.175
.723
.000
-.032
.887
-.141
.501
.048
.816
.146
.478
.163
.436
-.168
.412
-.473
.017
.207
.321
.266
.199
.082
.697

Sources: Gini Index: www.cia.gov/library/publications/the-world-factbook/ﬁelds/2172.html. GDP: www.infoplease.
com/world/statistics/economic-statistics-by-country.html. Violence: UNODC, Homicide Statistics, Criminal JusticeSources - Latest available year (2003-2008); Homicide Statistics, Public Health Sources - Latest available year (20032008). Democracy Index: The Economist Intelligence Unit's Index of Democracy 2008. Prison figures: www.kcl.
ac.uk/depsta/law/research/icps/worldbrief/. State Fragility, Eﬀectiveness, Legitimacy: Marshall, M.G., Cole, B.R.:
Global Report 2009. Conﬂict, Governance, and State Fragility. Center for Systemic Peace, Center for Global Policy
2010. Human Development Index: hdr.undp.org/en/ Human Development Reports. Corruption Index: Transparency
International: Corruption Perception Index 2009. www.transparency.de* R = Pearsons Correlation Coeﬃcient

The correlations on display in table 1 reveal nothing unexpected for the data at large. Overcrowding
43 www.kcl.ac.uk/depsta/law/research/icps/worldbrief/
44 Marshall, M.G., Cole, B.R.: Global Report 2009. Conﬂict, Governance, and State Fragility. Center for Systemic
Peace, Center for Global Policy 2010, p. 31.

72

is correlated with the rate of pretrial detainees, the size of the GDP per capita, the degree of inequality
as measured by the Gini index, democracy, the extent of perceived corruption, state fragility and its
sub components as well as violence. Overcrowding is neither signiﬁcantly correlated with the prisonerrate at large nor with the share of foreign prison inmates. On the basis of this pattern of correlations it
can be concluded that overcrowding problems essentially are associated with problems of governance,a weak economy and obvious problems in the criminal justice systems (expressed in the share of
pretrial detainees). When it comes to the regions it is also to be expected that due to small numbers
correlation coeﬃcients only rarely get signiﬁcant. Most of the correlations which are found for world
regions follow expectations. A signiﬁcant correlation between pretrial detention and occupancy rates
is not found for South America. This means that there is not much variation in the share of pretrial
detainees in South American countries; all prison systems are affected to more or less the same
extent.
2.2.3 Overcrowding in World Regions
2.2.3.1 Clusters of Overcrowding
A cluster analysis conﬁrms the pattern of correlates presented in table 1. Three distinct clusters
emerge, representing low (cluster 1), medium (cluster 2) and high (cluster 3) over capacity operationof correctional systems and displaying diﬀerences in economic, social, governance and criminal justicerelated dimensions. Cluster 1 points to a high GDP per capita, a low violence rate, low state fragility,
high achievements in human development and democracy and a low extent of perceived corruption.
Most of the countries falling into cluster 1 belong to Europe, North America and Oceania. Cluster
2 exhibits in comparison with cluster 1 a slightly higher rate of overcrowding, a comparable rate of
pretrial detainees and a significantly higher rate of imprisonment. Differences in comparison withcluster 1 are particularly marked in the GDP variable, in violent death rates and in the corruption
index. Cluster 3 embraces countries with high occupancy rates. While the prisoner rate in this cluster
is low compared with the other clusters, it is distinguished from the other clusters clearly through ahigh rate of violent death, low per capita GDP, democracy and human development values as well as
manifest signs of weak governmental structures. An elevated rate of pretrial detainees in cluster 3
points then to deﬁcits in case processing and procedural capacity.
Table 2: Clusters of Overcrowding
Final Cluster Centers
1
Occupancy Rate %Pretrial Detainees %GDP Capita US$
Violent Death/100.000
State Fragility Index 2008
Prisoner Rate / 100000
Human Development Index
Democracy Index
Corruption Index 2009
Share of Regions at Clusters() % of countries from a
region falling in clusters 1 - 3

105,1426,73
32331,82
1,41
1,05
156,32
954,098,367,90
23% (100)Northern Europe
36% (90) Western Europe
5% (10) Southern Europe
5% (33) Far East
5% (10) South East Asia
5% (20) Near East
5%(20) Middle East
8% (100) North America
8% (100) Oceania

Cluster2
110,8324,74
15604,35
8,342,17
197,22
867,577,03
4,88
9% (25) Southern Africa
4% (10) South East Asia
39% (53) Eastern Europe
13% (40) Southern Europe
4% (10) Western Europe
4% (33) Far East
9% (40) Middle East
18% (25) South America

3
144,6840,01
3894,9415,13
11,37
140,80656,785,082,90
8% (75) Southern Africa
9% (100) East Africa
14% (100) West Africa
5% (100) North Africa
8% (100) Central Asia
11% (80) South East Asia
4% (100) Caribbean
11% (47) Eastern Europe
5% (50) Southern Europe
1% (33) Far East
3% (40) Middle East
5% (80) Near East
16% (75) South America

732.2.3.2 Overcrowding in Europe
When looking at prison occupancy rates as they unfolded after the last account in the Council ofEurope Prison Statistics 2006, it can be observed that in many cases of overcrowding on display in thedata from 2006 there were no improvements made. For Greece, the CPT noted at the occasion of avisit in 2007 that despite plans to implement a prison construction program and a criminal policy whichshould encourage alternatives to imprisonment and early release/parole, prison overcrowding had
not lost its momentum45. The problem of overcrowding persists also in Bulgaria46 although Bulgaria
has experienced a significant reduction in the prison population over the last years47. Albania madeprogress in reducing overcrowding problems, though over capacity operation of facilities for remandand sentenced prisoners still is observed48. Other European countries have evidently slipped deeper
into overcrowding problems (Belgium49, France50, Italy51). Since mid 2008, overcrowding affects
Irish prisons. In face of a“design capacity”of 2.969 places counted in July 2008 3.589 prisoners had
to be accommodated and the Irish prison population reached almost 4.000 at the end of May 200952.
In England/Wales approximately a quarter of prisoners since the beginning of the new millennium
is detained under conditions of overcrowding53. On the other side, some countries have managed toreduce prison populations significantly (Portugal, Romania, The Netherlands, Germany)54.
The situation in Central/Eastern Europe and Russia looks rather mixed. For Georgia, serious
problems of overcrowding are reported, evidently as a consequence of a rapid increase in the numberof prisoners between 2004 and 2008. The number of prisoners tripled in this period from some 6.500
to almost 20.00055. Overcrowding as a problem has been raised for Poland and Hungary 56 (whichis also visible in the number of cases pending before the European Court on Human Rights). The
most dramatic reduction in prison numbers in any member state of the Council of Europe over thelast decade occurred in Russia, where the prison population stood at over one million in 1998 and

45 CPT: Report to the Government of Greece on the visit to Greece carried out by the European Committee for thePrevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 20 to 27 February 2007.
Strasbourg 2008, p. 25; see also van Kalmthout, A.M. Knapen M.M., Morgenstern, C.:
Pre-trial Detention in the European Union. An Analysis of Minimum Standards in Pre-trial Detention and theGrounds for Regular Review in the Member States of the EU. Nijmegen 2009, pp. 437-464.
46 United States Department of State, 2009 Country Reports on Human Rights Practices - Bulgaria, 11 March 2010,
available at: http://www.unhcr.org/refworld/docid/4b9e530d2.html [accessed 28 March 2010]47 Round Table on detention conditions, Prison population in the European Union Brussels 8 December 2009, http://
www.kcl.ac.uk/depsta/law/research/icps/worldbrief/?search=europe&x=Europe, the number of prisoners in
Bulgaria stands at approximately 9400 in 2009, a significant decrease from some 11500 in 1998.
48 Amnesty International: Amnesty International’s Concerns in Albania: January-June 2009. London 2009, p. 3.
49 Committee against Torture: Committee Against Torture Begins Review of Report of Belgium. Geneva, 12
November 2008.
50 Report By Mr. Alvaro Gil-Robles, Commissioner For Human Rights on the Effective Respect For Human Rights inFrance Following his Visit From 5 to 21 September 2005, CommDH(2006)2, Strasbourg, 15 February 2006, p. 21.
51 Human Rights Council: Report of the Working Group on Arbitrary Detention. Addendum: Mission to Italy. A/
HRC/10/21/Add.5, 26 January 2009, No. 24-27.
52 ICCPR Follow-Up Submission on Ireland, subsequent to rule 71, paragraph 5 of the UN Human Rights Committee’s
rules of procedure, August 2009, p. 4.
53 See www.publications.parliament.uk/pa/cm/cmhansrd.htm
54 15th Conference of Directors of Prison Administration:“Overcrowded Prisons: Looking for Solutions”.
Conclusions by the General Rapporteur Edinburgh 9-11 September 2009, CDAP(2009)04; see also Round Table on
detention conditions, Prison population in the European Union Brussels 8 December 2009, www.kcl.ac.uk/depsta/
law/research/icps/worldbrief/?search=europe&x=Europe.
55 Penal Reform International: Assessment of Penal Legislation in Georgia. Tiflis 2009, p. 19; Human Rights Council:
Tenth session. Agenda item 3. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Manfred Nowak. Addendum Follow-Up to the Recommendations Made by the Special
Rapporteur. Visits to China, Georgia, Jordan, Nepal, Nigeria and Togo, A/HRC/10/44/Add.5, 17 February 2009, p.
98-100; Human Rights Watch: World Report. New York 2010, p. 416.
56 European Roma Rights Centre: Written Comments of the European Roma Rights Centre, Chance for Children
Foundation and the Hungarian Helsinki Committee: Concerning Hungary. For Consideration by the United
Nations Committee at its 98th Session, p. 12.

74

had fallen to 763,000 by the beginning of 200557. While the reduction has been explained by a mix ofgrounds, among them political will, legislative changes, the systematic involvement of key playersof the criminal justice process, especially judges and prosecutors, re-assurance of the public andthe media that the changes in the prison system will not threaten public safety, in recent years theprison population has increased again and stands in 2008 at approximately 900,000 prisoners (howeverstill well below prisoner rates in the 1990s)58. In other Central and Eastern European countries
overcrowding has been linked to remand prisons and the vast use of pretrial detention. In Moldova
efforts to reduce prison overcrowding have been launched through implementing alternatives toimprisonment, but overcrowding persists in remand prisons59. Also, in the Ukraine problems ofovercrowding are felt especially in pretrial detention centers60.
2.2.3.3 North America
Prison growth has been particularly marked in the United States where a policy of mass
incarceration61 has resulted in imprisonment and prisoner rates that go far beyond what is observedin other countries62. With 1 among 100 adults in prison at any given day costs for incarceration are
placing increasing pressure on public budgets and experiences of imprisonment are far more prevalent
among Hispanic and Afro-American men (with one in nine black men aged 20 - 34 years behind bars)63.
However, prison rates, prison growth and prison crowding vary widely in the United States64. Whilerates of imprisonment continued to grow for almost four decades between 1973 and 2008, the paceof growth slowed down during the last years and 2009 saw the ﬁrst time a decline - though small andamounting to - 0,4% for the United States at large65. The overall decline did not reduce the divide
between states with decreasing numbers of prisoners on the one hand and states with an expanding
system of imprisonment. Rather, this divide is deepening, showing for example states with extreme
drops in the number of prisoners and states with evenly extreme increases. Overcrowding in theAmerican prison system can be studied on the basis of oﬃcial accounts and statistics which provide foran accurate picture of occupancy of most prison systems in the United States66. Canada, in contrast to
the United States, has a far lower prisoner rate and less capacity problems despite a development ofcrime rates that corresponds to that in the United States.
2.2.3.4 Latin America
Latin America displays a mixed picture as regards the size and growth of prison population67 but
virtually all countries in this region have been plagued by prison overcrowding for decades. Recent
reports of the Inter-American Commission on Human Rights have revealed overcrowding problems
in the Chilean prison system68. In Mexico overcrowded prisons have been linked to prison riots and
57 Russian Research Center for Human Rights: Russian Federation. NGO Report on the implementation of the
ICCPR (prior to the adoption of the List of issues). Moscow, December 2008 p. 3.
58 Coyle, A.: Managing prison overcrowding: A European perspective. Rencontre Européenne des Directeurs dʼ
Administration Pénitentiaire Ministère de Justice. Place Vendôme, Paris,11 July 2008. International Centre for
Prison Studies, London 2008, p. 8; Russian Research Center for Human Rights: opus cited, 2008, p. 3.
59 Human Rights Council: Report of the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Manfred Nowak, Mission to the Republic of Moldova. A/HRC/10/44/Add.3, 12
February 2009, No. 30-48.
60 Amnesty International: Brieﬁng for the Committee against Torture on Ukraine Index: EUR 50/001/2007 Geneva
April 2007.
61 The PEW Center on the States: One in 100:Behind Bars in America 2008. Washington 2008.
62 Tonry, M.: Looking Back to See the Future of Punishment in America. social research 74(2007), pp. 353-378.
63 The PEW Center on the States: opus cited, 2008, p. 6.
64 The PEW Center on the States: opus cited, 2008, p. 7.
65 The PEW Center on the States: Prison Count 2010. State Population Declines for the First Time in 38 Years.
Washington 2010, p. 1.
66 See for example Quarterly Report on the Status of Prison Overcrowding, Fourth Quarter 2009
Massachusetts Department of Correction Submitted in Compliance with Chapter 799 Section 21 of the Actsof 1985; Commission on Prison and Jail Overcrowding: Report to the Governor and the Legislature, State ofConnecticut, 2006.
67 Walmsley, R.: World Prison Population List (eighth edition). Kings College, London 2009, p. 3.

75

severe impediments to successful re-entry programs69. Argentina reports critical prison conditions
in particular from the province of Buenos Aires. In 2009, the overpopulation in provincial prisonsworsened with 77% of detainees placed in pretrial detention70 and despite a landmark ruling of theArgentine Supreme Court from May 2005 which declared that all prisons in the country must abideby the United Nations Standard Minimum Rules for the Treatment of Prisoners there are no signsof significant changes. Brazil's prisons are plagued by severe overcrowding, too. Delays within thejustice system contribute to overcrowding; some 45% of all inmates in Brazil are pretrial detainees.
The Brazilian National Justice Council reported in 2009 that approximately 60,000 inmates were being
held arbitrarily71. For Uruguay plans to address overcrowding have been developed in a response toa mission of the Special Rapporteur72. Paraguay, in spite of a rather low prisoner rate, displays heavy
overcrowding in the prison system73.
2.2.3.5 Overcrowding in Africa
Africa seems to be particularly exposed to overcrowding74. The most recent figures show
for all African countries (below the Sahara) for which information is available elevated rates ofovercrowding75. Overcrowding and related precarious conditions of prisons had been made a central
point in the Kampala Declaration 1996 which draws on experiences from the 1970s and 1980s 76. In
addition to chronic overcrowding problems, several African countries have experienced substantial
growth of prison populations in recent years as well as deterioration of capacity problems comingwith that. Uganda reports for October 2009 approximately 31.000 prisoners (up from around 20.000
in 2007). More than 50% of these are remand prisoners77. As the prison capacity was established ataround 10.000 beds in 2007, capacity problems evidently have signiﬁcantly worsened. The optimistic
assessment in the 2007 Uganda census report which assumed a further decline in the prison population
growth, was certainly unfounded78. The Tanzanian Prison Service is responsible for the custody andcare of more than 45.000 inmates while its oﬃcial accommodation capacity is 22.669. This implies thatthe prison facilities are overcrowded by more than 100%79. Overcrowding then is reported from the
Democratic Republic of Congo80 as well as from countries of Southern Africa. For South Africa a prison
population of 40% over the oﬃcial capacity was noted for 2009. Among prisoners ﬁgured some 16,000
68 Inter-American Commission on Human Rights: Rapporteurship on the Rights of Persons Deprived of Liberty. N°
39/08.
69 Comunicaci n Social GDF, Bolet n 1498 del Domingo, 06 de septiembre de 2009.
70 Human Rights Watch: World Report. New York 2010, p. 194.
71 Human Rights Watch: World Report. New York 2010, p. 203.
72 Oﬃce of the United Nations High Commissioner for Human Rights: United Nations Special Procedures. Facts andFigures 2009. New York 2009, p. 10.
73 Human Rights Council: Seventh session Item 3 of the agenda Promotion and Protection of All Human Rights,
Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development. Report of the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak,
Addendum Mission to Paraguay A/HRC/7/3/Add. 3.1 October 2007 p. 17.
74 Dankwa, V.: Overcrowding in African Prisons. In: Sarkin, J. (ed.): Human Rights in African Prisons. Capetown
2008, pp. 83-92, p. 88; see also the Report of the Mission of the Special Rapporteur on Prisonsand Conditions of Detention in Africa to the Federal Democratic Republic of Ethiopia 15 - 29 March, 2004, p. 24;
Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa, The African Commission on
Human and Peopleʼs Rights: Report to the Government of the Republic of Cameroon on the visit of the Special
Rapporteur on Prisons and Conditions of Detention in Africa From 2 to 15 September 2002, p. 10; p. 126 (Guinea),p. 137 (Liberia), p. 154 (Sierra Leone).
75 Muntingh, L.: Alternative Sentencing in Africa. In: Sarkin, J. (ed.): Human Rights in African Prisons. Capetown
2008, pp. 178-203, p. 184.
76 Kampala Declaration on Prison Conditions in Africa, available at www. penalreform.org/english/ pana̲declarationkampala.htm.
77 Uganda Prison Service: Summary of UPS Prisoners. Statistical Returns October 2009. Kampala 2009.
78 Uganda Prison Service: Census of Prisoners in 48 Central Government Prisons, 30 th September 2007. Kampala
2007, p. 3.
79 www.moha.go.tz/index.php?option=com̲content&view=article&id=20&Itemid=11.
80 2009 Country Reports on Human Rights Practices - Republic of the Congo Bureau of Democracy, Human Rights,
and Labor, March 11, 2010.

76

who were detained because they could not aﬀord bail or paying a ﬁne of 1,000 Rand (102€) or less81.
Namibia is aﬀected by prison capacity problems since independence at the beginning of the 1990s 82.
Overcrowding has been reported from the central prison in Windhoek83 as well as from police detention
facilities84.
In Africa, overcrowding problems are evidently independent from the prisoner rate. Overcrowding
problems are noted for West and Central African countries (with imprisonment rates well below
those found in Europe or North America) as overcrowding is observed in countries with high prisoner
rates such as South Africa, Botswana or Namibia85. Sudaǹs prisons show signs of overcrowding86 as
do most of the countries of Northern Africa, for which information is available. Moreover, in many
African countries, prison facilities were built during colonial rule and have received little attention
after independence87.
2.2.3.6 Overcrowding in Asia
Prison growth and prison overcrowding are reported from virtually all South-East Asian countries.
There were approximately 90.000 prisoners in Indonesia in 2006; three years later more than 140,000
inmates have been counted in face of an oﬃcial prison capacity of 80,00088. The Special Rapporteur has
noted that a large share of the Indonesian prison population concerns drug oﬀenders and that pretrial
detainees are outnumbering sentenced prisoners89. Overcrowding has a negative impact on eﬀorts tocontrol tuberculosis and other transmittable diseases (in particular HIV) in Indonesian prisons90. For
Jakarta prisons it was stated that in face of a oﬃcial capacity of 5000 inmates these prisons housed in2009 nearly 12,000 detainees, among them some 6.900 who were detained for drug related crime91.
Sri Lankan prisons hold some 28.000 prisoners although the official capacity was established with
8.200 prison beds92. Overcrowded prisons have been reported from the Philippines93, from Vietnam94,
Thailand (200.000 prisoners in prisons and detention facilities designed to hold 100.000)95 and Pakistan(95.000 prisoners are detained in 72 prisons originally built to hold 36.000 persons)96. Most of Central
81 www.pﬁ.org/Home/Centre for Justice and Reconciliation/News/Partnership for Addressing Prison Overcrowding
in South Africa.
82 Oxche, T.-R.: Post-independence prison reform in Namibia - some observations. CSPRI Newsletter No. 17, 2006.
83 The Namibian, April 18, 2008.
84 Ruppel, O.C., Groenewaldt, A.L.: Conditions of Police Cells in Namibia. University of Namibia, Human Rights
and Documentation Centre 2009.
85 See Muntingh, L.: opus cited, 2008, pp. 184-185.
86 2009 Country Reports on Human Rights Practices - Sudan. Bureau of Democracy, Human Rights, and Labor,
March 11, 2010.
87 Tapscott, C.: Challenges to good prison governance in Africa. In: Sarkin, J. (ed.): Human Rights in African
Prisons. Capetown 2008, pp. 67-82, p. 73.
88 www.ssig.kpkk.gov.my/ssig/news/fullnews.php?news̲id=89191&news̲cat=
89 Human Rights Council: Seventh session. Agenda item 3. Report of the Special Rapporteur on torture and othercruel, inhuman or degrading treatment or punishment, Manfred Nowak. Addendum, Mission to Indonesia. A/
HRC/7/3/Add.7 10 March 2008, p. 30; drug offences and drug offenders represent significant shares of prison
populatrions in many South-Asian countries, see for example Thailand where in 2008 the share of drug oﬀenders
at the prison population at large amounted to one third (Department of Corrections, Ministry of Justice Thailand,
Bangkok, 1 April 2008).
90 IRIN: Indonesia: Overcrowding fuels TB in prisons. Friday 02 April 2010.
91 Intellasia: Indonesia's drug ﬁght pushes prison Aids explosion. 5 Aug, 2009.
92 Human Rights Council: Seventh session. Agenda item 3. Report of the Special Rapporteur on torture and othercruel, inhuman or degrading treatment or punishment, Manfred Nowak. Mission to Sri Lanka. A/HRC/7/3/Add.6,
26 February 2008, pp. 2, 22.
93 ICRC: Philippines: protecting life and dignity in places of detention. ICRC Bulletin No. 01 / 2010, 3 February
2010.
94 2009 Country Reports on Human Rights Practices - Vietnam. Bureau of Democracy, Human Rights, and Labor,
March 11, 2010.
95 2009 Country Reports on Human Rights Practices - Thailand. Bureau of Democracy, Human Rights, and Labor,
March 11, 2010.
96 2009 Country Reports on Human Rights Practices - Pakistan. Bureau of Democracy, Human Rights, and Labor,
March 11, 2010.

77

Asian countries as well as countries of the Far East (for example Japan) are less aﬀected by prison
overcrowding.
2.2.3.7 Post-Conﬂict and Conﬂict-Aﬀected Countries
Particular problems of overcrowding are observed in countries which undergo rapid social change
and signiﬁcant transitions or ﬁnd themselves in a post-conﬂict situation and in a diﬃcult process of statebuilding. Here, prisons and prison conditions should become an integral part of the general reform of
the security sectors and general security policies97. However, prisons until now did not receive muchattention in countries with fragile and weak state structures, although a properly operating prison
system could contribute to building up trust in the state and provide for security. Particular problems
of weak states are experienced in Afghanistan and Haiti. Of course, more countries are aﬀected by the
problem of having to cope with ongoing violence and the task of re-establishing state structures andfunctioning criminal justice systems. Table 1 accounts for the extent of state fragility and shows thatstate fragility is correlated with conditions unfavorable to an eﬀective handling of prison problems.
In Afghanistan a rapidly increasing prison population is assumed to be the result of serious
shortcomings in the criminal justice system which faces a heavy increase in cases coming to courts(also as a consequence of new criminal laws, in particular criminal drug law)98. The prison population ispredicted to reach 110.000 in 2010 (up from 9.600 in 200799).
The Haitian prison system suﬀers from signiﬁcant problems100. The prison system is overburdened,
understaffed and severely overcrowded. As of December 2008, Haiti's 8,204 prisoners were heldin facilities with a capacity of 2.448101. The number of prisoners has skyrocketed from some 2.500
in 2005 to more than 6.000 in 2007. The physical infrastructure of criminal corrections has been
partially destroyed in violent conﬂicts. The National Penitentiary, in April 2007, housed more than
2.500 prisoners although it was built to accommodate 800 detainees. Approximately four ﬁfths of theprisoners are not sentenced but pretrial detainees102. The rate of pretrial detainees is particularly highamong young prisoners103. Prison conditions certainly are not in line with the United Nations MinimumStandards as basic needs of prisoners such as access to potable water, health services, food etc.
allegedly are not catered to in an adequate way. Security problems in the prison are responded to by
reducing the number of prison visits and keeping prisoners locked up in their cells104.
2.2.3.8 Prison Overcrowding: A Mixed Picture
Data on prison capacity and overcrowding reveal also that overcrowding may affect a countryʼ
s prisons selectively with some prisons showing over capacity occupancy while others operate
below the level of accommodation capacity105. A prison system at large may not exhibit a situationof overcrowding, but nonetheless overcrowding restricted to certain regions or individual prison
facilities may occur106. As prison systems are structured on the basis of general normative principles
such as separation of juveniles from adults and women from men, high risk oﬀenders from low risk
97 OECD: The OECD DAC Handbook on Security System Reform (SSR). Supporting Security and Justice. Paris
2007, pp. 199.
98 International Centre For Prison Studies: Alternatives to Imprisonment in Afghanistan. A Report by theInternational Centre for Prison Studies. London 2009, p. 4.
99 Walmsley, R.: World Prison Population List (eighth edition). Kings College, London 2009, p. 4.
100 Security Sector Reform Monitor: Haiti. The Centre for International Governance Innovation. Waterloo, May
2009, pp. 6-7.
101 Human Rights Watch: World Report. New York 2010, p. 229.
102 IACHR Press Release No. 32/07 Rapporteur on the Rights of Persons deprived of Liberty Concludes Visit to the
Republic of Haiti , http://www.cidh.oas.org/Comunicados/English/2007/32.07eng.htm;
103 Fuller Anne et al.: Prolonged pretrial detention in Haiti. Vera Institute of Justice, July 2002.
104 Observations of the Inter-American Commission on Human Rights Upon Conclusion of Its April 2007 Visit to Haiti.
General Secretariat Organization of American States, Washington 2008, p. 8.
105 See for example Uganda Prison Service: Summary of UPS Prisoners. Statistical Returns October 2009. Kampala
2009, pp. 2-3, where for the South-West of Uganda it is reported that prisons hold more than the threefold of what
prisons are designed to accommodate, while in the East of Uganda the over capacity rate lies at 15%.

78

prisoners or by placing prisoners close to the communities they come from, it is evident that the ﬂow
of prisoners may aﬀect some prison facilities while others remain unaﬀected. In particular in countries
with a federal political system which leaves responsibility for the operation of criminal justice tostates or other political entities, overcrowding may be felt only in some political entities. Reports of
the General Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
provide for examples of the uneven distribution of prisoners across a prison system and point toparticular problems of prisons serving large cities where various social problems converge and fuelprison overcrowding107. Sometimes, deterioration of overcrowding comes with particular crack downs
in speciﬁc locations and related to special crime problems108.
Although, there are but few longitudinal studies on prison overcrowding, it can be assumed on
the basis of research and reports that distinct patterns of careers in overcrowding exist which canbe modeled along various economic, cultural and political conditions109. Turning points in the course
prison populations take reﬂect the impact of amnesties, changes in sentencing policies, in sensitivity
towards certain types of crime etc.110
Besides prisons, detention centers holding illegal immigrants or psychiatric hospitals
accommodating and treating insane/mentally ill oﬀenders can be aﬀected by overcrowding, too111.
Prison populations are growing in some parts of the world. However, in some regions/countries
marked decreases in prison populations have been observed in the last decade. There is evidently no
uniform trend. Even within (Federal) states prisoner rates take completely diﬀerent courses.
Finland may serve then as (a rather unique) example for a long term trend of falling numbers of

106 See for example the case of Portugal in Human Rights Council: Universal Periodic Review. Report of the Working
Group on the Universal Periodic Review. Portugal. A/HRC/13/10, 4 January 2010, No. 15; for Switzerland,Committee against Torture, Forty-second session, 26 April-14 May 2010: List of issues to be addressed during
the consideration of the sixth periodic report of Switzerland (CAT/C/CHE/6)* 18 January 2010, No. 21; Guyana,Committee Against Torture: Thirty-seventh session 6-24 November 2006, Consideration of Reports Submitted
by States Parties Under Article 19 of the Convention. Conclusion and recommendations of the Committee against
Torture (Extracts for follow-up), Guyana.
107 Human Rights Council: Seventh session. Agenda item 3. Report of the Special Rapporteur on torture and othercruel, inhuman or degrading treatment or punishment, Manfred Nowak. Addendum, Mission to Indonesia.
A/HRC/7/3/Add.7 10 March 2008, p. 13; Commission on Human Rights: Sixty-second session Item 11 (a)of the provisional agenda. Report of the Special Rapporteur, Manfred Nowak. Addendum. Follow-up to therecommendations made by the Special Rapporteur. Visits to Azerbaijan, Brazil, Cameroon, Chile, Mexico,
Romania, the Russian Federation, Spain, Turkey, Uzbekistan and Venezuela. E/CN.4/2006/6/Add. 2, 21 March
2006, p. 29.
108 CBC News: Prison overcrowding worse after Hells Angels roundup. Last Updated: Monday, April 20, 2009.
109 See for example Steinberg, J.: Prison Overcrowding and the Constitutional Right to Adequate Accommodation
in South Africa. Paper commissioned by the Centre for the Study of Violence and Reconciliation, January 2005
describing such ﬂuctuations for South Africa as do Dissel, A., Ellis, S.: Reform and Stasis: Transformation inSouth African Prisons. Center for the Study of Violence and Reconciliation, Capetown 2002 or Spelman, W.:
Crime, cash, and limited options: Explaining the prison boom. Criminology & Public Policy 8(2009), pp. 29-77 for
the United States; Ministry of Justice: Story of the prison population 1995 - 2009 England and Wales. Ministry ofJustice Statistics bulletin. London 2009, for England/Wales.
110 Giﬀard, C., Muntingh, L.: The Eﬀect of Sentencing on the Size of the South African Prison Population. Newlands
2006, V.
111 See Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families:
Consideration of Reports Submitted by States Parties Under Article 9 of the Convention. Concluding Observationsof the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. Mexico.
Fifth session, Geneva, 30 October-3 November 2006, No. 27; CPT/Inf (2010); Response of the Governmentof Austria to the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) on its visit to Austria from 15 to 25 February 2009, CPT/Inf (2010) 5,
Strasbourg, 11 March 2010, p. 36; Human Rights Watch: World Report. New York 2010, pp. 316, 350.

79

prisoners112 as are examples Germany, Portugal and The Netherlands for a more recent short term
but signiﬁcant decline of the prison population and questions linked to signiﬁcant vacancy in prison
facilities.
In Germany a steady decline brought down the prison population from 81.176 (March 31 2003)
to 73.592 in 2009 (March 31), a drop of almost 10%. The General Accounting Office of the Stateof Hamburg recently has advised the state government to respond to the dramatic decline in the
Hamburg prison population (2003: N=3.120; 2008: 2.030) through adjusting the prison budget andreducing the prison capacity accordingly113. The decline in the Hamburg prison population is due toreductions in both, the number of pretrial detainees and sentenced prisoners. In the case of sentenced
prisoners, the reduction, which is particularly marked for prison sentences above one year, was rather
due to a drop in prison admissions and not to release on parole (which has rather decreased between
2003 and 2008). The sharp decrease in prison admissions has more than neutralized an increase in theuse of indeterminate (incapacitating) measures of security and more restrictive parole decisions.
Graph 2: Prisoner Rates in the State of Hamburg 2003 - 2009

112 Lappi-Seppala, T.: Reducing the prison population: long-term experiences from Finland. In: Council of Europe(ed.): Crime Policy in Europe. Strasbourg 2006, pp. 139-155; von Hofer, H.: Nordic Criminal Statistics 1950-1995.
Stockholm 1997.
113 Rechnungshof der Freien und Hansestadt Hamburg: Jahresbericht 2009 über die Prüfung der Haushalts- undWirtschaftsführung der Freien und Hansestadt Hamburg mit Bemerkungen zur Haushaltsrechnung 2007.
Hamburg, January 8, 2009, pp. 156.

80

Model Summary and Parameter Estimates
Dependent Variable:Occupancy
Equation
LinearModel Summary

Parameter Estimates

R Square

F

df1

df2

Sig.

Constant

b1,967

555,986

1

19

,000

3183,767-68,373

Source: Statistisches Bundesamt: Rechtspﬂege Bestand der Gefangenen und Verwahrten in den deutschen
Justizvollzugsanstalten nach ihrer Unterbringung auf Haftplätzen des geschlossenen und oﬀenen Vollzugs jeweils zu
den Stichtagen 31. März, 31. August und 30. November eines Jahres. Wiesbaden 2010.

The debates ensuing at the occasion of the Hamburg General Accounting Oﬃce report demonstratethat the prison population drop was neither planned nor was it expected. It was and still is rather the(unintended) consequence of a decline in crime (in particular robbery, rape and aggravated forms ofproperty crime), furthermore a result of a long term decrease in the number of asylum seekers who
were exposed particularly to the risk of being detained prior to trial114.
The Dutch ministry of justice in May 2009 announced the closing down of 8 prisons and the lossof some 1200 prison related jobs due to a rapid decline in the number of prisoners which is assumed
to be the result of declining crime rates115. Other European countries experienced also decreases inprison populations as can be seen in graph 3, while some display a certain degree of stability in prison
admissions and prisoner rates.
Graph 3: Prisoner Rates In Europe 1987 - 2009

Sources: Walmsley, R.: World Prison Population List (eighth edition). Kings College, London 2009 as well as updated
prison data from national correctional services.
114 Albrecht, H.-J.: Criminalization and Victimization of Immigrants in Germany. In: Palidda, S. (ed): Criminalisation
and Victimization of Migrants in Europe. Agenzia X, Milano 2009, pp. 118-138.
115 www.nrc.nl/international/article2246821.ece/Netherlands̲to̲close̲prisons̲for̲lack̲of̲criminals; the ministryannounced as well that The Netherlands will sell prison capacity (500 beds) to Belgium which is suﬀering fromovercrowding.

812.3 Criminalization, Crime Rates, Growth of Prison Populations and Overcrowding

A consensus seems to exist that changes in crime rates do not contribute significantly to prison
growth and overcrowding 116. However, the assumption that crime rates are not correlated withprison growth (and overcrowding associated with that) deserves greater scrutiny. Most of the studies
assuming a non-correlation stem from North America where in fact in face of decreasing crime rates
overcrowding problems in some jurisdictions have worsened. While this assumption may hold true
for changes in crime rates in general, increases in (sensitive) crime categories which attract prison
sentences, in particular long prison sentences, during the last decades have been identiﬁed as driversof overcrowding in prisons as has the reliance on criminal law for example in the ﬁeld of public orderpolicies.
Drug oﬀences are a prominent example for penal policies which in many countries have signiﬁcantly
contributed to prison inflation. Growing public concern for marijuana, heroin and then cocaine andcrack (sometimes analyzed from the viewpoint of moral panics 117 and resulting in the declarationof wars against drugs118) internationally went hand in hand with enhanced prison sentences for all
forms of drug offences (including sometimes addicted drug users119). Changes in the structure ofprison populations which started to take eﬀect in the 1980s point to the overreliance on imprisonment
as a response to developing and expanding drug markets. Germany, for example has experienced
overcrowding problems in the 1980s as a consequence of sentence enhancements in drug laws anda corresponding wave of long prison sentences. Also for Sweden and Denmark sentencing of drug
offenders is cited as a driver of admissions to prisons and as a cause of capacity problems in thelast decades120. Increasing violence associated with drug markets in the new millennium in many
Latin American countries has generated secondary crime waves which are felt in already strainedcorrectional systems121. Evidence from the United States shows also a strong link between drug
policies, drug arrests and increases in prison populations122.
Large scale violence erupting suddenly in the form of genocide, as was the case in Rwanda, or as aconsequence of socially and politically motivated violent unrest as was the case in Haiti during the lastyears may result in a surge of the number of pretrial detainees in criminal justice systems which are
not geared towards eﬃcient handling and processing of such large numbers. But, the data on prison
overcrowding analyzed above demonstrate also that a lasting high level of general violence experienced
in a country is positively correlated with the extent of overcrowding. While such a correlation does
not say something about a causal relationship, it seems nevertheless plausible to assume that sustained
high levels of violence represent a proxy for weak state structures and with that a system of criminal
116 Hartney, C.: US Rates of Incarceration: A Global Perspective. Research from the National Council on Crime andDelinquency. Washington, November 2006; Coyle, A.: Managing prison overcrowding: A European perspective.
Rencontre Européenne des Directeurs dʼAdministration Pénitentiaire Ministère de Justice. Place Vendôme,Paris,11 July 2008. International Centre for Prison Studies, London 2008, p. 7; Cox, G.H., Rhodes, S.L.: opus
cited 1990, p. 135 presenting data from a survey of correctional administrators which show that overcrowding is
explained by administrators rather by.stricter sentencing codes and more punitive public opinion than by increases
in crime or the inability to build new prison space.
117 Cohen, S.: Folk Devils and Moral Panics. 1972; Goode, E., Ben-Yehuda, N.: Moral panics: the social constructionof deviance. Cambridge 1994.
118 Gerber, J., Jensen, E.L.: Drug War American Style - The Internationalization of Failed Policy and Its Alternatives.
New York/NY, London 2001; Caulkins, J-P., Reuter, P., Iguchi, M.Y., Chiesa, J.: How Goes the "War on Drugs"?
An Assessment of U.S. Drug Problems and Policy. RAND, Santa Monica 2005.
119 Intellasia: Indonesiaʼs drug ﬁght pushes prison Aids explosion. 5 Aug, 2009.
120 Träskman, P.O.: Drug Control and Drug Oﬀences in the Nordic Countries: A Criminal Political Failure too oftenInterpreted as a Success. Journal of Scandinavian Studies in Criminology and Crime Prevention 5(2004), pp 236256, pp. 250.
121 Ousey, G.C., Lee, M.R.: Homicide Trends and Illicit Drug Markets: Exploring Diﬀerences Across Time. Justice
Quarterly 24(2007), pp. 48-79; Reuter, P.: Systemic violence in drug markets. Crime, Law & Social Change
52(2009), pp. 275-284.
122 Gottschalk, M.: Money and mass incarceration: The bad, the mad, and penal reform. Criminology & Public Policy
8(2009), pp. 97-109, p. 99.

82

justice which lacks the means to deal eﬀectively with large numbers of serious crime.
While the emergence of new social problems, the eruption of large scale violence or systemic
violence may influence the course prison populations take, a third example for crime impacting on
prisons and causing prison inflation refers to general public order offences. Reports from various
world regions have raised questions as regards the role old criminal law plays for prison congestion.
Anachronistic colonial law has been cited as a cause of prison overcrowding in some Africancountries. Criminal law which sends scores of people to detention facilities for vagrancy, prostitution,loitering or failing to pay debts may indeed have an inﬂationary impact on the prison population. Underconditions of economic problems and large scale poverty there will be no shortage of a constant supply
of detainees if such laws are strictly enforced123.

2.4 A Growing Demand for Punishment and Reliance on Imprisonment: Punitivity,
Imprisonment and Overcrowding

Increases in prison entries as well as increases in sentence length (and increases in the subsequent
length of stay in the prison system) have been specified as major contributors to the inflation ofprison population and overcrowding124. However, it has been argued on the basis of cross-national
research also that sentence length is not necessarily correlated strongly with prison inﬂation and thatdiversity prevails which makes it diﬃcult to generalize longer prison sentences - more overcrowding
assumptions125.
Reports from many country underline then that over the last decades the public became morepunitive, less supportive of rehabilitation and demands for tougher responses to crime126. Demand forpunishment becomes visible in the increase in long term prison sentences127. In fact, in many criminal
justice systems minimum and maximum penalties have been raised and minimum sentences have been
introduced in particular for violent and sexual criminal oﬀences during the last decade128. Extended
minimum sentences will have lagged eﬀects on prison populations; their impact will be felt long after
their introduction129.
Life imprisonment in some countries has been introduced to respond to a broad range of oﬀences
going far beyond its conventional use for ﬁrst degree murder130 and expanding the group of prisoners
serving life sentences sometimes extremely131. The introduction of Truth in Sentencing policies,
123 Sekhonyane, M.: Prison reform in Africa: recent trends. CSPRI Newsletter, No. 10 April 2005.
124 Kuhn, A.: What can we do about prison overcrowding? European Journal on Criminal Policy and Research
2-4(1994), pp. 101-106, p. 104; Tournier, P.V.: The Prisons of Europe. Prison Population, Inﬂation and Prison
Overcrowding. Penal Issues 2000, pp. 6-9; see also Carter, P.: Lord Carterʼs Review of Prisons. Securing thefuture. Ministry of Justice, London 2007 noting that in England/Wales approximately 70% of the increase indemand for prison places between 1995 and 2005 resulted from changes in custody rate and sentence length.
125 Aebi, M.F., Aubusson de Cavarlay, B., Stadnic, N.: Entrées en Prison et Durées de Détention. La Diversité
péntitentiaire en Europe. Questions Pénales, Bulletin dʼInformation, 2007 - XX.2.
126 Miyazawa, S.: The politics of increasing punitiveness and the rising populism in Japanese criminal justice policy.
Punishment & Society 10(2008), pp. 47-77; Giﬀard, C., Muntingh, L.: The Eﬀect of Sentencing on the Size of theSouth African Prison Population. Newlands 2006, p. 16.
127 See for example Lambropoulou, E.: Crime, Criminal Justice and Criminology in Greece. European Journal of
Criminology 2(2005), pp. 211-247, p. 223.
128 Miyazawa, S.: opus cited, 2008, pp. 59 for Japan; Terblanche, S., Mackenzie, G.: Mandatory Sentences in South
Africa: Lessons for Australia? The Australian and New Zealand Journal of Criminology 41(2008), pp. 402-420.
129 Terblanche, S., Mackenzie, G.: Mandatory Sentences in South Africa: Lessons for Australia? The Australian and
New Zealand Journal of Criminology
41(2008), pp. 402-420, p. 410.
130 van Zyl Smit, D.: Taking Life Imprisonment Seriously. The Hague 2002; Steinberg, J.: Prison Overcrowding andthe Constitutional Right to Adequate Accommodation in South Africa. Paper commissioned by the Centre for the
Study of Violence and Reconciliation, January 2005.
131 See Nellis, A., King, R.S.: No Exit. The Expanding Use of Life Sentences in America. Washington 2009, where it
is reported that in the United States 140.610 prisoners are serving life sentences, out of which 41,095 do not havethe possibility of parole, the highest proportion of life sentences relative is reported from California, where 20% of
the prison population is serving a life sentence.

83determinate sentencing, mandatory minimum penalties, three and two strikes laws and ultimately
the move towards a new architecture of security which assigns security a prominent role within thegoals of criminal law and criminal punishment have been interpreted as indicating a paradigm shift132.
Attention shifted away from the oﬀender and individualization of punishment to seriousness of crimeand deterrent punishment (or had never changed from being directed at punishment133). The newconcern for the victim and protection of potential victims certainly is a visible expression of suchchanges. These changes have been interpreted also as indicating a pervasive penal populism on
the side of politicians pushing for harsher penalties especially for recidivists134 and as a gap between
criminal justice practitioners and researchers interested in evaluating the substance of criminal justicepolicies on the one hand and politicians interested in sending out messages to the public on the otherhand135. But, it is rather a fragmentation of theory and politics of criminal punishment once uniformly
organized around prevention through rehabilitating and re-integrating criminal offenders whichcharacterizes today systems of criminal justice. While security orientation and punitive responses infact prevail with respect to oﬀender groups deemed dangerous and a threat to public security (suchas sexual and violent offenders), alternatives to imprisonment, community sanctions, intermediate
penalties, mediation and restorative justice approaches, most recently a new interest in designingeﬀective re-entry programs for ex-convicts still ﬁgure prominently on crime policy agendas136.
Statutory frameworks of sentencing which allow for grossly inﬂated periods of imprisonment137 andthe imposition of consecutively running prison sentences for multiple crimes add to the rise of long
prison sentences138. Particular attention should be devoted to life prison sentences and here to life
without parole139.
Placing emphasis on long prison terms and life prison sentences should not prevent to consider the
impact of short term imprisonment on capacity problems, too. Short prison sentences point toward aparticular group of oﬀenders, persistent or chronic oﬀenders, who pose special problems and resultin a heavy burden for correctional systems. The frequency of re-oﬀending and reconvictions causes
considerable costs and over the long run puts pressure on prison capacity140; moreover, persistentoﬀenders demonstrate limits of prison based rehabilitation.

2.5 Failed Alternatives to Imprisonment and Recalls for Parole Violations

Alternatives to imprisonment such as fines, day fines, community service, electronicallymonitored house arrest and probation/suspended sentences have been incorporated into systemsof criminal sanctions successfully during the last decades. Despite its abolition in some countries,
early release on parole remains an important instrument in most correctional systems. Alternatives
to imprisonment and parole, however, carry a risk of imprisonment in case of failure to pay a ﬁne,violations of conditions coming with alternatives or re-offending. Fines are particularly prone to beconverted into substitute imprisonment under conditions of poor economic circumstances and large
scale poverty. Reports from countries where extreme poverty prevails demonstrate that signiﬁcant

132 Tonry, M.: opus cited 2007, pp. 353-354.
133 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,
Manfred Nowak, Mission to the Republic of Moldova. A/HRC/10/44/Add.3, 12 February 2009, No. 57.
134 Daems, T.: Engaging with penal populism. The case of France. Punishment & Society 9(2007), pp. 319-324.
135 Tonry, M.: Criminology, Mandatory Minimums, and Public Policy. Criminology & Public Policy 5(2006), pp. 4556, pp. 51.
136 Lynch, J.P.: Prisoner Reentry: Beyond Program Evaluation. Criminology & Public Policy 5(2006), pp. 401-412.
137 Mauer, M.: The Hidden Problem of Time Served in Prison. social research 74(2007), pp. 701-706; Blogs.ﬁndlaw.
com/blotter/2009/06/100-year-sentence-for-teen-sex-offender-with-47-iq-concurrent-sentences-fair.html;
Terreblanche, S.: Sentencing: Changes and eﬀect since 1994. www.csvr.org.za/wits/confpaps/terreblanche.htm.
138 Ashworth, A.: Sentencing and Criminal Justice. 4th ed. Cambridge 2005, pp. 248.
139 For a review of positions of the South African and Namibian Supreme Courts on life without parole see
Terreblanche, S.: Sentencing: Changes and eﬀect since 1994. www.csvr.org.za/wits/confpaps/ terreblanche.htm.
140 Report by the Comptroller and Auditor General: Managing oﬀenders on short custodial sentences HC 431 Session
2009-2010. London, 10 March 2010, p. 4.

84

numbers of oﬀenders are imprisoned because they could not pay even small ﬁnes141. Recalls to prisonof parolees have contributed in some countries to the increase of prison populations. For England/
Wales it has been observed that a growing number of prisoners are in prison because parole has been
revoked. Parole violators make up for almost 40% of prison admissions in California142. The majority of
revocations takes place after technical violations, few are the result of further oﬀending143. Researchshows also that changes in revocation patterns are rather explained by changes in the sensitivity
towards parole violations than to changes in the actual behavior of parolees144. In face of clear evidence
that returning parolees to prison for technical violations of parole (which essentially will be theconsequence of the intensity of supervision) will not lead to a decrease in recidivism145, particularattention should be given to the statutory framework of revocation of suspended sentences and parole.
Poor and unsettled oﬀenders turn out to fuel prison inﬂation in diﬀerent contexts. In developing
countries poverty is at the core of the problem of failure due to persons not being able to pay evenmall amounts of ﬁnes or bail. Sanction systems which do not provide for alternatives to alternatives tocustody are doomed to fail in the attempt to overcrowding relief. In the European context unsettled
offenders are equated with immigrants, in particular illegal immigrants. This group of unsettled
offenders is often assessed to be not suited for alternative or community penalties as (illegal)
immigrants do not exhibit strong bonds to the community and therefore are perceived as particularrisks in decisions on pretrial detention and in decisions on alternatives to imprisonment.

2.6 Pretrial Detention

Root causes of overcrowding then have been identiﬁed in statutory frameworks and practices ofpretrial detention. Signiﬁcant proportions of unsentenced detainees at the prison population at large
are observed in some regions146. The information on display in table 1 above certainly demonstrates
that there is a strong and significant correlation between pretrial detention and the extent ofovercrowding. However, the strength of the correlation varies along countries (and regions). The
correlation between pretrial correlation and overcrowding may be explained by diﬀerent factors.
First, it may be a delay in processing cases through the system which keeps pretrial detainees
behind bars for lengthy periods of times 147. Such delays may be the consequence of legal andprocedural problems, but also a result of practices which do not consider adequately needs to deﬁne
priorities in clearing backlogs of cases.
Second, a high share of pretrial detainees may be caused by criminal courts making excessive useof pretrial detention. This again may be a result of a statutory framework which does not provide forviable alternatives to pretrial detention or a result of practices which despite available alternatives do
not make adequate use of such instruments148.

141 www.pﬁ.org/Home/Centre for Justice and Reconciliation/News/Partnership for Addressing Prison Overcrowding
in South Africa.
142 Legislative Analysts̀s Oﬃce: Prison Overcrowding - An Overview On Construction and Rehabilitation. Senate
Public Safety Committee February 19, 2008 p. 5.
143 Padﬁeld, N., Maruna, S.: The revolving door at the prison gate: Exploring the dramatic increase in recalls toprison. Criminology and Criminal Justice 6(2006), pp. 329-352, pp. 330-332.
144 Reitz, K.: Questioning the Conventional Wisdom of Parole Release Authority. In: Tonry, M. (ed.): The Future of
Imprisonment in the 21st Century. New York 2004, pp. 199-235; Padﬁeld, N., Maruna, S.: opus cited, 2006, pp.
337.
145 Petersilia, J., Turner, S.: Intensive Probation and Parole. In: Tonry, M. (ed.): Crime and Justice. An Annual
Review of Research, Vol. 19, Chicago 1993, pp. 281-335.
146 Zepeda Lecuona, G.: Myths of Pretrial Detention in Mexico. Monterrey 2005, p. 7; Schönteich, M.: The Scale
and Consequences of Pretrial Detention around the World. In: Open Society Institute (ed.): Justice Initiatives.
Pretrial Detention. New York 2008, pp. 11-43.
147 ICRC: Philippines: protecting life and dignity in places of detention. ICRC Bulletin No. 01/2010, 3 February 2010.

85

2.7 Summary: The Need for Country Specific Research

Research has dealt with various approaches to explain increases (to a lesser extent decreases)
in prison populations. Increases in prisoner rates are commonly linked to a growth in the demandfor punishment. Public opinion has been seen to be crucial in understanding the increase in prison
populations in some countries149. However, it is evident that the course of imprisonment and the trends
in the size of prison populations do not follow a common set of variables or conditions. Developments
in prison populations and overcrowding are diverse and reﬂect - as Tonry/Farrington recently havepointed out - idiosyncracies which necessitate careful analysis of individual national systems of criminal
justice150. Research on prison overcrowding (speciﬁcally: on the increase and decrease in the size ofprison populations) has demonstrated that those conditions aﬀecting the size of the prison population
are manifold and diﬀer from system to system. Such conditions vary along historical, legal, economic
and cultural particulars. They are dependent on past experiences and speciﬁc political structures. In
a recent analysis of US prison data covering the period 1977 to 2005 Spelman concluded that the best
predictors of the size of prison populations are crime, sentencing policy, prison overcrowding andstate spending (on prisons)151. Prison overcrowding thus may be part of the onset of a political process
where due to a lack of imagination of other options than building new prisons spending on prisons
results in a dynamic which reiterates political decisions and at the same time boosts the potential forovercrowding. The conclusion that the massive prison built up in the United States was not inevitable(and with that the overcrowding problems coming with it) is underlined by the successful reductionof the institutional population of the mentally ill in the 1970s and 1980s (through providing federal
ﬁnancial incentives for deinstitutionalization policies) and points to the crucial role of decisions made in
the political system152.
Policy recommendations addressing measures against prison overcrowding therefore should bebased on careful analysis of individual systems and cover the pretrial phase, in particular pretrial
detention, sentencing (and factors influencing sentence length), post adjudication and post releasedecision making (including also pardon and amnesty practices). Substantive knowledge on how
offenders are processed, information on sentencing and on post adjudication processes as well as
correctional decision-making is needed in order to tailor policies to the speciﬁc conﬁgurations found ina speciﬁc country. Cross-cultural research on crime, punishment and corrections, however, indicatesthat national data sources exhibit fundamental problems and inadequacies 153, which make it diﬃcult (ifnot impossible) to draw and to generalize conclusions.
What remains also unaccounted for concerns the questions why prison populations remain stableor decrease and why criminal justice systems evidently do not learn from past experiences. Prison
overcrowding refers to an old policy and research issue. As early as in the 1970s (when in particular
new criminal oﬀence statutes and long prison sentences imposed for drug oﬀences resulted in a waveof admissions to prison facilities) research has focused on the problem of overcrowding and how to
respond to overcrowding. There is a wealth of research reports and policy proposals, all of whichbasically suggest the same remedies (against prison overcrowding as well as against prison inﬂation) 154.

148 See for example Commission on Human Rights: Report of the Special Rapporteur, Manfred Nowak. Addendum.
Follow-up to the recommendations made by the Special Rapporteur. sits to Azerbaijan, Brazil, Cameroon, Chile,
Mexico, Romania, the Russian Federation, Spain, Turkey, Uzbekistan and Venezuela. E/CN.4/2006/6/Add.2,
21 March 2006, pp. 53-54, where it is stated that despite the possibility to release suspects on bail and public
approval of such measures, release on bail is very rarely used in practice.
149 Freiberg, A., Gelb, K.: Penal populism, sentencing councils and sentencing policy. In: Freiberg, A., Gelb, K.
(eds.): Penal Populism, Sentencing Councils and Sentencing Policy. Cullompton 2008, pp. 1-14, p. 3.
150 Tonry, M., Farrington, D.P.: Punishment and Crime across Space and Time. In: Tonry, M., Farrington, D.P.
(eds.): Crime and Punishment in Western Countries, 1980 - 1999. Crime and Justice. A Review of Research. Vol.
33, Chicago, London 2005, pp. 1-39.
151 Spelman, W.: Crime, cash, and limited options: Explaining the prison boom. Criminology & Public Policy 8(2009),
pp. 29-77.
152 Spelman, W.: opus cited, 2009, p. 73.
153 Tonry, M., Farrington, D.P: opus cited, 2005, p. 11.

86However, despite the calls for alternatives to imprisonment, better rehabilitation programs, alternative
measures for drug addicts and the mentally ill, less reliance on imprisonment and the recognition of
the last resort principles, policy makers sometimes adopt instruments which propel criminal justicesystems deeper into capacity problems. So, for example in the 1990s, the impact of three strike laws
and harsher sentencing in general on the Californian criminal justice system was correctly predicted155.
Research predicted huge costs and few returns in the form of more security156. In general, it iswell established through research that prison does not pay off in terms of less recidivism or moredeterrence compared with alternatives to imprisonment157. However, it was only after the ﬁnancial
burden became too heavy and courts started to demand for immediate and eﬀective reductions of theprison population that politicians initiated signiﬁcant changes. In fact, there do not seem to exist many
windows of opportunity for passing knowledge from research to the political system 158 in order todevelop evidence based correctional policies.

3. Effects of Overcrowded PrisonsOvercrowded prisons have a negative impact on all conditions of imprisonment and intended
consequences of imprisonment159. Several eﬀects of overcrowding may be distinguished. Overcrowding
results first of all in a restricted living space and associated losses of privacy and human dignity(which will in turn aﬀect trust and conﬁdence of prisoners in the legitimacy of prison regimes). Then,overcrowding may result in a reduction of general services to be provided in a prison facility in order
to comply with standards set for access to medical treatment, sanitary equipment and educational,
training or rehabilitative programs160. Rehabilitative needs may be aﬀected also through assigning low
risk prisoners to maximum security units because other prison space is not available161. In particular substandard medical treatment and an environment prone to the spread of infectious diseases have been
noted in this context162. As prison populations exhibit higher rates of certain infectious diseases, insome world regions these include besides HIV and hepatitis (b, c) in particular tuberculosis, programs
to deliver eﬀective treatment are impeded as are policies to prevent the transmission of diseases within
the prison itself163; after release from prison of course, the threat of further transmission extends to
the general public164.
154 Petersilia, J.: Inﬂuencing public policy: an embedded criminologist reﬂects on California prison reform. Journal of
Experimental Criminology 4(2008), pp. 335-356.
155 Parent, D., Dunworth, T., McDonald, D., Rhodes, W.: Key Legislative Issues in Criminal Justice: Mandatory
Sentencing. National Institute of Justice, Washington, January 1997, p. 4.
156 Stolzenberg, L., DʼAlessio, S.J.: Three Strikes and Youʼre Out : The Impact of Californiaʼs New Mandatory
Sentencing Law on Serious Crime Rates. Crime Delinquency 43(1997), pp. 457-469.
157 von Hirsch, A., Bottoms, A., Burney, E., Wikstroem, P.-O.: Criminal Deterrence and Sentence Severity: ananalysis of recent research. Oxford 1999; Shepherd, J.: The Imprisonment Puzzle: Understanding How Prison
Growth Aﬀects Crime. Criminology & Public Policy 5(2006), pp. 285-298, p. 285; Aos, S., Miller, M., Drake, E.:
Evidence-Based Public Policy. Options to Reduce Future Prison Construction, Criminal Justice Costs, and Crime
Rates. State Institute for Public Policy, Washington 2006; Marsh, K., Fox, C., Hedderman, C.: Do You Get What
You Pay for? Assessing the Use of Prison from an Economic Perspective. The Howard Journal for Penal Reform48(2009), pp. 144-158.
158 Tonry, M.: opus cited, 2006, p. 54.
159 Fry, L.J.: Continuities in the determination of prison overcrowding eﬀects. Journal of Criminal Justice 16(1988),
pp. 231-242.
160 Walmsley, R.: Prison health care and the extent of prison overcrowding. International Journal of Prisoner Health1(2005), pp. 9 - 12.
161 Petersilia, J.: Understanding California Corrections: Summary. UC Irving Center for Evidence Based Corrections
2006, p. 2.
162 Sarkin, J.: An overview of human rights in prisons worldwide. In: Sarkin, J. (ed.): Human Rights in African
Prisons. Capetown 2008, pp. pp. 1-39, p. 19; Human Rights Council: Seventh session. Agenda item 3. Reportof the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred
Nowak. Addendum, Mission to Indonesia. A/HRC/7/3/Add.7 10 March 2008, p. 13.
163 Winarso, I., et al.: Indonesian National Strategy for HIV/AIDS control in prisons: A public health approach for
prisoners. International Journal of Prisoner Health 2(2006), pp. 243 - 249
164 Declaration on Principles of Cooperation Between Prison Health and Public Health Services and Development of a
Safer Society. Adopted during the 6th Partnership Annual Conference on 25 November 2009, Oslo, Norway, p. 3.

87

Small prison health budgets, a high share of prisoners with infectious diseases (especially drug
offenders) and overcrowding reinforce each other165. Higher rates of suicide have been assumed tofollow conditions of overcrowding166. The fall of staﬀ/inmate ratios may have adverse consequences
for personal security, the implementation of prison visits and the admission to prison leave programs.
A negative impact on family visits and an infringement on the right to family life (see for example Art.
8 ECHR) may come as a side eﬀect of overcrowding relief policies which result in the transfer feom
overcrowded facilities to less crowded but far away prisons167. Higher levels of prison violence indeed
have been reported from many countries168. The General Rapporteur in a report on the prison situationin Paraguay has hinted to a prison where 3,000 detainees are guarded by 40 guards per shift and has
pointed to severe safety problems coming through inter-prisoner violence, but also through uncontrolled
drug traﬃcking within prison walls169.
Overcrowding in some instances is associated with the overuse of prison sentences and thus
associated with imprisoning a larger share of - normally - young men from minority groups anddisadvantaged neighborhoods170. In particular, mass imprisonment is considered to impact heavily
on the uneducated and poor groups in a society and its major effect has been perceived to be thereinforcement of social inequality 171. Overuse of imprisonment results in re-entry problems andcommunities burdened with a high rate of ex-convicts 172 and exposed to erosion of the capacity of
informal control173. iIt has been assumed also that serving a prison sentence under conditions ofovercrowding may increase the risk of re-oﬀending upon release174.
Overcrowding then aﬀects prison staﬀ with working conditions that create stress and situations of
non-compliance of international and national standards of accommodating prisoners175. Overcrowding
is linked to violations of normative standards and statutory law. Separation principles, in particularseparation of sentenced and remand prisoners, juvenile detainees and adult prisoners, are sometimes
at risk of being not complied with.

165 The PEW Center on States: opus cited, 2008, p. 12.
166 The Howard League for Penal Reform: Brieﬁng paper on prison overcrowding and suicide. October 2005; Leese
M, Thomas S., Snow L.: An ecological study of factors associated with rates of self-inﬂicted death in prisons in
England and Wales. International Journal of Law and Psychiatry 29(2006), pp. 355-360; however, see also Fazel, S.,
Grann, M., Kling, B., Hawton, K.: Prison suicide in 12 countries: an ecological study of 861 suicides during 20032007. Social Psychiatry and Psychiatric Epidemiology 45(2010, published online) who do not ﬁnd a correlation
between overcrowding and suicide rates.
167 Memorandum from The Prison Reform Trust. www.parliament.uk.
168 Baker, J. et al.: opus cited, 2002, pp. 33-34.
169 Human Rights Council: Seventh session. Item 3 of the agenda. Report of the Special Rapporteur on torture andother cruel, inhuman or degrading treatment or punishment, Manfred Nowak. Addendum. Mission to Paraguay.
A/HRC/7/3/Add.3, 1 October 2007, p. 18.
170 Petersilia, J.: When Prisoners Return to the Community: Political, Economic, and Social Consequences.
Sentencing & Corrections. Issues for the 21st Century. National Institute of Justice, Washington 2000.
171 Western, B.: Mass Imprisonment and Economic Inequality. social research 74(2007), pp. 509-532, p. 530.
172 Mukamal, D.A.: Introduction: Consequences of a Carceral State. social research 74(2007), pp. 569-573.
173 Clear, T.R., Rose, D.R.: When Neighbors Go to Jail: Impact on Attitudes About Formal and Informal Social
Control. National Institute of Justice, Washington 1999.
174 Steinberg, J.: Prison overcrowding and the constitutional right to adequate accommodation in South
Africa. Centre for the Study of Violence and Reconciliation, Capetown 2005, p. 7.
175 International Centre for Criminal Law reform and Criminal Justice Policy: International Prison Policy Development
Instrument. Vancouver 2001; Baker, J. et al.: opus cized, 2002, pp. 36; The Correctional Investigator Canada:
Annual Report of the Oﬃce of the Correctional Investigator 2008-2009. Ottawa 2009, p. 31.

88

4. Addressing Prison Overcrowding Effectively
4.1 Overcrowding and Remedies Against Overcrowding: Well Known Agendas

Overcrowding has been on international and national policy agenda since decades. Insofar, it does
not come as a surprise that strategies to reduce overcrowding have been extensively discussed andwidely disseminated176. In general, approaches to deal with prison overcrowding refer to reduction ofadmissions to prison and detention and reduction in the length of the stay177.
Strategies to achieve the goals of reductions in admissions and length of stay include the use ofalternatives to penal prosecution (diversion), the recognition of restorative justice approaches, theuse of traditional justice, decriminalization, reducing the numbers of unsentenced prisoners througheﬀective o-operation between the police, the prison services and the courts to ensure speedy trials
and effective case management, recognition of the last resort principle, better access to defense
councils and greater use of paralegals in the criminal process, setting targets for reducing the prison
population, increased use of proven effective alternatives, imposition of sentences of imprisonment
only for the most serious oﬀences and as a last resort and for the shortest time possible, considerationof prison capacity when determining decisions to imprison and the length and terms of imprisonment,
implementation of early and conditional release schemes, promotion of promising models for
replication, promotion of regional and international Charters on Prisoners' Rights, pushing the political
will to change and reform178. Operation of prison systems within the limits of officially establishedprison capacity usually is also explained by complying with and implementing the above mentioned
strategies and guidelines179.
Full consent then seems to exist on a two pronged approach of implementation which on the one
hand identiﬁes the measures with which to reduce/combat etc. prison overcrowding and on the other
hand gets the measures accepted . Of course, strategies have to be implemented and the key
players must understand, must be convinced , must be helped to understand (the cost of prisons)180,
however, the course prison overcrowding takes during the last decades and in particular in recent
years underline that criminal justice and prison policy is dependent on political will and social andeconomic conditions which evidently provide for diﬀerential structures of opportunities. Overcrowding
evidently is recognized and understood to represent a grave problem; however, policy options whichinflate prison populations are obviously more attractive. Overcrowded prisons and prison reform
are not dealt with as priority issues in political systems181. Moreover, cultural contexts have to beconsidered when developing policies to deal with overcrowded prisons. Solutions to overcrowding haveto deal with the complexity of the decision making processes which have generated overcrowding182.
Such complexities are certainly due to the elaborate normative structure which determines limits ofpowers of individual state actors and fragmentizes criminal justice. Insofar, proposals to address prison
176 See for example Report on the Conference to Develop Strategies to Combat Overcrowded Prisons. Held at
Pretoria/Tshwane from 14 to 16 September 2005; European Federation of Public Service Unions,Trade Unionsand Prison Services in Europe: Seminar on 19 May 2005, Luxembourg Discussion Document. Brussels 2005;
Dankwa, V.: Overcrowding in African Prisons. In: Sarkin, J. (ed.): Human Rights in African Prisons. Capetown
2008, pp. 83-92, p. 89.
177 The PEW Center on States: One in 100: Behind Bars in America 2008. Washington 2008, p. 20.
178 Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reforms in Africa, Wed, 25 Feb
2004; Taylor Griﬃths, C., Murdoch, D.J.: Strategies and Best Practices against Overcrowding in Correctional
Institutions. The International Centre for Criminal Law Reform and Criminal Justice Policy, Vancouver 2009.
179 Kitada, M.: Prison Population in Asian Countries: Facts, Trends and Solutions. United Nations Programme
Network Institutes Technical Assistance Workshop,: World Prison Population: Facts, Trends and Solutions.
Vienna, May 10, 2001, pointing to strict observation of law and speedy processing of cases, restricted use of
pretrial detention, effective use of alternatives to imprisonment and parole as an explanation of the lack ofovercrowding in the Japanese prison system.
180 See for example Walmsley, R.: opus cited 2003, p. 75.
181 Sekhonyane, M.: Prison reform in Africa: recent trends. CSPRI Newsletter No 10 April 2005.
182 Kaufman, G.: The National Prison Overcrowding Project: Policy Analysis and Politics, a New Approach. The
ANNALS of the American Academy of Political and Social Science 1985; 478; pp. 161 - 172, p. 162.

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overcrowding on the basis of a system-wide approach183, rather than one centered only on the prison
system alone, are limited. Comprehensive approaches, furthermore, generate and boost the very
complexity they are intended to deal with.

4.2 Normative Guidelines

Prisons and other places of deprivation of liberty fall under a normative framework of national andinternational law on the basis of which overcrowding and its implications for prisoner human rights
situations are evaluated. International human rights instruments such as the International Covenant
on Political and Civil Rights and the UN Convention Against Torture contain prohibitions of inhumanand degrading punishment and treatment as do regional human rights instruments like the European
Convention on Human Rights (Art. 3), the European Convention Against Torture, the American
Convention on Human Rights (Art. 5) or the African Charter on Human and Peopleʼs Rights (Art. 5).
Hard international law is supplemented by soft law which comes in the form of Minimum Standards,
recommendations, moreover the United Nations have published Best Practice Handbooks which shallprovide for guidance in developing and implementing prison reform and alternatives to imprisonment.
Apart from norms which give human dignity and the prohibition of cruel, inhuman and degrading
punishment a central place in the operation of prisons and prison reform, international instruments
contain other rules which are of relevance for developing responses to overcrowding. Among suchrules the last resort principle when it comes to imprisonment certainly plays a signiﬁcant role as
it expresses (for example in the Child Convention or in the UN Standard Minimum Rules for NonCustodial Measures) a clear message that deprivation of liberty must be speciﬁcally justiﬁed and should
not be used as routine punishment. Furthermore, the United Nations Conventions, Standards andGuidelines give clear priority to the goal of rehabilitation; they embrace a set of procedural principles
which adopt relevance in the context of overcrowding (pretrial detention as a last resort, presumptionof innocence, speedy trial rules etc.).
Implementation of international law is monitored by human rights bodies and Special Rapporteurson the basis of regular state reports, country visits and individual complaints. National prison law
contains in various forms mechanisms which shall allow for transparency and independent supervisionof prison conditions. It is certainly not surprising that overcrowding plays a prominent role on theagenda of international and national actors in the ﬁelds of human rights, crime and security policy andprison reform.
There is no shortage of proposals as to which remedies are available to reduce prison overcrowding.
The Council of Europe has issued a fully elaborated set of recommendations with respect to responses
to prison overcrowding as early as 1999184. Recommendations as regards prison overcrowding are partof the Kampala Declaration and various other documents. These recommendations reiterate many
principles which have been outlined in United Nation Conventions, Standards and Rules. A common
perspective concerns that prison overcrowding and prison population growth represent a major
challenge to prison administrations and the criminal justice system (in terms of human rights and of theeﬃcient management of penal institutions). Reference is made then to factors driving prison growthsuch as the crime situation in general, system of criminal sanctions and sentencing practices favoring
imprisonment, community sanctions, pretrial detention practices, effectiveness of criminal justiceand public attitudes. The need for embedding measures aimed at combating prison overcrowding in a
183 See for example Penal Reform in Africa: Index on good practices in reducing pre-trial detention. PRI 2005,
stressing the need for participation of all agencies in the criminal justice system.
184 Recommendation No. R (99) 22 of the Committee of Ministers to Member States Concerning Prison Overcrowding
and Prison Population Inﬂation; these recommendations are part of a series of recommendations geared towards
regulation of alternatives to imprisonment and acceptable conditions of detention: Recommendation Rec(2000)22
on improving the implementation of the European rules on community sanctions and measures, Recommendation
Rec(2003)22 on conditional release (parole), Recommendation Rec(2003)23 on the management by prison
administrations of life sentence and other long-term prisoners, Recommendation Rec(2006)2 on the European
Prison Rules, Recommendation Rec(2006)8 on assistance to crime victims and Recommendation Rec(2006)13 on
the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse.

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coherent and rational crime policy is stressed. Particular attention is paid to the basic principles of ruleof law and democracy while underlining also the need for support by criminal justice practitioners andthe public and ﬁnally also the need for balanced information on the eﬀectiveness of criminal punishment
and the reality of prisons. When it comes to concrete recommendations, a standard principle concerns
classiﬁcation of prison sentences as a last resort restricted to crimes of a degree of seriousness which
would make any other sanction clearly inadequate . Prison construction programs as a response to
overcrowding are considered exceptional measures which do not oﬀer a lasting solution to a situation of
overcrowding. Indeed, experiences made in the US and in England/Wales underline the salience of thisrecommendation185. Recommendations then concern the provision for a range of community sanctions(or alternatives of imprisonment such as probation, suspended prison sentences with conditions
attached, electronically monitored house arrest (intensive probation), victim-offender-reconciliationand community service) as well as decriminalization or downgrading certain types of oﬀences so thatthey do not attract prison sentences. Lengthy prison sentences should be reduced as far as possible
while short term imprisonment should be replaced by community sanctions. It is recommended also
to consider treatment obligations in appropriate cases. From a practical perspective it is evident thata maximum capacity should be deﬁned for every penal institution. Coping with prison overcrowding
should be guided ﬁrst of all by a clear consideration of human rights and minimum standards as regards
accommodation of prisoners. Enforcement of prison sentences allow for the use of modalities suchas open prison regimes, prison leave, electronically monitored house arrest and may be used also
to compensate for hardships coming with prison overcrowding (contacts with the outside world).
Particular emphasis is laid on alternatives for pretrial detention; diversion and out-of court settlementof cases are mentioned. It is then interesting to note that prosecutors and judges are encouraged tobear in mind prison capacity when applying and deciding on the criminal sentence. But of course,
individual sentencing decisions cannot be made dependent on the availability of prison space. The
legislators are then encouraged to set sentencing rationales which are suited to enhance the useof community sanctions instead of prison sentences and to consider carefully the role of mitigating
and aggravating factors, in particular the role of previous convictions in the decision on criminal
punishment. The role of community sanctions and measures is highlighted and attention is drawn
to making such sanctions credible alternatives to short terms of imprisonment. Credibility is seen
also as being dependent on their eﬀective implementation, in particular through the provision of theinfrastructure for the execution and monitoring of such community sanctions, not least in order to give
judges and prosecutors conﬁdence in their eﬀectiveness; conﬁdence then refers to the development
and use of reliable risk-prediction and risk-assessment techniques as well as supervision strategies,
with a view to identifying the oﬀender's risk to relapse and to ensuring public protection and safety.
Individualized measures, such as early conditional release (parole) are assessed to be superior overcollective measures for the management of prison overcrowding (amnesties, collective pardons). In
particular, parole is regarded as one of the most eﬀective measures in attempts to reduce the lengthof imprisonment and smooth return of the oﬀender to the community. Eﬀects are also expected from
effective programs for treatment during detention and for supervision and treatment after release
which should contribute to facilitating rehabilitation of oﬀenders and reducing recidivism.
In fact, revolving door problems and high rates of recidivism after imprisonment still pose many
problems which are not solved186. In particular the question under what conditions prison regimes may
reduce the risk of re-oﬀending (and subsequent prison sentences) needs to be answered187.

4.3 The Public, Imprisonment and Prison Overcrowding

Research rarely addresses public attitudes towards prison overcrowding and acceptable instruments
to resolve such problems. In general, it was found that the public is not interested in prison policy188.
185 See in particular Spelman, W.: opus cited, 2009.
186 O'Donnell, I., Baumer, E.P., Hughes, N.: Recidivism in the Republic of Ireland. Criminology and Criminal Justice8(2008), pp. 123-146.
187 Gottfredson, D.M.: Eﬀects of Judges Sentencing Decisions on Criminal Careers. Washington, National Institute ofJustice 1999.
188 Conrad, J.: Corrections and Its Constituencies. Prison Journal 64(1984), pp. 47-55.

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The constituency for prisons is evidently narrow, specialized and not influential. A study from the
1980s revealed for the United States that substantive support was voiced for community sanctions
and good time policies in prisons. The public rather disapproved prison construction programs aswell as more discretionary power for parole boards and rejects reduction in sentence length189. The
International crime survey provides for comparative attitudes on sentencing. The data for 2005 showthat there is a divide with some regions favoring community service over imprisonment190 while othershow signiﬁcant support for imprisonment191. On the other hand public opinion in Europe certainly does
not adopt the view that more imprisonment will reduce crime192.

4.4 Responding to Prison Overcrowding: What Works and What is Promising?

4.4.1 Recommendations and General Restraints
There are certainly no states of denial on the side of states and criminal justice officials when it
comes to recognizing overcrowding problems. State parties to human rights instruments usuallyacknowledge the facts and problems found by Rapporteurs and Commissions, although sometimes
debates arise on the issue of how overcrowding should be defined. Clues for understanding the
response of states to overcrowded prisons possibly can be found in the process of monitoring andthe reactions to ﬁndings and decisions of Human Rights Courts, Commissions and Rapporteurs. The
European Court on Human Rights when dealing with situations of overcrowding ﬁrst recognized thestructural problems which are evidently behind sustained and long term overcrowding which areneither denied nor intended by the state party. The European Court encouraged the development of aneﬃcient system of complaints to the Prison Service and the authorities supervising detention facilities,
which were best placed to take appropriate measures speedily193. It is therefore rather the responses
to problems which are consented which are interesting and which possibly can provide for clues as towhy overcrowding persists and available strategies of problem solving are not implemented.
When looking at recommendations of the Special Rapporteur provided in situations of serious
prison overcrowding we ﬁnd the advise to design and implement comprehensive structural reformsof the prison system, aimed at reducing the number of detainees, increasing prison capacities andmodernizing prison facilities, to remove non-violent offenders from pretrial detention facilities andto increase the use of non-custodial measures194. Proposals stress particularly an adequate statutory
framework which helps avoiding unnecessary detention prior to trial through providing for alternatives
to detention in the form of bail and other measures and the encouragement of judicial practices which
prevent non-violent and less serious or petty oﬀences from being eligible for pretrial detention195. Plans
to build additional prisons ﬁnd support196 as ﬁnd support collective pardons or amnesties (focused on
189 Skovron, S.E., Scott, J.E., Cullen, F.T.: Prison Crowding: Public Attitudes Toward Strategies of Population
control. Journal of Research in Crime and Delinquency 25(1988), pp. 150-169.
190 See also Proos, I., Pettai, I.: Attitudes of Georgia's population towards crime and penal policy. Institute of Social
Studies and Analysis, Georgia 2009.
191 Dijk, J., van Kesteren, J., Smit, P.: Criminal Victimisation in International Perspective. Key ﬁndings from the
2004-2005 ICVS and EU ICS. The Hague 2007, p. 147.
192 See Irish Penal Reform Trust: Public Attitudes To Prison February 2007. TNS mrbi/155055/Irish Penal Reform
Trust - Public Attitudes to Prison/February 2007; McAuley, M., Macdonald, K.I.: Russia and Youth Crime. A
Comparative Study of Attitudes and their Implications. British Journal of Criminology 47(2007), pp. 2-22, p. 2;
Proos, I., Pettai, I.: Attitudes of Georgia's population towards crime and penal policy. Institute of Social Studies
and Analysis, Georgia 2009.
193 European Court of Human Rights, Judgment as of 22 October 2009 in the cases Orchowski v. Poland (application
no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05)
194 Human Rights Council: Seventh session. Agenda item 3. Report of the Special Rapporteur on torture and othercruel, inhuman or degrading treatment or punishment, Manfred Nowak. Mission to Sri Lanka. A/HRC/7/3/
Add.6, 26 February 2008, pp. 25-26; Human Rights Council: Tenth session. Agenda item 3. Report of theSpecial Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak.
Addendum Follow-Up to the Recommendations Made by the Special Rapporteur. Visits to China, Georgia, Jordan,
Nepal, Nigeria and Togo, A/HRC/10/44/Add.5, 17 February 2009, p. 32.
195 Human Rights Council: Tenth session. Agenda item 3. Report of the Special Rapporteur on torture andother cruel, inhuman or degrading treatment or punishment, Manfred Nowak. Addendum Follow-Up to the92non-violent oﬀenders and suspects of petty crimes) which are assessed to respond to the most pressing
problems of overcrowding197. Apparently, non-violent ﬁrst time oﬀenders are perceived to represent
candidates for non-custodial measures198. However, there is also evidence that petty oﬀences in somecountries contribute to the burden of prison systems199. With respect to drunk or disorderly conduct,
prostitution and the like, downgrading to administrative oﬀences, which do not carry prison sentences,seems a rational solution.
Within the he European context of overcrowded prisons the CPT has voiced concern for both,the extensive use of long term imprisonment and short prison sentences. Concern for short term
imprisonment is based on perceptions of adverse effects of short periods of detention in prison andadvantages of community sanctions200. It is then in particular those prison conditions which are deemed
to provide for opportunities of adequate rehabilitation that attract attention from the viewpoint of
human rights201.
Many countries ﬁnd themselves today in an economic and ﬁnancial situation which does not allow
the allocation of substantial resources for prison construction programs. Faced with the question
where to invest seriously limited resources, prisons have the lowest priority. It has been argued
that it is practically impossible to receive loans for prison construction from international financial
institutions202 which reduces options available for the most debt and poverty plagued countries
severely. According to debt relief programming of the International Monetary Fund among the 42
Heavily Indebted Countries 32 are African 203. However, most of the recommendations found in
documents of the General Rapporteur and other actors do not require particular funding. Revisionof sentencing statutes, early release and parole procedures, alternatives to pretrial detention andimprisonment etc are rather dependent on political will.
4.4.2 Organization, Intelligence and Financial Incentives
Recommendations Made by the Special Rapporteur. Visits to China, Georgia, Jordan, Nepal, Nigeria and Togo,
A/HRC/10/44/Add.5, 17 February 2009, p. 83-84; Human Rights Council: Seventh session. Item 3 of the agenda.
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,
Manfred Nowak. Addendum. Mission to Paraguay, A/HRC/7/3/Add.3, 1 October 2007, p. 17, referring to a casea detainee who had spent one and a half years in pretrial detention on suspicion of having stolen a bicycle; seealso Michigan Task Force on Jail and Prison Overcrowding Task Force on Jail and Prison Overcrowding Presents
Report. April 22, 2005.
196 Committee against Torture: Consideration of reports submitted by States parties under article 19 of theConvention. Second periodic report of States parties due in 1997; the present report is submitted in response to
the list of issues (CAT/C/KHM/Q/2) transmitted to the State party pursuant to the optional reporting procedure(A/62/44, paras. 23 and 24), Cambodia. CAT/C/KHM/2, 2 February 2010, pp. 7-8.
197 Committee Against Torture: Conclusions and recommendations of the Committee against Torture (Concluding
Observations/Comments10-21 November 2003) Cameroon. CAT/C/CR/31/6, 05/02/2004.
198 Commission on Human Rights: Sixty-second session. Item 11 (a) of the provisional agenda. Report of the Special
Rapporteur, Manfred Nowak. Addendum. Follow-up to the recommendations made by the Special Rapporteur.
Visits to Azerbaijan, Brazil, Cameroon, Chile, Mexico, Romania, the Russian Federation, Spain, Turkey,
Uzbekistan and Venezuela, E/CN.4/2006/6/Add.2 21 March 2006, p. 10, pp.44-45.
199 Dankwa, V.: opus cited, 2009, p. 85.
200 Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 18
November to 1 December 2008. Strasbourg, 8 December 2009, pp. 20-22; see also the response of the United
Kingdom.
201 Report by Mr Alvaro Gilo-Robles, Commissioner for Human Rights, on the Eﬀective Respect for Human Rights inFrance Following his Visit from 5 to 21 September 2005 for the attention of the Committee of Ministers and theParliamentary Assembly. CommDH(2006)2, Strasbourg, 15 February, 2006 p. 22.
202 Committee Against Torture: Thirty-seventh session 6-24 November 2006 Consideration of Reports Submitted by
States Parties Under Article 19 of the Convention. Conclusion and recommendations of the Committee against
Torture (Extracts for follow-up) Guyana (State Partyʼs Response).
203 International Monetary Fund: Factsheet. Debt Relief Under the Heavily Indebted Poor Countries (HIPC)
Initiative. February 18, 2010.

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Responding to overcrowded prisons will be dependent on a range of issues related to organization,knowledge and information as well ﬁscal infrastructures and budgeting.
Allocation of political responsibility for prisons to the Ministry of Justice instead of the Ministry of
the Interior has been highlighted as an important element in promoting reform of pretrial detention
and the development and increased use of alternatives to imprisonment204. The responsibility ofministries of justice for prison reform expresses the commitment to bring in line prison administration
with international norms and standards. In Russia, the signiﬁcant fall in the prison population in the
new millennium has been traced to the reform of the criminal procedure code which provided forjudicial control over investigations and prosecutions. A most signiﬁcant decision was evidently movethe power to place suspects in pretrial detention away from the prosecutor and to the courts205.
The question has been raised then whether the fiscal infrastructure may be used to cut
imprisonment and to change crime policies away from imprisonment through providing less of ﬁnancial
incentives to resort to imprisonment (or more ﬁnancial incentives to resort to non-custodial measures).
Evidence from some countries underlines the salience of a ﬁscal approach as administrative bodies will
make their decisions not least dependent on costs coming with certain measures and who will have tobear them. The structure of the ﬁnancing of prisons and alternatives of imprisonment may result in
discouraging the provision and use of community based alternatives which have to be funded by local
entities while prison and imprisonment are ﬁnanced through state budgets. This will increase of course
the total costs and should lead to a careful review of the impact respective ﬁscal structures may haveon the overall use of imprisonment206.
Analysis of overcrowding, identiﬁcation of conditions under which overcrowding emerges as well
as evaluation of approaches to contain or reduce overcrowding are in need of reliable and valid dataon police recorded crime, sentencing, the prison population and the ﬂow of cases. Demands for gooddata and proper evaluation research are not new207. However, most of the penitentiary systems do notprovide for meaningful data; moreover research on prison and imprisonment is limited, in particular
as regards research comparing various sentencing options (including imprisonment). This has beenstressed recently in a meta-analysis of empirical research comparing recidivism after custodial andcommunity sanctions208. It is particularly those sentencing options which are deemed to carry a highpotential in replacing imprisonment and responding effectively to overcrowding (suspended prison
sentences, probation and parole) which are seriously under-researched209.
Research is not evenly distributed but demonstrates concentration on a few countries. This
coincides largely with countries where prison projections have been part of an intelligence producing
process in the correctional system. Prison projections are perceived to represent an instrument which
in principle can advise and guide policy. Prison projection methodology, however, is developed andimplemented in particular in countries where overcrowding aﬀects the prison system. But, as prison
204 International Centre For Prison Studies: International Experience in Reform of Penal Management Systems. A
Report by the International Centre for Prison Studies. London 2008, No. 78.
205 International Centre for Prison Studies: opus cited 2008, No. 39.
206 Solomon, E. Allen, R.: Out of Trouble. Reducing child imprisonment in England and Wales - lessons from abroad.
Prison Reform Trust, London 2009, p. 48.
207 See Griffiths, C.: Implementing International Standards in Corrections: Challenges, Strategies and Outcomes.
The United Nations Oﬃce on Drugs and Crime (ODC) Expert Group Meeting on the Application of United Nations
Standards and Norms in Crime Prevention and Criminal Justice, 10 -12 February 2003, Burgenland, Austria.
208 See Villettaz, P., Killias, M., Zoder, I.: The eﬀects of custodial vs. non-custodial sentences on re-oﬀending. A
systematic review of the state of knowledge. Campbell Collaboration Crime and Justice Group, Lausanne 2006, p.
41; see also Gendreau, P., Goggin, C., Cullen, F.T.: The eﬀects of prison sentences on recidivism. Ottawa, ON:
Correctional Service of Canada, Solicitor General Canada 1999; Smith, P., Goggin, C., Gendreau, P.: The Eﬀects
of Prison Sentences and Intermediate Sanctions on Recidivism: General Eﬀects and Individual Diﬀerences. www.
sgc.gc.ca (2002).
209 Davis, R., Rubin, J., Rabinovich, L., Kilmer, B., Heaton, P.: A synthesis of literature on the eﬀectiveness ofcommunity orders. RAND, Santa Monica 2008, pp. 21-22.

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projections and prediction methodology are in need of complete and valid data on oﬀenders as they
pass through the criminal justice system and corrections, they provide rich information on various
subpopulations within the prison system which can be used to study causes and consequences ofovercrowding.
Prison projections essentially are based on past developments in the criminal justice and prison
system, but any projection will depend on future developments in crime policies, sentencing andadministrative practices. This means that any prison population forecast will project to a certain extent
past trends which means that projections become less accurate the further out the prediction horizon
and the more instable developments in crime policies. Insofar, it does not come unexpected that alloﬃcial prison projections accessible (in England/Wales, Scotland and in the United States) predicted
during the last decade further increases in the size of the prison populations210. An analysis of prison
projections for the United States at large shows the prediction of a far faster growth of the prison
population, forecasting 2006 that the prison population will jump by 104.000 by 2009. But, the actual
increase was 40.000 less than predicted211. For California, prison projections predicted for 2010 a
prison population of some 183.000212. However, the actual prison population 2010 in California stood at
169.000213. The problem, of course, concerns unpredictable changes which aﬀect sentencing and parole
decisions214. the diﬃculty for projections of the prison population is that trends observed over a numberof years can not be assumed to continue. In England it was found that no projection made between
1990 and 1994 predicted the rapid rise in the prison population emerging since 1994215.
In spite of the limitations of prison projections, implementation of this approach will result in
information systems which can inform research, the public and politicians and thus improve the basis
for impact assessments and political discourses around sentencing and other crime related policies216.
4.4.3 Prison Construction Programs
Prison overcrowding of course reflects a situation where additional prison space evidently canserve as a measure to ensure compliance with basic standards of accommodation. Prison construction
programs or the acquisition of additional space through privatization can provide certainly relief in caseof overcrowding. However, prison construction programs are placed under restrictions as ﬁrst of all
suﬃcient funding is required (which - as was outlined earlier - will be faced with enormous problems
in many heavily indebted countries and will be virtually impossible for some). Second, additional
prison capacity may in fact worsen the problem of overcrowding in the long run217 and furthermore
reinforce a policy of reliance on imprisonment and the deprivation of liberty which does not comply
with the principle of last resort and proportionality as well as basic procedural standards, in particularpresumption of innocence and the right to a speedy trial. An advise to invest in prison construction
therefore is dependent on weighing various interests and values. Prison construction programs will
be reasonable in cases where prisons facilities are in need of complete or partial overhaul and whereconcerns of spiraling into overuse of imprisonment can be ruled out218. The recent announcementof a huge prison construction program in Italy responds also to need to modernize prison facilities
most of them built in the 19th century and is part of a comprehensive concept which includes also the
210 See for Scotland The Scottish Government: Statistics Publication Notice. Crime and Justice Series. Scottish
Prison Population Projections: 2008-2009 to 2017-2018. November 2008; The Scottish Government: Statistics
Publication Notice. Crime and Justice Series. Scottish Prison Population Projections: 2009-2010 to 2018-2019.
January 2010;
211 Pew Center on the States: Public Safety, Public Spending: Forecasting America's Prison Population, 2007-2011,
Public Safety Performance Project 2007.
212 California Department of Corrections: Adult Population Projections 2008 - 2013. Fall 2007, p. 6.
213 The PEW Center on the States: opus cited 2010, p. 7.
214 California Department of Corrections: opus cited, 2007.
215 White, P., Cullen, C.: Projections of Long Term Trends in the Prison Population to 2007, Issue 2/00, 10 February
2000.
216 See for example the request for a robust and integrated information system in Uganda Prison Service: Census of
Prisoners in 48 Central Government Prisons, 30th September 2007. Kampala 2007, p. 6.
217 See Spelman, W.: opus cited, 2009.

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implementation of alternatives to imprisonment219. In other cases, announcements of prison building
programs have resulted in criticism because of alternative measures not exhausted and new prison
designs too much focused on providing additional space and less guided by delivering adequate
rehabilitative services220.
4.4.4 Prison Litigation
As overcrowding may infringe on the basic right of human dignity as well as privacy (or theprohibition of cruel and unusual punishment) which are protected also within the prison environment
and, in the case of human dignity, may not be restricted (or suspended) 221 litigation over prison
conditions, although limited in some systems222, has become an issue of concern. Overcrowding
litigation according for example to supreme court rulings in Germany may result in compensationof prisoners for pain and suffering223. Research has dealt with the question which effects successful
overcrowding litigation might have224. Prison litigation, according to an American study leads to higher
per inmate incarceration costs, lower inmate mortality rates, and a reduction in prisoners per capita225.
In this study it was also found that those court interventions, which are associated with higher
expenditures for prisons, result in lower spending on social welfare. This suggests that the burdenof increased spending for prisons as a result of prison litigation is borne by the poor226. However, thisfinding expresses essentially that states have to make choices when budgets are prepared. Prison
litigation has resulted in California being pressured into changing prison politics. In June 2007 theDelhi High Court ordered for example the Tihar authorities to release 600 prisoners charged with
disturbing public peace, considered a relatively minor oﬀence, to reduce overcrowding in the prison227.
Prison litigation can become a means to and a part of prison reform228. As prisons and prisoner do
not have a strong constituency, strengthening inmates rights in litigation cases could be a eﬀective
tool in de-crowding prisons through the empowerment of inmates and NGOs229.
4.4.5 Decriminalization, Depenalization and Diversion
The findings on causes of overcrowding point to the relevance of developing and implementing
decriminalization and depenalization policies. In particular public order offences, but also drug
offences related to drug use - where they are in force and applied -, could be candidates for either
complete decriminalization or for transformation into administrative oﬀences which do not carry prison
218 See for example the case of Cambodia in Committee against Torture Consideration of reports submitted by States
parties under article 19 of the Convention Second periodic report of States parties due in 1997; the present report
is submitted in response to the list of issues (CAT/C/KHM/Q/2) transmitted to the State party pursuant to theoptional reporting procedure (A/62/44, paras. 23 and 24), Cambodia, 29 October 2009, No. 42.
219 www.correctionsreporter.com/2010/01/15/italy-prison-overcrowding-emergency/
220 See for example CPT: Report to the Government of the United Kingdom on the visit to the United Kingdom
carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) from 18 November to 1 December 2008. Strasbourg 2009, p. 21 with a critical discussion of theso called ʻTitanʼ prisons.
221 Constitutional Court Berlin (VerfGH 184/07) - Decision as of 3. November 2009 (KG/LG Berlin), HRRS. Online
Zeitschrift für Höchstrichterliche Rechtsprechung zum Strafrecht http://www.hrr-strafrecht.de 10(2009), p. 472.
222 US Supreme Court in Wilson v. Seiter, 501 US 294 (1991), requiring prove of deliberate indiﬀerence on the part ofprison oﬃcials in face of overcrowded conditions.
223 (German) Supreme Court (Bundesgerichtshof), Decision as of 4. 11. 2004, III ZR 361/03.
224 Angelos, C., Jacobs, J.B.: Prison Overcrowding and the Law. The Annals of the American Academy of Politicaland Social Science. Vol. 478, Beverly Hills 1985, pp. 100-112; Levitt, S. D.: The Eﬀect of Prison Population Sizeon Crime Rates: Evidence from Prison Overcrowding Litigation. The Quarterly Journal of Economics 111(1996),
pp. 319-351.
225 Levitt, S. D.: The Effect of Prison Population Size on Crime Rates: Evidence from Prison Overcrowding
Litigation. The Quarterly Journal of Economics 111(1996), pp. 319-351.
226 Boylan, R.T., Mocan, N.H.: Intended and Unintended Consequences of Prison Reform. National Bureau of
Economic Research, Cambridge,Working Paper 15535, November 2009 (www.nber.org/papers/w15535).
227 The Telegraph, Calcutta, India, Tuesday, June 19, 2007.
228 Welsh, W.N.: Counties in Court. Jail Overcrowding and Court-Ordered Reform. Philadelphia 1995, pp. 10-18.
229 Steinberg, J.: opus cited, 2005.

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sentences.
Furthermore, reports indicate that drug addicted prisoners and the mentally ill represent insome correctional systems significant groups which not only contribute to overcrowding but also
to additional problems as regards the risk of transmitting infectious diseases. Here, diversion totreatment seems a viable option.
A promising example has been reported from Thailand where between 1993 and 2002 the numberof prisoners had tripled causing severe overcrowding problems. A solution was found in a law reformwhich changed the perspective on drug addicts who are now held to be persons in need of medical
treatment and are therefore diverted to treatment in the community or in treatment centers230. While
this approach did not completely resolve prison crowding problems, it was certainly an important step
to contain the number of prisoners on a lower level231. Addicted and mentally ill oﬀenders convicted for
non-violent oﬀences are a common and promising target for diversion policies232.
Then, restorative justice and mediation programs may be useful to reduce the length of prison
sentences. Serious efforts for reconciliation between offender and victim are in some systems
considered as mitigating factors. Such eﬀorts should take place before (or during the trial). But, it isdiﬃcult to assess the potential of restorative justice, mediation and restitution due to the absence ofevaluation research which addresses the impact of restitution, restorative justice or victim-oﬀenderreconciliation programs on sentencing and the prison population233.
Traditional or customary approaches to deal with crime certainly have a potential as an alternative
to formal criminal proceedings. Gacaca trials in Rwanda and the wide use of (informal) reconciliation
procedures in African and Asian countries demonstrate eﬀectiveness but also risks related to equal
treatment and fairness234.
4.4.6 Dealing with Pretrial Detention
The Standard Minimum Rules for Non-Custodial Measures spell out that detention pending trial
shall be used only as a last resort and for the shortest possible period of time. The rules call also forthe use of alternative measures. For children standards are even stricter than for adults235. Plentyof evidence supports the view that overcrowding in many criminal justice systems is linked to an
excessive use of pretrial detention236. The European Anti-Torture Commission has on many occasions
and for many European countries advised that it is in particular pretrial detainees who suffer fromovercrowding and related conditions of conﬁnement237. Research shows also that there is signiﬁcantregional variation as to the share of pretrial detainees at all prisoners238.
A signiﬁcant share of pretrial detainees at the prison population at large points to several issues
which can be made points of departure for approaches to reduce the number of suspects who are placed
in pretrial detention, and second, the length of time suspects spend in pretrial facilities239. Inﬂation of

230 Kittayarak, K.: Diversion Programs for Drug Addicts, Restorative Justice and New Community-based Treatment
Measures in Thailand, a paper submitted to the nineteenth International Conference of the International Society
for the Reform of Criminal Law held at Edinburgh, Scotland, 26-30 June 2005, www.isrcl.org/ Papers/2005/
kittayarak.pdf.
231 Department of Corrections, Ministry of Justice Thailand, Bangkok, 1 April 2008.
232 The PEW Center on States: opus cited, 2008, p. 18; Smith-Heisters, S.: The Nonviolent Oﬀender Rehabilitation
Act: Prison Overcrowding, Parole and Sentencing Reform (Proposition 5). Reason Foundation, Los Angeles 2008.
233 For a summary see Albrecht, H.-J.: Forschungen zur Implementation und Evaluation jugendstrafrechtlicher
Sanktionen. Zeitschrift für Jugendkriminalrecht und Jugendhilfe 3(2003), pp. 224-232.
234 Albrecht, H.-J.: Conﬂict Perspectives: Dealing with Wrongs in the Middle East. In: Albrecht, H.-J. et al (eds):
Conﬂicts and Conﬂict Resolution in Middle Eastern Societies - Between Tradition and Modernity. Berlin 2006, pp.
1-12.
235 Kiessl, H.: Die Regelwerke der Vereinten Nationen zum Jugendstrafrecht in Theorie und Praxis. Freiburg 2001.
236 Open Society Institute (ed.): Justice Initiatives. Pretrial Detention. New York 2008.

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the pretrial detainee population may be caused by a normative framework which does not provide foradequate consideration of standards set for pretrial detention or does not include those alternatives
to pretrial detention which may reduce the risk of absconding or obstruction of justice, that is bail,seizure of passport or other identity papers, notiﬁcation requirements as regards traveling, changesof residence etc., obligations to report at certain times to the office of the judge, the prosecuting
authority or police, restrictions on free movement (backed up by electronic monitoring). The use of
pretrial detention may be boosted by lengthy and ineﬀective criminal proceedings which may be due toshortcomings in procedural law or practices related to processing cases240.
It seems to be promising to place the emphasis first on the normative framework of pretrial
detention and alternatives to pretrial detention241. Of utmost importance for a normative framework
geared towards minimizing pretrial detention is the principle of proportionality and the way
proportionality is translated into the conditions set for pretrial detention. Placing a strict statutory cap
on the length of pretrial detention certainly plays a decisive role in limiting pretrial detention as doesa general clause which prevents that petty oﬀences (which will most probably result in non-custodial
sentences) will lead to detention prior to trial.
The use of pretrial detention has been tackled in Latin America systematically by introducing
penal procedure reforms aimed at reducing pretrial detention on a broad scale. While legislativereforms have in general been successful in terms of introducing new procedural provisions on pretrial
detention, the impact on pretrial detention practices has been mixed. However, on the basis of various
indicators of pretrial detention it has been concluded that reforms have been in general successful incurbing the number of those detained prior to trial242 (although a rigid empirical test of the reduction
hypothesis could not be carried out because of a lack of data). Absence of data has been cited as aground for the failure of pretrial detention reforms in Chile. The consequences of reform had beendisputed, however, the absence of data abetted a counter reform which took place before the reform
was fully implemented did not allow to communicate reform eﬀects to the public, justice practitioners
and politicians243.
237 See for example the CPT country reports for Bulgaria Report to the Bulgarian Government on the visit to
Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT) from 17 to 26 April 2002. Strasbourg 2004, No. 49; for Estonia Report to theEstonian Government on the visit to Estonia carried out by the European Committee for the Prevention of Tortureand Inhuman or Degrading Treatment or Punishment (CPT) from 23 to 30 September 2003. Strasbourg 2005, No.
52; for France Rapport au Gouvernement de la République française relatif à la visite eﬀectuée en France par leComité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) du
27 septembre au 9 octobre 2006, Strasbourg 2007, No. 145; for Italy Rapport au Gouvernement de lʼItalie relatifà la visite eﬀectuée en Italie par le Comité européen pour la prévention de la torture et des peines ou traitements
inhumains ou dégradants (CPT) du 21 novembre au 3 décembre 2004, Strasbourg 2006, No. 71; for Poland Reportto the Polish Government on the visit to Poland carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 4 to 15 October 2004. Strasbourg
2006, No. 80; for England/Wales Report to the Government of the United Kingdom on the visit to the United
Kingdom and the Isle of Man carried out by the European Committee for the Prevention of Torture and Inhumanor Degrading Treatment or Punishment (CPT) from 12 to 23 May 2003. Strasbourg 2005, No. 16.
238 Schönteich, M.: The Scale and Consequences of Pretrial Detention around the World. In: Open Society Institute(ed.): Justice Initiatives. Pretrial Detention. New York 2008, pp. 11-43.
239 Deltenre, S., Maes, E.: Pre-trial Detention and the Overcrowding of Prisons in Belgium. Results from a
Simulation Study into the Possible Effects of Limiting the Length of Pre-trial Detention. European Journal of
Crime, Criminal Law and Criminal Justice 12(2004), S. 348-370.
240 Human Rights Council: Tenth session. Agenda item 3. Report of the Working Group on Arbitrary Detention.
Addendum. Mission to Italy. A/HRC/10/21/Add.5, 26 January 2009, p. 10.
241 van Kalmthout, A.M. Knapen M.M., Morgenstern, C.: Pre-trial Detention in the European Union. An Analysis of
Minimum Standards in Pre-trial Detention and the Grounds for Regular Review in the Member States of the EU.
Nijmegen 2009; Nwapa, A.: Building and Sustaining Change: Pretrial Detention Reform in Nigeria. Open Society
Institute (ed.): Justice Initiatives. Pretrial Detention. New York 2008, pp. 86-102.
242 Duce, M., Fuentes, C., Riego, C.: La Reforma Procesal Penal En América Latina Y Su Impacto En El Uso De
La Prisión Preventiva. In: Riego, C., Duce, M. (eds.): Prisión Preventiva y Reforma Procesal Penal en América
Latina. Evaluación y Perspectivas. CEJA-JSCA 2009, pp. 13-73.

98Pretrial detention - though only justiﬁable by the goal to secure regular criminal proceedings andtrials and if it can be expected that the defendant will abscond, tamper with evidence or relapse into
serious crime - is assumed to be used in some countries for other, extra-legal purposes. In China,
for example, it is contended that pretrial detention serves the purpose of punishment and the wideuse of pretrial detention (which amounts to placing virtually all criminal suspects in secure custody)
is explained by the adoption of strict crime control policies244. But, extra-legal factors have been
identiﬁed as drivers of pretrial detention in other countries, too245.
Research in India has underlined that pretrial detention is ordered in signiﬁcant numbers of petty
crime cases and that costs could be considerably decreased if petty oﬀenders were kept out of pretrial
detention246. In systems which place the emphasis on bail pretrial detention is sometimes not a functionof the risk of absconding or obstruction of justice but rather a result of the economic weakness which
prevents that suspects can pay even small amounts of bail.
Studies demonstrate then that the risk of escape is often misjudged and as a consequence many
false positives are held in pretrial detention. In the 1990ies a study was carried out in Germany the
results of which demonstrate the potential for reducing pretrial detention without aﬀecting rule of law
and criminal proceedings. The study analyzed all decisions made in the Hamburg High Court in casesof extended pretrial detention (beyond 6 months). German criminal procedural law prescribes that
pretrial detention may not extend over a period of 6 months if there are no compelling grounds for notcarrying through a criminal trial before expiration of the 6 months period. The Hamburg High Court
found in 23 cases no compelling grounds which would have justiﬁed pretrial detention of more than 6months. So, 27 suspects had to be set free for whom the risk of absconding had been established bylower courts. However, 17 of these suspects voluntarily showed up for the criminal trial which took
place some time after their release. Only six suspects actually absconded and did not comply whensummoned by the trial court. Almost all of these were suspected of drug traﬃcking (and were foreign
nationals)247. From the viewpoint of accuracy of prediction these results say simply that for any one
suspect rightly predicted to represent an escape risk four others are falsely predicted to abscond.
This amounts to a rate of false positives of some 80%, a rate which sounds plausible when taking into
account the poor performance in criminal justice predictions at large.
The results of the study reported above demonstrate first of all the need for sound information
when deciding on pretrial detention. Here, the installation and proper functioning of pretrial social
services providing courts with information on community ties and other relevant issues will be one
crucial element in avoiding that low risk suspects are detained248.
Assigning a defense council very early in criminal proceedings seems to be correlated with shorter
periods of pretrial detention249. An experiment carried out in German court districts could demonstrate
243 Venegas, V., Vial, L.: Boomerang: Seeking to Reform Pretrial Detention Practices in Chile In: Open Society
Institute (ed.): Justice Initiatives. Pretrial Detention. New York 2008, pp. 44-56, p. 49.
244 Yanyou, Yi: Arrest as Punishment. The abuse of arrest in the Peopleʼs Republic of China. Punishment & Society
10(2008), pp. 9-24.
245 Dünkel, F.: Praxis der Untersuchungshaft in den 90er Jahren - Instrumentalisierung strafprozessualer
Zwangsmittel für kriminal- und ausländerpolitische Zwecke? Strafverteidiger 1994, pp. 610-621; Jehle, J.-M.:
Entwicklung der Untersuchungshaft bei Jugendlichen und Heranwachsenden vor und nach der Wiedervereinigung.
Bonn 1995; Parliamentary Assembly, Committee on Legal Affairs and Human Rights: Situation of European
prisons and pre-trial detention centres. Report. Doc. 10097, 19 February 2004.
246 Saxena, R.K.: Catalyst for Change: The Eﬀect of Prison Visits on Pretrial Detention in India. In: Open Society
Institute (ed.): Justice Initiatives. Pretrial Detention. New York 2008, pp. 57-69, p. 60.
247 Petersen, E.: Haftprüfungspraxis nach §§ 121, 122 StPO des Hanseatischen OLG Hamburg. Erfahrungen in den
Jahren 1990-1996. In: Jehle, J.-M., Hoch, P. (Eds.): Oberlandesgerichtliche Kontrolle langer Untersuchungshaft.
Wiesbaden: Eigenverlag Kriminologische Zentralstelle e.V. 1998, pp. 71-78.
248 Ehlers, L.: Frustrated Potential: The Short and Long Term Impact of Pretrial Services in South Africa. In: OpenSociety Institute (ed.): Justice Initiatives. Pretrial Detention. New York 2008, pp.121-140.

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that early assignment of a defence council through the court results in detention periods two months
shorter on the average than those experienced by pretrial detainees who did not have a lawyer250.
Systematic assignment of lawyers, it was concluded could reduce time spent in pretrial detention
by 16%251. Effective, early defense projects have been implemented in the Ukraine which proved
successful252.
In the same line of practices fall approaches which, also for budgetary reasons, install assistancethrough paralegals253. The Malawi based Paralegal Advisory Service supports pretrial detainees inparticular in practical matters concerning release from detention (ﬁlling out bail applications, ﬁnding
relatives who can serve as sureties, channeling relevant information to police and prosecutors)254. On
the basis of pretrial detention figures the service is assessed to be successful in diverting suspects
from pretrial detention. The remand population has been stabilized in Malawi after implementation of
the paralegal advisory scheme at some 22% (down from 50% before the scheme)255.
Experiences with electronic monitoring have not yet been evaluated systematically in the context
of replacing pretrial detention256; however, reports from Portugal describe electronic monitoringas an important element in a package designed to bring down the prison population and to reduce
overcrowding257.
The European Supervision Order (Framework Decision 2009/829/JI as of 23 October 2009) seeks
to compensate a particular risk of foreign nationals to be placed in pretrial detention258 and at the sametime to strengthen the principle of presumption of innocence. Through mutual recognition of pretrial(non-custodial) supervision orders it is sought in the European Union context to create an additional
option in the strategy to reduce pretrial populations259.
Case backlog reduction programs may serve to raise awareness for giving priority to cases where
pretrial detention was ordered and reduce the time suspects spend in pretrial detention260. The basisof backlog reduction programs is the implementation of case ﬁle management which ensures from themoment of arrest that a case ﬁle moves expeditiously from one agency to another261.

249 Human Rights Watch: The Quality of Justice. Failings of Iraq's Central Criminal Court. New York 2008, p. 1.
250 Schöch, H.: Der Einﬂuß der Strafverteidigung auf den Verlauf der Untersuchungshaft. Erfahrungsbericht überein Projekt der Hessischen Landesregierung zur Entschädigung von Anwälten für die Rechtsberatung vonUntersuchungsgefangenen . Baden-Baden 1997.
251 Schöch, H.: opus cited 1997, p. 73.
252 Naimark-Rowse, B., Schönteich, M., Sorochinsky,, M., Tomasini-Joshi, D.: Studies in Reform: Pretrial Detention
Investments in Mexico, Ukraine, and Latvia. Open Society Institute (ed.): Justice Initiatives. Pretrial Detention.
New York 2008, pp. 152-171.
253 Uganda Human Rights Commission: opus cited 2009.
254 Open Society Institute: Between Law and Society. Paralegals and the Provision of Primary Justice Services in
Sierra Leone New York, 2006, p. 4; Msiska, C.: On the Front Lines: Insights from Malawiʼs Paralegal Advisory
Service. Open Society Institute (ed.): Justice Initiatives. Pretrial Detention. New York 2008, pp. 70-85.
255 Msiska, C.: opus cited, 2008, p. 78.
256 Albrecht, H.-J.: Electronic Monitoring in Europe. A Summary and Assessment of Recent Developments in the
Legal Framework and Implementation of Electronic Monitoring. Konferenz- und Arbeitspapiere aus dem MaxPlanck-Institut für ausländisches und internationales Strafrecht. Freiburg 2005.
257 15th Conference of Directors of Prison Administration: Overcrowded Prisons: Looking for Solutions , (9-11September 2009, Edinburgh). Conclusions by the General Rapporteur, 11 September 2009, CDAP(2009)04, p. 3.
258 Tonry, M. (ed.): Ethnicity, Crime, and Immigration. Comparative and Cross-National Perspectives. Chicago,
London 1997.
259 See also Council of Europe Committee of Ministers: Recommendation No. R (80) 11 of the Committee of Ministers
to Member States Concerning Custody Pending Trial; Kühne, H.-H., Esser, R.: Die Rechtsprechung desEuropäischen Gerichtshofs für Menschenrechte (EGMR) zur Untersuchungshaft. Strafverteidiger 22(2002), pp.
383-393, p. 385.
260 Uganda Human Rights Commission: 11th Annual Report of the Uganda Human Rights Commission. Kampala 2009;see also a promising example of backlog reduction projects in Manila presented in ICRC: Philippines: protecting
life and dignity in places of detention. ICRC Bulletin No. 01/2010, 3 February 2010.

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4.4.7 Systems of Sanction: Alternatives to Imprisonment
The principle of reserving prison for serious crime and understanding imprisonment as a last resort
can be taken from the Standard Minimum Rules for Non-Custodial
Measures which list furthermore a range of alternatives (or community sanctions).
Proposals as to effectively address overcrowding emphasize alternatives to imprisonment as an
instrument to curb admissions to prison facilities262. Remarkable success stories can be reported fromcreating and successfully implementing alternatives to imprisonment in Europe. There is eg. clear
evidence that day ﬁnes succeeded in Austria, Germany and some Scandinavian countries as well as
in Switzerland, partially also in France and Spain in replacing to a quite considerable though diﬀering
extent in particular short-term imprisonment in the 1960s and 1970s 263. Day fines have certainly
considerable advantages as regards their potential to be adjusted at the same time to the seriousness ofthe oﬀence and to the income of the oﬀender and thus implement the principle of equal treatment. That
has been recognized also by INACIPE when proposing introduction of a day ﬁne system in Mexico264.
The apparent problem of ﬁne default265 has been addressed by various means, in particular throughoﬀering the possibility to work oﬀ a ﬁne through community service.
Suspended prison sentences and probation turned out to be quite successful as alternatives toimmediate imprisonment. The particular relevance of suspended prison sentences and probationis endorsed in the European Probation Rules 2010 where their important role in containing prison
population is explicitly recognized 266. In general, community based criminal sanctions and thedevelopment of punishment philosophies trying to integrate punishment, non-custodial, community
sanctions as well as the crime victim had received wide support in the 1980s and were based upon
the perception that still too many offenders were sent to prison although not presenting risks tothe community267. Actually, intermediate sanctions and diversion work in many countries and for awide range of oﬀender groups. A lot of these success stories are documented in several volumes on
sentencing and sentencing systems published in the 1990s and providing compelling evidence for the
success of alternatives to imprisonment268.
Yet, although alternatives to imprisonment have been introduced since the 1960s/1970s in many
regions and in spite of their apparent success alternatives have not or could not been implemented
in a way which had prevented further prison growth and overcrowding269. The UNODC Handbook ofbasic principles and promising practices on Alternatives to Imprisonment outlines various alternatives
and elaborates the conditions under which alternatives may eﬀectively replace prison sentences270. It
261 Nwapa, A.: Building and Sustaining Change: Pretrial Detention Reform in Nigeria. Open Society Institute (ed.):Justice Initiatives. Pretrial Detention. New York 2008, pp. 86-102.
262 Economic and Social Council: Resolution 1998/231998/23 - International cooperation aimed at the reduction ofprison overcrowding and the promotion of alternative sentencing44th plenary meeting 28 July 1998; Penal Reform
International: Alternatives to imprisonment in the Republic of Kazakhstan. Resolution and Recommendations.
International Conference, Almaty, 27-30 October 1999. London 1999.
263 See the comprehensive historical analysis in Jescheck, H.-H., Grebing, G. (Eds.): Die Geldstrafe im deutschen
und ausl?ndischen Recht. Nomos, Baden-Baden 1978.
264 INACIPE: 10 razones para reformar el sistema de justicia penal en Mexico. INACIPE, Mexico 2004, p. 26.
265 See for example The Irish Times: Number of people jailed for not paying ﬁnes set to double Monday, November 9,
2009.
266 Recommendation CM/Rec(2010)1 of the Committee of Ministers to member states on the Council of Europe
Probation Rules. Adopted by the Committee of Ministers on 20 January 2010 at the 1075th meeting of the
Ministers' Deputies; see also United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo
Rules).
267 See eg. Home Oﬃce: Punishment, Custody and The Community. London 1988, p. 2.
268 Tonry, M., Hatlestad, K. (Eds.): Sentencing Reform in Overcrowded Times. A Comparative Perspective. New
York, Oxford 1997; see also van Kalmthout, A., Tak, P.: Sanctions-Systems in the Member States of the Councilof Europe. Part I and II, Deventer, Arnhem 1988, 1992.
269 Weissman, M.: Aspiring to the Impracticable: Alternatives to Incarceration in the Era of Mass Incarceration. NYU
Review of Law & Social Change 33(2009), pp. 235-269.
270 UNODC: Handbook of basic principles and promising practices on Alternatives to Imprisonment. United Nations,
New York 2007.

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mentions good practice examples and provides information on a legislative project in Kazakhstan whichis assessed to have had a signiﬁcant impact on the prison population though the increased use of noncustodial sentences271. However, the rates of imprisonment remain extremely high in Kazakhstan272.
For African countries it has been argued that it is rather the high share of unsentenced prisoners
and the problem of lengthy investigations and trials and not the lack of alternatives to imprisonment
which drives capacity problems273. However, community service has been introduced in a coupleof African countries which seem to have worked quite well (although evaluation research as towhether they had an impact on reducing prison growth or overcrowding has not been carried out)274.
Community service evidently can be implemented also in face of strained budgets. It was pointed outthat community service ﬁts much better into African traditions of responding to deviance and crimethan do prison and imprisonment which are part of the colonial legacy. Recent experiments with
community service (partially related to Gacaca trials and perpetrators of genocidal acts) in Rwanda
demonstrate a significant potential and exhibit interesting and innovative features. The community
service program is integrated with professional training and with the idea of restitution and paying
back to the immediate community ( neighborhood community service 275. Large scale community
service programs recently have been initiated also in Kenya where they are an essential element inplans to decongest Kenyan prisons276. Mexico is planning for the introduction of community service,
too277. Here, community service shall be oﬀered as an alternative for ﬁrst time and small scale property
oﬀenders.
However, it has been pointed out also that community service is perceived as being a much
more lenient sentence compared with imprisonment and that more eﬀorts are needed to raise publicawareness as regards the beneﬁts of community service278.
Electronic monitoring has found its place in modern systems of sanctions279. Electronic monitoringat the beginning was restricted to the adult system of criminal justice. Electronic monitoring now
is extended to the juvenile justice systems. Active tracking systems are increasingly put on trial,
following a trend to introduce tracking devices for sexual oﬀenders after release from prison. Particular
beneﬁts of active tracking systems are expected for pre-trial supervision of oﬀenders as well as for
implementing exclusion orders in domestic violence cases. Costs coming with electronic monitoringare in general lower than those linked to imprisonment280. As regards cost comparisons with othercommunity sanctions, evidence is less conclusive. Costs, however, are largely dependent on the typeof (rehabilitative) programmes that are implemented together with electronic monitoring. In general,
completion rates are high and failure rates are low. This reflects careful selection of offenders. A
consensus exists that electronic monitoring replaces to a certain extent imprisonment (and inﬂuences though on a small scale - the number of oﬀenders sent to prison). Research on recidivism has come up
with mixed results as does research on absconding while on pre-trial electronic monitoring281.

271 UNODC: opus cited, 2007, p. 26.
272 www.state.gov/g/drl/rls/hrrpt/2009/sca/136088.htm (2009 Human Rights Report: Kazakhstan).
273 Muntingh, L.: opus cited, 2008, p. 186.
274 Stern, V.: opus cited, 1999, pp. 233, 238; UNODC: opus cited, 2007, p. 37.
275 Penal Reform International: Monitoring and Research Report on the Gacaca Community Service (TIG). Areas ofreﬂection. Gacaca Report, Kigali, March 2007 p. 1.
276 Daily Nation: 50.000 to be released in prison decongestion plan. March 16 2010.
277 CDHDF: Presentan CDHDF Y ALDF Iniciativas de reforma al Sistema Penitenciario. June 9 2009.
278 Birung, C.: Community Service in Uganda as an Alternative to Imprisonment. A Case Study of Masaka andMukono Districts. Capetown 2005, pp. 69-70.
279 Nellis, M.: Surveillance, Rehabilitation and Electronic Monitoring: Getting the Issues Clear. Criminology & Public
Policy 5(2006), pp. 103-108.
280 See for example Fenech G.: Le placement sous surveillance électronique. Rapport de la mission confiée parPremier Ministre à Monsieur Georges Fenech, député du Rhône. Paris, Ministère de la Justice 2005.

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4.4.8 Sentencing Policies
Sentencing policy and the statutory framework of sentencing refer to a crucial factor in determining
the size of a prison population and the extent of overcrowding. In this respect sentencing guidelines
and sentencing commissions which set priorities for prison eligible offences and take into accountavailable prison capacity had been assumed to represent effective controls of prison growth 282.
However, the experiences made during the last decades demonstrate that it is rather the substanceof sentencing guidelines and not the method which will impact on the use of prison sentences.
overcrowding. Of particular relevance seems the response to recidivists in sentencing law andpractice. The emergence of“three and two strikes laws”and truth in sentencing policies, generalapproaches to enhancing penalties in case of recidivism and minimum penalty legislation have been
discussed as major drivers of long prison sentences and as an area where reforms should be focusedon implementing the principle of proportionality. The finding presented earlier that the wide andindiscriminate use of enhanced prison sentences does not improve public safety but rather contributes
to the deterioration of crime and crime control problems should result in considering strictly theinternationally endorsed principles of proportionality and imprisonment as a last resort in sentencing
legislation. Sentencing legislation should leave enough room for judges to adjust the penalty toindividual characteristics of offence and offender 283. This would mean to re-consider mandatory
minimum sentencing laws, truth in sentencing policies and in particular“three strikes and you’re out”
policies284 and to provide for a system of sentencing which is better insulated from penal populism.
From a normative perspective and legal doctrine the problem extends then to the question of what
may fall under the verdict of disproportionate or grossly disproportional punishment285 .
The perspective of parliaments when reforming sentencing laws has to pay attention to the question
whether a specific sentencing policy can be sustained. While it is sometimes thought that prosecution
services and the judiciary should also consider which impact certain sentencing decisions have on theprison system, from a viewpoint of separation of powers it is primarily the task of the legislator totake into consideration possible and probable consequences (and side effects) of legislation and to baselegislation on thorough impact assessments. Impact assessments have found a wide field of application,for example in policies for the protection of the environment286 and are today an essential element ingood governance287. Impact assessments may provide for rough estimates on the effects to be expected

281 Renzema, M., Mayo-Wilson, E.: Can electronic monitoring reduce crime for moderate to high-risk offenders?
Journal of Experimental Criminology 1(2005), pp. 215-237; Swedish National Council on Crime Prevention:
Electronic Tagging in Sweden. Report 2005; Dodgson, K., Goodwin, P., Howard, P., Llewellyn-Thomas, S.,
Mortimer, E., Russell, N., Weiner, M.: Electronic monitoring of released prisoners: an evaluation of the Home
Detention Curfew scheme. Home Office Research Study 222, Home Office Research, Development and Statistics
Directorate, March 2001; Padget, K.G., Bales, W.D., Blomberg, T.G.: Under Surveillance: An Empirical Test of
Effectiveness and Consequences of Electronic Monitoring. Criminology & Public Policy 5(2006), pp. 61-92.
282 Kennedy, E.M.: Prison Overcrowding: The Law's Dilemma. The Annals of the American Academy of Political andSocial Science. Vol. 478, Beverly Hills 1985, pp. 113-122; Frase, R.S.: The Minnesota Sentencing Guidelines. In:
Freiberg, A., Gelb, K. (eds.): Penal Populism, Sentencing Councils and Sentencing Policy. Cullompton 2008, pp.
83-102, p. 99.
283 Tonry, M.: Mandatory penalties. In: Tonry, M. (ed.): Crime and justice: A review of research,
Vol. 16. Chicago 1992, pp. 243-273.
284 Zimring, F.E.: Protect Individual Punishment Decisions From Mandatory Penalties. Criminology & Public Policy
6(2007), pp. 881-886.
285 Van Zyl Smit, D., Ashworth, A.: Disproportionate Sentences as Human Rights Violations. The Modern Law
Review 67(2004), pp. 541-560.
286 For an overview see Albrecht, H.-J.; Kilchling, M., Braun, E.: Criminal Preventive Risk Assessment in the LawMaking Procedure. Freiburg 2002.
287 See Terblanche, S., Mackenzie, G.: Mandatory Sentences in South Africa: Lessons for Australia? The Australianand New Zealand Journal of Criminology 41(2008), pp. 402-420, describing the process of making sunshine
legislation on minimum sentences of South Africa 1998 permanent legislation without considering the impact theseminimum sentences would have a decade later.

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from penal legislation for law enforcement, courts and the correctional system. With that a sound basis
will be established which will help to answer the question whether changes in sentencing laws may besustained without causing unacceptable problems in the correctional system.
Particular concern then should be given to special groups of offenders, among them children,
women and foreign nationals which may be aﬀected through sentencing in diﬀerent ways.
Sentencing laws and sentencing practices have to respect the Child Convention which demands
for custody to be used as a last resort and requires effective and specific implementation of thisprinciple288. Furthermore, Article 37(a) provides for a standard of neither applying capital punishment
nor life imprisonment without the possibility of release. However, current practices demonstratethat children sometimes are exposed to a high risk of imprisonment. Debates in England/Wales onchildren in custody for example point to a strong increase in the number of children sent to custodial
facilities despite ﬁndings that such custodial sentences are neither in the interest of lowering rates of
re-oﬀending nor in the interest of public protection289. The vast majority of children/juveniles placedin custody have not been convicted for violent crime290. Furthermore, concerns have been raisedwith respect to the age of criminal responsibility as well as the age from which on children may besentenced to imprisonment291..The Standard Minimum Rules for the Administration of Juvenile Justiceadvise not to fix the age of criminal responsibility too low and if resorting to custodial sentences
to impose only the minimum necessary period (which allows for education and reform of juvenile
oﬀenders). While the wide and sometimes indiscriminate use of life imprisonment has been discussed
above, special attention should be paid to life imprisonment for the juvenile oﬀender292. According torecent statistics from North America there are 6.807 juveniles serving life sentences; 1.755 of whomare serving sentences of life without parole293.
Women, representing a minority among prisoners at large everywhere are at risk of being
neglected when it comes to prison reform. The challenges posed by this largely vulnerable group294
have been summarized recently in a report submitted to the English government295. The report advises
the government to radically change correctional policies for women offenders with non-custodial
sentences for non-violent women being the rule and replacing womeǹs prisons by dispersed, small
and multifunctional facilities. Such a strategy is considered to provide partial solution to persistentovercrowding problems.
Foreign nationals run particular risk of receiving prison sentences or being detained prior to trial296.
Research from Europe has stressed that in many countries alternatives to imprisonment or pretrial
detention do not work properly for foreign offenders (or illegal immigrants) due to a strong bias incommunity sanctions and alternatives to remand prison towards settled oﬀenders with bonds to thecommunity297. The European Union has responded to this problem with initiating Framework Decisions
288 Joint Committee on Human Rights (January 2008) Legislative Scrutiny: Criminal Justice and Immigration Bill Fifth
Report of Session 2007-08.
289 Standing Committee for Youth Justice: Criminal Justice and Immigration Bill. House of Lords - Committee Stage.
Childrenʼs custody threshold. February 2008, p. 4.
290 Ministry of Justice: Statistical bulletin. Oﬀender management caseload statistics 2006. London 2007.
291 Human Rights Council: Seventh session. Agenda item 3. Report of the Special Rapporteur on torture and othercruel, inhuman or degrading treatment or punishment, Manfred Nowak. Addendum, Mission to Indonesia. A/
HRC/7/3/Add.7 10 March 2008, p. 16.
292 Nellis, A., King, R.S.: No Exit. The Expanding Use of Life Sentences in America. Washington 2009.
293 Nellis, A., King, R.S.: opus cited, 2009, p. 3.
294 CPT: Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by theEuropean Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)from 18 November to 1 December 2008. Strasbourg 2009, p. 21.
295 A report by Baroness Jean Corston of a review of women with particular vulnerabilities in the criminal justicesystem, Home Oﬃce, London 2007.
296 Human Rights Council: Tenth session. Agenda item 3. Report of the Working Group on Arbitrary Detention.
Addendum Mission to Italy. A/HRC/10/21/Add.5, 26 January 2009, p. 2.

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on the mutual recognition of pretrial supervision orders (Framework Decision 2009/829/JI as of 23
October 2009) and the Framework Decision 2008/947/JHA of 27 November 2008 on the application of
the principle of mutual recognition to judgments and probation decisions with a view to the supervisionof probation measures and alternative sanctions. The framework decisions establishing mutual
recognition of alternatives to pretrial detention and imprisonment have been introduced in order tocompensate for the increased risk of not being eligible for non-custodial measures due to a lack ofbonds in the territory where proceedings are held and sanctions are executed. While this policy has
emerged under the particular conditions of the European Union, the general approach of transferring
enforcement and supervision of non-custodial measures to the home country of an oﬀender provides fora reasonable option for the particularly vulnerable group of foreign oﬀenders and hence an additional
option in the control of overcrowding.
4.4.9 Post Adjudication Measures Against OvercrowdingStandard Minimum Rules for Non-Custodial Measures298 assign the post adjudication stage an
important function in the process of implementing rehabilitation and to assist oﬀenders in the processof re-integration. Parole is the core of a set of measures which ranges from reductions in the original
prison sentence, early release under supervision to various forms of prison regimes (open prison,
work furloughs, home detention etc.). Parole and good time approaches are among the conventional
instruments to reduce the time which has to be spent actually in prison. Parole and organization ofparole are furthermore important as recidivism research shows that of those who recidivate (andare re-imprisoned a majority does so within the first year after release299. Parole therefore serves
as a bridge between incarceration and return to the community and represents the most important
instrument in tackling the problem of revolving doors . It is based on the consideration that a gradualand supervised release provides a more eﬀective way of protecting the public than a sudden releaseat sentence expiry. Parole over the last decades has partially lost ground, though, in countries whereparole was abolished good time credits serve as an alternative which results in reductions of theoriginal prison sentence.
Parole comes in different forms. While some systems have adopted automatic parole after
statutorily fixed periods of imprisonment, most criminal codes still provide for a decision which isbased on an assessment of risk and which can result in early release after a certain part of the prison
sentence has been served300. Parole decisions normally point to three elements: a statutorily fixedpart of the prison sentence has to be served (special rules usually apply to prisoners serving life
sentences or being subject to measures of security), a parole commission or a judge assesses therisk of relapse into crime and speciﬁes conditions the parolee has to comply with and which will bemonitored by parole/probation officers. The parole commission/judge then will fix a period of timeof parole supervision. While these elements explain why parole is an elastic instrument which lends
itself to respond to prison overcrowding301, they refer also to an explanation why changes in parole
decision making may lead to prison growth and overcrowding. In fact, during the last decades prison
growth has been explained also by more restrictive, caused by concerns for public security, paralleledby a trend of parole supervision away from a social service orientation to a surveillance oriented
instrument of public protection302. The latter has been made responsible for a tightening of conditions
and orders coming with early release from prison. Stricter surveillance of conditions of parole has in
297 Tonry, M.: A Comparative Perspective on Minority Groups, Crime, and Criminal Justice. European Journal of
Crime, Criminal Law and Criminal Justice 6(1998), pp. 60-73.
298 Council of Europe: Recommendation Rec (2003) 22 of the Committee of Ministers to member states on conditional
release (parole).
299 Nadesu, A.: Reconviction Patterns of Released Prisoners: A 36-months Follow-up Analysis. Department ofCorrections, Auckland, March 2007, p. 4.
300 Les Documents de Travail du Sénat: La Libération Conditionelle. Série Législation Comparée, n°LC 152, Paris,
Novembre 2005 ; Padﬁeld, N. et al. (eds.): Release From Prison. European Policy and Practice. Cullompton 2010.
301 Snacken, S., et al.: Belgium. In: Padﬁeld, N. et al. (eds.): Release From Prison. European Policy and Practice.
Cullompton 2010, pp. 70-103, p. 88.
302 Padﬁeld, N., Maruna, S.: The revolving door at the prison gate: Exploring the dramatic increase in recalls toprison. Criminology and Criminal Justice 6(2006), pp. 329-352, p. 338.

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some systems led to a sharp increase in the return of parolees because of technical violations of parole,
surpassing prison sentences as a driver of prison growth303 and resulted in additional strain placedon overcrowded prisons304. Intensive supervision, originally designed to reduce the risk of relapse
into crime and to expand the use of early release, thus can turn into a mechanism which adds to the
problem of overcrowding. Research on electronically monitored house arrest corroborates this view305.
Parole has come under particular scrutiny and pressure - as have suspended prison sentences due to security concerns caused by spectacular crimes committed by parolees or persons who had
been placed under probation after suspension of a prison sentence306. With increasing concerns for
public security risk assessment and the development and application of elaborated risk assessment
instruments have become more important.
There is not much known about best practices as regards revocation of parole and recalls toprison307. As a minimum recalls to prison should be based on the principle of consistency and theyshould reﬂect recognition of the basic standards applied to the use of imprisonment in general. Thismeans also that recalls should be used as a last resort and in a proportional manner and after tightening
and adjustment of conditions have failed. In general, revocation for technical violations of parole should
be restricted to repeated and substantial violations and violations which indicate a danger to the public.
4.4.10 Amnesties and Collective Pardons
When addressing prison overcrowding sometimes amnesties and collective pardon are applied which
are deemed to be problematic from the viewpoint of recommendations as well as the perspectivesof principles of sustainability, rule of law and separation of powers. Amnesties usually have rather
short-lived eﬀects on prison populations. They do not aﬀect root causes of growth and result in shortterm improvements which fade away shortly after implementation if nothing else changes. Large
scale amnesties reportedly have been used in Zimbabwe several times during the 1980s and 1990s tobring down the size of the prison population, however, despite signiﬁcant short term decreases in the
population, empty prison cells have been ﬁlled308 Italy saw a major amnesty in 2006 as a response toprison capacity problems which in fact emptied the prisons, but resulted also in mistrust and insecurity
in the public. A policy of granting amnesty had been implemented in South Africa. Here, too, theimpact was short-lived309.
Amnesties certainly have their role to play as an instrument to settle large scale conﬂicts and to
pacify a country where a signiﬁcant potential of conﬂict escalation looms. In the wake of major politicaltransitions amnesties may be a tool supporting reconciliation (as it was the case at some occasions in
the new democracies in Central and Eastern Europe)310. However, the regular use of amnesties as a
303 Travis, J., Petersilia, J.: Reentry Reconsidered: A New Look at an Old Question. Crime & Delinquency 47(2001),
pp. 291-313; Petersilia, J.: When Prisoners Come Home: Parole and Prisoner Reentry. Oxford 2003; Weiman, D.R.:
Barriers to Prisoners' Reentry into the Labor Market and the Social Costs of Recidivism. social research 74(2007),
pp. 575-611, p. 599; The PEW Center on States: opus cited, 2008, p. 18.
304 Auerhahn, K.: Conceptual and Methodological Issues in the Prediction of Dangerous Behaviour. Criminology &Public Policy 5(2006), pp. 771-778, p. 774.
305 Dodgson, K., Goodwin, P., Howard, P., Llewellyn-Thomas, S., Mortimer, E., Russell, N., Weiner, M.:
Electronic monitoring of released prisoners: an evaluation of the Home Detention Curfew scheme. Home Oﬃce
Research Study 222, Home Oﬃce Research, Development and Statistics Directorate, March 2001.
306 Albrecht, H.-J.: Security Gaps: Responding to Dangerous Sex Offenders in the Federal Republic of Germany.
Federal Sentencing Reporter 16(2004), pp. 200-207.
307 Padﬁeld, N., Maruna, S.: opus cited 2006, p. 347.
308 Stern, V.: Alternatives to Prison in Developing Countries: Some Lessons from Africa. Punishment & Society1(1999), pp. 231-241, p. 236; see also Dankwa, V.: Overcrowding in African Prisons. In: Sarkin, J. (ed.): Human
Rights in African Prisons. Capetown 2008, pp. 83-92, p. 84.
309 Dissel, A., Ellis, S.: Reform and Stasis: Transformation in South African Prisons. Center for the Study of Violenceand Reconciliation, Capetown 2002.
310 Albrecht, H.-J.: Braucht die Politik die Amnestie? Anmerkungen zum Problem der Amnestie aus der Perspektive
der Rechtsentwicklung im Ausland. In: Greve, W. (ed.): Amnestie, Gnade, Politik. Loccumer Protokolle. Loccum
1990, pp. 67-95.

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response to prison overcrowding seems to undermine conﬁdence in the criminal justice system. The
issue of a possibly negative impact on conﬁdence is also raised by the Human Rights Council when
faced with large scale amnesties311. Despite such concerns, it has been argued that amnesties may
play a useful role in controlling overcrowding if other measures are not available at all312. Although,such a situation is in principle imaginable (for example in the case of a sudden, unexpected and drastic
increase in the number of prisoners), the routine practice of amnesties and collective pardons until
now is observed in countries with long histories of overcrowding. As a rule, amnesties and collective
pardons are only legitimate under the goal of achieving reconciliation in a society aﬀected by severe
conﬂicts.

5. Summary and Conclusions
5.1 Findings

1. Prison overcrowding is a serious problem and an elusive phenomenon. Overcrowding seems torepresent a characteristic troubling the modern prison since its invention in the 19th century.
2. Overcrowding sometimes emerges as a problem which remained hidden for a long time;
rapid declines of the prison population seem to come often also as a surprise for criminal justiceadministrators.
3. The patterns of turning points in the course of prison populations reﬂect to a certain extent thedegree of stability of criminal justice policies and criminal sentencing and the extent of their insulationfrom outside pressures.
4. The problem of prison overcrowding is located at an intersection where several important policy
and crime research related topics converge. These topics concern criminal sentencing, the role ofprison sentences and imprisonment in the system of criminal sanctions, prison standards, the courseof crime, prison budgets, economic restraints and general criminal policy determining the course of
criminal law and punishment in a society.
5. Prison overcrowding can come as the result of a slow, steady and long term increase in thenumber of prisoners, developing into a culture of chronic overcrowding ; it can come also in a rapid
move upwards for example in the wake of collective violence Correctional systems may be aﬀectedby prison overcrowding for short periods of time; in others overcrowding appears as an ebb and ﬂow
phenomenon.
6. Approaches to the assessment of overcrowding under international and national laws and standards
amount roughly to a totality-of conditions test. The smaller the space available, however, the more
important becomes space in itself.
7. Prison capacity is a slippery concept which expresses the need for elasticity and can be used tomake overcrowding more or less apparent.
8. A closer look at prison systems reveals that the correlation between the rate of imprisonment andovercrowding is rather weak
9. Overcrowding is correlated with the rate of pretrial detainees, the size of the GDP per capita, thedegree of inequality, democracy, the extent of perceived corruption, state fragility as well as violence.
Overcrowding is not signiﬁcantly correlated with the prisoner rate at large. On the basis of the patternof correlations found it can be concluded that overcrowding problems essentially are associated withproblems of governance, a weak economy and obvious problems in the criminal justice systems.
311 Human Rights Council: Tenth session. Agenda item 3. Report of the Working Group on Arbitrary Detention.
Addendum. Mission to Italy. A/HRC/10/21/Add.5, 26 January 2009, p. 9.
312 Walmsley, R.: Global Incarceration and Prison Trends. Forum on Crime and Society 3(2003), pp. 65-78, p. 74.

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10. Three distinct clusters of overcrowding can be distinguished, displaying diﬀerences in economic,
social, governance and criminal justice related dimensions. Low overcrowding is correlated with a highGDP per capita, a low violence rate, low state fragility, high achievements in human development anddemocracy and a low extent of perceived corruption. A slightly higher rate of overcrowding comeswith a low rate of pretrial detainees and a high rate of imprisonment. High overcrowding is correlatedwith a rather low prisoner rate, a high rate of violence, low per capita GDP, democracy and humandevelopment values as well as manifest signs of weak governmental structures.
11. Particular problems of overcrowding are observed in countries which undergo rapid social change
and significant transitions or find themselves in a post-conflict situation and in a difficult process ofstate building. Here, prisons and prison conditions should become an integral part of the general
reform of the security sectors and general security policies.
12. Data on prison capacity and overcrowding reveal also that overcrowding may aﬀect a countryʼsprisons selectively with some prisons showing over capacity occupancy while others operate below thelevel of accommodation capacity.
13. Particular problems of overcrowding are observed for prisons serving large cities where various
social problems converge.
14. Although, there are but few longitudinal studies on prison overcrowding, it can be assumed on
the basis of research and reports that distinct patterns of careers in overcrowding exist which can bemodeled along various economic, cultural and political conditions. Turning points in the course prison
populations take reﬂect the impact of amnesties, changes in sentencing policies or in the sensitivity
towards certain types of crime.
15. Prison populations are growing in some parts of the world. However, in some regions/countries
marked decreases in prison populations have been observed in the last decade. There is evidently no
uniform trend. Even within (Federal) states prisoner rates take completely diﬀerent courses.
16. Prison population drops come sometimes unexpected. Recent prison population drops in Germany
and in The Netherlands are explained by a decline in crime. Others (Portugal) are a consequence ofdeliberate planning.

5.2 Explanations

1. According to many voices changes in crime rates do not contribute signiﬁcantly to prison growthand overcrowding. While this assumption may hold true for changes in crime rates in general,
increases in (sensitive) crime categories which attract prison sentences, in particular long prison
sentences, during the last decades have been identiﬁed as drivers of overcrowding in prisons.
2. New social problems (drugs), the eruption of large scale violence or systemic violence may
inﬂuence the course prison populations take. Another potential for crime impacting on prisons is insome countries found in general public order oﬀences.
3. In many criminal justice systems minimum and maximum penalties have been raised and minimum
sentences have been introduced. Extended minimum sentences will have lagged effects on prison
populations.
4. Statutory frameworks of sentencing which allow for grossly inflated periods of imprisonment
and the imposition of consecutively running prison sentences for multiple crimes add to the rise oflong prison sentences. Particular attention should be devoted to life prison sentences and here to life
without parole
5.

108

While security orientation and punitive responses in fact prevail with respect to oﬀender groupsdeemed dangerous, alternatives to imprisonment, community sanctions, intermediate penalties,
mediation and restorative justice approaches, most recently a new interest in designing eﬀective reentry programs for ex-convicts still ﬁgure prominently on crime policy agendas.
6. Alternatives to imprisonment and parole, however, carry a risk of imprisonment in case of failure
to pay a ﬁne, violations of conditions coming with alternatives or re-oﬀending. Fines are particularly
prone to be converted into substitute imprisonment under conditions of poor economic circumstancesand large scale poverty.
7. During the last decades prison growth has been explained also by more restrictive, caused byconcerns for public security, paralleled by a trend of parole supervision away from a social service
orientation to a surveillance oriented instrument of public protection. The latter has been maderesponsible for a tightening of conditions and orders coming with early release from prison. Stricter
surveillance of conditions of parole has in some systems led to a sharp increase in the return ofparolees because of technical violations of parole, surpassing prison sentences as a driver of prison
growth
8. Poor and unsettled oﬀenders turn out to fuel prison inﬂation in diﬀerent contexts. In developing
countries poverty is at the core of the problem of failure due to persons not being able to pay even mallamounts of ﬁnes or bail.
9. Root causes of overcrowding have been identiﬁed in statutory frameworks and practices of pretrial
detention.
10. Developments in prison populations and overcrowding are diverse and reﬂect idiosyncracies which
necessitate careful analysis of individual national systems of criminal justice.
11. In a recent comprehensive analysis of US prison data covering the period 1977 to 2005 it was
concluded that the best predictors of the size of prison populations are crime, sentencing policy, prison
overcrowding and state spending (on prisons). Prison overcrowding thus may be part of the onset of apolitical process where due to a lack of imagination of other options than building new prisons spending
on prisons results in a dynamic which reiterates political decisions and at the same time boosts thepotential for overcrowding.
12. There do not seem to exist many windows of opportunity for passing knowledge from research
to the political system in order to develop evidence based correctional policies.

5.3 Conclusions

1. Overcrowding has been on international and national policy agenda since decades. Insofar, it does
not come as a surprise that strategies to reduce overcrowding have been extensively discussed andwidely disseminated.
2. In general, approaches to deal with prison overcrowding refer to reduction of admissions to prisonand detention and reduction in the length of the stay.
3. Full consent exists on a two pronged approach of implementation which on the one hand identiﬁes
the measures with which to reduce/combat etc. prison overcrowding and on the other hand gets themeasures accepted .
4. Research rarely addresses public attitudes towards prison overcrowding and acceptable
instruments to resolve such problems. In general, it was found that the public is not interested inprison policy. The constituency for prisons is evidently narrow, specialized and not inﬂuential.
5.

There are certainly no states of denial on the side of states and criminal justice oﬃcials when it

109

comes to recognizing overcrowding problems.
6. Analysis of overcrowding, identiﬁcation of conditions under which overcrowding emerges as well
as evaluation of approaches to contain or reduce overcrowding are in need of reliable and valid data on
police recorded crime, sentencing, the prison population and the ﬂow of cases.
7. Most of the penitentiary systems do not provide for suﬃcient data; moreover research on prison
and imprisonment is limited, in particular as regards research comparing various sentencing options(including imprisonment)
8.

Prison projections represent an instrument which in principle can advise and guide policy.

9. In spite of limitations of prison projections, implementation of this approach will result in
information systems which can inform research, the public and politicians and thus improve the basis
for impact assessments and political discourses around sentencing and other crime related policies.
10. Prison construction programs or the acquisition of additional space through privatization can
provide relief in case of overcrowding. However, prison construction programs must be placed
under financial restrictions. Second, additional prison capacity may in fact worsen the problem ofovercrowding in the long run and furthermore reinforce a policy of reliance on imprisonment and thedeprivation of liberty.
11. Prison litigation can become a means to and a part of prison reform. As prisons and prisoner do nothave a strong constituency, strengthening inmates rights in litigation cases could be a eﬀective tool in
de-crowding prisons through the empowerment of inmates and NGOs.
12. Public order oﬀences, small drug oﬀences and criminal oﬀences committed by addicted oﬀenders
are candidates for either complete decriminalization or for transformation into administrative oﬀences
which do not carry prison sentences.
13. Drug addicted prisoners and the mentally ill represent in some correctional systems signiﬁcantgroups which not only contribute to overcrowding but also to additional problems as regards the risk oftransmitting infectious diseases.
14. Restorative justice and mediation programs may be useful to reduce the length of prison
sentences. Serious efforts for reconciliation between offender and victim are in some systems
considered as mitigating factors. But, it is difficult to assess the potential of restorative justice,mediation and restitution due to the absence of evaluation research which addresses the impact of
restitution, restorative justice or victim-oﬀender-reconciliation programs on sentencing and the prison
population.
15. Traditional or customary approaches to deal with crime certainly have a potential as an alternative
to formal criminal proceedings. The wide use of (informal) reconciliation procedures in African andAsian countries demonstrate eﬀectiveness but also risks related to equal treatment and fairness.
16. With respect to pretrial detention it seems to be promising to place the emphasis first on
the normative framework of pretrial detention and alternatives to pretrial detention. Of utmost
importance for a normative framework geared towards minimizing pretrial detention is the principle ofproportionality and the way proportionality is translated into the conditions set for pretrial detention.
Placing a strict statutory cap on the length of pretrial detention certainly plays a decisive role inlimiting pretrial detention as does a general clause which prevents that petty oﬀences (which will mostprobably result in non-custodial sentences) will lead to detention prior to trial
17. Studies demonstrate then that the risk of absconding is often misjudged in decisions on pretrial

110detention and as a consequence many false positives are held in remand prisons.
18. Assigning a defense council very early in criminal proceedings seems to be correlated with shorter
periods of pretrial detention In the same line of practices fall approaches which, also for budgetary
reasons, install assistance through paralegals
19. Experiences with electronic monitoring have not yet been evaluated systematically in the context
of replacing pretrial detention; however, reports describe electronic monitoring as an importantelement in packages designed to bring down the prison population.
20. The European Supervision Order seeks to compensate a particular risk of foreign nationals to
be placed in pretrial detention and at the same time to strengthen the principle of presumption of
innocence. Through mutual recognition of pretrial (non-custodial) supervision orders it is sought in theEuropean Union context to create an additional option in the strategy to reduce pretrial populations.
21. Case backlog reduction programs may serve to raise awareness for giving priority to cases where
pretrial detention was ordered and reduce the time suspects spend in pretrial detention.
22. Remarkable success stories can be reported from creating and successfully implementing
alternatives to imprisonment. There is clear evidence that day ﬁnes succeeded in the past to replace toa quite considerable though diﬀering extent in particular short-term imprisonment .
23. Suspended prison sentences and probation turned out to be quite successful as alternatives toimmediate imprisonment.
24. Although, alternatives to imprisonment have been introduced since the 1960s/1970s in many
regions and in spite of their apparent success alternatives have not or could not been implemented in a
way which has prevented further prison growth and overcrowding.
25. Community service programs have been introduced in many countries which seem to work quite
well. Community service evidently can be implemented also in face of strained budgets. Some of
the new community service programs demonstrate a signiﬁcant potential and exhibit interesting andinnovative features. These community service programs are integrated with professional training andwith the idea of restitution and paying back to the immediate community ( neighborhood community
service ).
26 The emergence of three and two strikes laws and truth in sentencing policies, generalapproaches to enhancing penalties in case of recidivism and minimum penalty legislation have been
discussed as major drivers of long prison sentences and as an area where reforms should be focused on
implementing the principle of proportionality
27. The wide and indiscriminate use of enhanced prison sentences does not improve public safety
but rather contributes to the deterioration of crime and crime control problems. This should result in
considering strictly the internationally endorsed principles of proportionality and imprisonment as alast resort in sentencing legislation.
28. Sentencing legislation should leave enough room for judges to adjust the penalty to individual
characteristics of offence and offender. This would mean to re-consider mandatory minimum
sentencing laws, truth in sentencing policies and in particular three strikes and youʼ re out policies.
Sentencing should be better insulated from penal populism.
29. Parliaments when reforming sentencing laws have to pay attention to the question whether
a specific sentencing policy can be sustained. Iit is primarily the task of the legislator to take into
consideration possible consequences (and side eﬀects) of legislation and to base legislation on thorough111

impact assessments. Impact assessments have found a wide field of application and are today anessential element in good governance.
30. Parole is the core of a set of measures which ranges from reductions in the original prison
sentence, early release under supervision to various forms of prison regimes (open prison, work
furloughs, home detention etc.). Parole and good time approaches are among the conventional
instruments to reduce the time which has to be spent actually in prison.
31. Parole therefore serves as a bridge between incarceration and return to the community andrepresents the most important instrument in tackling the problem of revolving doors.
32. There is not much known about best practices as regards revocation of parole and recalls toprison. As a minimum recalls to prison should be based on the principle of consistency and they should
reﬂect recognition of the basic standards applied to the use of imprisonment in general. This means
also that recalls should be used as a last resort and in a proportional manner and after tightening andadjustment of conditions have failed. In general, revocation for technical violations of parole should be
restricted to repeated and substantial violations and violations which indicate a danger to the public
33. Amnesties usually have rather short-lived eﬀects on prison populations. They do not aﬀect root
causes of growth and result in short term improvements which fade away shortly after implementation
if nothing else changes. Amnesties certainly play a legitimate role as an instrument to settle large
scale conﬂicts and to pacify a country where a signiﬁcant potential of conﬂict escalation looms, not in
responses to

5.4 Open Questions

Crucial and still open questions concern the explanation of success and the explanation of failure ofmeasures to control overcrowding. If the acid test of reform should be rather what can be sustained
than what can be attained313, then, well designed longitudinal research is needed. For most of the
projects and approaches described in this report such research is not available. The assessment of
success and failure is based on a mix of limited data, selective and systematic observation, narratives
and assessments based on practical experiences. But, beyond that theoretical underpinning isrequired which structures the complexity which comes with the onset and disappearance of prison
overcrowding, reconciles normative and empirical approaches and ultimately provides guidance forpolitical decisions.
When looking at explanations of success a diverse picture can be drawn which essentially fits
the assumption of rather unique configurations which in the context of a countries history explain
why certain approaches work (and others not). Successful reforms and changes in pretrial detention
practices in the Ukraine for example are explained by placing pretrial detention reform into a larger
policy of moving away from a repressive Soviet style system and to become an accepted member of
the Council of Europe314. Speciﬁc incentives insofar have been perceived to exist and have been linked
to prison conditions. Successful reduction of remand and sentenced prison population in Portugal
over the last years is linked to a comprehensive reform of substantive and procedural criminal law;behind that stood evidently the political will to contain prison growth and to improve prison conditions.
Political will as to what place prison sentences should play in a system of criminal sanctions and how
prison sentences should be enforced certainly have a central place in explanations. A major impact on
the size of prison populations can be expected from deliberate political decisions to cut down the useof imprisonment. Examples can be drawn from decisions made by Austrian and German parliaments
to reduce the use of short term prison sentences (up to six months) in the 1960s. Finland opted
also for a major change in the use of prison sentences when making a decision to adjust to practices
implemented in other Scandinavian countries. Both examples, the German/Austrian as well as the
313 Varenik, R.O.: Mixing Politics, Data, and Detention: Reﬂections on Reform Eﬀorts. In: Open Society Institute(ed.): Justice Initiatives. Pretrial Detention. New York 2008, pp. 172-183, p. 174.
314 Naimark-Rowse, B., Schönteich, M., Sorochinsky,, M., Tomasini-Joshi, D.: opus cited, 2008.

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Finnish, demonstrate also what is needed to initiate political discourses and ultimately politicalchanges which reduce the prison population eﬀectively: a justiﬁcatory system or a narrative which ispolitically acceptable and which endorses decarceration policies or alternatives to imprisonment315.
In Germany/Austria the narrative drawn from the program of Franz v. Liszt was very successfulwhen implementing in the 1960ies a policy which gave priority to ﬁnes and cut back drastically shortprison sentences. In Finland it was evidently the wish to fall in line with the rest of the Scandinavian
countries which resulted in adopting a decarceration policy which decreased the prison population
signiﬁcantly. However, it is not clear how such justiﬁcations are made to work and why under certain
conditions they seem to be successful and under other conditions they are not.
The Finnish case shows that discourses on the role of prison sentences and the size of the prison
population may be also initiated by placing prison ﬁgures into a comparative perspective. In the 1990s
in Australia the question was raised why New South Wales would experience a much higher prisonerrate than the demographically similar state of Victoria316. Research came up with a mix of grounds.
In New South Wales more imprisonment for ﬁne default, longer prison sentences, and in particular ahigher rate of custodial sentences can be observed, while Victoria disposes of an additional alternative,
periodic detention. Such comparisons seem to become eﬀective within clusters of countries (or politicalentities) which are due to various reasons close to each other. However, comparisons may also resultin discourses headed towards increasing the size of the prison population. The Chairman of a Northern
Irish political party in 2005 and at the occasion of the publication of English prison ﬁgures expressedsurprise when noticing that Northern Ireland had prison population ﬁgures half of those in England/
Wales317. Referring to violence and security it was then stated that the public would not understandthat Northern Ireland resorts that rarely to imprisonment.
Financial crises and budgetary problems are sometimes cited as causing political change andencouraging decisions to revisit sentencing policies and early release procedures. A direct causal
relationship, however, is contended. Case studies from the United States are interpreted as showingthat states began to re-evaluate security policies and recognized that prison populations can be reduced
without a negative impact on public security318.
Answers to the question how to explain why reforms fail in producing sustained and durable
changes in prisons are diverse, too. Often, it is assumed that failure of new options in reducing prison
overcrowding is the consequence of deep rooted attitudes and beliefs of criminal justice oﬃcials who
continue to rely on deprivation of liberty, even if plausible alternatives are available319. In Chile, theabsence of data showing an impact of the reform of rules and practices of pretrial detention have been
noted as an explanation why a counter reform succeeded after a public debate on whether security had
been compromised by strengthening proportionality in decisions on pretrial detention.
Financial problems certainly play a crucial role in achieving sustainability. Projects are sometimes
based on resources which are available for a limited period of time. Failure of finding permanent
funding may explain why quite some projects discontinue or cannot be expanded.
Prisons then are regarded to be low priority issues in all political systems and that there is little
awareness of prison conditions among the public 320. Moreover, criminal justice and correctional
systems may be more or less exposed to partisan politics dependent on the political system andthe extent of insulation of the judiciary from political pressure. It can be assumed that partisan
politics bring more instability in the course practices of sentencing, early release, amnesties, prison
315 Jacobs, J.B.: Finding Alternatives to the Carceral State. social research 74(2007), pp. 695-699.
316 Gallagher, P.: Why does NSW have a higher imprisonment rate than Victoria? NSW Bureau of Crime Statistics
and Research, Crime and Justice Bulletin, May 1995.
317 www.allianceparty.org/news/001618/surprise̲at̲prison̲population̲ﬁgures.html (10th Sep 2005).
318 The PEW Center on the States: opus cited, 2010, p. 2.
319 Schwartz, O.: Ebb Tide: The Russian Reforms of 2001 and Their Reversal. In: Open Society Institute (ed.):Justice Initiatives. Pretrial Detention. New York 2008, pp. 103-119, p. 317.

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can be initiated321 which are in line with international standards and the body of principles which,in theory, provide for blueprints, models and all instruments needed to contain prison populations.
A similar question may be raised with respect to how the community and social elites can be madeinterested in prison reform. There are interesting cases which describe that interest can be raised322
and in fact placing the focus on practices instead of norms (which are a field for legal specialists)
could provide more opportunities and perhaps more incentives for participation at justice and prison
reform323.
If political will is in fact decisive for success or failure of prison reform, then general theoretical
approaches to the explanation why state actors comply with rules and standards should be pursued324.

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PENAL REFORM AND PRISON OVERCROWDING IN LATIN
AMERICA AND THE CARIBBEAN- What To Do, What Not To Do. The Good Examples Of
Costa Rica And The Dominican Republic1 -Status of prison overcrowding in Latin America and the Caribbean. Importance of identifying theorigin of overcrowding in order to be able to reduce it effectively. Effects of income distribution
inequality on crime and on prison overcrowding. Truly comprehensive policies and actions are required.
What to do speciﬁcally in penitentiary systems. What not to do. Inconvenience of private prisons in
middle and low income countries. The good examples of Costa Rica and the Dominican Republic. The
need to persist and become renovated.

Status of prison overcrowding in Latin America and the Caribbean

This presentation is one result among others of the ILANUD/RWI Penitentiary Systems and Human
Rights Programme that ILANUD has been implementing over almost four years with the generous
co-operation of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, RWI, andthe Swedish International Development Agency, SIDA, 2006-2009, with participation of the nineteen
countries of Latin America.
Since the creation of ILANUD in 1975 the issue of prisons has constituted one of its permanent
programmes. In this area special attention has been paid to prison overcrowding, the most serious
problem that the countries of Latin America and the Caribbean have been facing for the past two
decades, which we measure on the basis of density for every one hundred places.
The two tables below show the current density in the regionʼs penitentiary systems. As can beobserved, the prisons in 25 out of the 29 countries in both tables were overcrowded2, and in mostcases exceeding the critical overcrowding parameter of 120% or over, established by the European
Committee for Crime Problems (Comit? Europeen 1999 : 43) which we also utilize to assess thesituation in the Latin American region.
It is necessary to make clear that due to the following and other reasons the overcrowding situationis actually more serious than these tables show:a) the figures in the tables are averages of the total figures for all prisons in the penitentiary
system of each country. In reality it occurs that there is little or no overcrowding in some facilities
while very high densities even of several hundreds and in inhuman conditions are found in some cases;b) in an attempt to alleviate the serious situation, penitentiary officials do whatever they can
within their narrow range of possibilities, making changes with the furniture and the facilities. They
provide bunk beds, frequently of several tiers of berths (in one case we counted as many as eight
berths per bunk bed); they also convert areas that were devoted to other uses before (for instance,
1

2

A previous version of this document was delivered in the workshop on Penal Reform and Prison Overcrowding
held at the 18th Session of the United Nations Commission on Crime Prevention and Criminal Justice, Vienna
International Centre, April 15th 2009. The translation from the Spanish original was made by Orlando García
Valverde.
The exceptions are Costa Rica, among the countries of the Latin American group, and Belize, Dominica andTrinidad and Tobago in the Caribbean group. The table shows Argentina also without overcrowding, but theﬁgure corresponds only to the Federal Penitentiary Service. In some of the provinces the situation is the same asat the regional level.

131

hallways, recreation rooms, etc.) into sleeping quarters, and build bedrooms in areas that wereformerly open yards or soccer ﬁelds. The result of such transformations is an increase in sleeping
quarter capacity but at the expense of the quality of life in prisons which becomes worse. Prison unit
capacity becomes thus redeﬁned: for instance, a prison with an original capacity for 500 individuals
will now be described as having a capacity for 1,000. This makes it very diﬃcult to measure the actual
capacity of the systems, and it may be asserted that the figures in these tables are optimistic. In
reality densities are higher and frequently very much higher.
It is obvious, we might add, that in addition to being a cruel, inhuman and degrading treatment, as
expressed by the Inter-American Court of Human Rights, critical overcrowding damages all essentialfunctions of penitentiary systems: health, nourishment, rest, visitation, work, education, security ofboth inmates and personnel, etc.
PRISON OVERCROWDING IN COUNTRIES OF LATIN AMERICA
1999-2002

2005-2006

POPULATIONDENSITY
X 100 PLACESPOPULATIONDENSITY
X 100 PLACES

Argentina (02-05)*

52,914

118

Bolivia (99-06)

8,315

162

7,721

207

Brazil (02-06)
Colombia (01-06)

239,345132

401,236173

71,837

136

81,367

117

Costa Rica (02-05)

7,626

110

8,407

99

Chile (01)33,620141

42,532

Dominican Republic (99-05)*

14,188256

13,887138

Ecuador (01-05)

7,859

115

14,331161

El Salvador (02-05)

11,506167

12,853

162

Guatemala (99-09)

8,169

113

10,962128

Honduras (99-06)

10,869209

11,178141

Mexico (00-05)

151,662126

210,140128

Nicaragua (02-05)

6,885

104

6,103

104

Panama (02-05)

10,423

137

11,688161

Paraguay (99-05)

4,088

151

6,290

128

Peru (02-05)

27,417138

37,445

154

Uruguay (01-06)

4,903

151

6,584

145

Venezuela* (00-06)

20,659113

26,047115

COUNTRY

99

E. Carranza, ILANUD*Argentina
Argentina: The 2005 ﬁgure is only for the Federal Penitentiary Service. There was overcrowding in provincial penitentiary services.
*Dominican
Dominican Republic:
Republic The 2002 figures are from the Commission for the Definition, Implementation and Supervision of the Nationʼs
Penitentiary Policy and the calculation was made taking into account only 21 prisons, 12 having been excluded, since according to theCommission《all prisons have collective cells and due to numerous remodeling and expansion works it is impossible to determine exactly
the capacity of the 32 facilities there are in the country.》

PRISON OVERCROWDING IN THE CARIBBEAN 2008
PRISONERS
Antigua & Barbuda

DENSITY PER 100
PLACES

208

131

Bahamas

1,084

129

Belize

1,334

86

254

85

Grenada367

374

Jamaica

4709

111

St .Kitts & Nevis

232

155

Saint Lucia

503

101

St. Vincent & Grenadines

376

188

Dominica

132

Suriname

1,600

135

Trinidad & Tobago

3,510

88

Source: International Centre for Prison Studies, Kingʼs College, London.

It is important to identify the origin of overcrowding in order to be able to reduce it
effectively.

Prison overcrowding in Latin America and the Caribbean cannot be solved simply by making
changes inside prisons. Prison systems are the last link of《an inmate production chain》which
generally starts with the police, continues at the prosecutorial agency and moves on to the courts
before arriving at the penitentiary system which receives and lodges the inmates with a very little
chance or with no chance at all to turn them back or to exert an influence towards correcting
and reducing such《production chain.》 Although a good professional performance on the part ofpenitentiary officials is very important to attain acceptable standards of dignity and respect for thebasic rights of those in prison, the prison staﬀ by themselves have very limited possibilities to reduce
overcrowding, it being indispensable for the prosecutorial agency and the judges to apply preventive
imprisonment and prison sentences more prudently.
Nor can overcrowding be solved simply by building more prisons, although in some cases it isnecessary to build facilities. The countries of the region have a high vegetative population growthrate and some also in terms of immigration. This means that, even if it were possible to maintainconfinement rates stable, prison populations will always show a certain growth that will generally
require additional space.
But it occurs that in addition to the vegetative growth of the countries, populations conﬁnement
rates have also been growing at an accelerated pace with very few exceptions since the end of theeighties and the beginning of the nineties, whereby the absolute figures concerning individuals in
prison have grown impressively having multiplied themselves by 2 and 3 between 1992 and 2008,
and no country has the economic capacity to solve the problem solely by building new facilities (seetables for rates at the end of the document). The origin of such growth of prison rates lies in theoperation of the entire chain of criminal justice system links and in the need to tackle crime and othersocial conﬂicts not only through prison sentences, but also with non penal responses and with penal
responses other than imprisonment, and this also has to do with crime increases, the consequent alarmon the part of the population, and with structural reasons resulting from the manner in which income
distribution has been managed within globalization3. Very rigorous research has been conducted withrespect to the latter, which proves that income distribution inequality measured by the Gini coeﬃcient
has a signiﬁcant and strong eﬀect which results in an increase in the rates of crimes committed against
both individuals and property. This has been measured for the crimes of homicide and robbery andburglary in 39 UN member countries, the co-relation having been veriﬁed within the countries andparticularly among countries (Carranza, E., 2007, 2006; Fajnzilver P. et al., 2002; Bourgignon
F., 2001). It couldn't be by chance that both, crime, and prison populations would grow at such anaccelerated pace and simultaneously throughout the entire region.

Truly comprehensive policies and actions are required

We may conclude from the preceding that public policy concerning crime and criminal justice mustbe truly comprehensive, not merely of a criminal nature, and that it must be accompanied by policies
that will reduce inequality in income distribution. This has been said for years in numerous criminal
policy documents of United Nations where it is explained that crime is a social phenomenon and thatin order to keep crime levels low and to benefit from a good criminal justice it is indispensable toattain good levels of equality in the exchange and distribution of income and development within the
countries and among countries. It is indispensable to insist on this. Otherwise we shall become stuckon the search for《good technocratic practices》rather than satisfying the basic needs of prisons and3

On globalization and how it has been managed see Joseph Stiglitz 2002.

133

criminal justice systems. It is the same case as with the basic needs of our societies in terms of health,food, water, education, housing, labour, etc. It has been proven that countries that meet such basic
needs with justice and equality have good ratings in other areas such as culture, art, and sciences, aswell as low levels of social violence and crime.

What to do specifically in penitentiary systems. What not to do. The good examples of Costa
Rica and the Dominican Republic

Once the need for comprehensiveness in policies and actions has been established we must then ask
ourselves what to do speciﬁcally in penitentiary systems to reduce overcrowding and related problems.
In many countries of Latin America and the Caribbean we ﬁnd examples of good penitentiary staﬀ
members who perform their jobs admirably with great dedication although in very diﬃcult conditions.
We observed this again while we were implementing the ILANUD/RWI Programme. However, theseexperiences are generally focused on a province, a prison, or a wing of a prison, and are frequently
individual eﬀorts that normally are not aﬀorded the necessary support or continuity and that become
ultimately interrupted.
Not to preclude other examples that would also deserve to be brought to public attention, weshall refer to two notable cases characterised by the fact that they constitute country-wide nationaland comprehensive reforms where a model has been coherently under development for thirty years
in one case and for ﬁve in the other. In other words we shall not be referring to two《proposals》,
or to two cases of《good practices》but to two speciﬁc realities that have been and are being shaped
comprehensively in the penitentiary systems of two countries, and which have also been accompaniedby considerable coherence and comprehensiveness in terms of actions in their criminal justice systems
and also, to a certain extent, in terms of State policies in other social and economic areas. These are
the cases of Costa Rica and the Dominican Republic. The current model of Costa Rica has been underdevelopment, with small variations, for 30 years. That of the Dominican Republic is younger but willsoon enter into its sixth year of coherent development after three consecutive administrations.
Without ignoring the important differences in terms of history, culture, language, per capita
income, etc., that separate these two countries from the Northern European countries and Canada,
and focusing our appreciation exclusively on penitentiary systems, we feel that both, Costa Rica, andthe Dominican Republic are developing a State penitentiary system that is very similar to that of citedcountries in the areas indicated, although with a necessary adjustment to their situation and realityof middle income countries trying to solve not only the specific overcrowding problem, but that of
the comprehensiveness of their penitentiary systems as well, as the only way to attain success in the
pursuit of better dignity and basic rights standards for both the inmates and the staﬀ, and also as the
only way to do so at a reasonable cost (since prison, by its very nature, is very expensive and requires
a considerable investment).
The model or strategy implemented by both countries has the following characteristics:a) It was introduced thanks to a political decision from the highest level of government: thepresidency of the republic and the respective ministry. This was an essential requirement in bothcountries to install the prison reform;b) Key staff members were very carefully selected on the basis of their vocation, educational
background, knowledge of the subject matter and full-time dedication to the job (head of thepenitentiary system, of the staﬀ training school or institute, and of each prison), as were other oﬃcials
in related areas, such as the head of crime policy.
The prevailing situation in Latin America in general, with exceptions, is that the heads of themain prisons do not arrive at such positions with a background in penitentiary studies or experiencein the ﬁeld or both. Many of them who belong to the army or the police are appointed temporarily

134

in the penitentiary system; others are normally civilians who are appointed in such capacity by thegovernment in power but also without a background in penitentiary studies or experience in the ﬁeld
or both. ILANUD has veriﬁed cases of great functional instability, with a rotation of directors generalevery six months on average.
In Costa Rica the directors general of the Social Adaptation Department are always staﬀ members
selected from among those already in the penitentiary career; so are the heads of prisons and of thePenitentiary Training School. The case of the Dominican Republic is very interesting: two parallelsystems function in the country: the《new》one with eleven prisons already and growing with the
opening of new or remodelled facilities exclusively under new《PST》oﬃcials (VTP4) who enter into
the system after eight months of training at the Penitentiary Training School; and the《old》one whichstill has 24 prisons and which gradually disappears in the course of consolidation of the new system.
All oﬃcials with the leadership of such change have maintained their stability since the beginning of
the process.
c) Continuity has been uninterrupted in the reform programme. It is indispensable for the
penitentiary reform to outlast the diﬀerent administrations and for it to last from eight to ten years
in order to become consolidated. In Costa Rica the process started in 1975 and it has been able tosurvive for eight administrations. In the Dominican Republic it started in July 2003 and it is into thethird administration.5d)

The penitentiary career was created in both countries.

In most countries of the region there is no penitentiary professional career and penitentiary oﬃcials
are not beneﬁted by stability in their positions. Both, Costa Rica, and the Dominican Republic createdprofessional penitentiary careers with the guarantee of stability on the job and social security andretirement beneﬁts.6e) In both countries a training school or institute that selects and trains necessarily all personnel
that enters into the system and that provides continuously in-service training was created. All
penitentiary personnel must be adequately trained and know the institution for which it works as well
as develop an interest in it.
f) In both countries a considerable initial investment was made. The governmental decision toestablish the new system must be accompanied by the necessary resources. Both, Costa Rica, and theDominican Republic devoted considerable initial resources to the project.
It is indispensable to invest on: i) well remunerated personnel and an adequate inmate:staﬀ ratio;ii) facilities; no overcrowded prison can function adequately, just as no hospital, school or any otherinstitution in overcrowding conditions could; iii) an annual budget that would make it possible to makethe necessary expenditures for the system to function adequately, including food, health, education,etc., as well as the monthly salary of the staﬀ.
g) Both countries continued to make regular annual investments. Periodic investment isnecessary to maintain the level and advancement of the system. If the system is neglected the costto recover it is very high, but the most serious consequence is the loss of trust on the part of thestaﬀ and the inmates, who shall interpret that this was one more promise by the politicians in vogue
and that placing your life at stake by opposing very powerful and violent interests that would be456Abbreviation for Penitentiary Surveillance and Treatment in Spanish.
The process started in July 2003; a new administration took over in August 2004 and it was re-elected for the
2008-2012 period.
In Costa Rica technical and professional personnel are protected by the Civil Service administration, andpenitentiary police are protected under the General Police Law and the General Penitentiary Police Regulations.

135

aﬀected by the reform was not worth the risk. Constant investments must be made on: i) personnel,
providing in-service training periodically to all operators to maintain and raise their professional
level (in the Dominican Republic all prison staﬀ without exception beneﬁts at least once a year froma week of training); ii) recruiting new personnel to maintain the adequate inmate:staﬀ ratio; and iii)
infrastructure, adjusting periodically the system's infrastructure capacity. Both, Costa Rica and theDominican Republic have been complying with this requirement.
h) The penitentiary reform did not focus on the overcrowding problem in any of these countries;
nor did it limit itself to the construction of one or several high security, high cost megaprisons. The
purpose of the reform in both countries was to attain comprehensiveness of the penitentiary systemthrough the adoption of dignity and quality standards for all inmates in all prisons, and throughobservance of the principle of equal justice for all. Both, Costa Rica and the Dominican Republicestablished State penitentiary systems to such effect using public resources rather prudently andintelligently.
Oﬀers were made to both countries for construction of private prisons which would lodge only asmall fraction of all inmates and at a very high cost. Initially Costa Rica signed a pre-contract for
construction of a private prison with a capacity for 1,200 inmates for 73 million dollars. Later thegovernment realised its error and did not proceed with the pre-contract; instead it built facilities at its
own expense for 2,600 inmates, more than double the number of inmates, for only 10 million dollars.
The government realised that if it built that prison whose management and maintenance would beundertaken by private enterprise for twenty years at a daily per capita cost of US$37 per inmate while
the cost within the State system was US$11, the cost of operation of that prison alone would keep itfrom being able to make other improvements in the rest of the system which was responsible for 80%of the inmates. The government decided to improve the situation of all individuals under conﬁnement
raising the daily per capita amount for all the population to US$16.
An offer was made also to the Dominican Republic for the building of a similar prison for 1,200
inmates, for 53 million dollars. The government, which had already built and refurbished nine prisonsthat were operating with good quality standards for slightly more than 10 million dollars did not
accept the oﬀer either, and continued with its State comprehensive penitentiary programme which is
generating very good results.
The ILANUD/RWI Penitentiary Programme found several similar cases in other countries of theregion.
The following table explains why, in addition to the inconvenience of their high costs, private
prisons cannot solve the overcrowding problem in middle and low income countries7 while instead theyworsen the situation notably throughout the system.
The introduction of a private prison into a penitentiary system with a minimum budget, several or
many overcrowded prisons, and a shortage of materials and personnel, such as is the case in generalof the penitentiary systems of the Latin American countries since the eighties, creates a situation ofprivilege for a small group, in addition to the fact that it further deteriorates the rest of the system.
We explain this by means of a typical example:
Three years ago countries X and Y built their last prison. Country X built a State prison; country
Y built a private prison. Both countries have 10 prisons with a total capacity for 10,000 inmates, butboth have 15,000 inmates, which is to say that both work at 150% of their capacity. Country X has
10 State prisons; country Y has 9 State prisons and 1 private prison. Let us see its situation in thefollowing tables:
7

136

We use the World Bank country classiﬁcation. In its classiﬁcation all Latin American countries, with the exceptionof Haiti and Nicaragua, are middle income countries. Haiti and Nicaragua are low income countries (World Bank
2005:289, 2000:335).

COUNTRY X WITH A CAPACITY FOR 10,000, BUT WITH 15,000 INMATES
10 PRISONS WITH A CAPACITY OF 1,000 EACH

DISTRIBUTION OF INMATES PER PRISON

0 private prisons0

10 public prisons

1,500
COUNTRY Y

WITH A CAPACITY FOR 10,000, BUT WITH 15,000 INMATES

10 PRISONS WITH A CAPACITY OF 1,000 EACH

DISTRIBUTION OF INMATES PER PRISON

1 private prison

1 000

9 public prisons

1 550

In country X the limited penitentiary resources can be distributed equitably with better results.
However, in country Y overcrowding increases progressively in State prisons while an unfair
distinction of doubtful constitutionality is established between those who are serving time in Stateprisons and the few who are serving time in the private prison in a situation of privilege.
And in countries where the prison population is characterised by a high growth rate, such as inthose of Latin America, overcrowding becomes worse as time goes by; it accumulates inequitably
suﬀocating those in State prisons, in contrast with the privilege of a few who remain, at a very highcost, in the private prison.

The need to persist and become renovatedWe have highlighted the general features of two successful reforms in the region although each
item would deserve a more extensive review. Such a review can be is find in the book “Crime,
Criminal Justice and Prison in Latin America and the Caribbean: How to Implement the United Nations Rights
and Obligations Model” (Elías Carranza et alii, ILANUD/SIGLO XXI, México 2009).
The consolidation in Costa Rica of its new penitentiary system not only solved the endemic
overcrowding problem but it also established a system that is recognised internationally for its lower
level of violence8 and respect for the basic rights of both inmates and staﬀ members. This is the samecase of the new penitentiary system in the Dominican Republic. ILANUD has been able to verify it
in both countries by means of successive visits; it cooperates with both countries in this and othercriminal justice matters, and feels that these are two penitentiary systems that deserve a careful lookon the part of third countries since with the necessary adjustments they may serve as very valuable
orientation in the horizontal processes of the transfer of knowledge.

References
BOURGUIGNON F. 2001
Crime as a Social Cost of Poverty and Inequality: A Review Focusing on Developing Countries . In
Facets of Globalization, World Bank Discussion Paper # 415
CARRANZA El as et alii 2009
Crime, Criminal Justice and Prison in Latin America and the Caribbean: How to Implement the United
Nations Rights and Obligations Model , ILANUD/SIGLO XXI, México.
----------------------- and SOLANA Emilio 2007
Seguridad frente al delito en Costa Rica. Magnitud y manifestaciones de la violencia delictiva en las dosúltimas décadas 《Security(
vis-à-vis crime in Costa Rica. Magnitude and form of violent crime overthe past two decades.》). A document prepared for the State of the Nation Programme. Costa Rica.
----------------------- 2006

8

Prisons, such as close systems in general, are characterised throughout the world by the generation of higher
levels of violence than those that characterise life outside. It is necessary, then, to encourage the greatest
transparency possible in them in order to reduce violence and to reduce the use of prison to the minimum
indispensable level.

137

Distribución del delito y victimización en la sociedad Global 《distribution(of crime and victimisation in
the global society》), ILANUD 2006.
COMITÉ EUROPEEN (1999)
Comité Européen pour les problèmes criminels. Projet de rapport sur le surpeuplement des prisons
et l’inflation carcérale . (European Committee on Crime Problems.《Draft report on prison
overcrowding and overuse of imprisonment.》) (cdpc plenary/docs 1999/18F Add I - Rec CP
Surpeuplement).
FAJNZYLVER Pablo et al. 2002
Inequality and Violent Crime. Journal of Law and Economics, vol. XLV, April.
STIGLITZ Joseph, 2002
El malestar en la globalización 《Globalization(
and Its Discontents》), Taurus, Madrid.
PENITENTIARY RATES IN COUNTRIES OF LATIN AMERICA 1992-2008
IT INCLUDES FEDERAL AND PROVINCIAL/STATE PENITENTIARY SYSTEMS, AND IN SOME CASESINDIVIDUALS HELD IN POLICE PRECINCTS.
Argentina

92

93

94

95

96

97

98

99

00

01

02

03

04

05

06

63

64

68

74

97

96

99

106

118

126

141

157

163

164

152

79

85

101

109

96

80

86

85

74

80

81

107

131

133

132

133

169

182

193

211

219

226

Bolivia
Brasil

119

07

08

Colombia

92

96

97

98

120

129

128

139

157

170

157

178

199

207

179

174

188

Costa Rica

104

105

109

121

133

160

162

169

168

183

187

190

196

196

191

186

189

Chile

154

153

148

153

161

170

179

203

215

216

221

228

226

228

259

290

318

R. Dominicana

145

135

151

161

129

140

165

168

189

150

143

148

164

166

Ecuador

74

81

81

85

95

81

79

70

65

63

69

77

87

91

107

128

118

El Salvador

101

103

109

124

138

157

136

112

130

158

177

180

188

186

184

226

258

101

101

96

87

84

83

88

62

Guatemala75

Honduras

110

113

139

160

166

153

160

178

170

159

148

148

México

101

104

97

101

108

116

127

142

152

163

183
170

177

185

196

200

200

202

Nicaragua

78

78

91

98

111

106

132

143

128

124

131

112

116

117

111

121

120

Panamá

176

215

221

229

269

282

292

294

293

320

341

361

360

359

356

342

275

70

75

74

78

67

74

85

92

107

109

105

99

100

Perú

77

80

83

88

96

100

105

108

108

104

104

108

116

123

136

149

153

Uruguay

96

99

100

99

101

106

120

122

129

148

170

203

215

213

198

212

231

101

112

106

97

85

104

104

103

98

76

96

Paraguay

Venezuela

E.Carranza, ILANUD. Prepared with penitentiary data provided by the governments of each country and population data from the Latin
American and Caribbean Demographic Centre, CELADE.

PRISON RATES IN THE CARIBBEAN
Antigua & Barbuda

1995 (341) 1998 (278) 2005 (269)

Bahamas1998 (478) 2002 (410)

Barbados

1993 (238) 1998 (291) 2002 (317) 2005 (367)

Belize1992 (310) 1995 (293) 1998 (448) 2001 (384) 2003 (420) 2006 (516)Dominica1992 (387) 1995 (392) 1998 (421) 2004 (418)Grenada1998 (352) 2002 (333) 2005 (265)

Jamaica

1992 (178) 1995 (171) 1998 (162) 2003 (176)

St .Kitts & Nevis

1995 (295) 1998 (288) 2001 (441) 2004 (559)Saint Lucia

1992 (210) 1995 (263) 1998 (216) 2001 (296) 2004 (294)

St. Vincent & Grenadines

1992 (294) 1995 (323) 1998 (390) 2001 (270) 2005 (338)Suriname1992 (308) 1995 (302) 1998 (382)Trinidad & Tobago

1992 (269) 1995 (299) 1998 (353) 2001 (370) 2004 (302)

Source: International Centre for Prison Studies; Kingʼs College, London.

138

HUMAN DEVELOPMENTAND
OVERCROWDING IN PRISONS
1
2

INTRODUCTION
The relationship between Crime and Development is no longer questionable (See inter alia, N.
Masamba Sita, 2004, and UNODC, 2005). It is a double edged inverse relationship: Crime leading
to Underdevelopment and Development in some circumstances leading to Crime. Using tables to
describe the African situation, the presentation will be examining (1) the Human Development Index(HDI), an indicator that classiﬁes countries in: developed, developing and under-developed countries(Section 1); (2) the overcrowding in the selected African countries (Section 2); and (3) discusses therelationship between the countriesʼ Human Development indices and overcrowding in prisons (Section
3).
The working hypothesis is that there is a negative correlation between the Human Development
index (HDI) and Overcrowding in respective countries. It is supposed that in countries with a Veryhigh or high Human Development, there is No overcrowding , while those with a Low Human
Development index , face Overcrowding .
The concern of this workshop is overcrowding in prisons, a situation that undermines concerted
eﬀorts for human development in the African region. One of the objectives of the workshop is to lookat strategies, policies and means at our disposal to eﬀectively combat the phenomenon. The hypothesis
the presentation intends to address is: very high or high Human Development in African countries has
a positive impact on Overcrowding in Prisons. This helps to better understand the varied aspects ofdevelopment issues the development actors should take into consideration.
The paper substantiates, from some statistics at our disposal, the relationship between Human
Development Indices (HDI) of countries and overcrowding in their prisons. In order to understandwhether there is association between the two variables, we shall use the Pearsonʼs coefficient ofcorrelation, where applicable and other non parametric test as the Spearmanʼs rho.

SECTION 1: THE HUMAN DEVELOPMENT INDEX (HDI)The Human Development Index is a comparative measure of life expectancy, literacy, educationand standards of living for countries worldwide (UNDP, Human Development Report, 2009). It helps
at the household level to measure the quality of life of populations and their accessibility to public
services provided by the government. Our hypothesis is that life expectancy, literacy, education andstandards of living for populations depends on the category: very high, high, medium and low theircountries belong to. It is to be noted that the majority of the African countries listed as Poorest
Countries are countries with low Human Development (least developed countries) and some of them
are now in Medium Human Development category (developing countries).
The United Nations Development Programʼs Human Development Report lists countries in four
categories, according to their Human Development Index (HDI). The four (4) categories are thefollowing:
1
2

N. Masamba Sita is the Director of UNAFRI.
Edanyu George Wilson is a Retired Senior Assistant Commissioner of Prisons, Uganda, in charge of PrisonsInspection.

139

1.
2.
3.
4.

Very high human development (developed countries)
High human development (developing countries)
Medium human development (developing countries)
Low human development (least developed countries)

In each of the above categories, we focus on African countries. According to the list, there is no
African country with very high human development. We consider that countries with low income aremainly those under the fourth category, i.e. countries with low human development index. Therefore,
the presentation examines only the high, medium and low human development indices.

1.1 AFRICAN COUNTRIES WITH HIGH HDI

Only the following three (3) African countries figure in this category: Libya, Seychelles andMauritius. Their rank, human development index and changes realized are indicated on table 1 below.
Table 1: African Countries with High Human Development Index
NO

RANK

COUNTRYHUMAN DEVELOPMENT INDEX(HDI)2007 DATACHANGE COMPARED TO 2006 DATA

1

55

LIBYA

0.847

0.005

2

57

SAYCHELLES

0.845

0.004

3

81

MAURITIUS

0.804

0.003

1.2 AFRICAN COUNTRIES WITH MEDIUM HDI

The indices of the 26 African countries listed under this category vary from 0.511 to 0.769.

Table 2: African Countries with Medium Human Development Index
NO

RANK

COUNTRYHUMAN DEVELOPMENT INDEX(HDI)
2007 DATACHANGE COMPARED TO2006 DATA

198

TUNISIA

0.769

0.006

2

103

GABON

0.755

0.005

3

104

ALGERIA

0.754

0.005

4

118

EQUATORIA GUINEA

0.719

0.007

5

121

CAPE VERDE

0.708

0.004

6

123

EGYPT

0.703

0.003

7

125

BOTSWANA

0.694

0.011

8

128

NAMIBIA

0.686

0.008

9

129

SOUTH AFRICA

0.683

0.003

10

130

MOROCCO

0.654

0.006

11

131

SAO TOME AND
PRINCIPE

0.651

0.006

12

136

REPUBLIQUE OF
CONGO

0.601

0.002

13

139

COMOROS

0.576

0.003

14

142

SWAZILAND

0.572

0.003

15

143

ANGOLA

0.564

0.012

16

145

MADAGASCAR

0.543

0.006

17

147

KENYA

0.541

0.006

18

150

SUDAN

0.531

0.005

19

151

TANZANIA

0.530

0.011

20

152

GHANA

0.526

0.008

21

153

CAMEROON

0.523

0.004

22

154

MAURITANIA

0.520

0.001

140

23

155

DJIBOUTI

0.520

0.003

24

156

LESOTHO

0.514

0.003

25

157

UGANDA

0.514

0.009

26

158

NIGERIA

0.511

0.005

1.3 AFRICAN COUNTRIES WITH LOW HDI

In this category, the indices of 22 countries vary from 0.340 to 0.499.

Table 3: African Countries with Low Human Development Index
NO

RANK

COUNTRYHUMAN DEVELOPMENT INDEX(HDI)2007 DATACHANGE COMPARED TO2006 DATA

1

159

TOGO

0.499

0.001

2

160

MALAWI

0.493

0.009

3

161

BENIN

0.492

0.005

4

163

COTE DʼIVOIRE

0.484

0.002

5

164

ZAMBIA

0.481

0.008

6

165

ERITREA

0.472

0.005

7

166

SENEGAL

0.464

0.002

8

167

RWANDA

0.460

0.005

9

168

GAMBIA

0.456

0.003

10

169

LIBERIA

0.442

0.008

11

170

GUINEA

0.435

0.002

12

171

ETHIOPIA

0.414

0.012

13

172

MOZAMBIQUE

0.402

0.005

14

173

GUINEA-BISSAU

0.396

0.005

15

174

BURUNDI

0.394

0.007

16

175

CHAD

0.392

0.001

17

176

DEMOCRATIQUE
REPUBLIC OF THE
CONGO

0.389

0.018

18

177

BURKINA FASO

0.389

0.005

19

178

MALI

0.371

0.005

20

179

CENTRAL AFRICAN
0.369
REPUBLIC

0.002

21

180

SIERRA LEONE

0.365

0.008

22

182

NIGER

0.340

0.005

SECTION 2: OVERCROWDING
Under this section we look at overcrowding of prisons in the countries above. It is worth notingthat overcrowding in Africa, according to the available statistics (See ICPS Report 2007; see also PRI,
2005), is a consequence of long illegal detentions (long periods awaiting results of appeal, of trial, non
implementation of related legal provisions, undue delay in commencement of trial). Hereafter are somestatistics provided by International Centre for Prison Studies (ICPS) on:(1) Prison Population total (including pre-trial detainees / remand prisoners);(2) Prison Population Rate (per 100,000 of national population);(3) Pre-trial / Remand Prisoners (percentage of prison population);(4) Female Prisoners (percentage of prison population);(5) Foreign Prisoners (percentage of prison population);(6) Oﬃcial Capacity of Prison System;

141

(7) Occupancy level (based on oﬃcial capacity); and(8) Recent Prison Population trend (year, prison population total, prison population rate).

2.1 OVERCROWDING IN COUNTRIES WITH HIGH HUMAN DEVELOPMENT INDEX:

Only three African countries ﬁgure in this category: Libya, Seychelles and Mauritius. Their proﬁlein terms of overcrowding is as follows:

PRISON
POPULATIONTOTAL (PPT)PRISON
POPULATIONRATE PER 100,000(PPR) 3

PRE-TRIAL
DETAINEES/
REMAND % (PD/R)

FOREIGN
PRISONERS (FP)OFFICIAL
CAPACITY (OC)OCCUPANCYLEVEL (OL)TRENDS 2004
2007, TOTALPOPULATIONANDRATES PER
100,000

1

COUNTRYNO

LIBYA

12,905

200

47,7%

29,1%

9,000

141,6%

2004
9,763 (173)2007
13,217 (217)2

SEYCHELLES 305

371

63.0%

4.1%

400

76.3%

2003
149 (186)
2007
221 (270)

3

MAURITIUS

166

29.9%

4.6%

2,058

104.0%

2001
1,985 (165)2005
2,464 (205)2,163

OVERCROWDING

Table 4: Overcrowding in Countries with high HDI

3,905(30.3%)

105(4.9%)

Overcrowding in prisons is measured by:(1) The diﬀerence between the Prison Population Total (PPT) and the Oﬃcial Capacity (OC) of theprison system; and(2) The occupancy level (OL).
Table 4 reveals that there is no overcrowding in Seychelles, very low rate in Mauritius and low in
Libya, percentages that seem to represent foreign prisoners.

2.2 OVERCROWDING IN COUNTRIES WITH MEDIUM HUMAN DEVELOPMENTINDEX

Table 5 indicates variations among the 16 affected countries. The overcrowding ranges from
7.0% to 60.8%. Countries without figures under the overcrowding column are countries without
overcrowding according to the available statistics.
Table 5: Overcrowding in Countries with Medium HDI

COUNTRYPRISON
POPULATIONTOTAL (PPT)

PRE-TRIAL
DETAINEES/
REMANDS %(PD/R)FOREIGN
PRISONERS (FP)OFFICIAL
CAPACITY (OC)OCCUPANCYLEVEL (OL)TRENDS 2004
2007, TOTALPOPULATION
AND RATES PER
100,000

OVERCROWDINGNO

1

ALGERIA

54,00011.3

1.0%

31,500171.8%

2003
38,868 (121)2005
43,797 (132)

22,500(41.7%)

2

BOTSWANA

5,216

17.0

22.6%

3,967

131.5%

2004
6,105 (339)1,249(23.9%)

142

2006
5,969 (332)3

NAMIBIA

4,064

7.9

5.5%

4,347

93.5%

1997
4,071 (250)2000(4,779 (273)4

SOUTH AFRICA

161,320

31.2

5.1%

115,297139.9%

2005
156,175 (333)2008
163,719 (343)

46,023(28.5%)

5

MOROCCO

53,58046.5

2.2%

27,113

197.6%

2002
54,288 (191)2003
54,542 (177)

26,467(49.4%)

6

SAO TOME AND
PRINCIPE

160c.34.0

0.8%

300

43.3%

2002
130 (79)2005
155 (82)

7

SWAZILAND

2,628

27.5

6.0%

2,838

92.6%

2003
3,169 (288)2006
2,734 (249)8

ANGOLAC.8,300

58.9

.

6,000

82.9%

1999
4,884 (39)2002
4,975 (37)2,300
(27.7%)

9

MADAGASCAR

17,70347.9

0.1%

10,199173.6%

2004
19,971 (112)2006
17,495 (90)7,504(42.4%)

10

KENYA

46,66243.3

0.7%

20,892223.3%

2001
35,340 (117)2005
50,000 (144)

25,770(55.2%)

11

SUDAN

19,144

10.0

c.1%

7,500

.

1997
12,933
2002
12,80911,644(60.8%)

12

TANZANIA

40,11148.5

3.7%

27,653145.1%

2006
43,911 (113)2008
41,613 (97)12,458(31.1%)

13GHANA

13,377

28.6

4.5%

7,875

169.9%

2004
11,581 (54)2007
13,336 (58)5,502
(41.1%)

14

LESOTHO

2,701

16.8

1.0%

2,936

92.0%

2001
2,699 (145)2004
3,173 (170)15

UGANDA

29,82656.0

0.8%

13,373223.0%

2005
26,126 (95)2008
25,464 (80)16

NIGERIA

41,405

69.3.

47,81584.1%

2005
40,444 (30)2008
40,240 (27)16,453(55.2%)

143

2.3 OVERCROWDING IN COUNTRIES WITH LOW HUMAN DEVELOPMENT INDEX

2

3

4

5

6

PRISON
POPULATIONTOTAL (PPT)PRISON
POPULATIONRATE PER
100,000 (PPR) 3

PRE-TRIAL
DETAINEES/
REMAND %(PD/R)FOREIGN
PRISONERS (FP)OFFICIAL
CAPACITY (OC)OCCUPANCYLEVEL (OL)TRENDS 2004
2007, TOTALPOPULATIONANDRATES PER
100,000

1

COUNTRYNO

MALAWI

11,996

78

18.5%

1.0%

6.070

197.6%

2005
9,656 (74)2007
10,830 (78)

BENIN

6,083

COTE
DʼIVOIRE

11,143ZAMBIA

15,544

SENEGAL

RWANDA

6,425

59,311

66

56

120

53

593

79.6%

28,5%

35.3%

37.2%

26.9%

1,900

c.30%

2.1%

7.5%

0.3%

4,871

7,500

2,972

46,700307.1%

218.0%

207.3%

152.0%

202.4%

7

GAMBIA

450

32

18.5%

66.7%

780

65.0%

8

LIBERIA

1,600

40

97.3%

2.0%

750

136.3%

9

BURUNDI

10,700

129

68.0%

.

4,050

264.2%

10

11

12

13

144

BURKINA
FASO

4,207

MALI

6,700

SIERRA
LEONE

2,328

NIGER

5,709

27

52

41

46

58.3%

88.7%

49.2%

c.76%

.

.

1.7%

.

2660

3,000

1,975

8,840

158.2%

223.3%

108.1%

64.6%

OVERCROWDING

Table 6: Prison Overcrowding in African Countries with Low HDI

5,926.0(49.4%)

2000
4,961 (81)2006
5,834 (75)4,183.0(68.8%)

1998
13,670 (95)2002
10,356 (62)6,272.0(56.3%)

2003
13,200 (122)2005
14,347 (122)8,404(54.1%)

2000
4,990 (52)2002
5,360 (54)3,453
(53.7%)

2004
87,000 (129)2006
82,000 (172)12,611(21.3%)

1999
478 (38)850(53.1%)
2005
7,969 (106)2008
9,114 (104)2002
2,800 (23)6,650
(62.1%)

1,547(36.8%)

2002
4,040 (34)2004
4,407 (33)3,700
(55.2%)

2004
c.1,400 (c.27)
2007
1,899 (33)353
(15.3%)

1998
5,263 (52)2002
c.6000 (c.52)

Compared to other countries under this category, Rwanda seems to have a very high Prison
Population Total (PPT): 53,311, a high Prison Population Rate (593) and Oﬃcial Capacity (OC): 46,700.

SECTION 3: HUMAN DEVELOPMENT INDEX AND OVERCROWDINGThe analysis of data led us to consider human development as an Independent variable andOvercrowding the dependent variable. In other words Low Human Development appears to bea suitable explanation of Overcrowding in prisons in Africa. A concept such as poverty helps
to understand how populationsʼ Low Income affects the quality of their lives. This results in
Overcrowding in prisons.

3.1 High HDI and Overcrowding:
Table 7: African Countries with High HDI and Overcrowding
NO

COUNTRYHDILEVEL OF OVERCROWDING (LO)P R I S O N P O P U L A T I O N T O T A L OCCUPANCE LEVEL (OL)
(PPT) MINUS OFFICIAL CAPACITY
(OC)

1

LIBYA

0.847

3,905 (30.5% of total prison
population)

141.6%

2

SEYCHELLES

0.845

- 95

76.3%

3

MAURITIUS

0.804

105

(4.9%)

104%

The Levels of Overcrowding (LO) that is calculated from the PPT minus OC and translated into
percentage for Libya and Mauritius reveals almost an equivalent percentage of their respective foreign
Prisoners (FP): 29.1% (30.5%) and 4.6% (4.9). Seychelles escapes from the observed trend: 4.1% (Seeabove Table 4). Even the level of occupancy would have been much lower without foreign prisoners;
hence, conﬁrming no overcrowding in Seychelles. Graph 1 hereafter still supports our hypothesis.

1453.2 Medium HDI and Overcrowding:Countries without overcrowding (Lesotho, Nigeria, Sao Tome and Principe, Swaziland), or withvery low rate (Namibia) do not appear in Table 8, because this aﬀects the calculation of the correlation
between HDI and Overcrowding.
Table 8: Countries with Medium HDI and Overcrowding
NO

COUNTRYHDILEVEL OF OVERCROWDINGPRISON POPULATION TOTAL (PPT) OCCUPANCE LEVEL (OL)
MINUS OFFICIAL CAPACITY (OC)1

ALGERIA

0.754

22,500 (41.7%)

171.8%

2

BOTSWANA

0.694

1,249 (23.9%)

131.5%

3

SOUTH AFRICA

0.683

46,023 (28.5%)

139.9%

4

MOROCCO

0.654

26,467 (49.4%)

197.6%

5

ANGOLA

0.564

2,300 (27.7%)

82.9%

6

MADAGASCAR

0.543

7,504 (42.4%)

173.6%

7

KENYA

0.541

25,770 (55.2%)

223.3%

8

SUDAN

0.531

11644 (60.8%).

9

TANZANIA

0.530

12,458 (31.1%)

145.1%

10 GHANA

0.526

5502 (41.1%)

169.9%

11 UGANDA

0.514

16,453 (55.2%)

223.0%

Graph 2 hereafter also visualizes the a tendency for the high values of the HDI to be paired withsmaller values of Overcrowding, and vice versa

3.3 Low HDI and Overcrowding:

Table 9 is part of table 6 which has 13 countries. We have selected only 8 countries having
the needed statistics. Table 9 does not include countries with very low overcrowding (Burkina
Faso, Rwanda and Sierra Leone), as they affect our inquiry into the relationship between HDI

146

and Overcrowding. It is interesting to note that countries with low HDI are also exhibiting a low
overcrowding. Cases in point are: Sierra Leone with a HDI of 0.365 with an overcrowding of 15.2%
and Burkina Faso with a HDI of 0.389 and Overcrowding of 36.8%, and Rwanda with a HDI 0.460 andan Overcrowding of 21.3%.
Table 9: Countries with Low HDI and Overcrowding
No

COUNTRY

1
2
3
4
5
6
7
8

MALAWI
BENIN
COTE D’ IVOIREZAMBIASENEGAL
LIBERIA
BURUNDI
MALI

HDI

0.493
0.492
0.484
0.481
0.464
0.442
0.394
0.371

LEVEL OF OVERCROWDINGPRISON POPULATION TOTAL (PPT) OCCUPANCE LEVEL (OL)
MINUS OFFICIAL CAPACITY (OC)5,926 (49.4%)
197.6%
4,183 (68.8%)
307.1%
6,272 (56.3%)
218.0%
8,044 (51.7%)
207.3%
3,453 (53.7%)
152.0%
850 (53.1%)
136.3%
6,650 (62.1%)
264.2%
3,700 (55.2%)
223.3%

Graph 3 hereafter visualizes the trend. A calculated rho of - 0.19 led us to conclude that there is arelationship between Human Development Indices and Overcrowding in correctional institutions, as
visualized hereafter in Graph 3.

CONCLUSION
The main working hypothesis was that where there is very high or high Human Development,
there is no or very low Overcrowding. In the case of Libya and Mauritius, their respective observed
overcrowding of 30.3% and 4.9% (See Table 4) seems to be induced by the presence of foreign
nationals. Concerning Seychelles in the same table, data seems to confirm the hypothesis. What they
have in common is: absence of or very low overcrowding (Seychelles and Mauritius (4.9%)). We
encountered discrepancies in the case of Libya that we are not able to explain (Table 4).

147

In case of countries that fall under Medium Human Development index (See Tables 7), Pearsonʼ
s Product Moment Correlation Coefficient reveals a high degree of association between the Human
Development Indices and Overcrowding. The correlation coefficient was found to be negative r =- 0.75. This also means that 56.0% of variations in overcrowding are explained by variations in the
Human Development Indices. This confirms that there is a strong relationship between the HDI
and Overcrowding. In this case, there is a tendency for the high values of the HDI to be paired withsmaller values of Overcrowding, and vice versa. We will only say that 72.7% of these countries have ahigh overcrowding (only 3 countries have a rate of overcrowding below 50%).
As for the Low Human Development Index countries, we consider that our hypothesis stands. We
used a non parametric test: Spearmanʼs rho to establish whether there is a correlation between low
HDI and Overcrowding. A calculated rho of - 0.19 led us to conclude that there is a relationship. Thisconclusion was drawn from one tailed test for negative correlation where the null Hypothesis (Ho): the
HDI and Overcrowding are not correlated, against an alternative hypothesis: there is a tendency forthe large values of HDI to be paired with small values of Overcrowding and vice versa. Null hypothesis
was rejected as the calculated rho of - 0.19 was too small. We observe that 87.5% of these countries
have an overcrowding rate beyond 50%, which we consider as a very high rate.
The analysis of the data at our disposal has substantiated the association between Human
Development and Overcrowding. However, we did observe that there were countries (Burkina Faso,
Rwanda and Sierra Leone), which were exceptional to our conﬁrmed hypothesis: very high or high
HDI being paired with low Overcrowding . Although the three countries had low HDI, they also had
low Overcrowding.
This is significant to us as this variation may help to identify and understand the factors (goodpractices) if any, that have led to the observed variation in the above countries. A negative relationshiphas been observed in the three categories: 1) countries with High Human Development Index; 2)
countries with medium Human Development Index; and 3) countries with low Human Development
Index, meaning that in countries with high Human Development Index (HDI), there is no or very
low rate of overcrowding and vice versa. The exceptional countries, deviating from the hypothesis,suggest a need to look at good practices in countries, which may explain the observed situation: low
rate of overcrowding in countries with low Human Development Indices; and others practices leading
to the situation of (low) overcrowding in countries with high or medium Human Development Indices.

148

PANEL I

Permanent Secretary for Justice, Ministry of Justice, Thailand***

National Coordinator of the Paralegal Advisory Services,Foundation for Human Rights Initiative, Uganda***

National Director, the Paralegal Advisory Service Institute, Malawi***

Professor, Graduate Schools of Law and Politics, the University of Tokyo, Japan***

Managing Director, the Max-Planck-Institutefor Foreign and International Criminal Law, Germany***

Chairman, the New Zealand Parole Board

149

150

PANEL IRESPONDING TO PRISON OVERCROWDING:
ANOTHER ATTEMPT FROM THAILAND

I. INTRODUCTION
Criminal justice systems around the world have been coping with increasingly diﬃcult challenges
amid rapid changes in varying political and socio-economic systems. Imbalanced development has
weakened our social mechanisms, rendering us less effective in coping with economic hardships,
which can contribute to the increased number of crimes. Rising crime rates result in greater numbersof oﬀenders entering the criminal justice system and increased incarceration. Because many prison
facilities are not equipped to handle the increased volume of inmates, prison overcrowding has become
problematic. Failure to cope with these new challenges could bring serious consequence as thefunctioning of the criminal justice system, and the assertion of individual human rights of prisoners,
are at stake. In order to avoid the serious issues of case backlog and overcrowding of the correctional
facilities, it is imperative that the oﬀender treatment systems are continuously improved and further
developed.
This paper will begin with the assessment of current trends and reasons on the incidence of prison
overcrowding in Thailand. The discussion will then focus on non-custodial measures that Thailand has
used to reduce overcrowding in inmate facilities, including alternatives to imprisonment, diversionary
methods, restorative justice, and community-based treatment initiatives. Finally, I will share myviews on the key challenges involved in reducing prison overcrowding, and make recommendations for
how the Thai criminal justice system can continue its work in ﬁnding eﬀective alternative methods toincarceration.

II. PRISON OVERCROWDING IN THAILAND:CURRENT TREND AND SITUATIONS
Among the issues related to treatment of prisoners in Thailand, prison overcrowding is one ofmost problematic. During the years 1996-2002, correctional facilities in Thailand had to deal with
unprecedentedly large number of inmates. Thai prisons housed 103,202 inmates in 1996, with that
number increasing to 250,000 by the end of 2002. The current prison capacity, however, provides forapproximately 110,000 spaces. This clearly indicates a prison overcrowding situation. The trend ofincreasing inmates shown by the below Figures is ominous because there is little relief on the capacity
issue; prisoners increase, but the space to house them remains the same.
In Figure 1 the prison population for the period of nineteen years is shown. At present, the numberof inmates in Thailand remains high - 253 inmates per 100,000 - compared to other countries in Asia
and Paciﬁc region, as shown in Table 1.

151

Figure 1. Prison Population in Thailand from 1990 to 2008

Source: Inmate Statistics Center, Policy Planning Division, Department of Corrections.

This rate of increase was quite unusual and cannot be accounted for under normal functioning
conditions of the criminal justice system. The disproportionate increase of inmate population since1998 could be attributed to Thailandʼs penal policy, which severely criminalized offenses related todrug use, especially the substance amphetamine, to achieve deterrence effect among drug-related
oﬀenders.
Table 1. Prison Population across Seven Countries in Asia and Paciﬁc in 2007
Country

Total number

Indonesia

128,876

Macao

797

Total number(per 100,000 people)

Portion of Female
Inmates(percent)Portion of Child
Inmates(percent)

56

4.7

0.4

174

22.1

6.1

Malaysia

50,305

192

28.7

2.2

Myanmar65,063

126

15.0

1.6

Sri Lanka

25,537

121

1.4

0.04

Singapore

11,768

267

10.0

4.7

Thailand

165,316

253

15.1

3.9

Source: International Centre for Prison Studies, 2008

Figure 2 shows that the number of inmate convicted of drug-related oﬀenses has almost doubled
in 15 years, while the statistics for the other offenders remain mostly unchanged. This leads to aconclusion that the large number of drug-related oﬀenders is the result of severe measures, while thecontribution from the increase in the criminal activities themselves might be only secondary.
Figure 2. Number of inmates convicted of drug oﬀense vs other oﬀenses from 1993- 2007

Source: Inmate Statistics Center, Policy Planning Division, Department of Corrections.

152

III. POSSIBLE EXPLANATIONS FOR PRISON OVERCROWDING
There are numerous factors that have contributed to the overcrowding of prisons in Thailand.
These include the increase of drug offenders entering the system as a result of the Royal Thai
Governmentʼs shift to a more prioritized crackdown on narcotics in the late 1990ʼs; the large
percentage of incarcerated inmates who are awaiting investigation or trial; and a historical reliance on
imprisonment for even low-level oﬀenders.
With respect to the increase in drug oﬀenders in the system, there are two possible explanations.
First, the rise could signify the enhanced eﬀectiveness of the criminal justice system in bringing those
who commit the crime to justice; the implication being that the drug problem in Thailand has been
properly taken care of since 1997. A second explanation is that by over-criminalizing the possession
or consumption of amphetamines, the demand for the now highly-punishable drug is even higher than
before, leading to a rise in cost and therefore proﬁt, thereby increasing the incentive for people to risk
trading them. This graver theory signiﬁes that severe punishment as deterrence measure has been far
from achieving its policy objectives. The question then becomes, how does a criminal justice systemdeal with drug oﬀenders in a way that does not exacerbate the prison overcrowding problem?
With regards to the high percentages of inmates on remand, it is clear from statistics that thisgroup constitutes many of the total incarcerated individuals. Tables 2, 3 and 4 illustrate the inmate
population profile according to their categories, types of offences and terms of imprisonment. The
largest portion of Thailandʼs correctional resources is being used to provide custodial treatment for theconvicted oﬀenders, while the suspects awaiting trial or ﬁnal judgment constitute the second largest
group of the population. This results in a current rate of imprisonment prior to conviction at nearly
30%, which implies that the criminal process has not yet been able to provide a timely response to
those awaiting trials and who must be assumed to be innocent. Table 5 provides regional comparative
data on this category of inmates, portraying that Thailand is among the top on the list of countries
having a large percentage of inmates on-remand. When viewed by types of oﬀences, inmates who havebeen convicted of oﬀences related to drug use constitute the largest group or almost 60%. It should
also be noted that about half of the total population in prisons are currently those serving relatively
short terms - less than 5 years.
Table 2. Overall population of the Thai prison system according to major categories(As of 1 September 2008)
Categories

Male

Female

Total

Percentage

1. Convicted

112,464

18,594

131,058

70.825

2. On-remand

44,744

7,538

52,28228.25

2.1 pending appeals

22,354

3,541

25,89513.99

2.2 awaiting trial

9,576

1,495

11,0715.98

2.3 awaiting investigation

12,814

2,502

15,316

8.28

3. Child and youth under detention

401

3

404

0.22

4. Relegated persons

11

1

12

0.01

5. Detainee
Total

1,128

185

1,313

0.71

158,748

26,321

185,069

100

Source: Inmate Statistics Center, Policy Planning Division, Department of Corrections

153

Table 3. Prisoners Statistics by Type of Oﬀences
Type of Oﬀences

Male

Female

Total

Percentage

1. Oﬀence against property

25,911

1,647

27,55822.25

2. Oﬀence against narcotics law

56,68915,34972,03858.16

3. Oﬀence against life

8,798

277

9,075

7.83

4. Bodily harm

3,552

83

3,635

2.93

5. Oﬀence against social security

216

11

227

0.22

6. Others

5,031

496

5,527

4.46

Source: Corrections in Thailand 2008- an annual report published by the Department of Corrections, Thailand.
Table 4. Prisoners Statistics by Sentence Terms
Sentence Term

Male

Female

Total

Percentage

Less than 3 months

899

96

955

0.77

3- 6 months

2,889

382

3,271

2.53

6 months - 1 year

7,930

1,263

9,193

7.12

1 - 2 years

16,164

3,173

19,337

14.97

2 - 5 years

32,7004,274

36,97428.63

5 - 20 years

38,0186,836

44,85436.22

20 - 50 years

10,1492,142

12,291

7.83

Life imprisonment

1,653

218

1,871

1.51

Death penalty

113

7

120

0.09

Source: Corrections in Thailand 2008- an annual report published by the Department of Corrections, Thailand.
Table 5. Numbers of oﬀenders awaiting trial in several countries in Asia in 2007.
Total Number of Inmates Percentage of Inmates onOn-Remand
remandCountry

Total Number of InmatesIndonesia

128,876

387

0.3

Iran

158,351

39,271

24.8

Macao

797

176

22.1

Malaysia

50,305

14,43828.7

Myanmar65,063

7,417

11.4

Mongolia

6,593

1,305

19.8

Hong Kong

10,440

1,409

13.5

Japan

81,255

9,751

12.0

Taiwan60,346

7,181

11.9

Brunei

486

35

7.2

Laos

4,020

40

1.0

Singapore

11,768812

6.9

Thailand

165,316

43,313

26.2

Source: International Centre for Prison Studies, 2008

Lack of coherent and eﬀective penal policies has also been a key factor, hindering any systematic
attempt to implement alternative approaches for parties of conflicting interests, and provide themaccess to justice. Social norms - as can be seen from the negative public attitude toward oﬀenders,along with the strong inclination among Thais to rely on formal criminal process or legal action asmeans to solve their problems - also play signiﬁcant roles in shaping the current situation of the Thai
correctional system. Further at the root of the problem, the symptoms of which can be seen from thesevere drug problems and high rate of crime, is the inability of the society to cope with the negative
impact of globalization. Various societal institutions such as family, community, educational systemand spiritual faith have been faced with new type of challenges and threats.

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The entire criminal justice system has been placed under considerable pressure as a result of thelack of a coordinated eﬀort to systematically deal with these challenges. The burden caused by theanomalously sharp rise in inmate number has been enormous, resulting in worsening living conditions
for prisoners. Regardless of the peak increases in Thai inmate numbers from 1997-2006, the numberof correctional staﬀ remained nearly the same, making the current ratio of the corrections oﬃcers toinmates at 1:32. This is well-above the international standard of a 1:5 ratio. The current high ratio has
led to a heavy workload for the staﬀs, aﬀecting both their job morale and quality of work necessary tomeet the treatment needs of inmates.
Issues such as limitations in space, unsafe hygienic conditions, and the overall deterioration of theprison environment for both inmates and staﬀ, have arisen out of prison overcrowding. The United
Nations Standard Minimum Rules for the Treatment of Prisoners (SMR, 1955) set expected norms
for the treatment of prisoners with respect these issues, and prisons overcrowding directly threatensthese minimum standards.
In order to respond to the serious issue of overcrowding, there has been a dual-approach by
Thailand. Budgets have been increased and allocated to expand and/or build new prisons to help easethe overcrowding of existing ones. However, as these new facilities will soon be full, more alternative
approaches which start early in the pre-prosecutorial stage and therefore prevent more oﬀenders fromentering the correctional system, have been introduced and proven to be successful. In the next
section some of these key measures will be highlighted to illustrate Thailandʼs attempt to reduce theproblems caused by prison overcrowding.

IV. SELECTED NON-CUSTODIAL METHODSFOR REDUCING PRISON OVERCOWDING IN THAILAND
The overhaul of the Thai criminal justice system which began in 1996, culminated in 2002 when
the Ministry of Justice was reorganized and repositioned as the focal point for justice administration.
This reorganization directly impacted the situation of overcrowded prison facilities by paving the way
for the application of alternatives to inmate incarceration, including diversion, restorative justice, andcommunity-based treatment. The United Nations Standard Minimum Rules for the Administrationof Juvenile Justice (the Beijing Rules, 1985), the United Nations Standard Minimum Rules for NonCustodial Measures (the Tokyo Rules, 1990), and the Bangkok Declaration (2005) all helped to inform
Thailandʼs approach to dealing with prison overcrowding.
One of key milestones in the development of incarceration alternatives was the cabinet resolution
on July 10, 2001, which speciﬁed clear guidelines on how to reduce case backlog and overcrowding.
The so-called ʻJuly 10 Resolutionʼ recommended several non-custodial and community-based treatment
as desirable approaches, and thus served as a road map for tackling prison overcrowding in Thailand.
Some of the key initiatives included the expansion of the scope of probation to include juvenile
oﬀenders as new target group, the initiation of drug diversion programs, the setting up of community
mediation centers to settle certain kind of dispute within the communities, and the encouragement
for the use of prosecutorial discretion not to prosecute subject to certain kind of conditions. This
new policy has proved eﬀective not only by introducing new approaches for diversion of cases fromthe formal criminal justice process, but also by providing alternatives to imprisonment that are more
eﬃcient at reintegrating the oﬀenders successfully back into the society. As a result, the number ofprisoners decreased from 250,000 in 2001 to 210,000 in 2003, which demonstrates approximately a 16
% reduction in the inmate population in two years.

A. Alternatives to imprisonment: the Role of Probation

Probation is a signiﬁcant non-custodial measure to insure that prison remains a last resort of thesystem. In Thailand, probation measures for adult offenders were provided for by the Penal Codeof 1956, but had not been actively implemented due to the lack of a specialized agency or probationoﬃcers to carry out the court order. In 1979 a law on probation was proposed and a specialized agency

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was created, with probation oﬃcers appointed to carry out the court orders imposing the conditions
for the supervision and rehabilitation of the oﬀenders under suspended or deferred sentences. Thislaw marked the beginning of the community-based treatment of offenders in Thailand, under the
responsibility of the probation oﬃcers, volunteer probation oﬃcers, and the civil organizations based in
the community. In 1992, the Department of Probation was established to handle all adult probations allover the country.
During its first two decades of operation, the Department of Probation focused its work on
providing probation programs for oﬀenders whose imprisonment terms were suspended. The programs
mainly consisted of the supervision of the offenders, combined with other types of support such as
education, counseling, rehabilitation, community services, and other social welfare. The overall
objective of these activities was to assist the oﬀenders in their eﬀort to rehabilitate and successfully
reintegrate into society, and to become productive members of society without relapsing into reoﬀending.
Prior to the launch of ʻJuly 10 Resolutionʼ, although the Department of Probation did excellent work
providing successful adult probation programs, it was unable to expand its scope of work to cover new,community-based alternative to incarceration. Lack of necessary legislation and overall criminal justicepolicy planning, lack of interagency cooperation and coordination among key actors, and inadequate
funding were among the major reasons hampering the successful introduction of community-based
treatment as alternative to the long-held practices based mostly on retributive, custodial measures.
Under the aforementioned ʻJuly 10 Resolutionʼ, however, the Department of Probation, under
the Ministry of Justice, became the key organization in the implementation of the new policy. The
Departmentʼs scope of work expanded to include probation programs for all types of offenders,
namely juvenile and adults. Additionally, its programs now cover all stages of the criminal process,including the pre-trial, trial, and post-conviction stages. With a specialized agency in charge of all the
probationary involvement for suspects and oﬀenders at all stages of the criminal process, the probation
system in Thailand, while larger, is now more focused than in the past, enabling the Department tocome up with innovative ideas to carry on its new assignments. The challenge, of course, is to doso while maintaining the quality of its traditional functions at the same time. The successes of the
programs run by the Department of Probation - the probation of adults, youth, and parolees, as wellas the community-based treatment - are vital in reducing the numbers of incarcerated inmates, andtherefore the problem of prison overcrowding.
Figures 3 and 4 indicate the clear trend of explosive growth in responsibility by the probationoﬃcers in recent years, as seen from the change in total number of cases handled by probation oﬃcers
during the past 30 years, and the number of oﬀenders who entered the probation system in comparison
with those put under the custody in prisons for the same period.
Figure 3. Number of cases handled by the Department of Probation in past 30 years. The number represents thatcoming from all types of work except that of the community justice.

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Figure 4. Number of oﬀenders entering into the probation system vs. that placed under custody for the period of
30 years.

From its moderate inception in 1979, the probation system has now overseen more than 1.5 million
offenders, with less than 20% recidivism after probation, indicating that most of the offenders who
have been through treatment programs can successfully reintegrate into the society (see Table 6 formore detailed statistics).
Table 6. Numbers of oﬀenders who re-oﬀend under probation programs during 2004-2007.
Year

Total number of oﬀenders
under probation

Number of re-oﬀenders
under probation

Percentage of re-oﬀenders
under probation

2004

176,799

23,867

13.50

2005

126,974

10,5908.34

2006

128,954

16,622

12.89

2007

137,178

20,98815.30

Source: Annual Reports of the Department of Probation for the period of 2004-2007.

Here are some of the alternatives to incarceration measures that have been implemented by the
Department of Probation.

1. Probation of Adult Offenders

The current adult probation system in Thailand consists of:(a) Social Investigation
The social investigation in Thailand, in accordance with the Penal Code 1979 (B.E. 2522) Section
56, is conducted by probation oﬃcers in a pre-trial phase. Probation oﬃcers then have to prepare a presentence report required by court before a sentence is imposed. The overall aim of social investigation
is to gather facts related to the offender and offence, and to make recommendations for courts on
appropriate sentences.
A report contains the offenderʼs social background, circumstances of the offence, the risk theoffender is likely to pose to the public and advice on suitable probation measures for individual
oﬀenders. The likelihood of individual reform is also taken into account. Another essential part of thesocial investigation is the Risk/Need Assessment to be included in the pre-sentence report.
During the social investigation, as a result of a needs assessment, probation oﬃcers may address
the oﬀenderʼs needs and provide assistance where appropriate, such as helping them with bail matters,
meal allowance, transportation assistance, etc. More importantly, at this stage probation oﬃcers may
also work with victims of crime to give them voices, and provide them with support based ﬁrmly on
restorative justice principles.

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(b) Supervision
The supervision of adult oﬀenders is an oﬀender rehabilitation process, in which probation oﬃcers
apply many diﬀerent techniques, including:i. The supervision of adult probationers with the use of counseling techniques as a rehabilitative
tool;
ii. The use of community-based rehabilitation programs that are appropriate to individual oﬀenders;andiii. The provision of assistance.
Supervision is a procedure to oversee, treat, support, and give counseling to probationers within
the community. Probationers will be given a helping hand to amend their habits, to reintegrate into
the community as a law-abiding citizen, and to discourage them from re-oﬀending or continuing theircriminal lifestyle.
When courts impose a suspended sentence or a suspension of sentence with probation conditions,probation officers will make an arrangement with the offender to fulfill the court order. The
arrangement is based largely on the outcome of risk and needs assessment of each offender. The
conditions could be modiﬁed or reduced or the probation may be terminated early before the speciﬁeddate. Probation officers will comments on this when reporting the progress of probation outcomes.
Additionally, the probation and supervision plan will be reassessed every 3-6 months. The supervisionalso gives oﬀenders the chance to compensate for the harm done by the crime they commit, and to be
encouraged to stop re-oﬀending.
(c) Speciﬁc Rehabilitation Programs
Concerning treatment programs, the Department of Probation has initiated a wide range of
rehabilitative interventions and activities. The strength of our rehabilitation is the way in which
probation rehabilitative practices are integrated with local resources and boundlessly work in
partnership with other government and non-government agencies. Various constructive programs
have been implemented. Explicit examples include ʻBuddhist Ordinationʼ, Dharma activitiesʼ (religious
training), Ethical Campsʼ, Anti Drink-Driving Campaignʼ, etc.
In attempting to create innovative rehabilitation programs, the department encourage probationoﬃcers to work jointly with multi-agencies, volunteer probation oﬃcers (VPO), psychologists, social
workers, social welfare oﬃcers, religious organizations (Buddhism, Islam, Church), etc. Moreover, thedepartment also works closely with the Victims of Drunk Drivingʼ Club whose members are seriouslyinjured or handicapped victims from drunk-drivers.
(d) Basic Assistance
Probation officers are mandated to provide basic assistance for all offenders- the offender undersocial investigation, adult probationers, juvenile delinquents, parolees, ex-probationers, and exprisoners. Basic assistance will be provided in accordance with the result of needs assessment andgenerally includes vocational training, helping with higher education, job searches, job applications,and other assistance beneﬁcial for rehabilitation. The objective, again, is for the oﬀenders to be able tosupport themselves and successfully integrate back into the society.

2. Probation of Youth Offenders

The responsibility of the probation of juvenile delinquents in Thailand lies with two agencies:
the Department of Juvenile Observation and Protection and the Department of Probation. The
Department of Juvenile Observation and Protection deals with the social investigation of young
offenders and oversees those in the delinquent detention centers. The Department of Probation158

supervises young oﬀenders imposed probation orders by the court and those juveniles released fromdetention centers nationwide for a speciﬁc period of time. Since 2004, the Department of Probation
has begun the Juvenile Rehabilitation Program which incorporated a number of related projects aimed
at strengthening the cooperation with the community networks and the networks of civil society
organizations, empowering the family and the community, and capacity building for the probation
officers in their works for the children. In order to provide a venue for counseling and for creative
activities by the youth within the community, a number of community centers for juvenile have been
established to serve as a forum for coordinating assistance and support, as well as for the introductionof useful youth programs and activities in the community.

3. Probation of Parolees

After serving at least one of three of their sentence or at least ten years for life prisoners, mostprisoners are eligible for parole. Before a decision is made, probation officers will propose a postsentence investigation report to the Parole Board. A report consists of relevant information about
the inmate and his/her behavior during the imprisonment, as well as details of supporters. Probation
officers may also include in the report the views of the victim, the offenderʼs neighbor, and thecommunity leaders.
The purpose and practice of the supervision of parolees is similar to that of the supervision of adultprobationers. Their differences lie, however, in the ways in which they are approached and theirprogram requirements. This is due partly to the fact that the oﬀenders have been in custodial institutes
for some time, and adapting into the community and even their own family can be more challenging.

4. Aftercare Services

Another specialized category of services is available for ex-probationers who have completed theprobation term within one year. These oﬀenders are considered the socially disadvantaged who havelost their potential to abide the rule of law. Aftercare services aim to improve reformative potential
and self-sustainability.
For aftercare services, the Department of Probation has applied the use of the halfway houseʼ tohelp oﬀenders in need of accommodation. Halfway houses are there to help them adjust and prepare
to reintegrate into their family and community. As temporary accommodation, there are a variety ofroutine activities and programs in the halfway houses for residents to take advantage of, including
occupational training, spiritual counseling, and various skill development programs. In running the
temporary residences, the Department of Probation attempts to integrate various sciences, local
and traditional know-howʼs, cultures, and religions to frame their programs. Thus the halfway housecan be considered a joint venture among the probation departments, religious institutes, and thecommunity at large.
At present, there are several halfway houses operated by the Department which are locatedin provinces such as Nakhon Sawan, Amnat Charoen, Maha Sarakham, Kamphaeng Phet, andPhatthalung. These provide services for not only the oﬀenders under the probation order, but also
the drug addicts under the diversion initiative. Therefore, other than the aforementioned programs,
additional activities include drug rehabilitation programs and supervised community service.
While new initiatives are considerably more diverse and target group-specific populations,
implementing such treatment programs effectively at large scale require enormous resources far
beyond the normal capacity of any government agency. Therefore, recruitment of volunteers andactive participation by the community itself are of great importance as they provide sustainable
resource for implementing the community-based correctional programs. It is also important toempower each community to develop its own mechanism of crime prevention by means of knowledge
sharing. Some of the ongoing initiatives aimed at community empowerment in Thailand include a
program that utilizes volunteer probation oﬃcers, a community justice network aimed to strengthen
public participation in the criminal justice system, and the media-guided campaign against drunk159

driving.

B. Diversion

Diversion is both a natural process that takes place within the criminal justice system throughthe filtering of offences and offenders, and a deliberate method to process offenders in alternative
ways. The practice of diversion begins with the police and prosecutors, often at their discretion, andtherefore the practice must have rules and standards that both oﬀer protection for the accused, thevictim, and society, and provide for the most appropriate method of justice. Two well-utilized methodsof diversion in Thailand include drug treatment for drug oﬀenders and restorative justice interventions
for oﬀenders and victims.

1. The Compulsory Rehabilitation of Drug Addicts: A major scheme to reduce overcrowdingin Thailand

In 2002, the Thai government adopted a new policy to tackle the narcotic drug problem whichemphasized the enhancement of the preventive measures. Under the policy, the Drug Rehabilitation
Act of 2002, small drug pushers and drug addicts who would have been previously prosecuted as
criminal oﬀenders were now to be regarded as patients who need rehabilitation treatment. This law
was meant to provide a new legal framework for the integrated treatment of drug related oﬀenders in
Thailand. Under the revised scheme, all related government agencies have to work closely together
to provide integrated responses to the treatment of drug oﬀenders. These agencies include the Oﬃceof the Narcotic Control Board, the Royal Thai Police, the Department of Corrections, the Departmentof Juvenile Observation and Protection, the Court of Justice, the Royal Thai Army, the Royal Thai
Navy, the Royal Thai Air Force, the Ministry of Public Health, the Ministry of Interior, the Bangkok
Metropolitan Administration, and the Department of Probation serving as the focal point.
The Drug Rehabilitation Act of 2002 can be regarded as a revolutionary piece of Thai legislation.
The 2002 Act makes clear that drug addicts are not criminalsʼ, but patientsʼ who are in need ofeffective treatment, thus contributing to thousands of drug cases being diverted from courts, andshifting public view on drug dependents in Thailand. After taking-up the responsibility, Department of
Probation did not hesitate to take a more holistic approach by introducing various drug rehabilitation
programs to assist drug addicts rebuild a new life. The number of drug addicts who had been treatedunder the scheme from 2003 to present is shown in Figure 5.
Figure 5. Number of participants to compulsory rehabilitation programs from 2003- 2008

The 2002 Drug Rehabilitation Act stipulates that the person charged with drug addiction , drug
addiction and possession , drug addiction and possession for disposal , or drug addiction anddisposal, - if the amount of possession is less than the limitation of the law - is to be transferred to thecourt within 48 hours, and in the case of young persons, 24 hours. The court then will begin to divert
the case from the traditional criminal justice system to designated facilities for drug assessment. The
evaluation will be conducted by the regional Sub-committee of Narcotic Addict Rehabilitation, chairedby Chief Provincial Public Prosecutors, who will make a decision whether the person is a drug addict.
Apart from this, the committee is given statutory power to supervise drug abusers/addicts during the160assessment and rehabilitation, refer the person to drug rehabilitation centers, consider the extension
or reduction of rehabilitation period, and grant temporary release during detention. If the evaluation
result shows that the person is a drug abuser/addict, s/he will be required to attend treatment
programs for a speciﬁc period of time.
If s/he is assessed as being addicted, the prosecutor will suspend the prosecution and the person
will be mandated to undergo one of the two compulsory systems: the custodial or non-custodial
rehabilitation program.
a. Custodial Rehabilitation
For custodial rehabilitation participants, there are two types of arrangements: intensive and nonintensive treatment. Intensive Custodial Rehabilitation Program comprises three stages; rehabilitation
process, re-entry process, and follow-up process. The Lat Lum Kaeo Community Treatment Centerand the Royal Air Force are responsible for rehabilitation process through the Therapeutic Community(TC) and the Jirasa Program. After 4 months, participants then move on to re-entry process. Activities
in this stage include community service, vocational training, and screening for drug abuse in urine
sample arranged by Department of probation. This stage lasts for two months. Then, participants
move on to follow-up process. Follow up process is under responsible of Ministry of Public Health,community representatives, and volunteer probation oﬃcers. This process lasts for 1 year. Participants
who are deemed successful are then exempt from the criminal prosecution.
Non-intensive Custodial Rehabilitation Program differs from the intensive programme in terms of
responsible agencies. Rehabilitation process of non-intensive program is operated by the Royal Thai
Army, The Royal Thai Navy and the Department of Medical Services. This stage lasts for 4 months.
The re-entry process and follow-up process is as same as those imposed for Intensive Program.
b. Non-Custodial Rehabilitation
In cases where no custody is required during the period of intensive treatment, participants who
are diagnosed as addicts may be admitted as patients to hospitals or other rehabilitation centers forfour to six months, where they can receive the appropriate treatment. In cases where participants
are deemed not to addicts, but merely drug users, they will receive a treatment provided by the
Department of Probation for six months. The remaining two-month probation period and the one-year
monitoring period, are implemented in the same way as the rehabilitation under the custody scheme.
In addition to the implementation of the rehabilitation scheme, the Department of Probation has
also come up with a number of initiatives to assist drug-related offenders in their effort to achieve
successful reintegration. These include the following:- Basic Educational Support: Drug addicts who undergo the rehabilitation program are also
given the opportunity to receive basic education. The program, run by the Department of
Probation in collaboration with the Ministry of Education, oﬀers a special curricula equivalent
to that of the regular elementary or primary schools to each participant depending on his/herneed. It is hoped that by fulﬁlling the educational gap for these drug related oﬀenders, they
will be more prepared for future employment or motivated to pursue higher education of theirchoice upon the completion of the program.
- Enhancement of Family Support: This initiative involves educating family members ofthe drug addicts on how to support the rehabilitation effort and provides counseling service
for family members as well as the participants to the rehabilitation program. The rationale
for this initiative is that rehabilitation will have a greater chance of success if it involves all
stakeholders, since the family members of each drug addict can play signiﬁcant roles in theirrecovery. In order to ensure the smooth and happy reintegration of the oﬀenders back into the161society, the support and understanding on the part of his or her family is deemed indispensable.
It has been found the participants whose family members also took part in the initiative of
rehabilitation had a higher rate of success.
- Buddhist Teaching for Drug Addicts: With the aim of applying relevant Buddhist principle
and guidelines to help the drug addict in developing their mental strength to carry out therehabilitation, this initiative has gained support from three Buddhist temples willing to provide
a pilot program under the initiative.
While drug treatment programs for drug offenders attempt to divert individuals away fromincarceration by taking into consideration their crime in the context of addiction, another form of
diversion - restorative justice - aims to divert individuals away from incarceration by taking into
consideration the context of justice for the victim.

2. Restorative Justice Interventions

As a more specific form of diversion, restorative justice recognizes the role of victims andcommunity in the process of justice, and has a definite place in modern criminal justice systems.
Restorative justice emphasizes informal methods of dealing with crime, and often works hand-in-handwith the community-based treatment options.
In Thailand, there are several criminal justice agencies implementing restorative justiceinterventions. To begin with, the Department of Juvenile Observation and Protection has been
implementing restorative justice conferences since 2003. It is implemented under the guise of Family
and Community Group Conferenceʼ (FCGC), and conducted in the pre-trial stage as a channel ofdiversions. From the beginning of the program in June 2003 until February 2008, there have been
21,490 cases where FCGC was conducted, of which 18,128 cases were approved for non-prosecution
by public prosecutors. Similarly, the Department of Probation has initiated a program on restorative
justice known as Restore-Relationship Conferencingʼ, which is conducted at the pre-sentence/social
investigation stage. Due partly to the legislative limitation, the initiative does not place an emphasis on
diversion. Rather, the outcome of restorative justice conferences proves beneﬁcial for judges in giving
appropriate sentences. This is particularly true when judges examine the extent to which oﬀenders
feel guilty about their crime and if any reparation can be made.
Restorative justice has begun to gain wider acceptance in Thailand. Recently, the Criminal Court
has initiated a pilot project on criminal mediation based on restorative justice principles. Draft
legislations on diversions of small criminal cases during the police and prosecutors stages have also
been proposed for consideration of the parliament.
a. Restorative Justice in Response to Domestic Violence
In recent years, domestic violence (DV) has been recognized as another serious issue that threatens
the stability of the family in Thai society. Traditional views tend to regard violence in the home asa private matter, in which it is inappropriate for outsiders to interfere. The result is a problematic
dynamic where victims - who are female in the majority of the cases - are reluctant to report theviolence to authorities, and the incidences are repeated again and again in the home.
The Department of Probation in cooperation with the Royal Thai Police, the Rama Hospital,
the Bangkok Metropolitan Administration, the Women Empowerment Association (an NGO which
provides emergency shelters for female victims of violence) and the Friends of Women Foundation,
has designed an integrated DV response system where the concept of restorative justice is used inconjunction with the law enforcement and rehabilitation programs, organized by the interdisciplinary
professional organizations, to provide assistance to the victims of the violence and oﬀenders in an eﬀort
to change their behaviors and end the cycle of violence.

162

The restorative justice concepts have proved eﬀective in providing a suitable ground for resolving
dispute within the family in a way that tries to maintain the relationships among the family members, if
desired. In bringing the conﬂicted parties to engage in dialogue towards a mutual agreement, emphasis
is made on responding to the needs of the victims as well as holding offenders accountable. Bytaking into account the needs and desires of victims, as well as the complexity of domestic violence,
restorative justice techniques have provided a more eﬀective alternative to the formal criminal justiceprocess in response to DV.
When the violence occurs between married couples, regardless of their legal status, the partner
who has been inﬂicted with the violence can exercise his or her right to bring a criminal case against
the offender by first reporting it to the police. Under the restorative justice initiative, he or she
can request that a mediation dialogue with the partner be arranged by the probation officer, thepsychologist, or the social welfare worker. If the two sides can reach an agreement, the charge against
the oﬀender will be suspended on the condition that he or she participates in a rehabilitation program
under the supervision of the probation oﬃcer for an agreed period. During that period, the participants
will be able to receive various kinds of assistance from the Department of Probation, including legal aid
counseling, occupational training, and accommodation support. If the participant has not repeated any
incidences of violence, the charge will be completely dropped. Within the prescription period of theoﬀense, if the attempt at rehabilitation proves unsuccessful, the victim can at any time request thatthe prosecution reinstate the charges against her partner.

IV. KEY CHALLENGES AND RECOMMENDATIONS FOR
REDUCING PRISON OVERCROWDING IN THAILAND
In order to tackle the problem of prison overcrowding, it is important that well-focused criminal
justice policies regarding alternatives to incarceration, non-custodial treatment, diversion, andsuccessful reintegration of oﬀenders are in place throughout the criminal justice process. It can be said
that these alternatives methods and community-based approaches have begun to take root in the Thaicriminal justice system and greater society. Yet, for these alternative approaches to survive and attainmaturity, a number of key challenges will have to be adequately dealt with. Here are some of thechallenges that, in my opinion, could adversely aﬀect the continuing eﬀort to tackle the issue of prison
overcrowding in Thailand.

A. Key Challenges
1. Explosive growth in scope of work

The increase is not only in the quantity of work, but also the variety of missions. New laws thathave been in force in recent years have paved the way for the expanded scope of probation workfrom the traditional intensive probation based on investigation and supervision of the offenders, tothe new frontier where probation work becomes an essential instrument for the diversion and crime
prevention. An introduction of innovative techniques such as the electronic monitoring for treatment
of offenders in the community, has also led to significant increase of work load for the probationoﬃcers. While vital in the ﬁght to control the growth of incarcerated oﬀenders, the expanded scopeof work has considerable impact on the probation staﬀ, many of whom are already under stress frombeing employed in a constantly under-staffed work environment. Figure 4 shows the number ofcases that fall under the responsibility of the probation oﬃcers, while Figure 5 traces the number ofprobationers entering the system during the past 30 years. Here the explosive growth in responsibilityof the probation staﬀs in recent years is clearly visible.
For prison oﬃcers, in normal circumstances, prison works has already been diﬃcult especially interms of security control and rehabilitation operations. Moreover, prison staﬀ in Thailand normally
have to perform double roles: as professional staff and also as guards. When the number of prison
population rapidly increases coupled with expanded demands from the public, policy makers and newlegislations, prison works are now even harder while the number of prison staff remains relatively
unchanged. Upper policy-level constraints make it diﬃcult for the public agency to employ additional163

staﬀ to tackle the additional missions. In order to eﬀectively address the overwhelming problem ofworkload increase and its impact on the morale of staﬀ, the government must take this issue seriously
and devise a systematic way to provide support and funding to ensure that the quality of the probation
program will not suﬀer.

2. Need for enhanced visibility

Probation work - as the approach where most of the activities take place within the community
at the microscopic level - tends to be less visible in the eyes of the general public as compared to
institutional custody treatment. One serious implication for this relatively low visibility is the diﬃcultyin trying to convince decision-makers who might ﬁnd it diﬃcult to see the tangible results of probation
work, that their policy advocacy and funding support are vital. While the overcrowding of prisons iseﬀectively shown with increasing ﬁgures of inmates, the linkage between decreasing the incarcerated
population and strengthening the programs of probation is a more diﬃcult relationship to portray.
The Department of Probation will therefore have to put forth a more strategic eﬀort to make theoutcome of the probation programs as clear and concrete as possible in order to gain understanding andappreciation from the policy-makers and general public. One successful example of raised visibility is
the campaign regarding drunk driving. Through the use of the media, the campaign was successful insending out clear messages to the public that the imposition of community services, such as working in
hospital or providing care for victims of drunk-driving accidents, is more eﬀective enforcement of thelaw, as it forced the oﬀenders to face the impact of their actions and refrain from repeating them. The
Court was also convinced to increase its use of community service orders as punishment, as opposed
to ﬁnes alone. The success of this program should encourage similar tactics to increase visibility withrespect to more types of oﬀences.

3. Need for effective treatment programs

With the ever-increasing complexity of issues related to crimes involving addiction, domestic
violence, and other societal and familial problems, there is a constant need for law enforcement,
probation staﬀ, and court oﬃcials to acquire new knowledge and skills to enable them to understandand cope better with conducting supervision and providing assistance to such oﬀenders. By eﬀectively
addressing such problems at a fundamental, rather than superﬁcial, level, there can be a true impact
on recidivism rates and therefore numbers of oﬀenders in the system and overall inmate population.
In earlier days, when the Department of Probation was under direct control of the judiciary,
the main responsibility of probation oﬃcers was to prepare the so-called social inquiry and oﬀendersupervision reports with more emphasis on the prevalent forms of punishment - imprisonment and ﬁnes
- and less emphasis on turning the probation programs into eﬀective alternatives. Now, the probation
programs need to be able to fulﬁll more policy requirements while providing no less eﬀective options
for the treatment of oﬀenders than the custodial approaches. The general public must be informed andconvinced that the programs can deliver desirable results - the reform of the oﬀendersʼ attitude andbehaviors - when these programs are implemented in local communities. In order to achieve that, theprograms need to be more responsive to as many types of target groups as possible, especially withrespects to their types of oﬀences. More cooperation and partnership with healthcare providers andsocial welfare agencies must be sought after in designing such programs.

4. Integration of enforcement agencies on treatment of offenders

The reorganization of the Ministry of Justice in 2002 successfully brought all related government
agencies charged with the treatment of oﬀenders under one umbrella. Yet there is still an urgent needfor the integration of these agencies to cascade down to real practice and work procedures withineach agency and across the related agencies. The development of an integrated system of offender
treatments is crucial to achieving more eﬃciency and reducing the duplication of work.
Every agencies in the criminal justice system will have to work closely with one another encies inorder to develop a suitable framework for such integration, with well-deﬁned scope of responsibility

164

and accountability. A unified strategic plan will be necessary for the smooth delivery of each key
process along the value chain of the overall offender treatment process, including the pre-release
preparation and after-release support. Additionally, the Department of Probation will need to continue
its eﬀort in promoting participation and partnership with other non-public sectors.

5. Maintaining the quality of public participation in probation work

Success by the Department of Probation in promoting public participation in the criminal justiceprocess of Thailand has inspired decision-makers at the top policy levels to apply this model ofvolunteering and community networking to other key criminal justice issues. A good example of thisis the development of the community-based system of responses focusing on the alternative dispute
resolution and access to legal assistance. So far, the volunteer probation oﬃcers initiative as well as
the prototyped networking initiatives by the Department of Probation have led to great success inmobilizing public support for and understanding of the work on oﬀender treatment. This ultimately
results in a more effective implementation of treatment programs and after-release assistanceprograms within the community. Still, for the public participation and partnership models developedin such manner to be eﬀectively applied to address other criminal justice issues, substantial funding
and support will be necessary. Otherwise, it might lead to the undesirable consequence where thecurrent eﬀorts in the community-based treatment of oﬀenders will be diluted as a result of insuﬃcient
resources.

6. Political challenges and consistency of penal policy

New initiatives and treatment programs related to oﬀenders take time to be accepted as worthwhile
not only for the policy-makers and the general public, but for employees within the criminal justicesystem itself. Practitioners such as prison oﬃcers, law enforcement employees, probation oﬃcers,
and court members must have a certain level of belief and buy-in for the programs to be implemented
successfully. Programs such as diversion, restorative justice, and community treatment must firstbe shown to be eﬀective in their objectives (of reducing incarceration rates, recidivism, etc.) before
buy-in can be achieved. Having time for the process to play out is diﬃcult when there is a lack ofconsistency regarding penal policy in the country. Because many of these initiatives are relatively
new to criminal justice in Thailand, there has not yet been a consistent approach to reducing prison
overcrowding through such initiatives. Changing agendas of political leaders, as well as changing of
the leaders themselves, has contributed to this problem. A consistent and committed approach by thepolicy-makers would allow the programs to reach their full potential, thus providing tangible statistics
to allow for evidence-based decisions regarding penal policy.

7. Judiciary’s involvement in promoting community corrections sentence

In many cases, despite all the work being done at the pre-prosecutorial stage by the Ministry ofJustice, sentences ultimately lie in the hands of the judiciary. This can be a challenge not only becauseof the necessary buy-in discussed in the previous section, but because historically the judiciary tends
to utilize the traditional methods of ﬁnes and imprisonment rather than the more alternative methods.
As the sentencersʼ of the offenders, the judiciary play a vital role in the promotion and utilizationof the alternative methods, and are a key group involved in tackling the rate of incarceration. By
accepting and mandating various methods of diversion, treatment, mediation, etc. while remaining
independent, the judiciary can go a long way towards promoting community corrections sentences.

B. Recommendations

Based on a recognition that prison overcrowding is not merely as a result of increased crime, but
as a result of the criminal justice policies made to deal with criminals, the solution then becomes about
eﬀective treatment that is not merely about keeping oﬀenders under control through incarceration, but
about providing them with the necessities and treatment for a successful reintegration into a crimefree life in society. Here are a few of my thoughts on how to enhance alternative to incarceration
measures to better cope with the challenges mentioned above, and positively impact the problem ofprison overcrowding in Thailand.

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1. Earlier application of alternative measures

Prison overcrowding is by and large the result of a breakdown of the system of applying alternative
measures to appropriate offences and offenders from the stage of initial arrest through to thesentencing stage. Non-custodial measures must be more vigorously applied in the pre-prosecutorial
stage of the criminal justice system for the system to work, and for prison to be the last resort. The
mindset of prison as a last resort must be present in all sectors of the system from the beginning, sothat the oﬀender will be channeled as early and as appropriately as possible into alternative measuresof community corrections.

2. More variety for non-custodial treatment

While imprisonment may be justified for certain types of offenders under certain circumstances,
it is not justiﬁed for all. In order for the system to better serve and respond speciﬁcally to the needsof the oﬀenders, more options for the community-based and alternative treatment measures is highly
desirable. Introduction of such measures at the pre-trial stage and during the period of suspended
sentence, as well as in-house arrest could provide more variety for the non-custodial treatment in thecommunity. Speciﬁc treatments that match the needs of certain group of oﬀenders are also desirable.
In addition to the oﬀenders or suspects awaiting trials, as well as drug abusers, prisoners with shortterms of imprisonment (i.e. those who have committed compoundable oﬀences of less than two- years
term) might well be a good candidate for such measures. Furthermore, the entire criminal punishment
system needs to be reformed in order to allow for the introduction and implementation of the noncustodial measures in greater variety. The legal framework needs to be revised to allow for morealternatives to imprisonment in order to reduce the number of inmates incarcerated for the shortterm.

3. Multilevel conditions

At present, the conditions set forth for the oﬀenders to observe during probation tend to be quite
rigid and inflexible, rendering them less responsive to the different needs and circumstances ofeach offender. For instance, in case of offenders who have re-offended, the conditions may well beappropriately intensive, with a combination of limiting freedom of movement, restriction on accessto any particular areas, compulsory rehabilitation, or even the increase of the probation period. On
the other hand, for oﬀenders of petty crimes, normal conditions might not necessary. One approach
to allow for such multi-level conditions is to empower the probation oﬃcers to use their discretion inorder to reach an agreement with each oﬀender in a tailor-made fashion.

4. Need for ‘national penal policy’ and modernized legislations

Reiterating the challenge of consistent policies, there is a demonstrated need for a national penal
policyʼ which promotes community corrections and reserves prison spaces for only hardcore criminals.
This will take the modernization and innovation of legislation, using best practices and evidence-basedknowledge from around the globe, and applying it in a manner that is suitable to Thai law, customs,
culture, and society. Currently, Thailand is exploring a number of innovative policies regarding
intermediate sanctions, including intensive probation, home detention, weekend detention, periodic
detention, and electronic monitoring for the community-based treatment of the oﬀenders. Additionalinnovative approaches might include pre-sentencing probation, assistance program for victims ofcrimes, as well as the implement of restorative justice measures.

5. Improvement of transition operation and aftercare services

Prison should not be a revolving door for inmates; the issue of overcrowding can not be addressed
without looking at keeping oﬀenders from re-oﬀending after they leave prisons or other correctional
programs. Community-based corrections and treatment programs are only as good as their re-oﬀending
rates, so it is crucial that transition operations for inmates and aftercare services for ex-probationers
are improved to prevent recidivism.
In response to the need to systematically embrace more innovative approaches, some might look
for the establishment of new agency to be responsible for the new demand. Still, in my opinion, it

166might be more productive to consider assigning such new missions to the Department of Probation,
considering that its staffs have had considerable real work experience and are equipped with thenecessary fundamental knowledge and skills. Each probation oﬃcer, provided that they are properly
trained, will have at least three signiﬁcant qualiﬁcations, namely: 1) being knowledgeable with respect
to laws and criminal justice system, 2) having good background knowledge on psychology and social
welfare, and 3) having intensive working experience with all key stakeholders in the criminal justiceprocess- whether they are the police, the public prosecutors, the oﬀenders, the victims of crimes, orthe members of local community. Therefore, we only need to build up more on the well-laid foundation
which will be more cost eﬀective and feasible.
At the heart of any quality treatment lies the ultimate goal of reintegration of the oﬀenders into thesociety. Measures must be tested and monitored for their eﬀectiveness in terms of providing assistanceto the oﬀenders so they can attain such goal. This involves taking into account the societal and familial
dynamics surrounding the crime, and applying the support needed to reintegrate the offender backinto the community. As the society becomes more and more complex with more compounded impactof the weakened social institutions, so are the nature and circumstances surrounding the offenders
and their oﬀences. The probation oﬃcers will require constant training and re-training to bring theirknowledge and skills in keeping up with the latest development of the serious issues of the days. They
are required to do more than just supervising the oﬀenders according to the conditions set forth by the
court orders. They must be able to work closely and productively with the oﬀenders, the victims ofcrimes, and the local communities. Their role will not be limited to merely rules keepersʼ but extend
to encompass that of the local community resources managersʼ in order to truly return the oﬀenders
back into the society.

6. Increased partnership

My experience in working to promote public participation in the treatment of offenders has
conﬁrmed the fundamental belief that direct engagement of the community members, either throughthe form of volunteers or networking, is indispensable for the effective implementation of thealternative treatments for imprisonment. It is the most efficient way to make use of the resources
within the local community as well as other forms of social capital to support the probation work anddecrease in the rate of incarceration. In the context of Thailandʼs political system, direct participationfrom the local community also contributes to the on-going eﬀorts with respect to decentralization ofadministration power from the central government, as mandated by the Constitution. As present,
there are over 6,700 Tambon Administration Organizations - the smallest units of local governments- throughout Thailand with more independence in terms of policy planning and budget management.
The success in promoting community involvement in the treatment of oﬀenders should be expanded
to include the form of partnership agreements with these local administrations, which will provide amore sustainable solution to the chronic problems of budget constraints and lack of support for theassistance program for the reintegration of the oﬀenders into the society.

V. CONCLUSION
Prisonersʼ rights are human rights, and as stipulated in the SMR (United Nations, 1955), prisoners
have the right to adequate facilities. The problem of overcrowded prisons is one that many countries,
including Thailand, are currently dealing with. One approach utilized has been capacity-based solving the situation by building more prisons. The Ministry of Justice in Thailand recognizing thatthe issue of prison overcrowding is not just a symptom of increased crime, but of penal policies as
well, has used a three-prong approach: prevent newcomers from entering prisons; reduce the current
prison population by using early release (parole) measures for prisoners who are near the end of theirsentence and have earned parole through good behavior; and reduce the recidivism rate. Initiatives
created to underline these three strategies include alternatives to incarceration, such as enhanced
probationary measures that include community treatment, diversion, and restorative justice.
Alternatives to incarceration programs have come a long way in Thailand has since they were ﬁrst
introduced thirty years ago. They currently operate as well-accepted options for the diversion of167

criminal cases from the historical method of fines and imprisonment. Additionally, there have been
a number of new measures for specific group of offenders to better serve their needs, along with
the needs of the victims and society at large. Public participation and community engagement havebecome the integral part of system where rehabilitation and reintegration are the ultimate goals. Someinnovative measures such as restorative justice with emphasis and role for the victim have been sought
after more and more. Finally, the working style where community networking and partnership are theabsolute ingredients has become the norm. All these are the good signs for not only the sustainable
development of the community corrections approach, but for the situation of prison overcrowding
as well. The more oﬀenders who are diverted to other forms of rehabilitation, the more the prisonsremain last resorts for only the most dangerous criminals.
There is room for improvement, however, as many challenges remain with respect to theimplementation of community corrections and alternative measures. Since the time of the inception,
the present time is perhaps the most crucial for making real headway in Thailandʼs response toprison overcrowding. It is important that all concerned parties who shoulder the responsibilities of
implementing alternative measures put great effort into initiating, implementing, monitoring andevaluating the outcome of such programs, while maintaining the quality of work despite the risingdemands. Through a decade of hard work, pioneers involved in the process of reform, including the
Department of Probation, have been successful at - among other things - establishing the system ofprobation for adult oﬀenders as well as juvenile oﬀenders in Thailand. There are more than 100,000
persons under supervision annually, and the success rate has been satisfactory. Oﬀenders who areunder the supervision of parole are not, by deﬁnition, adding to the prison population, and therefore
this is a crucial piece in the work of decreasing the incarceration rate.
In the case of penal policy, there can be no shortcut to success. While the utilization of noncustodial measures to combat prison overcrowding can be viewed as a cheaper alternative to building
more facilities, such measures in Thailand, similar to many countries, are facing a chronic lack offunding and inadequate allocation of personnel. Although initiatives such as diversion and restorative
justice may in fact be a cheaper alternative, this does not mean that they can survive without adequateﬁnding and support. To ensure that Thailand maintains a prison population that is consistent with thecapacity of its facilities, it is necessary that non-custodial measures of treatment and rehabilitation
continue to be given their due consideration and support, to enable them to succeed during thisimportant period for continuing growth and maturity.

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STRATEGIES AND BEST PRACTICES AGAINSTOVERCROWDING IN CORRECTIONAL FACILITIESI. Introduction
1.
Strategies for the reduction of prison populations spans a range of eﬀorts from stemming theflow of cases into the justice system; efforts towards improving the efficiency and effectiveness ofthe justice system for purposes of reducing delays and bottlenecks at the stages from arrest and pretrial detention; through to trial, sentencing, appellate proceedings and innovations of reducing thephysical stay of prisoners on custodial sentences in detention facilities. This paper however focuses on
strategies and good practices at the stages of stemming the ﬂow of cases into the justice system andthe pre-trial stage.
2.
Prison overcrowding results from high prisons admissions and few releases/discharges coupledwith delays in the trial processes in the formal justice system and the award of long prison sentenceswith limited use of parole. It could also be a result of limited use of alternatives to custodial sentencessuch as ﬁnes, community service orders, conﬁscation orders and suspended sentences.

II. Strategies and best practices against overcrowding - the case of Uganda
3.
Interventions to reduce overcrowding in prisons have included both government and civilsociety as complementary duty bearers as well as building of strategic partnerships of between
government and civil society organizations. Furthermore, the use of multidisciplinary teams in theprovision of legal aid services has proved vital in offering comprehensive and effective services.
Speciﬁc strategies and practices that have contributed to the reduction of prison overcrowding include;a.

Prevention of cases getting into the formal justice system through use of alternative dispute
resolution including traditional justice mechanisms - these are restorative in nature andpromote reconciliation and settlement of disputes outside the formal justice processes; Local
Council Courts - Community based semi- formal institutions to handle disputes without arrestand detention powers; family members including clan leaders and religious leaders also resolve
disputes for purposes of stemming the ﬂow of cases into the formal justice system. It should
however be noted that these are relevant for minor and often domestic related cases that are
not capital oﬀences.

b.

Weeding out non-founded cases from the formal justice system such as formal withdrawal ofcases through the Directorate of Public Prosecutions, mediation and reconciliation. Paralegals
working in the criminal justice institutions identify and document deserving cases or those thatare erroneously forgotten in the system and bring them to the attention of judicial oﬃcers. In
cases where complainants report to have lost interest in pursuing the matter through court
or where they are not willing to testify in court to help court complete the trial process,Paralegals arrange for both parties together with police to write additional statements in liaison
with the Prosecution department to formally withdraw the case hence securing releases fromprison.

c.

Legislative and policy amendments such as lowering the jurisdiction of cases from High Court
to lower courts such as the Chief Magistratesʼ courts. High court sessions handle criminal
matters at an average rate of twice a year in a magisterial area. High Court was previously169responsible for trial of all deﬁlement cases. This created a huge backlog of cases due to thelimited number of High Court Judges and resource constraints. The legislation on deﬁlement
was revised to separate simple defilement - involving a minor victims fourteen years andabove to be tried at the Chief Magistratesʼ Court while aggravated defilement - involving aminor victims below the age of fourteen was left in the jurisdiction of High Court. This led toa reduction in prison populations because Chief Magistratesʼ courts are in session through out
the year. The campaign against death penalty has also yielded results including the review ofinmates on death sentences which has led to overturning some death sentences and consequent
releases.
d.

Institutionalization of pro bono services to encourage faster case disposal through representationin court especially for the indigent. The initiative relates to advocates in private practiceand non governmental organizations as well as services of Paralegals. Pro bono services
supplement government efforts in provision of legal aid through advocates to represent
prisoners. The initiative also improves legal awareness of prisoners to enable them become
active participants through eﬀective demand for justice.

e.

Within the legal and policy framework, there are provisions in the formal justice system thatencourage out of court settlement of disputes at various stages. Examples include;• The Family and Child Protection Unit at Police which handles domestic disputes aiming
at prevention of petty/minor cases from progression into the formal justice system. This
reduces the possibility of ending up in incarceration.
• Magistrates Court Act Cap 16 Section 160 provides that in criminal cases, a Magistrateʼs
Court may promote reconciliation, and encourage and facilitate the settlement in an amicableway, of proceedings for assault or for any other oﬀence of a personal or private nature, notamounting to felony and not aggravating degree, in terms of payment of compensation orother terms as approved by the court.
• In civil cases a magistrates court shall not deprive any person of the benefit of any civil
customary law which may be applicable that is not repugnant to justice, equity or good
conscience or incompatible with any other law - Section10 Magistrate Courts Act Cap16• Most legislation promotes the principle of using incarceration as a last resort in pretrial.
Examples include, provisions minimizing detention of juveniles and reduction of statutory
remand periods 60 days for non Capital oﬀenders and 180 days for capital oﬀenders. These
were revised from 180 days and 360 days for petty and capital cases respectively.
• Willingness to try out and adopt new innovations to address overcrowding in places ofdetention such as the Paralegal Advisory Services programme.

III. Paralegal Advisory Services Programme
4.
The Paralegal Advisory Services Programme provides basic legal aid services aimed at
improving access to justice for poor persons caught up in the criminal justice system. It addresses the
problems of overcrowding in police cells and prisons as well as delays in the criminal justice system.
5.
The programme promotes the interventions of Social Workers and Paralegals working in
all the criminal justice institutions on a daily basis as a link on behalf of the suspects and prisoners.
They provide ﬁrst legal aid through general advice and education to persons in conﬂict with the law
and their relatives in consultation with the officials of the criminal justice institutions i.e. Police,
Prosecution department, Courts, Prisons and Remand Homes. Although the Paralegalsʼ and Social
Workersʼ interventions target suspects and prisoners, they also assist the victims as well as improve
communication and coordination among the justice institutions.

170

6.
Objectives of the Paralegal Advisory Programme relating to the reduction of congestion inprisons include the following;a.

To contribute to the process of physical and case file decongestion in the Criminal Justicesystem through;• Stemming the flow of non founded cases into the criminal justice system - at police andcourts as well as following up and identifying cases in prison.
• Reducing the proportion of petty oﬀenders on remand• Diverting the petty cases from the criminal justice system to Alternative Dispute Resolution
and traditional systemsb.

To link the demand and supply sides of the Criminal Justice System through;• Training suspects and prisoners in self representation to allow for reduction of wastage ofcourt time
• Facilitation of quality sureties to help suspects and prisoners on pre-trial access police bondand court bail respectively• Linking suspects to communities to allow for settlement of disputes out of the formal justicesystem as well as standing as sureties to access police bond and court bailc.

To change practices within the Criminal Justice chain through advocacy and civic engagement

Congestion in prisons also results from loop holes in legislation and practices or non adherence tostandard procedures and guidelines. The PAS programme engages in;• Practice Advocacy to ensure that there is issuance of practice directions to reducebottlenecks in the administration of justice• Modiﬁcation of practices where necessary through civic engagement with the stakeholders
in the administration of justice. This is achieved through identifying and proposing
alternative practices to ﬁll practice gaps
• Encouraging enforcement of enabling legislation and practice standards.

IV. Challenges of Reducing Prison Populations
7.
Challenges of reducing prison populations relate to poor enforcement of standards, inherent
challenges in the strategies and practices as well as the limited use of modern technology for improving
access to justice.
a.

Failure to enforce enabling legislation and programmes such as the pro bono services and low
adherence to standard guidelines. This stems from resource constraints including; human,
infrastructural, and ﬁnancial constraints.

b.

Challenges of sustainability of innovations such as the Paralegal Advisory Services. Most
innovations are initiated and managed by civil society organizations which depend on funds
from international development partners.

c.

Chronic delays in the administration of justice. These stem from systemic and technicalinconsistencies.

d.

Limited acceptance of non- lawyers in the administration of justice. The concept of using
multidisciplinary teams in the access to justice arena is still relatively new on the African
continent. Interventions to improve access to justice have largely been relegated to the law
profession.

171

e.

Absence of a national legal aid policy to allow for equitable access to justice especially for theindigent. This in most cases leads to the limited commitment of government as the major duty
bearer of legal aid service provision.

f.

Lack of sufficient preparation of the communities to receive persons out of prisons on
pretrial and lack of public acceptance for suspects and prisoners on pretrial such as those on
police bond, court bail, and parole. The suspects and prisoners are harassed, alienated andstigmatized. This in most cases leads to re-oﬀending manifesting as recidivism and at worst it
has resulted into mob justice.

g.

Most discussions and decisions do not reach the lower levels of staff in the justice systems
that have direct interaction with the prisoners. Whereas initiatives such as the Chain Linked
Initiatives, stakeholder conferences improve coordination and cooperation in the justicesystem, the participants are often at management levels and information does not adequately
trickle down to the oﬃcers who would implement decisions.

h.

Incomplete support systems for the integration of prisoners into communities. There are
instances when prisoners are released but due to lack of transport to their home areas, they
are left stranded in the localities where they were incarcerated so they end up re-oﬀending in
the process of trying to fend for themselves or ﬁnding transport to take the back home.

i.

Whereas Community service has proved to be an eﬀective alternative to custodial sentences,the challenge of follow up to ensure compliance has been a major set back. This is in part due
to the lack of tracking changes in addresses especially in urban slum areas of Africa where
many oﬀenders reside.

V. Conclusion
8.
There is recognition that even when there is enabling legislation, adherence to minimum
standards, eﬀective and functional justice system, there could be some practices especially relating
to following due processes that are counter productive and could be contributing to delays in theadministration of justice leading to prison overcrowding.
9.
In recognition of the challenges for Africa in the use of technology such as surveillance andelectronic tagging devices, diversionary measures such as house arrest, suspended sentences andcurfews are diﬃcult to use hence the need to develop tailor- made community strategies based on the
traditional justice mechanisms to follow up prisoners on early release from prison.
10.
Most of Africaʼs prison management are grappling with the basic challenges related toovercrowding such as feeding, sanitation, security of prisoners that they do not have adequate ﬁnancial
and human resources to address specific needs of prisoners such as the mentally challenged, drugrelated or terminally ill and elderly prisoners.
11.
Recidivism remains a major contributor to prison overcrowding. In most of the Africancountries with no national identiﬁcation systems in place coupled with inaccessibility and use of modern
technology and tracking mechanisms, the rates of recidivism could be much higher than recorded
because prisoners change identities which are not detected hence passing as ﬁrst time entrants into
prisons.
12.
Whereas caution should be exercised in building of more prisons as a strategy for reducing
prison overcrowding, consideration of the growing national populations and the escalation of crime
coupled with depreciation of physical infrastructures should not be disregarded.

172

THE PARALEGAL ADVISORY SERVICE & ACCESS TO JUSTICE
IN MALAWI

173

174

175

176

177

178

SYSTEM AND PRACTICE TO CONTROL AND REDUCE PRISONPOPULATION IN JAPAN

179

180

181

182

PRISON OVERCROWDING- Finding Eﬀective Solutions. Strategies and Best Practices Against Overcrowding
in Correctional Facilities -See p. 65 to 130

183

184

RESTORATIVE JUSTICE

1. GENERAL
Restorative justice in the criminal justice system is a way of responding to oﬀending and the eﬀects
of crime that makes the people affected by the crime the focus of the process. Restorative justiceseeks to repair harm caused by the oﬀending, to appropriate responsibility for repairing the harm andto involve those who have been aﬀected by the harm, including the community, in the resolution.
The many different types of restorative justice processes simply reflect national and cultural
diﬀerences. Restorative justice is constantly changing to meet new circumstances.
International research shows that restorative justice significantly reduces imprisonment,
reconviction and reoﬀending. Importantly, it provides signiﬁcantly greater victim satisfaction. This
paper in support of the workshop at the United Nations Congress on Crime Prevention in Brazil will inparticular, focus on the research evidence which shows that use of restorative justice reduces the useof imprisonment and has other beneﬁcial results. Restorative justice is signiﬁcant in any discussion ofprison overcrowding.

2. DEFINITION
Definitions can be problematic but broadly speaking restorative justice refers to: a process
whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal
with the aftermath of the offence and its implications for the future .1 The aims of restorative justice areto repair the damage created by criminal offending and restore the balance of relationships within society. 2
Restorative justice practices involve the devolution of some decision making power from the Stateto the community. It helps those caught up in criminal offending feel that their respective voices
are heard and respected - something which victims of crime increasingly feel the traditional criminal
justice system does not adequately allow.
Professor John Braithwaite, an eminent Australian criminologist, has said that restorative justice:
has been the dominant model of criminal justice throughout most of human history for all the world’s people .
Certainly this is true of restorative justice in New Zealand. Consedine notes3 that prior to European
contact, the indigenous Maori population had a well-developed system of custom and practice that
ensured the stability of their societies, one which had much in common with the philosophy of
restorative justice:
Essentially the system was akin to what is now referred to as restorative justice. There were anumber of important elements to this. When there was a breach, community process enabled aconsideration of the interests of the whanaungatanga (social group) and ensured the integrity ofthe social fabric. Through whanau (family) or hapu (wider family) meetings, and on occasional
iwi (tribal) meetings, the voices of all parties could be heard and decisions arrived at by consensus(kotahitanga). The aim was to restore the mana (prestige/authority) of the victim, the victim’s
family and the family of the offender, and to ensure measures were taken to restore the future1
2
3

Marshall T (1996) Restorative Justice: An Overview. London Home Oﬃce, Page 5.
Maxwell G (2007) The Deﬁning Feature of a Restorative Justice approach to Conﬂict, Institute of Policy Studies
Page 6.
Consedine, J. (1999) Restorative Justice: Healing the effects of crime, Ploughshares, Chapter 6. See also
by the NZ Mäori Council in, Bowen and Consedine (eds) 1999 Ploughshares.

185social order of the wider community. Because these concepts were given meaning in the context of
the wider group, retribution against an individual offender was not seen as the primary mechanism
for achieving justice. Rather, the group was accountable for the actions of the individual(manaakitanga) and that exacted compensation on behalf of the aggrieved .4
A traditional form of what we know as reparation (utu - balancing the scale) was muru. This
involved the oﬀending party and their kinsmen acting as a raiding party and plundering the oﬀenderand their kin of food or other resources (the scope and extent of the raid having been previously
agreed upon).5
It is certain that to a degree these restorative roots in Maori culture inﬂuenced and expedited theadoption of restorative justice processes in contemporary youth justice and the movement towards theuse of restorative justice in adult criminal justice settings in New Zealand.

3. RESTORATIVE JUSTICE IN THE YOUTH COURTThe enactment of the Children, Young Persons and Their Families Act 1989 in New Zealandintroduced a philosophical sea change in the youth justice system. Prior to this legislation many youth
oﬀenders were sent to institutions or to detention centres or borstal, places where they would further
develop their bad-boy/bad-girl image and learn new anti-social and criminal tricks.6
The existing system was seen to have failed to prevent reoﬀending and also failed in the manner inwhich it encouraged dependency on the welfare of the State. Further factors which inﬂuence calls forchange were summarised by Maxwell7:
Concern for children’s rights: a new approach to effective family therapy: researchdemonstrating the negative impact of institutionalism on children, inadequacies in the approachtaken in the 1974 legislation for young offenders: the failure of the criminal justice system totake account of issues for victims: experimentation with new models of service provision andapproaches to youth offending in the courts: and concerns raised by Maori about the injustices
that had been involved in the removal of children from their families.
All of these concerns led to the Children, Young Person and Their Families Act 1989 a radical pieceof legislation incorporating restorative justice techniques. This pioneering legislation has been thesubject of scrutiny by many other nations and adopted in whole or in part in youth justice systems
around the world.

4. THE KEY PROVISIONS SUMMARISED
The procedure now followed in New Zealand for youth oﬀenders is explained by His Honour JudgeF W McElrea.8
A typical restorative justice conference involves the prior admission of responsibility by theoffender, the voluntary attendance of all participants, the assistance of a neutral person as
facilitator, the opportunity for explanations to be given, questions answered, and apologies given,
the drawing up of a plan to address the wrong done, and an agreement as to how that plan will be
implemented and monitored. The court is usually but not necessarily involved.
In the youth justice sphere, about one-third of conferences are not directed by the court but are
4
5
6
7
8

Ibid at 86
Ibid at 87
Ibid at 102 - 103
Maxwell, G. (2007),inJudge FWM McElrea,.

186(Institute of Policy Studies, VUW) at 46

diversionary conferences, initiated - and attended - by the police. (However, New Zealand does
not subscribe to the practice in some parts of Australia, Canada and the United Kingdom of
having the police run the conferences. There is always an independent facilitator in charge.) If
agreement can be reached as to an outcome that does not involve the laying of charges, then no
charges are laid - so long as the outcome is implemented.
The youth court nearly always accepts such plans, recognising that the scheme of the Act places
the primary power of disposition with the FGC. However, in serious cases, the court can use awide range of court-imposed sanctions, the most severe being three months residence in a social
welfare institution, followed by six months supervision; or the court may convict and refer the
young person to the district court for sentence under the criminal justice act 1985 (s 283(o)),
which can include imprisonment for up to five years.
As with other diversion schemes, if the plan is carried out as agreed, the proceedings are usually
withdrawn; if the plan breaks down, the court can impose its own sanctions. Thus the court
acts as both a back stop (where FGC plans break down) and a filter (for patently unsatisfactory
recommendations).

5. RESTORATIVE JUSTICE IN THE ADULT COURTThe experiments with restorative justice for young people inevitably flowed into restorative
processes being used in the adult setting.
In New Zealand, adult courts began to accept restorative justice conference recommendations.
These conferences were run by community groups with support from local judiciary. A common
theme in the successful adoption of restorative justice processes in New Zealand and elsewhere has
been the involvement of the local community and the utilisation of groups already in existence andworking to deal with problems in local communities. For the most part the necessary infrastructure
existed. It simply needed to be supported by the State through the provision of necessary training
and/or funding.
In New Zealand some appellate decisions affirmed the right of New Zealand courts to take into
account restorative justice processes in adult criminal matters but in 2002 there was legislative
recognition of restorative justice in the adult criminal system.

6. LEGISLATIVE PROVISIONS SUPPORTING RESTORATIVE JUSTICE PROCESSESIn New Zealand, a number of legislative reforms were passed into law in 2002 which supported
and recognised restorative practices. In summary, the Sentencing Act 2002 requires that whensentencing an offender, the court must take into account any outcomes of restorative justiceprocesses and included provisions facilitating restorative justice conferences as part of the sentencing
process; the Victim Rights Act 2002, which also supported such conferences or meetings as a victimʼ
s right; the Parole Act 2002, which required a Parole Board to give due weight to any restorative
justice outcomes when considering the release of prisoners on parole; and, later, the Corrections Act
2004, which required the prison system to provide prisoners with access to any process designed
to promote restorative justice between oﬀenders and victims where appropriate. These legislative
provisions can be accessed at WWW.LEGISLATION.GOVT.NZ.

7. RESTORATIVE JUSTICE PRACTICES IN ADULT COURT
In adult criminal justice systems, restorative justice can occur:(a) as part of police adult diversion process;(b) pre-sentence (after a guilty plea but before sentencing); and(c) post-sentence (in the parole of oﬀenders and as part of re-integration back into the community).

187

(a) POLICE DIVERSION

For many years, the police in New Zealand have utilised a diversion scheme whereby an adultoffender who accepts responsibility for offending, is not prosecuted through the court but makes
amends for the wrong by performing some kind of community work, paying reparation whereappropriate and apologising to the victim. This saves considerable judicial time and the oﬀender avoids
the consequences of a conviction.9
The police have recently started considering referrals to a restorative justice process for certain
offenders who receive diversion. In such cases, the agreed means of making amends, will in largepart, stem from the restorative justice meeting, rather than simply being directed by the diversion
oﬃcer. Restorative justice used in this way, provides a more meaningful intervention for an oﬀenderwith better prospects for rehabilitation.

(b) RESTORATIVE JUSTICE CONFERENCING IN THE ADULT COURT

Once charges have been laid in court, there are some restorative justice processes which run
alongside the court process. The Sentencing Act supports restorative justice and allows theengagement in a restorative justice process to occur prior to sentencing so that the outcome of that
can then be taken into account by the sentencing judge. There is no deﬁnition of restorative justice in
the Act, so a variety of restorative justice processes can be used, but the most common process is therestorative justice conference, which is akin to the FGC in the youth court.
The general process for restorative justice conferencing in New Zealand is outlined below:10(b)(i) BEFORE A CONFERENCE
Restorative justice facilitators meet separately with the offender, the victim and their support
people, to assess whether a restorative justice conference would be helpful.
If the oﬀender does not take responsibility, is aggressive, or cannot participate fully because of ill
health or a disability the process will not proceed.
If the victim and oﬀender agree to meet and there is likely to be a positive outcome, the facilitators
arrange a conference.
Sometimes the conference will involve members of a community panel as well as, or instead of, adirect victim.
(b)(ii) AT A CONFERENCE
A restorative justice conference is a relatively informal meeting between the offender and thepeople aﬀected. They are there to talk honestly about what happened, what harm has been caused, andto work out ways forward. Conferences are private meetings. However, a report is prepared for the
court. How participants agree to move forward is for them to decide. Some conferences result in anagreement on a plan of action that the oﬀender will do to put things right, but this is not the outcome
at every conference.
The facilitators make sure that everyone is safe and supported, and that all participants have their
say without interruption.

9 More info on the adult scheme is available at http://www.police.govt.nz/service/diversion/policy.html
10 http://www.justice.govt.nz/publications/global-publications/r/restorative-justice-english-courts-118/
publication#20

188

Most conferences will agree on things the oﬀender can do to begin to put right the harm caused by
the oﬀence.
A report of the meeting and any agreements will go to the judge if the meeting happens before
sentencing.
(b)(iii) AFTER A CONFERENCE
The facilitators write a report about what happened at the conference and any agreements reached.
Copies are given to the victim, offender, and any others involved in the case, such as the police
prosecutors, victim advisers, probation oﬃcers and lawyers.
The purpose of the restorative justice report is to clearly set out agreements, as information for ajudge. They are not used to make sentencing recommendations to the court.
If the offender is still waiting to be sentenced the restorative justice report is given to thesentencing judge.
The sentencing act 2002 requires the outcome of restorative justice processes to be taken into
account by judges when sentencing. The judge also considers any other reports such as a pre-sentence
report about the oﬀender written by the probation service or a victim impact statement.
The judge chooses whether or not to make all, or some, of any restorative justice agreement partof the sentence.
The judge must, by law, consider what victims think, but also has to think about other informationand laws when deciding on the sentence.
Conferencing has been piloted in four district courts in New Zealand as a court referred restorative
justice project since 2001.11 An evaluation of the pilot12 found that there were high levels of satisfaction
amongst participating victims and offenders. The evaluation also showed a reduction in the reconviction rate of oﬀenders, fewer and/or shorter sentences of imprisonment imposed on participating
oﬀenders and more use made of home detention.

(c) MATARIKI COURT

Judges continue to support and adopt new initiatives for adults which draw on the philosophy
underlying restorative justice. A good example is a special court being set up in the northern mostregion of New Zealand to deal with the sentencing of indigenous Maori people. It is essentially arestorative justice conference which incorporates Maori tikanga (custom), but takes place in a special
court room with a judge as facilitator.
The process, though diﬀerent from conventional sentencing hearings, will not be alien because of its
connection with modern concepts of restorative justice, therapeutic justice, and sentence monitoring.
The process is similar to that used in the Koori Court of Victoria,13 Australia, the Murri Court ofQueensland,14 the Sentencing Circles of New South Wales,15 and the Gladue Court of Toronto,16 Canada,
but will be a distinctly New Zealand model.
The Matariki Court will sit in a standard courtroom around an elliptical table. A judge (expected

11 http://www.justice.govt.nz/publications/global-publications/i/information-about-the-court-referred-restorativejustice-pilot/publication
12 http://www.justice.govt.nz/publications/global-publications/n/new-zealand-court-referred-restorative-justicepilot-evaluation-may-2005/publication189to be a Maori judge in the pilot) will preside. At the hearing, the prosecutor will outline the oﬀence,
defence counsel will make a submission, a probation oﬃcer will speak and the views of whanau (family)
and other representatives will be sought. Two kaumatua (elders) of the defendantʼs iwi will thenparticipate in a judge-led discussion which may include interaction with the defendant, to arrive at asuitable sentence.
This special court sitting draws on other recently adopted initiatives in the youth court, which
involves a youth court judge sitting at the local marae (meeting house) to monitor the compliance ofMaori youth oﬀenders with the outcomes of their FGC.

(d) RESTORATIVE JUSTICE POST SENTENCING

A more recent development in the general ﬁeld of restorative justice has been its use post-sentenceas part of the parole system for prisoners.
It is important ﬁrst to give those initiatives some context.
The primary purpose of parole is to manage the safe release of prisoners from prison back into
the community. The international research shows that sensible parole decisions based on the best
research, can be three to four times more successful in preventing re-oﬀending than automatic releaseat the end of a fixed sentence. The Canadians claim six or seven times more success, but their
extraordinary use of halfway houses is part of the explanation for this. In New Zealand, the statistics
are elusive as it is hard to get a control group! It is thought that parole in New Zealand achieves
similar results to those revealed by the international research.
This makes sense because one would expect that those who are helped to get work, to have an
income, to have a good place to live, and to have pro-social people surrounding them, are going to do
better than people who are simply released from prison without any support.
There are other beneﬁcial purposes of a good parole system. Very brieﬂy, they are to encourage
good conduct in prison and to provide an incentive to undertake tough rehabilitative programmes,
which have been shown to be eﬀective in reducing re-oﬀending, and to save public money (it now costs
approximately NZ$95,000 a year to keep a prisoner in prison in New Zealand).
Finally, in New Zealand at least, managed parole which realises the benefits referred to above,
can have positive impacts on the disgraceful statistics which show that 51% of the adult male prison
population are Maori when only 15% of the entire New Zealand population identify as Maori. Worsestill, the prognosis for children of prisoners is well known; the research shows that they are nearlyseven times more likely to become prisoners themselves. If something can be done about amelioratingthat problem, then it is another signiﬁcant step towards a peaceful and crime free society.

13 Koori Courts were created in order to allow participation of the Aboriginal community and culture in the legal
system, in an attempt to bridge the cultural diﬀerences between Indigenous Australians and the imposed coloniallaw.
14 The Murri Court sentences Aboriginal and Torres Strait Islander oﬀenders who plead guilty to an oﬀence whichfalls within the jurisdiction of the Magistrates Court. Murri Court provides a forum where Elders, Respected
Persons, Community Justice Groups and the oﬀenderʼs family can be involved in the sentencing process. Murri
Court proceedings are less formal than those in conventional Magistrates or Childrenʼs Courts. The Magistrate,
Elders and other participants may sit at a table close to the defendant, rather than on a raised bench.
15 See Criminal Procedure Amendment (Circle Sentencing Program) Regulation 2005. It directly involves local
Aboriginal people in the process of sentencing oﬀenders, with the key aims of making it a meaningful experience
for the oﬀender and improving the Aboriginal communityʼs conﬁdence in the criminal justice system.
16 The Toronto Gladue (Aboriginal Persons) Court is a specialist court of the Ontario Court of Justice, the criminal
jurisdiction of which is remarkably similar to that of the New Zealand District Court. For more detail see http://
www.aboriginallegal.ca/docs/apc̲factsheet.htm

190

New Zealand has had its own successes with restorative justice post sentencing. There is avigorous restorative justice programme being run in parts of the country by the Prison Fellowship,
although it is not yet systemic. There are many good examples of such interventions.
A young woman who, as a child, had watched her mother being murdered by her then partner,sought a restorative justice conference with the murderer who was still in prison. It was a toughconference because she was a very staunch and courageous woman and had lots of questions which thecourt process had left unresolved. She got the answers she needed. The victim says she is not now
concerned about the prospect of the oﬀender being released. It is not always about forgiveness, whichsometimes happens. It is about meeting victimʼs needs.
These things do not happen unless there is genuineness and honesty. Everyone in this meeting
was alert to that. The result is that the tragedy will remain a tragedy and the loss will remain aloss. But it means that fear of reprisals is put to one side and if these people ever meet again in asmall country like New Zealand, they will meet without embarrassment and with dignity. Family andfriends and others who might otherwise live in fear, can also be freed to get on with their lives. These
opportunities, are being missed because restorative justice is not yet systematically available.
There are other opportunities arising from general restorative practices post sentence. The faithbased communities in Canada developed the concept of circles of support for indeﬁnitely detained
prisoners; - often child sex oﬀenders who are notoriously diﬃcult to support back into the community.
This way of working - constructing artificial support where no natural support now exists - is wellknown in therapeutic communities and it is to be found now widely in the United Kingdom andelsewhere. New Zealand is just starting to develop its own version of circles of support within its own
cultural context.
Under the Parole Act, the Parole Board is obliged to give due weight to the outcome of any
restorative justice conference or process. The outcome is not deﬁnitive, nor should it ever be. What
this way of working does achieve, however, are better outcomes for victims. All the international
research supports that. The present court system leaves many of the questions a victim wants to ask
outstanding and leaves many issues unresolved.
Under the restorative justice model the focus is on the harm caused by the offences - harm tovictims, communities and oﬀenders. The aim of the process is to repair that harm. To facilitate thesame, the focus shifts away from the state and the courts towards the victims, the oﬀender and theirfamilies and communities. A healing process is sought for both victims and oﬀenders.
There is now an agreement with the Department of Corrections, which manages prisons in New
Zealand, to fund any restorative justice conference which the Parole Board recommends. A process isbeing developed to ensure that opportunities are not missed because it is easy for these conferences tobe undermined by those who have no concept of how it might work and who have no conﬁdence in its
eﬃcacy.
Referrals come from the Parole Board but they can also be instigated by victims, oﬀenders, caseoﬃcers, probation oﬃcers, social workers, prison chaplains, prison fellowship and other organisations
and people. It is not uncommon for prisoners to express their remorse and sorrow and ask if they
could meet with the victimsʼ families in a conference. It is not uncommon for victims to seek thesame.
This is highly professional work and no place for well meaning but untrained enthusiasts. The
role of the trained professionals to whom these matters are referred is ﬁrst to meet with the prisoner
to determine suitability and agreement to attend such a conference. If the prisoner is thought to besensible then contact is made with the victim to determine whether they are suitable and will agree
to attend a conference? If they are, then the arrangements move onto contact with support persons,191preparing everyone for the conference, arranging a date and eventually running the conference. A
report is then prepared on the agreed outcomes. It is a professional process requiring considerable
skills.17
It must be acknowledged that not all cases will be suitable for a post-sentence conference. If an
oﬀender continues to deny involvement or blame others, a conference is not appropriate. It will not
be helpful if oﬀenders have untreated mental health problems which prevent them taking part in any
rational discussion. It will not be appropriate or helpful if victims are so angry, bitter and intransigent
that they are not able to take part in any exchange. They have to be ready to participate. It may taketime but often people come to a point where they wish to get other answers about something which
remains a tragedy and continues to blight their lives.
The New Zealand experience is that, when successful, a restorative justice conference has
produced, if not forgiveness, an understanding and ability for both victim and oﬀender to move on andallow others to do the same. When this happens, it is truly impressive and often very humbling. It
makes the boardʼs decision making much easier although that is of course a secondary function.

8. SUMMARY
The diﬀerences between youth justice and adult justice in delivery of restorative justice processes
present two potential models for reform. But perhaps the most substantial diﬀerence is that the FGC
is mandatory in New Zealand for virtually all youth oﬀenders, while uptake in the adult setting is much
more sporadic, depending as it does on the agreement of all involved for it to occur. It may be that in
the future, restorative justice conferences should become mandatory for adult oﬀenders unless there
are strong and good grounds not to do so.
In New Zealand most restorative justice has taken the form of family group conferences for young
persons and community panels for police diversion. In other countries circle of sentence, which
originated in Canada, has been the primary restorative justice process but restorative justice has also
taken other forms. Those forms include offender-victim mediation18 and restorative reintegration
techniques such as the circles of support and similar reintegration initiatives involving the community,
victims, and concerned others.

9. RESTORATIVE JUSTICE IN EDUCATION
There are clear similarities between the ways society has historically sought to regulate behaviourin the wider community and in the school community. For many years, school disciplinary procedures
were similar to the procedure traditionally followed by courts, both in the way responsibility wasestablished and in the way consequences were visited upon those found guilty.
Perhaps the most fundamental similarity has been the belief that a tariﬀ based deterrent sentence
has been thought necessary to deter future offending by the culprit and others in the respective
communities. Meting out negative consequences following undesirable conduct has been the primary
approach - as a way to deter future similar conduct.
The focus in both arenas has therefore traditionally been on ﬁnding a suitable punishment for theoﬀender. Little focus has been given to the cause of the oﬀending. Neither the procedures in thewider community nor school communities are particularly suitable for identifying and addressing thecauses. Little if any focus has been on teaching new positive behaviours.
If success is measured as preventing further oﬀending by the present oﬀender and others in society,both systems have traditionally been found lacking. It must be recognised that after the punishment
17 For a clear statement of the principles to be considered see: United Nations (1999) Declaration of Basic Principles
on the use of the Restorative Justice Programmes in Criminal Matters: General Assembly Vienna : United Nations
18 See e.g. Umbreit, Victim meets Oﬀenderʼ the impact of restorative justice and mediation. Willowtree Press
Inc. New York 1994192

has been exacted, the oﬀender will almost always return to life in their respective community. In
what condition do we want that person to return? In the school setting, the final consequences(suspensions and exclusions) prevent the offender receiving one of the most fundamental tools forbuilding their future, an education. Involvement in education is crime prevention at its best.
Finally, both systems have tended to neglect the victims of the oﬀending in addressing the harmcaused to them and giving them a voice in determining the way in which the wrong committed againstthem can be righted.
The perceived shortcomings outlined above have all inﬂuenced the adoption of restorative justicepractices in New Zealandʼs criminal court systems. Since the same shortcomings can be identified
in the education setting, and since both are in the business of what Margaret Thorsborne and David
Vinegrad call behaviour management ,19 it was inevitable that restorative justice practices be
extended into the school setting.

10. THE NEW ZEALAND EXPERIENCE OF RESTORATIVE JUSTICE IN SCHOOLS
Restorative justice conferencing was formally introduced into schools in New Zealand in the late1990ʼs as part of a Ministry of Education initiative called the suspension reduction initiative. (There
had been many such private initiatives). A group from Waikato University was contracted to provide
restorative justice conferencing into ﬁve schools initially; with 24 schools subsequently sending theirstaﬀ for training. The group drew on the FGC concept. Suspension in those schools went down.20
In 2005 Sean Buckley and Dr Gabrielle Maxwell conducted an examination of the experiences of 15
schools in New Zealand who were utilising restorative practices.21 they reported that there were ﬁve
common restorative practice methods being employed:
the restorative chat is a one on one private conversation between staff and student where an issue
is discussed using a series of questions based on a restorative approach that aims to explore theevents, their consequences and how any harm can be repaired (that is, ‘what happened?’, ‘what
were you thinking at the time?’, ‘who do you think has been affected?’, ‘how could you have acted
differently?’ and ‘what do you need to make things right?’)
The restorative classroom is an open dialogue held within the classroom to discuss specificconflicts as they arise and how members of the class should approach potential conflict situations
before they happen. Often, a class will write down its agreed set of guiding principles and display
these within the classroom. At any stage, the class can revisit these principles and make changes.
The restorative thinking room is a room specifically set aside for students who have become
involved in a conflict situation and who may need time away from peers to regain their composure.
Time is spent in the restorative thinking room working though several restorative questions with astaff member and discussing the conflict and how to repair any harm caused.
A restorative mini conference is held for more serious conflict situations. It includes the victim, theoffender, a staff member and perhaps one other individual. The number of those in attendance islimited in order to make it easier for the conference to be quickly arranged and held.
The full restorative conference is loosely based on the youth justice family group conference. It

19Vinegrad, 2002, at 7
20 Wendy Drewery,21, Margaret Thorsborne and David(Institute of Policy Studies, VUW)

, Chapter 10 in. Wellington: Office of the ChildrenʼsCommissioner and The Institute of Policy Studies, School of Government, Victoria University.

193

may take several days or weeks to organise, because participants are likely to include, though
are not limited to, victims, offenders, staff, family/whanau, officials, and other support personnel.
Conferences are used for the most serious of conflict issues and can take several hours .22
Buckley notes that much like the adult criminal justice system, some of the schools have been
unable to secure the funding required to move to a fully restorative practice, so have been forced tooperate between management paradigms, either reverting to one based one exclusionary processes or mixing
this with a restorative process when only limited support exists for restorative options .
That has also been the experience in the adult court system, and it should not be seen as adisadvantage. A brief outline of how restorative justice is used in the New Zealand court system
illustrates the diﬀerent ways restorative justice can and is being used in the school setting while coexisting with the existing exclusionary processes:
As a diversionary procedure a restorative justice conference is convened in suitable cases prior
and as an alternative to a formal disciplinary investigation being launched. In the criminal system
police are utilising restorative justice conferences to develop a plan for ‘righting the wrong’ aspart of their adult diversion schemes. In the education setting a restorative justice conference
is convened to develop a similar plan, the successful completion of which would mean thatdisciplinary procedures need not be invoked.
As a procedure to be used to determine a suitable sentence/punishment/plan (or to present suchexclusion). In the youth court there is a separation to be found between (a) adjudication upon
liability, i.e. Deciding whether a disputed charge is proved, and (b) the disposition of admitted orproved offences. The adversary system is retained for the former, while a FGC, a key restorative
practice, is utilised for the latter. Something similar is already used in schools. The school could,
if it wishes, conduct its usual investigations in order to be satisfied that the conduct occurred.
The next step, (as in the youth court) would be to have a restorative justice conference to which
decision making power in respect of disposition can be devolved. The school board could meet
periodically to supervise compliance with the plan developed at the conference, as the youth court
does. 23
The vision for restorative justice in schools envisages a fully restorative approach (whole of culture)to the way the school orders itself in all its relationships and every aspect of its functioning; a fully
restorative therapeutic learning community.
Already some schools around the world have achieved this ﬁnal form. For others it will be a step
too far and smaller steps need to be taken before pursuing wholesale change.
One thing is certain. The experience of the criminal justice system in New Zealand has given birth
to a new approach to the management of relationship problems in many New Zealand schools. Other
countries have had similar successful experiences. Both justice and education have, in this area, muchto learn from each other about a process which will always be dynamic and challenging.

11. CONSEQUENCES OF RESTORATIVE JUSTICE - REDUCTION IN USE
OF PRISON AND REOFFENDING
There have now been a number of studies looking at the eﬀects of restorative justice in its very
many guises on reoﬀending and re-imprisonment.

22 Taken from Restorative Practices in Education: The Experiences of a Group of New Zealand Schools by Sean
Buckly, chapter 11 in(Institute of Policy Studies, VUW)
23
, Margaret Thorsborne and David
Vinegrad, 2002, at 7

194

The New Zealand court referred restorative justice pilot was evaluated in terms of reoﬀending overa two-year follow up period. The report can be found at http://www.justice.govt.nz/publications/
global-publications/e/evaluation-of-the-court-referred-restorative-justice-pilot-case-studies/publication. It showed a reduction in re-imprisonment rates, a reduction in reconviction rates andsigniﬁcant beneﬁts to victims.
A review of restorative justice conferencing on reoﬀending by Dr Heather Strang and Professor
Lawrence Sherman conducted under the auspices of the Jerry Lee Centre of Criminology inPennsylvania but concentrating on the United Kingdom position, showed a significant reduction in
reoﬀending. A summary of the ﬁndings of that research project showed a 27% reduction in crime.
Interestingly enough, that research also showed that restorative justice conferencing worked bestfor the most frequent oﬀender, worked best for violent oﬀences rather than property oﬀences, wasmore eﬀective for serious oﬀending and was wasted on minor oﬀences.
Yet another important ﬁnding from that research was the beneﬁcial eﬀect on victims which showeda dramatic decrease in post-traumatic stress symptoms and consequently a significant effect on thehealth budget - an aspect of restorative justice which has hitherto been neglected.
These research evaluations have been replicated in the Australia Rise Evaluation, a long-term
project conducted in Canberra, Australia,24 in the Indianapolis Juvenile Property/Violence Study in
the United States and in the studies in Northumbria, London and the Thames Valley in the United
Kingdom.
Additional support, if it is needed, can be obtained from a 2008 study conducted by the Sheﬃeld
University - Centre for Criminological Research. Their website is http://www.shef.ac.uk/law/research/ccr/.

12. CONCLUSION
Victims of crime and oﬀenders are disenchanted with the criminal justice system. Last year the
Chief Justice of New Zealand delivered a speech which received widespread coverage in the media. In
it, she suggested that the traditional criminal court process should not overly accommodate victims,
focusing instead on the dispassionate and fair delivery of justice.
Against this view, Professor Howard Zehr25 has recently advocated restorative justice processes asproviding a mechanism through which victims rights may receive greater recognition. Incorporating
restorative justice as a mandatory practice at all court events would also go some way to lowering ourimprisonment rate and reducing re-conviction rates. It clearly has positive eﬀects for victims, helping
them understand the oﬀending and to move on with their lives.
Restorative justice conferences can also be a better place than courtrooms for identifying andaddressing the underlying causes of crime. Restorative justice conferences can bring an oﬀender into
contact with the necessary state agency into to provide the services an oﬀender needs if they are toturn away from crime and/or drug dependency.
This is not to say that there should be no punishment for criminal oﬀending. The worst and mostdangerous oﬀenders are likely to require incarceration in some form. However, there is support in
New Zealand to tilt further still in favour of a restorative approach to criminal justice in the adultcourts.
24 See http:// www.aic.gov.au/rjustice/rise/
25 Author of the seminal book on restorative justice (1990) Change Lenses: A new Focus for Crime and Justice :Herald Press.

195

The advantages of restorative justice processes are first and foremost in bringing home to theoﬀender the consequences of his wrongdoing and making him accountable. They also meet the needsof victims so that they are victims no longer. They also have to do with preventing reprisals andrevenge.
Restorative Justice can restore some peace to communities after terrible things have happened. It
can also have other consequences in the reduction of imprisonment, preventing re-oﬀending and better
outcomes for victims.

196

PANEL II

Member of the Federal Public Prosecution Service and National Council on Criminal
and Penitentiary Policy, Brazil***

Director, the Programme on Woman and Jail, United Nations Latin American
Institute for the Prevention of Crime and the Treatment of Oﬀenders (ILANUD)***

Director, the Singapore Prison Service***

Parole Commissioner of Northern Ireland and Immigration Judge

197

198

PANEL II

STRATEGIES TO REDUCE THE PRISON POPULATION IN THE
EARLY STAGES OF “POSTSENTENCING AND SENTENCING

Introduction
The paper discusses, with a focus on the Brazilian experience, if the alternative to prison constitutea successful strategy to reduce prison overcrowding. Initially it will be brieﬂy explained the diﬀerence
between alternative penalties and alternative measures provided in the Brazilian law and the
hypotheses of their application. Afterwards there will be presented some data about prision population,deﬁcit of places and the increasing application of alternative penalties and measures. It will be alsopresented the type of crime and the proﬁle of prisoners as well as of abiding alternatives, according
to the data collected by the Ministry of Justice and by the United Nations Latin American Institutefor the Prevention of Crime and the Treatment of Offenders (ILANUD). The data indicate that thealternative penalties and measures not only did not reduce the prison population, but increased thepunitive control. Therefore, there will be an approach about the challenges and potentialities forthe alternatives to prison policy in order to reach their aim In this perspective. It will be highlighted
as previous conditions not only the reduction of the demand for criminalization but also the breachof common sense about the effectiveness of the prison as the unique tool to ensure public safety.
At the end, it will be pointed at the characteristics of the Brazilian experience on the application ofalternatives to prison as punishment which can serve as a reference to other countries.

1 Alternatives to imprisonment in Brazil

Following international guidelines, in particular the United Nations Standard Minimum Rules for
Non-Custodial Measures (Tokyo Rules, General Assembly Resolution 45/110 of 14/12/90), Brazil
carried out legislative and administrative provisions necessary to reduce the use of prison as penalty.
They started timidly with the Penal Code reform in 1984, took shape with the Law 9099 of 1995, which
created the Special Criminal Courts, and with the Law 9.714 of 1998. Finally they were strengthened
with the creation in 2000 of the National Center for Support and Monitoring for Alternative Penalties
and Measures (Cenapa), under the Ministry of Justice. According to law, alternative penalties are
the criminal sanctions other than imprisonment. Among them, the restricting of certain rights, which
replace the deprivation of liberty. But there is more and more alternatives that are not substitutive. Inturn, alternative measures consist in a large number of legal instruments which avoid sentencing andthe application of a penalty, or, postsentencing, the imprisonment.
Brazilian law provides more than ten species of non-custodial penalties, deﬁned in the Penal Codeor in special laws, almost exclusively as substitute penalties. It means that, the judge must impose acustodial sanction ﬁrst in order to replace it by an alternative sanction. Prevails in practice, ﬁrstly, theprovision of community or public service, and, secondly, the pecuniary instalment. In general,it is theso called basic baskets , which consist on delivering food or other necessities to charities.
The application of alternative penalties is limited to crimes whose sentencingdo not surpass
four years imprisonment and that have not been committed with violence or serious threat to theperson, or whatever the sentence, if the crime is nonintentional. It requires as objective condition
that the defendant is not a recidivist in intentional crimes, as well as an analysis of the reasons, thecircumstances of the crime and subjective elements, such as culpability, previous records, social
behavior and personality.
Alternative measures are in a minority. Include civil composition, criminal transaction, suspended
process, sursis, conditional release, judicial and legal pardon. The most usual alternative measures are199

criminal transaction and suspended process, in crimes for which the maximum penalty, in abstract,
not exceed two years in prison. The way they are fulfilled often get mixed up with the pecuniary
instalment and the community or public services.
According to research by Machado (2008), in Brazil 1320 types of crimes admit the application ofalternative penalties and measures. However, this legal provision do not produce impact in reducing
the rate of incarceration, as it will be discussed below.
It should be noticed that the Law 9714, which amended the Criminal Code, to extend from one year
to four years imprisonment penalties, in order to admit their replacement by restriction of rights,
answered at the time to the unsustainable prison overcrowding and to tens of thousands of not fulﬁlled
arrest warrants.
Nevertheless, Azevedo (1999, p. 55) criticizes the Law 9714, because the alternative penalties,
particularly the restricting rights, kept from being a reaction to the imprisonment of short term,
to apply generally to sentencing up to four years, which constitute the majority of imprisonment
sanctions, except for the crimes committed with violence or serious threat to a person.
Toledo (1999, p. 139) also criticizes the law, not by the expansion but by the distortion thatengenders. For example, perpetrators of crimes against public administration very diﬃcultly will becompelled to carry a custodial sanction, even in the case of serious misconduct.
In spite of critics, it should be enhanced that in 2008, the number of people who comply withalternative penalties and measures exceeded the number of convicted to custodial sentences.
The Table below shows the number of people who comply with alternatives to imprisonment and of
the institutions involved.
Table 1：Historical evolution of Alternative Penalties and Measures (PMA) in Brazil

Year

Law

Time offulﬁllmentof PMA

Publicequipment ofmonitoring
PMA

Number of
Abiding-restricting rights
penalties
Alternative
measures197

Number ofprisoners

1987

7210

0-1

1995

7.210/84
9.099/95

0-1

04 Núcleos

78.672

1.692

80.364148.760

2002

7.210/84,
9.099/95
9.714/98,
10.259/01

0-4

04 Varas
Especializadas
26 Centrais/
Núcleos

80.84321.560102.403248.6852006

7.210/84,
9.099/95
9.714/98,
10.259/01
10.671/03,
10.826/03
11.340/06,
11.343/06

0-4

10 Varas
Especializadas
213 Centrais/
Núcleos

237.945

63.457301.402401.2362007

7.210/84,
9.099/95
9.714/98,
10.259/01
10.671/03,
10.826/03
11.340/06,
11.343/06

0-4

18 Varas
Especializadas
249 Centrais/
Núcleos

333.685

88.837422.522423.373200

01 Núcleo no RS Sem informação

Alternative
penalties

Number of
PMA

Sem informação Sem informação

2008

7.210/84,
9.099/95
9.714/98,
10.259/01
10.671/03,
10.826/03
11.340/06,
11.343/06

0-4

19* Varas
Especializadas
306 Centrais/
Núcleos

457.811101.019558.380446.764

Remarks:
Number of Counties in Brazil: 2510 (source: UNDP / MJ, 2006)
Number of Counties with Public Service PMA in Brazil: 325 (13%) (source: CGPMA / DPP / DEPEN)% Of Recidivism of ex-abiding of sentences of imprisonment (prisoners): 70 to 85%% Of Recidivism of ex-abiding PMA: 2 to 12% (Source: ILANUD) (Source: Nunes, Adeildo, 1996)
Social Network Monitoring = 13000 registered partner organizations
The National Penitentiary Fund (FUNPEN) of the National Penitentiary Department (DEPEN) of the Ministry ofJustice was created by Complementary Law 79, of 1994.
* In July 2009, was created the Court of PMA Macapá - AP.

The ILANUD / Brazil carried, between December 2004 and January 2006, a National Survey on the
Enforcement of the Alternatives Penalties, in nine Brazilian cities (Belém, Belo Horizonte, Fortaleza,
Campo Grande, Curitiba, Porto Alegre, Recife, Salvador, Sao Paulo ) besides the Federal District.
It assessed the eﬀect of the policy deployed nationwide by CENAPA. Further, we review some of its
conclusions.

2 The numbers of incarceration in Brazil

According to the estimate of the Geography and Statistics Brazilian Institute (IBGE), in 2009 theBrazilian population reached 191.5 million people. But the annual average rate of growth is decreasing.
From 1.6% in the period 1990-2000 , reduced to 1.2% in 2000-2010 in 2010. The prospective for 2020
is 1% (CARVALHO, 2004). At the same time the projection indicates the increase in the group ofelders and women.
Regarding the prison population, the incarceration rate almost doubled from 1995 to 2003. The
First National Prison Census was conducted in 1975 when were counted 148,760 inmates. The latest
consolidated data of the Penitentiary Department (DEPEN) in 2007 in Table 1 show a continued
growth in the period of 2003-2007. In December 2003 there were a total of 308,304 prisoners in the
country. That same month in 2007, there were 422,373 inmates, which means an increase of 37% of
the prison population1.1 Therefore, the incarceration rate in Brazil is much higher than the rate of
population growth.
Table 221
2This number includes men and women abiding prison in closed, semi-closed and open regimes ou security
measures (in case of mental illness), at establishments under penitentiary administration or policial of the states.
It should be add 217 inmates at federal penitentiaries.
The total do not include 217 inmates at federal penitentiaries. Source: DEPEN/MJ

201

The Table 3 shows the evolution of the female prison population, whose rate of increase has
been greater than that of the male prison population, thus raising problems and new demands. From
December 2006 to December 2007, meanwhile the growth rate of the male population was of 5,2%,
the womenʼs growth rate reached 11,99%
Table 3

Source: DEPEN/MJ

The last published data points the total of 451,429 prisoners in December 2008, and for December
2009 the total of 473,626, of which 442,225 are men and 331,401 women. At these numbers, Brazil has
a proportion of about 300 prisoners per 100 thousand habitants.
The Table 4 shows the number of penitentiary establishments, from 2005 to 2009. In June 2009were computed 1771 establishments, almost all under administration of the states.
Table 4

Source: DEPEN/MJ

Diﬀerently from the tables related to the growth of the male and female prison population, in thistable the columns remain stable, revealing the deﬁcit of places, specially for women.
There is constant deficit which results in prison overcrowding in a large number of the penal
establishments. In December 2007, for 275.194 places there were 422.590 inmates (34,87%), in
December 2008 for 296.428 places 451.429 inmates (34,03%) and in December 2009 for 294.684 places
there were 473.626 inmates(37,78%).
The deﬁcit is even greater if we take into account the number of arrest warrants to be complied,which is said to be 350 thousand or 500 thousand, as in the Final Report of the Parliamentary
Investigation Commission (CPI) on the Brazilian prison system, who visited various prisons during
2007. The Report also states that overcrowding, already identiﬁed by other CPI held in 1976, is the202main problem of the prison system (2008, p. 226). The overcrowding undermine the rights of prisoners
to health, education, work, leisure, ﬁnally, the set of fundamental rights not aﬀected by imprisonment,
contributing to the recidivism within the prison and out of it.
The Brazilian prison overcrowding stems from both the appropriate and inappropriate use of prison.
That means, on one hand, that investments in construction and reform of prisons are not properly
planned and executed, on the other hand, that there was a hardening of criminal laws and in theirimplementation. Besides, there is an overuse of pretrial detention, which results in an anticipatedpunishment. And worse: research in four state capitals and in the Federal District revealed that
more than 70% of cases of theft in which arrests had been provisional result in an alternative to
imprisonment or open prison, although defendants have remained detained during the process(BARRETO, 2007 p.120).
The pretrial detention became one of the direct factors contributing to prison overcrowding in
Brazil. According to the DEPEN in June 2009, approximately 30% of the prison population was in thissituation. This high percentage had already drawn the attention of the National Judiciary Council (CNJ),
which, since 2008, promoted prison work-party, consisting of the review of all proceedings of pretrial
and sentenced prisoners. At the end of 2009 it had been analyzed 93,524 proceedings. In 19,967
of them the prisoners were released and in 31,534 they obtained legal benefits. The most common
beneﬁts were the progression of prisonʼs regime, early release and substitution of prison penalties by
restricting rights penalties. (www.cnj.jus.br). The experience made CNJ set a target to reduce thesize of provisional prisoners population to a percentage below 20%.
Different surveys made in Brazil (BARRETO and CASTILHO, 2009; BOITEUX et alii, 2009;
MACHADO, 2009) show that some crimes stand out in the composition of the prison population: theft,robbery, and drug traﬃcking.
According to the consolidated national data, in 2008, the robbery ﬁgures in ﬁrst place among thecrimes practiced by the defendants imprisoned (27,16%) and the theft in the third (22,6%). In thesecond place appears the drug traﬃcking and in the fourth the homicide (11,87%). The drug traﬃcking
is responsible for the increase in female incarceration.
In his turn Machado (2009), in a survey restricted to the Federal District, pointed the robbery inthe ﬁrst place (22,6%); theft in second (18,8%) , carriage of ilegal weapons in third (12,2%), and, in
ﬁfth place, the homicide (6,8%).
Regarding to the proﬁle of prisoners is one of a young man, brown or black, with low educationlevel, from lower social strata, carrying out activities that require little skill and poorly paid, and also
in a vulnerable work situation (ILANUD, 2006, p. 18). With this proﬁle, most have already passed byjuvenile justice institutions before reaching 18 years. In turn, once released from prison, the likelihoodof recurrence exceeds 70%.

3 The ineffectiveness of alternatives to prison in reducing imprisonment

Cohen, already in 1979 (p. 339-363), announced the risk of the use of alternative measuresand penalties, rather than acts as promised to reduce the prison population, increase the punitive
control. Griffiths and Murdoch (2009, p. 33) also points out: A key concern with the developmentof alternatives to prison is that netwidening will occur, wherein additional numbers of persons arebrought into the justice system (…). If this occurs, the net eﬀect will be to increase the numbers of
persons under supervision by the justice system and prison population are unlikely to be reduced.
This is what happened in Brazil. According Azevedo (2000, p.321) Law 9099, cited above, which
created criminal transaction and boosted the application of alternatives, included cases considered lessoffensive in the formal justice system, through informal mechanisms for entry and processing. The
exemption to the police investigation for crimes submitted to the Special Criminal Courts retired203police authority, which had the prerogative to select the cases considered more ʻrelevantʼ, and so close
the proceedings of most of small crimes.
The Survey of ILANUD/Brazil concluded that the alternative penalty, as provided by the law
and applied by the Brazilian justice system does not comply with the aim to empty the prisons , thatis, the profile of the sentenced with an alternative penalty, specially as to the committed crime, isdiﬀerent from the prison population proﬁle (2006, p.16).
Nevertheless, the social-economic profile of the abiding-alternative penalties and measures issimilar to the prisoners. This is explained by the functioning of the Brazilian penal system which
reproduces social-economic and racial inequality of the society. In this unequal structure are punishedwith imprisonment or alternatives to it only the poor, the uneducated, the unemployed, the browns
and blacks3.
Even then, the Brazilian context is insuﬃcient to explain or justify the prison overcrowding. The
principal reason for the increase in punitive control is rooted in the punitive culture and the idea ofincarceration in Western societies, reinforced by globalization and the hegemonic model of American
society. This model directly inﬂuences other countries in bilateral contacts as well as indirectly, in thebuiding of international conventions. A comparison between statistics of the prison population in the
United States and Brazil reveals similarities in its steady increase and in its proﬁle. Note, for example,
the overrepresentation of the black people.
Solutions, therefore, should not be sought only in the speciﬁc context of each country, but in the
global context. Limited eﬀorts at the national level of little use if not counting on international supportand stimulus. In this sense are very important guidelines and recommendations set forth within thevarious UN bodies. However, there should be coherence between them. For example, the North
American policy war on drugs has been internationalized by the United Nations Convention against
Illicit Traﬃc in Narcotic Drugs and Psychotropic Substances of 1988, resulting in an increase in prison
population in confrontation with the eﬀort to implement the policy advocated in the VI and VII United
Nations Congresses on Crime Prevention and Treatment of Offenders, consolidated in the Tokyo
Rules.
In Brazil, the culture of incarceration is evident in the persistence of imprisonment as the principal
penalty prescribed by law for about 1,600 oﬀences, and the amount of this penalty as a parameter toreplace it by restricting rights penalties. So is permanently reinforced the idea that only the prison isan eﬀective penalty and that replacing it by alternative penalties or admitting progression from closed
to open regime show leniency of criminal justice, featuring impunity.
The law enforcers generally work in optics to maximize the indictments, the charges and sentences
so that custodial sentences are calculated in amounts that exclude the granting of progression to open
regime or the use of alternatives to prison (MACHADO, 2009).
It should be noted that this statement is true only for a speciﬁc set of violations, ie, the conducts
against property, committed with serious threat or violence and for drug traﬃcking. In the context
of domestic violence a serious threat and injury are curiosly minimized. Crimes against property
committed by fraud or crimes against consumers aﬀecting undetermined number of victims are also
treated with kindness. Regarding drug trafficking, research carried out for the Ministry of Justice(BOITEUX et alii, 2009) shows that the criminalization reaches predominantly the small traﬃckers andusers who also traﬃck.
The ILANUD research conﬁrms this idea, because observed, on the one hand, that judges, in most3

About this aspect see SEGATO, Rita. El color de la cárcel en América Latina: apuntes sobre la colonialidad de lajusticia en un continente en desconstrucción.
, n. 206, marzo-abril 2007.

204

cases, decide by the substitution of sentences lasting up to one year, reaching signiﬁcant percentages
merely to two years , time that does not applies to the crimes of highest incidence in the penal system(2006, p. 16). On the other hand, as the law excludes the possibility of alternative penalties for crimes
committed by threat and violence even if the size of the penalty permits the replacement, and there isa large proportion of individuals convicted for robbery, is reduced the impact of alternative penalties
in the prison population (p. 17).
At the time of the research there was an judicial understanding that allowed the award of restricting
rights penalties for those convicted of drug traﬃcking. But the Law 11.343, of 2006, prohibited theconcession of bail and the application of alternatives to prison4.
In 2007, Machado et alii (2008) crossed the number of crimes susceptible of alternative penalties
with the database of the Ministry of Justice on prison population, named INFOPEN. They concluded
that 25% of the population convicted, complied penalties up to four years and only 8% was in the open
regime. Why these people were in closed or semi-open regime? Because they have committed crimes
with violence or serious threat or were recidivists. The researchers then made simulations with thecriteria amount of the penalty and violence/serious threat, and concluded that the factor that
impacts the Brazilian prison population are not the long-term penalties, but the short ones, due to therestrictions limiting milder regimes of prison or the application of alternatives to prison.
Common sense that the crime of the streets and that related to drugs has the prison as only
eﬀective response is embedded in the legislation. Therefore, those accused of theft, robbery and thedrug traﬃcking are very likely to wait trial in prison.
While acknowledging the failure of the prison penalty, the public insists on its use, trying to justify
the failure with poor management, and faces alternative penalties and measures with caution, do not
perceiving them as an eﬃcient instrument to control crime.
Proponents of alternative penalties and measures argue that the recidivism rates of the abiding ofpenalties and alternative measures are at or below 12% (GOMES, 2009, p. 25), comparing them tohigh recidivism rates of released prisoners. In fact, this comparison is arguable because the alternative
penalties and measures to reach a set of crimes other than that which deﬁnes the prison population.
Furthermore, the much lower rate of recidivism can mean simply that is unnecessary the penal controlof these conducts.
Therefore, to overcome the dispute, further research is needed. Recently, Barreto and Castilho(2009) observed that in cases of theft and robbery prosecuted in the Federal District, the more severe
the prison regime, the higher the recidivism rate displayed. The defendants that have not been
through pretrial detention and had suspended their process had recidivism rates signiﬁcantly lower
than those who experienced the prison and were perceived minor violations of their rights. Moreover,this type of penalty gave the victims a greater chance of obtaining compensation for damage caused tothem.

4 The challenges and potentialities of the policy of alternative penalties and measures as a
strategy to reduce the incarceration

In view of this, the success of the strategy to reduce incarceration through increasing alternatives
requires a major eﬀort to reduce the punitive paradigm itself and abandon the prison as a reference
sanction (Machado et alii, 2008). Implies get them out of the penal system and, in some cases, evenout of the State. It involves valuing the restorative paradigm not only in minor infractions.
At the moment it seems a proposal difficult to implement because the public, mainly conveyed
4

The Federal Superior Court initiated in March 2010, the judgment to state if are constitutional the provisions of
the law (HC 97.526)

205

by the mass media, rejects it. Alternative penalties and measures to imprisonment, restorative
practices, external work, temporary leavings, pardon are deemed incompatible with certain crimes,
particularly those practiced with physical violence, just because in abstract, regardless of how theincident occurred. I will mention two recent events. There is a project of law in the Brazilian National
Congress that provides the use of restorative procedures for all crimes and misdemeanors, since thecircumstances and consequences of the event, and the personality of the author, recommend. At theend of last year (2009) the rapporteur in the Committee on Constitution and Justice and Citizenshipof the House of Representatives issued an unfavorable opinion. The stated that the country is going
through a feeling of impunity, with great production of legislation in order to criminalize conducts andaggravate penalties, so it is inconvenient to approve a project that goes in the opposite direction,
depenalizing conducts. Also last year the Senate passed a bill that restores the conditional release, inall crimes committed with violence.
The existing international declarations, such as the Vienna Declaration on Crime and Justice to
the Challenges of the Century XXI, of 2000, or the Declaration of Costa Rica on Restorative Justicein Latin America, of 2005, or the United States Standard Minimum Rules on Non-Custodial Measures(Tokyo Rules) and the Basic Principles on the Use of Restorative Justice Programs, respectively,
approved by Resolution 45/110 of the General Assembly and by the Resolution 2002/12 of the Socialand Economic Council, are systematically disregarded.
The contraction of the penal system must be discussed in international forums as a priority andcoherently. In this sense much would contribute the abandonment of the war on drugs , alreadydiscredited in the face of its inability to achieve the purposes for which was proposed, as well as of its
ineﬃciency and human rights violations, which can be evaluated by the persistant high consumptionof illicit drugs, especially in America, and by the high social costs of drug policy in the periphericalcountries, like Brazil, where violence is another side eﬀect of ʻdrug warʼ (Boiteux et alii, 2009, p . 106107).
Similarly, the establishment of guidelines for countries to encourage them to limit prison places inorder to compel the judges to apply to prison as a last resort would induce the choice of alternatives .
The paradigm shift must be reﬂected in legislative reforms. Speciﬁcally in Brazil it is necessary
to expand legal opportunities for substitution and alternative penalties for crimes done with serious
threats or violence or drug trafficking, and offenders, as well as for restorative practices in crimes
against property done with a serious threat and also crimes against the person.
Besides, it is necessary to strengthen the alternative penalties and measures considering them as
the principal penalty and provide administrative infrastructure to its implementation and monitoring.
Last but not least, it must be made an effort in implementing the right to equality in Braziliansociety and in eradicating the discrimination that produces stereotypes and racism which made young
people, black or brown, and the residents of slums the preferred target of the criminal justice systemand speciﬁcally of the prison. So can be reached by social policies for health, education, job training,
housing, employment and leisure, which can avoid the criminalization and victimization of thosemarginalized groups.
The Brazilian experience on the implementation of alternative penalties and measures, though
not met the aimed function to reduce the rate of incarceration, presents interesting results that may
eventually transform them in major sanctions and considered sufficient to prevent and punish more
serious crimes. In this respect the results met the goal established by the General Coordination of the
National Alternatives Penalties and Measures to ensure mechanisms to measure the ʻcertainty ofpunishmentʼ as a strategy to spread the perception that the alternative penalties and measures are alegitimate mode of criminal response.

206

The researchers of ILANUD (2006, p.20) evaluated that for best results it is important to exist a
specialized court in the implementation of alternative penalties and (...) a whole body of operators andtechnicians who provide support for the actions of this court. The technical team must be permanentand in tune with the purposes of the alternative penalty, especially with regard to overcoming
stigmatizing practices cultivated by the community (ibid, p. 23). In turn, Alencar (2009, p. 40)
notes that the eﬀectiveness of alternative penalties and measures depends on a social network thatoffers them for services and, especially, the necessary services for structuring and monitoring its
implementation.
From this perspective, it is worth remembering two recent facts favorable to the policy ofalternative penalties and measures to imprisonment. The first is the policy adopted by the First
National Conference on Public Safety held in Brazil in 2009, giving support to the policy which has
been implemented on encouraging alternative penalties and measures. Among 40 highest rated
guidelines it was voted the number 22), establishing as a priority on the political, administrativeand financial agenda of governments the creation of a national system of alternative penalties andmeasures, with structure and mechanisms in the States and in Federal District, the structure andequipping of the Criminal Justice as well as the priority on using alternative penalties and measures,
restorative justice and mediation.
The adoption of this guidance at a conference where there was direct participation of about three
thousand people is surprising in view of the rapporteurʼs statement to support his opinion adverse to
the bill on restorative justice. In fact, there are conﬂicting positions within the Brazilian society thatmust be faced objectively. The research of Barreto and Castilho (2009) found evidence that alternatives
to imprisonment are already gained social legitimacy, especially when there is a conjunction of two
factors to be considered for application of this kind of sanction: the type of oﬀence and the defendantʼshistory. The penalty of community services is one which got more support.
The second fact is the Resolution 101, of 15 December 2009, passed by the National Council of
Justice, which is the external control organ of the judiciary in Brazil. Resolution 101 defines theinstitutional policy of the judiciary in the enforcement of alternative penalties and measures toimprisonment. We should remember that only the Federal Executive Branch had established a policy.
Lacked to the judiciary to assume its share, which is crucial because it is the judge who applies thepenalty and one of the stakeholders in the control of the sentence enforcement. The Resolution
adopts the decentralized model of psychosocial monitoring, which is characterized by compliance ofalternative penalties and measures in various entities and institutions, forming a network enabled
and registered, and its monitoring and supervision by a multidisciplinary team, linked to a specialized
court.
The Resolution legitimizes the model that has been introduced in practice: It is characterized on
the one hand, by an interdisciplinary monitoring which never was implemented in prisons, because
of security reasons. On the other hand, the articulation of the traditional agents of State in the penal
enforcements with a social network, which account ʻwith the participation of bodies representing
the community who inﬂuence and legitimizes this practice, including: OAB (Brazil Bar Association)
universities and non-governmental organizations in the area of justice, social development, citizenshipand human rightsʼ (Alencar, p. 42). The model establishes a relationship of dialogue between State andcivil society that still needs to be systematically evaluated, but responds in principle the requirements
for a social democratic control.

Conclusion
The Brazilian experience in implementing a national policy for alternative penalties and measures
to prison presents successful results in increasing punitive control and in the way it monitor theirenforcement. But it did not reduce the overcrowding, which was its stated goal. Therefore, thecentral issue to be discussed in Brazil and other countries is the growing demand for criminalizationand incarceration. Once limited the penal intervention and concurrently withdrawn restrictions on207

the use of alternatives to prison, the Brazilian experience in the enforcement of alternative penalties
and measures can serve as a positive reference to its application to current customers of prisons,eﬀectively reaching the goal of reducing the rate of incarceration.

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Overcrowding.pdf
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www.ilanud.org.br/midia/doc/penas̲alt̲ﬁnal.pdf
MACHADO, Vinicius da Silva. Entre números, cálculos e humanidade: o princípio constitucional daindividualização da pena e o mito da punição humanizada. Dissertação de mestrado. Brasília: UNB,2009.
SHECAIRA, Sérgio Salomão. Penas alternativas. In: DOTTI, René et alii. Penas restritivas de direitos:
críticas e comentários às penas alternativas . Lei 9.714, de 25.11.1998. São Paulo: RT, 1999, p.151262.

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TEIXEIRA, Alessandra, MATSUDA, Fernanda Emy. Penas alternativas x prisão: a construção deum outro paradigma? Revista brasileira de ciências criminais. São Paulo:IBCCRIM,v. 69, p. 279-327,
nov./dez. 2007.
TOLEDO, Francisco de Assis. Aplicação da pena: pena alternativa ou substitutiva. In: DOTTI, Renéet alii. Penas restritivas de direitos: críticas e comentários às penas alternativas . Lei 9.714, de
25.11.1998. São Paulo: RT, 1999, p.129-150.
http://www.conseg.gov.br
http://www.portal.mj.gov.br/data/Pages...htm
http://www.unodc.org/pdf/crime/a̲res̲55/res559e.pdf
http://www.restorativejustice.org/resources/docs/declarationer
United Nations. Oﬃce on drugs and crime. Compendium of United Nations standards and norms in crime
prevention and criminal justice. CD rom.

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210

ESTRATEGIAS Y BUENAS PRÁCTICAS PARA REDUCIR EL
HACINAMIENTO EN LAS INSTITUCIONES PENITENCIARIASINTRODUCCIÓN
El rápido crecimiento de la población privada de libertad constituye uno de los mayores desafíos
que enfrentan los sistemas de justicia penal. Más de 9.800.000 de personas se encuentran privadas delibertad en el mundo (entre sentenciadas y sometidas a detención preventiva), y en todos las regiones
se veriﬁca una alta tasa de crecimiento.
Por otra parte, y en base a las estadísticas disponibles, la mayoría de los países tienen superada su
capacidad de alojamiento, registrándose casos de sobrepoblación y hacinamiento muy severo, lo que
determina una ﬂagrante violación a los Derechos Humanos de las personas privadas de libertad y un
riesgo para la seguridad del personal penitenciario.
Deﬁnimos como sobrepoblación penitenciaria el exceso de personas privadas de libertad por sobrela capacidad de alojamiento oﬁcialmente prevista, midiendo dicha sobrepoblación mediante la densidad
carcelaria por cien plazas.
La capacidad de alojamiento es medida en forma muy diferente por cada sistema penitenciario lo que
diﬁcultad el análisis comparativo. Un indicador útil es utilizar como línea de base la capacidad declarada
al momento de la construcción de cada establecimiento de reclusión.
De acuerdo a la definición utilizada por el Comité Europeo para los problemas criminales,
se entiende que existe sobrepoblación crítica cuando la densidad penitenciaria es igual a 120 omás. Siguiendo la propuesta de ILANUD utilizamos la expresión hacinamiento como sinónimo desobrepoblación crítica.
El impacto de la sobrepoblación no depende solamente del espacio disponible por cada persona
privada de libertad1, sino también del tiempo que transcurra fuera de su celda realizando diversas
actividades.
Los factores que contribuyen a la sobrepoblación carcelaria son diversos pero en general el volumen
de la población reclusa de un país está determinado por las políticas de justicia penal que se basan
principalmente en el encarcelamiento y sentencias que conllevan largos períodos de privación delibertad, más que por ser un reﬂejo de las tasas reales de delincuencia.
Las medidas para reducir la sobrepoblación carcelaria dependen de la situación de cada Estado yde cada sistema de justicia penal, pero las mismas deben formar parte de una estrategia integral para
asegurar que el encarcelamiento sea utilizado como último recurso, y no recurrir al incremento de lacapacidad del sistema carcelario como primera y principal solución.
No existe evidencia empírica que demuestre que construir cárceles sea una estrategia exitosa alargo plazo para reducir el hacinamiento.
… algunos Estados europeos se embarcaron en exhaustivos
programas de construcción de prisiones para, más tarde, darse cuenta de que sus poblaciones reclusas1

Los instrumentos internacionales no definen espacio mínimo por persona privada de libertad, sin embargo,
algunos organismos regionales e internaciones han sugerido estándares al respeto.( CPT, CICR).

211

crecían a la par de la mayor capacidad lograda. Por el contrario, en aquellos países que gozan de sistemas
penitenciarios relativamente no hacinados, la existencia de políticas tendientes a limitar y/o controlar elnúmero de personas encarceladas en general ha sido una herramienta de utilidad para mantener la población
reclusa en un nivel manejable. 2
El ILANUD tomando como base la Declaración de Viena sobre la Delincuencia y la Justicia (A/res/55/59), ha adoptado como líneas programáticas las establecidas en la resolución A/res/56/261 delas Naciones Unidas titulada Planes de Acción para la Implementación de la Declaración de Viena
sobre el Delito y la Justicia .
En ese marco ILANUD desarrolla programas y proyectos en materia de criminalidad y justicia
penal, promoviendo un uso prudente de la justicia penal y de la prisión, como asimismo alternativas
para ambas, el respeto a los derechos fundamentales de las personas privadas de libertad y de losfuncionarios y funcionarias penitenciarios, el fortalecimiento de la defensa pública y de la funcióndel juez de ejecución de la pena, así como la compilación, sistematización y análisis de información
estadística sobre estas materias.

ESTRATEGIAS PARA REDUCIR EL HACINAMIENTO Y DISMINUIR SUS EFECTOSEl informe de la reunión preparatoria regional de América Latina y el Caribe para el 12do. Congresode las Naciones Unidas sobre prevención del delito y justicia penal, celebrada en mayo de 2009 en
San José de Costa Rica, examinó e identificó una serie de medidas para abordar el problema delhacinamiento en los establecimientos penitenciarios.3
En tal oportunidad, se recomendó que los Estados elaboraran estrategias y políticas amplias para
reducir el hacinamiento mediante la participación de todos los organismos pertinentes de justicia
penal así como de los servicios de salud y bienestar social de la comunidad, a ﬁn de garantizar que las
estrategias fuesen sostenibles, permitiesen la reinserción social y contribuyesen a la prevención de lareincidencia.
En la reunión se tomó nota de la sugerencia de que los Estados determinen el número de lugares
disponibles en los establecimientos de reclusión y que se adoptasen medidas en el sistema de justicia
penal a ﬁn de no sobrepasar esos límites predeterminados.
Por otra parte, se hizo referencia a diversas opciones para reducir la población carcelaria, entre lasque se incluyeron: la utilización de medidas sustitutivas al encarcelamiento según el derecho interno,
medidas no privativas de libertad, penas privativas de la libertad más cortas, la utilización de la libertad
anticipada, libertad condicional, libertad vigilada, el arresto domiciliario, el uso de dispositivos devigilancia electrónica, el indulto, la amnistía, la reducción de la condena por buena conducta o por laparticipación en programas educativos y el diseño de medidas alternativas para grupos específicos
como las mujeres embarazadas, las madres de niños pequeños, las personas de edad, y los reclusos con
discapacidades.
Por otra parte, la reunión también recomendó que se examinasen medidas para despenalizar losdelitos menores no violentos y para reforzar el acceso a la justicia, los mecanismos de defensa pública
y el recurso a procesos de justicia restaurativa en las actuaciones penales.
Asimismo se recomendó que los Estados elaborasen políticas nacionales apropiadas para reducir
el uso de la prisión preventiva que podría infringir el principio de la presunción de inocencia y que se
redujera el tiempo entre el inicio y el ﬁn del proceso con sentencia deﬁnitiva.
De la enumeración realizada se habrá de desarrollar dos de las estrategias referidas anteriormente.
2
3

212

Visita del CPT a Hungría, 2001.
A/CONF.213/RPM.1/1

1. DETERMINAR LA CAPACIDAD MÁXIMA DE LOS ESTABLECIMIENTOS DE
RECLUSIÓN

1.1 Principios y buenas prácticas sobre la protección de las personas privadas de libertad en las
Américas4
Luego de un proceso de discusión a nivel regional la Comisión Interamericana de Derechos Humanos
adoptó los Principios y Buenas prácticas sobre la protección de las personas privadas de libertad, entre
los cuales incluye una norma concreta que procura atender el problema del hacinamiento.
El principio XVII intitulado Medidas contra el hacinamiento , establece que:La autoridad competente definirá la cantidad de plazas disponibles de cada lugar de privación delibertad conforme a los estándares vigentes en materia habitacional.
Dicha información, así como la tasa de ocupación real de cada establecimiento, deberá ser pública,
accesible y regularmente actualizada. La ley establecerá los procedimientos a través de los cuales
las personas privadas de libertad, sus abogados, o las organizaciones no gubernamentales, podrán
impugnar los datos acerca del número de plazas de un establecimiento, o su tasa de ocupación,
individual o colectivamente, previéndose en los procedimientos de impugnación la intervención deexpertos independientes.
La ocupación de un establecimiento por encima del número de plazas establecido será prohibida porla ley y cuando de ello se produzca la vulneración de derechos humanos, ésta deberá ser considerada
una pena o trato cruel, inhumano o degradante.
La ley deberá establecer los mecanismos para remediar de manera inmediata cualquier situaciónde alojamiento por encima del número de plazas establecido y los jueces competentes deberán adoptar
soluciones adecuadas en ausencia de una regulación legal efectiva.
Verificado el alojamiento de personas por encima del número de plazas establecido, losEstados deberán investigar las razones que motivaron tal hecho y deslindar las correspondientes
responsabilidades y adoptar medidas para la no repetición de tal situación. En ambos casos, la ley
establecerá los procedimientos a través de los cuales las personas privadas de libertad, sus abogados, o
las organizaciones no gubernamentales podrán participar en los correspondientes procedimientos.
1.2
Proyecto de revisión de las Reglas Mínimas para el Tratamiento de los reclusos de las Naciones
Unidas.5
Desde el inicio de su labor, el Comité Permanente de América Latina para la Revisión de las Reglas
Mínimas de Naciones Unidas para el Tratamiento de los Reclusos reconoció al hacinamiento como uno
de los problemas principales de los sistemas penitenciarios de Latinoamérica y el Caribe.
Por ello el proyecto de revisión incorpora una medida concreta para el control del hacinamiento, yestablece que se encargará a un organismo imparcial que preferiblemente será una comisión especialdel poder judicial, la determinación del número máximo de personas que podrán ser privadas delibertad en cada centro penitenciario, el cual no podrá ser sobrepasado .
1.3 Proyecto de ley Control del cupo penitenciario . Provincia de Buenos Aires, Argentina.

45

Resolución 1/08 de la Comisión Interamericana de Derechos Humanos.
Elaborado por el Comité permanente de América Latina para la revisión y actualización de las Reglas Mínimas delas Naciones Unidas para el tratamiento de los reclusos, Federación Internacional Penal y Penitenciaria, con el
apoyo de ILANUD.

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En el marco de una reforma legislativa dispuesta por la Corte Suprema de Justicia de la Nación
Argentina en un habeas corpus colectivo, el Dr. Mario Coriolano6 y otras personas y organizaciones,presentaron un proyecto de ley para el control del cupo penitenciario.
El proyecto recoge como antecedente una demanda de inconstitucionalidad presentada el 2 deabril de 2005 y propone la creación de un órgano que determine la capacidad de cada establecimiento,
atendiendo particularmente a la superficie mínima para cada recluso que al efecto disponen las
Reglas Mínimas para el Tratamiento de los reclusos de las Naciones Unidas.
El proyecto no solo involucra al Poder Ejecutivo sino que también vincula al Poder Judicial quiendeberá velar por el cumplimiento de las garantías constitucionales, al disponer el alojamiento de laspersonas privadas de libertad solo en aquellos establecimientos que cuenten con capacidad carcelaria.
La Comisión se integrará por representantes del Ministerio de Justicia, Salud Publica,
Infraestructura y la Secretaría de DDHH y la función será determinar el número total de plazasdisponibles en cada unidad y sector del servicio penitenciario bonaerense, así como la cantidad dereclusos/as alojados en exceso de dicha capacidad.
El Ministerio de Justicia deberá establecer cuatrimestralmente, conforme a pautas preestablecidas(tiempo transcurrido en prisión preventiva, edad de la persona, estado de salud, conducta ycaracterísticas de la personalidad, aptitud para reinsertarse) una nómina de personas que se encuentren
en condiciones de acceder a medidas de atenuación o alternativas consignando las medidas propuestas
para cada caso. El Poder Judicial resolverá sobre la aplicación de las medidas propuestas.

2. MAYOR USO DE MEDIDAS ALTERNATIVAS A LA PRISIÓN Y FORTALECIMIENTO
DE LOS MECANISMOS DE LIBERTAD ANTICIPADA
Al momento de plantear la necesidad de incrementar el uso de medidas alternativas como estrategia
eficiente para reducir la sobrepoblación carcelaria, debemos tomar como precaución, que estudios
llevados a cabo en todo el mundo, demuestran que la introducción de alternativas puede no causar elefecto deseado y en lugar de que las nuevas medidas sean utilizadas en sustitución de la reclusión, se
aplican a infractores/as que anteriormente no habían ido a prisión. Así, la población reclusa permanece
igual o aumenta y más personas quedan bajo el control penal. A este proceso se lo denomina ampliaciónde la red de control penal .7
Si el objetivo es disminuir el uso del encarcelamiento para reducir el hacinamiento y mejorar lascondiciones carcelarias, el desarrollo de medidas alternativas es sólo un componente de una estrategia
más amplia e integral.

LEY DE HUMANIZACIÓN DEL SISTEMA CARCELARIO DE URUGUAY
A partir del año 1995, fecha en que se sancionó la ley de Seguridad Ciudadana y sus sucesivas
reformas (las que básicamente crearon nuevas ﬁguras delictivas, e incrementaron las penas) se asistió
en Uruguay a una inﬂación legislativa en materia penal, con sus respectivos efectos y consecuencias.
La política criminal de los últimos años se había orientado a reformas legislativas de corte punitivo,
pero omitió desarrollar una estrategia institucional que controlara la densidad carcelaria y minimizara
las consecuencias del encierro, lo que provocó el colapso del sistema penitenciario.
Contrariamente a lo que se esperaba y pese a la severidad de las penas y la creación de nuevosdelitos, la ley sólo logró aumentar el número de personas privadas de libertad (duplicándose la
6
7

214

El Dr. Mario Coriolano es Defensor de casación de la Provincia de Buenos Aires, Argentina e integrante delSubcomité contra la tortura.
Cárcel y Justicia Penal en América Latina y el Caribe. Elías Carranza, 2009.

población reclusa y ubicando a Uruguay dentro de los países con mayor tasa de prisionización en
América Latina), pero no produjo la disminución de la criminalidad, ni el índice de reincidencia.
Con fecha 14 de setiembre de 2005, y en el marco de la declaración de emergencia humanitaria en
el sistema penitenciario declarada por el entonces Presidente de la República, Dr. Tabaré Vózquez, elParlamento Nacional aprobó la Ley 17.897, conocida como Ley de humanización y modernización delsistema carcelario .
Dicha ley estableció un conjunto de medidas orientadas a mejorar las condiciones de reclusión
y jerarquizar determinadas instituciones, dando el puntapié inicial a un cambio de concepción en lapolítica criminal del Estado uruguayo, haciendo partícipes en su elaboración a todos los operadores delsistema penal.

SÍNTESIS DE LAS PRINCIPALES DISPOSICIONES DE LA LEY 17.897
A) La ley previó un régimen excepcional y de oﬁcio de libertades aplicable por única vez, que beneﬁció
tanto a personas sentenciadas como a personas en prisión preventiva.
Las personas beneﬁciarias de este régimen excepcional fueron:• Personas procesadas y condenadas que estuvieran recluidas al 1 de marzo de 2005 y que nofueran responsables de delitos graves.
• Que hubieran cumplido un tiempo mínimo de prisión preventiva o pena, oscilando entre el
cumplimiento de las dos terceras partes y la mitad de la pena.
Las personas liberadas debieron permanecer sujetas a un régimen de atención y vigilancia a cargodel Patronato de Encarcelados y Liberados, organismo dependiente del Ministerio del Interior (órgano
encargado de la administración del sistema penitenciario en Uruguay), cuyo objetivo es la atención delas personas liberadas a efectos de facilitar su reintegración social.
El Patronato planiﬁcó su tarea en dos etapas bien diferenciadas:
Una primera etapa en el establecimiento de reclusión, en la cual un representante del organismo
entrevistaba al futuro liberado/a dentro de los siete días previos a su liberación. En esa instancia,
se realizaba un relevamiento primario de datos, y se le asignaba un funcionario referente hasta elcumplimiento de la pena impuesta.
Esta actividad previa a la libertad, permitió coordinar con los planes de apoyo social existentes en el
país la atención de estas personas, así como la obtención de una plaza en algún albergue para evitar lapermanencia en situación de calle.
En la segunda etapa, ya en la sede del Patronato, y junto con el técnico referente, se procedía aexaminar las distintas problemáticas para el diseño de un plan personalizado a efectos de una adecuada
inclusión social.
Se previó la entrega de una canasta de emergencia con alimentos, artículos de higiene y tickets
para transporte colectivo a modo de préstamo.
De tratarse de una persona que deseaba ingresar en la Bolsa Laboral del organismo, se coordinaba
su ingreso para la obtención de un empleo, muchos de los cuales eran en convenio con organismos
públicos. De tratarse de una persona que deseaba capacitarse en algún oficio, se le proporcionaba
la posibilidad de ingresar en cursos de capacitación ofrecidos por el Ministerio de Trabajo, debiendo
asistir previamente a un taller educativo-laboral que ofrece el organismo.
Si el liberado/a ya tenía un oﬁcio, pero carecía de las herramientas mínimas para poder ejercerlo,215

el organismo se las proporcionaba, comprometiéndose a reintegrar su costo con el producido de su
trabajo.
Las personas que incumplieron las medidas impuestas (o cometieron un nuevo delito) perdieron enforma inmediata el beneﬁcio otorgado por la ley y fueron restituidas a prisión.
Mediante esta previsión legal se liberaron 850 personas (aproximadamente el 10% de la población
reclusa del momento), de las cuales reincidieron el 25 %, porcentaje sensiblemente inferior a la tasa
media de reincidencia nacional que se sitúa en un 60 %.
A efectos de dar cumplimiento a las tareas de atención y seguimiento, el Patronato se fortaleció conrecursos humanos y materiales y permitió demostrar que cuando las personas reciben determinada
contención, tienen mayores posibilidades de integrarse socialmente y evitar un nuevo ingreso aprisión.
B) Otra de las disposiciones de la ley modiﬁcó el régimen de la libertad anticipada, estableciéndosela preceptividad de la libertad a las dos terceras partes de la pena impuesta. La Suprema Corte deJusticia solo puede negarla por resolución fundada, en los casos en que los signos de rehabilitación dela persona condenada no sean maniﬁestos.
C) La ley amplió el régimen de prisión domiciliaria facultando al Juez Penal a otorgarla a personas
privadas de libertad (en prisión preventiva o condenadas) portadoras de enfermedades graves, amujeres en el último trimestre de embarazo y primer trimestre de lactancia y a personas mayores de
70 años (salvo que hubieran cometido delitos de homicidio, violación o lesa humanidad).
Entre las propuestas más novedosas que incluyó la ley se encuentra el régimen de redencién dela pena por trabajo y estudio, que permite a todas las personas privadas de libertad, procesadas ocondenadas, reducir la condena impuesta o a recaer, cualquiera sea el delito cometido. Se redime
un día de condena por cada dos jornadas de 6 horas de estudio o por cada dos jornadas de 8 horas detrabajo.
En relación a estas últimas tres disposiciones el grado de implementación y eﬁcacia ha sido diverso
y asimétrico.
El régimen de libertad anticipada no ha tenido el impacto esperado originalmente, y el número
de excarcelaciones no se incrementó a pesar de la reforma legislativa, básicamente porque lasresoluciones negativas de la Suprema Corte de Justicia a las solicitudes de libertad, no han sido
fundadas, y por la ausencia de protocolos idóneos que permitan una correcta apreciación de laexistencia de signos maniﬁestos de rehabilitación .
El arresto domiciliario ha presentado algunas diﬁcultades para su utilización, fundamentalmente por
la falta de mecanismos para asegurar el efectivo cumplimiento del mismo. Para resolver este déﬁcit seevalúa en la actualidad la posibilidad de utilizar dispositivos de vigilancia electrónica.
Finalmente, el régimen de redención de la pena por trabajo o estudio, ha permitido que el número
de personas que trabajan y estudian se duplique y triplique respectivamente.
El beneﬁcio ha sido múltiple: la motivación por el trabajo o el estudio permite a la persona recluida
adquirir hábitos laborales o intelectuales, la realización de actividades educativas y laborales fuera delespacio propio de alojamiento ayuda a descomprimir eventuales conﬂictos producto del hacinamiento,
y ﬁnalmente habilita el beneﬁcio de reducir la pena por días/horas de actividad, obteniendo en forma
anticipada la libertad.

216

CONCLUSIONES
A modo de conclusión y síntesis, debemos insistir en que el problema carcelario, tal como lo hasostenido ILANUD en reiteradas oportunidades, debe abordarse en el contexto de la necesidad dereformas integrales y en el marco del diseño de una nueva política criminal.
Esta nueva política criminal debería consagrar como mínimo los siguientes objetivos:• Evitar el ingreso a la justicia penal, o desviar de ella, los casos que no deberían ser motivode esa respuesta, promoviendo mecanismos como la conciliación, mediación y reparación a lavíctima.
• Implementar sanciones no privativas de libertad, reservando la cárcel sólo para los delitos
violentos y que causen grave daño social.
• Asegurar que en los procedimientos judiciales o administrativos se garantice la libertad
personal como regla general y se aplique como excepción la privación preventiva de lalibertad, observando los criterios de estricta necesidad, proporcionalidad, temporalidad yrazonabilidad.
• Encarcelar el número de personas que la capacidad del sistema carcelario habilite y construir,en caso de ser necesario, respetando las recomendaciones internacionales en la materia,
considerando las necesidades de las poblaciones en especial situación de vulnerabilidad.
• Ante la constatación de los efectos criminógenos y desocializadores generados por laprisionización, reinterpretar los compromisos de reforma y readaptación social 8
consagrados en las normas internacionales, en clave de Derechos Humanos.9
Estos compromisos pueden ser logrados por medio de dos mecanismos complementarios:
aprovechando el encierro como una oportunidad para el ejercicio de derechos que fueron negados con
anterioridad al ingreso a prisión, y procurando la reducción de los daños y el deterioro que el encierro
provoca en toda persona, garantizando un trato acorde a la dignidad humana.
Tal como argumentó Alessandro Baratta, la reintegración social del condenado no puede
perseguirse por medio de la pena carcelaria, sino que debe perseguirse a pesar de ella, o sea, buscando
hacer menos negativas las condiciones de la vida en prisión . Para una política de reintegración social
el objetivo inmediato no es solamente una cárcel mejor sino también y sobre todo menos cárcel.108Pacto Internacional de Derechos Civiles y Políticos, articulo 10, apartado 3: El régimen penitenciario consistirá
en un tratamiento cuya ﬁnalidad esencial será la reforma y la readaptación social de los penados ; Convención
Americana de Derechos Humanos, artículo 5, apartado 6: Las penas privativas de libertad tendrán como ﬁnalidad
esencial la reforma y la readaptación social de los condenados .
9 ZAFFARONI, E. (1997): Los objetivos del sistema penitenciario y las normas constitucionales . En:. Buenos Aires: Ed. del Puerto. Pág. 189.
10 BARATTA, Alessandro (1990): Resocialización o control social . Ponencia presentada en el seminario. Lima: Comisión Andina Juristas y Comisión Episcopal de Acción Social..
BARATTA (1990: 2).

217

218

DISCUSSING EARLY RELEASE PROGRAMMES IN SINGAPOREINTRODUCTION
The Singapore Prison Service (SPS) has undergone tremendous transformation over the lastten years. Beyond just rehabilitating oﬀenders, we have also focused our eﬀorts on helping them torenew and restart their lives as productive citizens, who add value to their families and society. SPS
recognised that preparation for an oﬀenderʼs re-integration back to society starts from the onset ofincarceration. Hence, a rehabilitation framework was introduced for a throughcare approach to be
adopted towards preparing offenders for their return to the community. Not only are the offenders
prepared for re-integration, concurrent efforts are also carried out to increase awareness andacceptance of oﬀenders by their families and the community, thus preparing them for the oﬀendersʼ
eventual release.

SPS REHABILITATION FRAMEWORK2.
SPSʼ rehabilitation framework (see Figure 1 below), which sets out the rehabilitative
programmes that offenders go though at each incarceration stage, is premised upon the operating
philosophy that a seamless throughcare approach is necessary for the rehabilitation of oﬀenders andtheir subsequent reintegration back into community.

Figure 1: SPS Rehabilitation Framework3.
In order to prepare offenders for reintegration, they undergo various programmes during
their period of incarceration. SPS introduced the classification system, using the Level of Service
Inventory-Revised (LSI-R) as an assessment tool, to assess the risks and needs of each oﬀender upon
his admission. The oﬀender would then be accorded speciﬁc treatment programmes based on his levelof risks and needs. During the in-care phase, a personal route map is required to be charted for eachoﬀender to determine his speciﬁc treatment needs required during his incarceration.
4.
After an oﬀenderʼs personal route map is charted, programmes that will address his treatment
needs and enhance his reintegration potential will be accorded to him. SPS adopts a holistic approachin enhancing an oﬀenderʼs reintegration potential. Education and vocational training equip oﬀenders
with knowledge and skills. Work therapy gives opportunity for oﬀenders to inculcate positive work
habits, attitudes and responsibility. Specialised treatment programmes target the oﬀendersʼ speciﬁc219

criminogenic needs. The engagement of the families and community also start immediately uponadmission of the offenders to ensure that family ties are not severely strained by imprisonment.
Families are engaged through regular visits and family focused programmes. Volunteers from religiousorganisations and voluntary welfare organisations are also engaged to come into prison to befriend
oﬀenders and counsel them.
5.
The transition from a highly controlled prison environment to the life outside prison walls
is a big one. Hence, during the half-way care phase, early release programmes, with follow-up andsupervision in the community, play an essential role to prepare inmates for gradual reintegration into
community. Thus far, about 18,000 oﬀenders have been emplaced on the various schemes in CBP and
the completion rate is about 95%. CBP will be discussed in greater detail in the next section.
6.
SPS acknowledges the difficulties faced by ex-offenders in seeking to reintegrate back into
the community. With the help of community partners, SPS has put in place a support structure for
ex-offenders upon their release. Aftercare managers from Singapore After-Care Association andSingapore Anti-Narcotics Association are assigned to guide and help source for services requiredby ex-oﬀenders for up to 6 months under the Case Management Framework. Services from various
agencies include ﬁnancial assistance, employment assistance and accommodation arrangement.

COMMUNITY BASED PROGRAMMES
7.
Incarceration punishes not just the oﬀender but also the family. The prison environment is also
a highly artiﬁcial one that does not adequately prepare an oﬀender for life outside the prison walls.
For successful rehabilitation and reintegration to take place, it must be carried out in the community
and with the support of the community. Hence, rather than directly releasing an oﬀender without any
strong support network, Community Based Programmes (CBP) serve to provide a gradated approach
towards reintegration of an oﬀender.
8.
The spirit of CBP is to allow suitable oﬀenders to serve the tail-end of their sentence in thecommunity and also to involve the community, especially the oﬀendersʼ families, in their rehabilitation
and reintegration. For oﬀenders who do not have supportive families, the help of halfway houses isenlisted to provide a caring and conducive environment for gradual reintegration. There are various
CBP that offenders can undergo, namely, the Home Detention (HD) Scheme, the Work Release
Scheme (WRS) and the Halfway House Schemes.
9.

The following is a brief description of the various CBP:a.

Work Release Scheme (WRS)
The Community Supervision Centre (CSC) is a work release camp operated by SPS whichhouses suitable offenders at the tail-end of their sentence. These offenders will work during
the day and return to the CSC after work. The CSC also functions as a reporting centre foroﬀenders who are on other community-based programmes. Oﬀenders with supportive families
will subsequently be allowed to return home towards the end of the WRS.

b.

Halfway House Schemes
Oﬀenders of lower risk are emplaced on this scheme and will stay in halfway houses during
the tail-end of their sentence. At the halfway houses, the offenders are engaged in work andtreatment programmes. The halfway houses also serve to provide a conducive environment for
reintegration of oﬀenders without supportive families.

c.

Home Detention (HD) Scheme
Some low-risk oﬀenders are allowed to serve the tail-end of their sentence at home where220their families provide a warm and supportive environment for the offendersʼ re-integration.
Oﬀenders would either be engaged in work or pursue academic studies while on the HD scheme.
Electronic tagging and monitoring is a mandatory component of the HD scheme. Random
reporting at the Community Supervision Centre may also be required of the oﬀenders.
10.
To ensure that only suitable offenders are emplaced on CBP and for them to successfullycomplete CBP, SPS has in place a three-prong approach towards the placement and supervision of
oﬀenders on CBP, namely:a.

A thorough selection process;b.

Preparation at Pre-emplacement Centre;c.

Community Supervision.

Thorough Selection Process11.
All penal oﬀenders upon admission are screened for eligibility for placement on one of the CBP.
The eligibility screening is based on the criteria stipulated in the legislation.
12.
Thereafter, the offender is assessed for suitability for placement on the CBP by PrisonOﬃcers of the institution in which he is housed. Principal considerations when assessing an oﬀenderʼs suitability are his likelihood of re-offending, propensity towards violence, sexual deviance, risk
to society and his level of family support. The offenderʼs responses towards rehabilitation during
incarceration and general conduct in prison are also taken into consideration.
13.
SPS also introduced the tool, Singapore Prisons Short Risk Scale 1 (SPSRS), to predict anoﬀenderʼs probability of re-oﬀending. Oﬀenders with a high risk of re-oﬀending would usually not be
considered for emplacement. For those who have known drug abuse history, an additional tool, theDrug Composite Scale2 (DCS) would be administered to ascertain the offenderʼs risk of going backto drugs. In addition, psychologists from SPSʼ Psychological and Counselling Services Branch would
further assess the suitability of those who have exhibited violent and/or sexual tendencies.
14.
The Programme Placement Panel (PPP), comprising the Superintendent of the prison as the
Chairman, and other relevant oﬃcers, convenes monthly to discuss all eligible cases for placement on
CBP. Thereafter the cases are forwarded to an Advisory Committee (formed by reputed members of
public) for consideration. Director of Prisons then endorses the emplacement of the oﬀenders, on therecommendations of the Advisory Committee.

Preparation at Pre-Emplacement Centre

15.
Oﬀenders recommended for placement will then be transferred to the pre-emplacement centre
one month before his date of emplacement. At the pre-emplacement centre, he will undergo a series ofprogrammes to prepare him for re-integration.
16.
The Rebuilding Lives Programme, comprising family intervention and other relapse prevention
modules, is administered to offenders during the pre-emplacement phase. The objectives are (i) toprepare oﬀenders going on CBP and their families adequately for their eventual reunion by equippingthem with the relevant skills and knowledge; (ii) aid the oﬀenders and their families in coping withthe various issues and stressors during their emplacement on CBP, e.g. eﬀective communication at
1
2

The Singapore Prison Short Risk Scale (SPSRS) is a locally-normed tool derived from the Level of Service
Inventory - Revised used to estimate risk of general re-oﬀending. It contains 9 items of both historical and dynamic
factors.
The Drug Composite Scale (DCS) is a tool used to estimate the risk of drug relapse for drug users. The score is
calculated from the SPSRS, the Drug Abuse Screening Test, Drug Taking Conﬁdence Questionaire and Social
Desirability Scale, some of which are locally derived scales.

221home; (iii) rebuild or enhance the oﬀendersʼ relationships with their families; and (iv) equip oﬀenders
with relapse prevention skills. With this programme booster, we seek to enhance the chances of theseoffenders successfully completing their CBP as well as reintegrating to society as responsible andcontributing citizens after their full release.
17.
Apart from the Rebuilding Lives programme, the oﬀenders are also put through foundational
skills training to enhance their employability and job-preparedness upon their release. These
programmes include the Employability Skills training, interview skills and resum? writing, and basic
IT skills training. At the pre-emplacement centre, potential employers will also be invited to conduct
job vacancies briefing and job placement exercises to ensure that the offender is employed uponplacement on CBP.

Community Supervision

18.
Upon the placement of an offender on CBP, the Community Supervision Centre (CSC)
undertakes his supervision throughout the placement period. Under the CSC structure, prison oﬃcers
who traditionally perform their roles within a prison setting, now take on the role of Reintegration
Officers and they perform multi-faceted roles in the community. This ranges from reintegrative
functions such as liaison with inmatesʼ families and community partners, engaging inmates in regulardialogues, to supervision and disciplinary roles such as conducting work site visits, halfway house
visits and handling minor violations of regulations.
19.
In order to ensure that the Reintegration Officers know their offenders prior to theiremplacement on CBP, the oﬃcers engage the oﬀenders one month prior to their emplacement in the
pre-emplacement centre. Information and knowledge of these oﬀenders would also be handed over by
the oﬃcers looking after the oﬀenders during the in-care phase to the reintegration oﬃcers throughcase conferences. As such, the knowledge and rapport built up over time is carried over into thecommunity supervision phase.

STATISTICS PERTAINING TO CBP
320.
The completion rates of oﬀenders who had undergone CBP had been healthy, being generally
maintained above 80% for the last 5 years (see Table 2 below). The healthy rates of completion
enjoyed by SPS could be partially attributed to the relatively stringent criteria for emplacement on
CBP. Going forward, a challenge for SPS would be to allow more inmates to beneﬁt from a period ofplacement on CBP prior to release, whilst maintaining the completion rates at a healthy level.
Table 2: Completion Rates for various CBP for 2004 - 2008
CBP

Completion Rate for Year / %
2004

2005

2006

2007

2008

HD

98.7

96.0

96.7

98.3

98.5

RS

97.1

100.0

100.0

88.2

89.5

WRS-HWH

93.6

84.7

84.9

81.9

90.8

WRS

86.1

88.3

82.8

79.4

90.0

HWH

95.7

92.3

100.0

70.0

81.3

LT-HWH

98.8

95.8

93.3

89.6

90.9

3
4

222

Completion rate is the ratio of inmates who have successfully completed the programme over the total number ofinmates emplaced on the same programme (less number of inmates who did not complete the programme due tofactor(s) outside their control (e.g. medical reasons, etc).
Caution needs to be exercised in the interpretation of such statistics. Similar to eﬀorts elsewhere which seek tocompare and evaluate the eﬀectiveness of prisons-based programmes, the above comparison suﬀers from a lackof control group and self-selection bias. Generally, inmates who are selected for such programmes are better
behaved in prison, display more positive attitude, and have fewer criminal antecedents. Hence, the observation
should not be interpreted as a scientiﬁc validation.

21.
SPS defines recidivism rate as the percentage of local offenders detained, convicted andimprisoned again for a new oﬀence within two years from their release. Oﬀenders who were emplacedon CBP had consistently performed better than oﬀenders who were not placed on CBP4. For the latest
year of comparison in 2006, recidivism rates for oﬀenders who had been emplaced on CBP was 12.9%.
The overall recidivism rate for the general population was 25.1%.

CONCLUSION
22.
SPS believes that for rehabilitation and reintegration of offenders into the community to beeﬀective, a coordinated systemic eﬀort is required. Hence, early release programmes do not function
independently, but are set within the overall Rehabilitation Framework. Within the prison system,
inmates go though various rehabilitation programmes at each incarceration stage. In the community,
SPS works with community partners and harnesses community resources to facilitate the ex-oﬀendersʼreintegration. At the national level, SPS endeavours to change societyʼs mindset towards giving
ex-offenders a second chance though the Yellow Ribbon Project. Through these efforts, SPS hasembarked on an on-going journey with a rehabilitation focus, constantly seeking to be more eﬀective inrehabilitating oﬀenders and steering them towards becoming responsible citizens.

223

224

STRATEGIES TO DEAL WITH PRISON OVERCROWDING- THE ROLE OF PAROLE

Introduction and overview
Parole is perhaps the least understood process in our criminal justice systems. Its name suggeststhat it focuses on the prisoner and allowing him or her a ticket out of prison before serving the full
sentence meted out by the court. Little wonder that it is distrusted by many politicians, reviled by
the press and disrespected by the public. Yet, as part of a multi- agency approach to public protection
and prisoner rehabilitation, it can - and does - serve an invaluable purpose. I hope this short paper will
cast some light on a process that was once described to me by a victim as one of the black arts - hechanged his view once he had seen and understood the real parole.
I start with a deﬁnition. What I mean by parole here is the managed release of a prisoner on set
conditions before the expiry of the sentence. If released on parole, the prisoner will be on licence forthe unserved part of the sentence and will be eligible to be returned to prison if he or she re-oﬀends or
breaches the conditions of the licence. A prisoner sentenced to life imprisonment will be on licence if
granted parole for life and will be eligible for return to prison in the same way.
The parole decision is based on a risk assessment of the prisonerʼs suitability to be safely managed
in the community. I will discuss risk assessment and risk management later in this paper. At its
heart is public protection as the decision is about balancing the rehabilitation of the prisoner and his
reintegration back into the community against the risk to the public that this would cause. In thisbalancing act, the scales always fall on the side of public protection.
The role of parole has become increasingly under the scrutiny of the courts in the context of
Human Rights in the United Kingdom. I will develop this further later in this paper. The ensuing
media coverage has contributed to a now common misconception that parole boards consider only
the rights of the prisoner, that they put a prisonerʼs human rights ﬁrst before public safety and thatparole is a prisonerʼs right, especially if they have behaved well in prison. It is considered a soft
option and parole boards are often accused of not taking into account the rights of the victims. A
linked misconception is that parole is mainly about saving money and releasing prisoners early so that
prisons are not overcrowded. I aim to show that this is not the case. However, by freeing up prison
places and prison resources by releasing some low risk oﬀenders, I contend that this enables bettersupervision and control over those released on conditional licence as well as ensuring that prisons areless overcrowded and therefore able to respond better to the needs of those incarcerated.

225

Risk assessment
Oﬀender management in the United Kingdom has at its heart the concept of risk. Risk is a familiar
concept in everyday life and translates well into the ﬁeld of criminal justice. The model below shows
the importance of ﬁnding the right balance in making risk assessments.

A risk assessment is a judgement about a negative (usually) event or behaviour based on likelihood(probability) and impact (the outcome). The risk will be the risk of reoffending, the risk of doing
serious harm to others or the risk of doing serious harm to him/herself.
Imminence is a judgement as to how soon an oﬀender is likely to commit his/her act. In making thisjudgement - some questions which are useful are:
•
•
•
•
•
•

226

Is he/she more likely to do it than not
Is he/she likely to do it as soon as an opportunity or victim presents
Is he/she actively grooming an opportunity or a victim
Will he/she act as soon as the risk management plan breaks down
Is he/she already failing to attend or comply with conditions of release
Are past circumstances and conditions repeating

The last question is particularly pertinent as past behaviour is said to be the best predictor of future
conduct. These considerations can be seen on the diagram below. This can be useful to those making
risk assessments in this context.

Likelihood

How then is risk identiﬁed? A starting point is to determine the main risk indicators of an individual.
These will usually include
■
■
■
■
■
■
■

Past behaviour and convictions
Motivation for and attitude towards oﬀending
Access and proximity to victims (including grooming)
Preparedness to use weapons
Disinhibitors (alcohol and drugs)
Situational triggers
Conditions and circumstances227

To these must be added risk factors and oﬀending behaviour. The diagram below shows that thisprocess is a complex one and that factors will overlap as they contribute to oﬀending behaviour. It will
be necessary to assess and manage the risks both individually and collectively as factors may impact oneach other and increase risk. For example, ﬁnancial problems may lead to the loss of accommodation,
relationship diﬃculties and aﬀect emotional wellbeing. The analysis of risk factors requires detailed
consideration.

The next step in the risk assessment, having looked at the individualʼs main risk indicators and risk
factors is to look at the current situation - what are the main indicators now and what are they likely
to be in the future? Risk factors may be static - things that may not be changed such as the oﬀenderʼsage and the previous oﬀending record - or dynamic - things that may be susceptible to change such as
substance abuse. All must be fully analysed, taken into account and balanced.
There are a number of tools to assist those charged with making these risk assessments. These
include actuarial risk assessment tools as well as structured clinical risk assessments, usually by
forensic psychologists. The recommended best practice is a combines approach using both static anddynamic factors. Research suggests that clinical judgement is inherently unreliable (see Campbell,
2004 for a summary) and that considering level of ʻdynamic riskʼ alongside actuarial instruments canimprove accuracy beyond that of current actuarial instruments alone (Thornton, 2002; Beech et al2002).
Static risk assessment includes
•
•
•
•
•
•

228

Static/actuarial historical factors which are unchangeable and predict risk, normally combined
into an equation or scale.
Involves researching the behaviour of offenders in order to establish significant differences
between those who oﬀend at high rates and those who oﬀend at low rates
Characteristics identiﬁed by research use thousands of subjects
Trying to identify the characteristics associated with higher risks of reoﬀending
Thorntonʼs Risk Matrix 2000 (for sex offenders) has been found to identify correctly 71%
repeat oﬀenders
RM2000 includes: age; previous criminal history (sexual and general); male victims;

relationship status; stranger victims; non-contact oﬀence
If static risk assessment is so powerful, why then use dynamic factors at all? Actuarial risk
assessments deal only with groups of offenders and not individuals. Static risk assessments canbe artificially low or artificially high. Static factors cannot be changed and actuarial procedures
are insufficiently inclusive of risk and protective considerations (Doren, 2002). In contrast,
psychological factors shown by research to be associated with risk include dynamic factors that canbe changed. Identifying these correctly enables treatment targets to be set therefore promoting
risk management. Structured consideration of dynamic factors improves accuracy of static
instruments and give the most accurate and thorough method of risk assessment - static plus
dynamic. Meaningful risk factors••••

Tell you what things make it more likely that the individual will reoﬀend
Tell you what the person needs to do to change
Therefore give you an indication of which programmes might be helpful.
Help you to assess if change has occurred

Examples of these are a sexual interest in children, attitudes promoting violence, angry
rumination and wanting revenge, believing that women deserve to be raped/children are interested
in sex, a need to work on improving problem solving skills and thinking of consequences, a chaotic
and criminal lifestyle and a tendency to be inﬂuenced by others.
In addition to risk factors must also be considered protective factors when making a risk
assessment. Protective factors, as the term suggests are:•
•
•
•
•
•

Opposites of risk factors.
Meaningful, fulﬁlling and pro-social life goals
Coherent, organised and meaningful daily activity.
Learning something in treatment that will clearly work i.e. he understands the procedure andcan explain what he will do.
Robust, respectful, loving and non-collusive social/statutory support.
Belief in oneʼs capacity to change

What is crucial in all risk assessment is the need for it to be evidence based. The analysis of
the case must be directed at ﬁnding and weighing evidence - both positive and negative - and thenbalancing the factors. Where the balance is even, the scales must always fall on the side of public
protection. The Parole Board must always consider• Nature and circumstances of the original oﬀence• Previous oﬀending, plus any additional measures of risk including age of oﬀender• Attitude and behaviour in custody and whether this indicates a willingness to addressoﬀending behaviour and to understand its causes and consequences for victims• Progress in addressing oﬀending behaviour• Likely compliance with licence, including previous behaviour on licence, bail etc• Resettlement and risk management plans
Having considered the risk factors and the protective factors, the next stage in a risk assessment
will be the consideration of whether there is any evidence of behavioural change. Insight(responsibility, empathy, honesty, and understanding) is good, and is a treatment target of mostOffending Behaviour Programmes but it is not the same as change: insight is the vehicle whichenables change to occur. Change in attitudes, behaviours, skills must be observed in addition to
insight.

229

Examples of such change are
•
•
•
•
•
•
•

Behaviour during treatment
Attendance at sessions and level of active participation
Completion of between session assignments
Evidence of application of skills
Seeking advice and support from staﬀ
Going the extra mile
Recognising when a risk factor is present

Having considered all these factors, the acid question is How robust are the skills for managing
future risk and will his strategies work? The risk assessment will depend greatly on the plan which is
to be put in place to manage the individualʼs risk. The Parole Board can put in place conditions as partof the risk management plan, for example restrictions on contact with victims and other individuals
or groups of people, curfews, and restrictions on going to particular places. These conditions must be
both necessary and proportionate to manage the risk.
Accurate risk assessment will require all agencies involved to provide good information. This will
start even pre-sentence with reports to the judge, will continue with good sentence planning andassessments in the prison and by the probation service.

Risk management
No individual will be risk free. The risk assessment will serve to inform the risk management
plan which in turn will take into account protective factors. The plan will need to be monitored andsupervised eﬀectively and a multi-agency approach may well be necessary here for some oﬀenders.
A good risk management plan will take account of both external and internal factors and include
strategies to deal with both.

To summarise:
•
•
•
•
•

230

Does he acknowledge the existence of the risk factor and does he understand how it connects
to his oﬀending?
Can he articulate a strategy for managing the risk factor?
Is he able to recognise when the risk factor manifests itself in the present?
Is there evidence of behavioural change? Or is there continuing evidence of the risk factor
being present? Or is there no evidence either way?
Is there any evidence that he has developed and is using healthy alternative behaviours?

•Is the risk management plan realistic and robust and will it be properly managed?

Impact of Human Rights
The Human Rights Convention has become increasingly important in the work and decision making
of many Parole Boards including the Boards in England and Wales and to the Parole Commissioners inNorthern Ireland.
Article 5(4) of the Human Rights Convention states that everyone who is deprived of his liberty byarrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shallbe decided by a court and his release ordered if the detention is not lawful .
The case of Staﬀord -v- UK (2002) 35 EHRR 32 decided in 2002 by the European Court of Human
Rights began the journey of the Parole Board from an advisory body to Ministers on the early releaseof prisoners (in that case of prisoners sentenced to a mandatory life sentence) to the court or court-likebody required to oversee and decide on the lawfulness of detention in such cases under Article 5(4).
This case was followed in 2005 by a House of Lords ruling in the cases of Smith and West -vSecretary of State (2005) UKHL 51 that prisoners recalled to prison allegedly in breach of theirlicences should be granted an oral hearing in order to comply with Article 5(4) of the Human Rights
Convention - prior to this, the Parole Board had handled these types of cases by considering themon paper. Subsequent cases such as Girling -v- Secretary of State (2006) EWCA Civ 1779 andmore recently Brooke -v- Parole Board (2008) EWCA Civ 79 have underlined this principle and theoverarching need for the Parole Board to be completely independent from government when making
these decisions.
This line of cases has resulted in the Parole Board moving from being an advisory body, governed
by Directions from the Secretary of State, to being described as a court by the higher courts and being
responsible for making the decisions rather than oﬀering advice to Ministers. This move was welcomedby the Parole Board for England and Wales and by many stakeholders. The media coverage of thechange was however sometimes unhelpful and even some senior politicians commented unhelpfully
about the role of human rights in the decision making process of the Board. In fact, the legal changes
did not impact on the way the Board performed its risk assessment task in terms of balancing theevidence as required. They did lead to the Board holding more oral hearings with the prisoner present- and it is perhaps telling that the Boardʼs release ﬁgures have decreased over the last three years.
There are other factors here, including a diﬀerent case proﬁle, but it may be that hearing in personfrom the prisoner in these cases has also contributed to these statistics.
The other important Article for Parole Boards is Article 8, the qualiﬁed right to family and private
life. This generally concerns ensuring that any conditions attached to a prisonerʼs licence on release
are both necessary and proportionate.

Measuring and recognising successAt the risk of stating the obvious, there is no release decision that is free of risk - the only safe
decision in terms of re-oﬀending and risk of harm to the public is a refusal. This is a problem for Parole
Boards where oﬀenders do re-oﬀend after conditional release with the inevitable media and politicalpressure that these incidents will bring. However, it must be considered that automatic release
after serving a proportion of a prison sentence can mean that a prisoner has had no motivation toaddress his oﬀending behaviour while in custody and that he may be released without eﬀective licenceconditions or sanctions back into the community. The parole option, while it does carry risk, does
allow a structured condition re-entry for a prisoner who will have had to take some responsibility andownership of his risks and make eﬀorts to address them during his sentence.
The re-oﬀending statistics in England and Wales show around 67% of oﬀenders re-oﬀend within two
years. For those paroled, only 6% oﬀend during the parole period which is typically around one year.

231

The ﬁgure is the same for those released on life licence - with only 1% of the re-oﬀending being forserious sexual or violent oﬀending. In an Annual Report, Judge David Carruthers, the Chairman of the
New Zealand Parole Board refers to parole being around twice as eﬀective in terms of re-oﬀending ascommunity penalties.
There is little in the way of global research here but a factor may be that prisoners have alreadybeen in custody and know what to expect on return. They will have taken active steps in trying totackle the causes of their oﬀending and will have had support in their re-entry into their communities.
With evidence-based risk assessment by well-trained Parole Boards, bases on robust information and arisk management plan backed up by eﬀective
Supervision in the community, parole is an effective tool in managing overcrowding and incontributing to rehabilitation.

232

PANEL III

Permanent Secretary for Justice, Ministry of Justice, Thailand***

Director, the Singapore Prison Service***

Director, the United Nations African Institute for the Prevention of Crime and theTreatment of Oﬀenders (UNAFRI)***

Parole Commissioner of Northern Ireland and Immigration Judge***

Vice President, the Subcommittee on Prevention of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (SPT)

233

234

PANEL IIIRESPONDING TO PRISON OVERCROWDING:
ANOTHER ATTEMPT FROM THAILAND

See p. 151 to 168

235

236

THE YELLOW RIBBON PROJECT STORY (SINGAPORE)- Reaching Out and Touching a Nation -INTRODUCTION
The Yellow Ribbon Project (YRP) Singapore was established in 2004 as a community engagement
campaign and catalyst to bring about societal acceptance for ex-oﬀenders and their families. The YRP
aims to provide a concerted and coordinated approach to create awareness, generate acceptance andinspire action within the community to support the rehabilitation and reintegration of ex-offenders.
This is crucial to achieve a safer and more secure community for all.
2.
Though a relatively new campaign, the YRP has made significant inroads in Singapore.
Together with our many partners and key stakeholders, we have managed to achieve impact in ourcommunity and beyond. This paper aims to highlight our journey, how we engage the community andour progress thus far.

CONCEPTUALISATION OF THE YELLOW RIBBON PROJECTThe Singapore Prison Service (SPS) Visioning Exercise

3.
In 1999, the Singapore Prison Service (SPS) took a bold step to transform the organisation
with a new Vision, which reads:
OUR VISION
We aspire to be Captains in the lives of oﬀenders committed to our custody.
We will be instrumental in steering them towards being responsible citizens, with the help of
their families and the community.
We will thus build a secure and exemplary prison system.
4.
By committing itself to the bold and noble vision of becoming Captains in the lives of oﬀenders,the SPS shifted its mindset to being instrumental in steering inmates towards being responsible
citizens. This laid the foundation for the launch of YRP in 2004.

The Singapore Corporation of Rehabilitative Enterprises (SCORE) Transformation

5.
Working closely with the Singapore Prison Service, the Singapore Corporation of
Rehabilitative Enterprises (SCORE) introduced the concept of rehabilitation through work discipline.
SCORE rehabilitates oﬀenders through vocational training and work programmes in market-relevant
industries to facilitate the inmatesʼ eventual return back to society and to keep up with the changes in
the Singapore economy.

237

Formation of the Community Action for the Rehabilitation of Ex-Offenders (CARE) Network
Community Action for the Rehabilitation of Ex-oﬀenders (CARE) Network
Vision: Hope, Conﬁdence and Opportunities for Ex-Oﬀenders

6.
For many ex-oﬀenders, the move from a controlled prison environment to the outside society
as a free man is a big struggle. Many would fail if left alone to do so. It is with this in mind that the
CARE Network was formed in May 2000.
7.
The CARE Network was formed to improve the effectiveness of the rehabilitation of exoffenders in Singapore. Spearheaded by the Singapore Prison Service and SCORE, the CARE
Network is the first formal structure in Singapore that brings together key Government and nongovernment agencies involved in re-entry management.
8.
The CARE Network aims to improve the effectiveness of rehabilitation of ex-offenders in
Singapore. It engages the community in rehabilitation, co-ordinates member agenciesʼ activities
and develops initiatives for ex-oﬀenders. It targets to develop a concerted and coordinated approach
towards supporting rehabilitation and reintegration of ex-oﬀenders back into society in Singapore.

Why the Yellow Ribbon Project?

9.
The most significant achievement to date for the CARE Network is the development of the
Yellow Ribbon Project (YRP). The key drivers of the national campaign are the Singapore Prison
Service (SPS) and the Singapore Corporation of Rehabilitative Enterprises (SCORE), supported by
the CARE Network agencies. It was oﬃcially launched in 2004 by the President of the Republic ofSingapore, Mr S R Nathan. The YRP is an annual campaign aimed at changing societyʼs mindset
towards giving ex-offenders a second chance in life. The campaign aims to mobilize community
support and prepare the community for the offenderʼs reintegration. Our end result is to see exoﬀenders reintegrated into society as responsible citizens.
10.

The inspiration behind YRP was taken from the 70s hit song, Tie a yellow ribbon round the
Ole Oak Tree .
I’m really still in prison and my love, She holds the key, a simple yellow ribbon’s what I
need to set me free…

11.
YRPʼs moniker is adapted from the 1973 hit song by the pop group Tony Orlando and Dawn
Tie a Yellow Ribbon Round the Ole Oak Tree , which describes a released prisonerʼs desire forforgiveness and acceptance. The 3 lines above from the 70s hit aptly describe the ex-oﬀender's desire

238

for the acceptance and forgiveness from his loved ones and the community to set him free.
12.
There is a great need for the community to be more aware of the struggles and the plight ofapproximately 10,000 ex-oﬀenders that walk out of our prisons gate, wanting to start their lives afresh.
Failing to get support and losing this motivation were impetus for falling back to their old criminal
ways. Such a trend would then sustain the recurring vicious cycle of crime which would harm not justthe ex-oﬀender but their families and the community at large (e.g. victims of crime).
13.
The community therefore plays an important part in the creation of an inclusive social
environment where ex-oﬀenders, who displayed a strong desire to change, could ﬁnd the hope to startlife afresh and become contributing members of society.
14.

The objectives of YRP are the 3 ʻAʼs, which are:

a.
b.
c.

To create Awareness of giving second chances to ex-oﬀenders.
To generate Acceptance of ex-oﬀenders and their families into the community.
To inspire Community Action to support the rehabilitation and reintegration of ex-oﬀenders.

ORGANISING THE CAMPAIGN AND ENGAGING THE COMMUNITY
Thematic Development

15.
Each year, a different theme was developed for the YRP campaign to move the level ofengagement upwards and build upon the successes of the preceding year. While the ﬁrst few YRP
campaigns focused on creating awareness, subsequent campaigns progressively widened and deepened
the message by engaging the community and mobilising inmates and reformed ex-offenders to giveback to society.
YRP 2004

YRP 2005

YRP 2006

YRP 2007YRP 2008

YRP 2009

Creating
Awareness

Engaging theCommunity

Engaging the ExOﬀenders

Giving Back

Beyond Just Words

Giving Back

Widening thereach, deepening
the message

Extending ourreach, inspiring
action in inmatesand ex-oﬀenders

Going beyond
awareness toaction by actively
engaging thecommunity

Inmates and exoﬀenders playing arole to give back tosociety

Selling the Message Give them a second- Help Unlock thelease of life
Second Prison

Branding

16.
Eﬀective brand positioning has been instrumental for the success of the YRP campaign. The
simple icon of a yellow ribbon and the meaning associated with it is easily identiﬁable and recognisableby all strata of society. The success of the brand also lies with the consistency and discipline of themessage each year. Although the events and activities may change with each YRP year, the inherent
message to be relayed across remained the same - the universal values of acceptance, forgiveness andsecond chances.

Harnessing the Media17.
YRP leverages extensively on the media as a strategic tool for our campaign messaging.
The public campaign is launched through a series of televised and printed advertisements, news andradio broadcasts, on-line mediums like internet and websites, posters placed at public locations, e.g.
the public transport system. New media was also used through Youtube, Facebook, mobile phonemessages and local internet forums to publicise our events.
18.
YRP enjoys wide media coverage from the Singapore media. It provides the media with afertile spread of interesting story angles ranging from human interest to ex-offender reintegration
issues. The creative harnessing of the media led to the production of three local movies and adocumentary-drama based on the ex-oﬀenders and their struggles. The message of forgiveness and239

second chances was weaved into stories that the man-on-the-street could understand and identify with.

Community Engagement Activities

19.
Media campaigns and key community engagement activities were concentrated in the month of
September each year, being designated as the Yellow Ribbon month.
20.
The annual ʻWear-A-Yellow-Ribbonʼ activity was conceptualized to encourage the public towear the ribbon to show their support of the campaign. Each yearʼs campaign was kicked oﬀ with theactivity; Wear A Yellow Ribbon Activity during the month of September.
21.
An eclectic mix of activities was used each year to engage the community. These eventswere our delivery mechanisms to highlight the reintegration issues of ex-oﬀenders and make the callfor community acceptance and action. They were creatively organised to showcase inmates and exoﬀendersʼ talents via prison art exhibitions, song-writing, poetry and story telling competitions, andconcerts.
22.
To bring together various stakeholders and partners, the Yellow Ribbon Conference was aplatform for government and non-governmental organisations, academics, aftercare professionals,
community partners and overseas correctional services to dialogue on rehabilitation and aftercare
issues.
23.
a.
b.
c.
d.
e.
f.
g.
h.

The main YRP events held were:
Yellow Ribbon Concert (2004, 2006 and 2008)
Yellow Ribbon Walk (2005 and 2007)
Yellow Ribbon Conference (2004 to 2008)
Movie Screening One More Chance by Jack Neo (2005)
Yellow Ribbon Fairs (2004 to 2007)
Yellow Ribbon Creative Festival (2004 to 2008)
Yellow Ribbon Community Art Exhibition (2007 and 2008)
Yellow Ribbon Job Fairs

Involvement of Inmates and Ex-offenders

24.
Inmates and ex-oﬀenders formed an integral part of our campaign. Hence, opportunities were
given as much as possible to involve inmates and ex-offenders. Since the commencement of YRP,
the involvement of inmates in making the two million cloth Yellow Ribbons have been central to theimpact of the Wear-A-Yellow-Ribbon activity. Their eﬀort symbolically represented their desire for
acceptance from the community and their willingness to change. Inmates had also contributed throughexhibiting their handicrafts or skills, stage performances, logistical support, food preparation andpacking of gift packs.
25.
The YRP has generated positive response from ex-oﬀenders, some of whom were mobilised tocontribute further towards the cause. They pitched in eﬀorts by providing transportation and logistic
assistance in events, distributing Yellow Ribbons, performing at events. Many were not afraid of
stepping out in the open to reveal their past on national press or television to be an encouragement toothers and to thank the community for the support given to them and their families.

Celebrity Engagement and Rehabilitation Ambassadors

26.
Celebrities and rehabilitation ambassadors formed an important part of the engagement
strategy. With their popularity and inﬂuence, they were well positioned to spread the YRP message,
serve as crowd-pullers, and more importantly act as ambassadors in support of the campaign. Local
and regional artistes had been featured over the past few years.

240

Community Partnerships

27.
As the YRP was centred upon community acceptance, the community formed a significant
part of the equation. The campaign was also formed with the intention of running a campaign for thecommunity, by the community. With the iconic symbol and the strong branding, many community andcorporate organisations have initiated collaboration with us. Community leaders, politicians, corporate
leaders and celebrities also made time to grace the events. Community involvement and partnerships
came in the form of donations and sponsorships, wearing of the Yellow Ribbons, fund-raising or
participating in our YRP events.

YRP 2009 - GIVING BACK28.
YRP 2009 was a year of ʻgiving backʼ to the community. It was a year for inmates and exoﬀenders to play an active role in the midst of a diﬃcult global economic crisis. Inmate and ex-oﬀenderdriven community service projects were planned to oﬀer them the opportunity to contribute back to
the community and help the less privileged in society.
29.
Everyone played their part in helping ex-oﬀenders restart their lives and become responsible
and contributing members of society. The inmates, ex-oﬀenders and community were engaged in thefollowing ways:a.

Inmates and ex-offenders making the first move - By participating actively in rehabilitation
programmes and contributing to the community, inmates and ex-oﬀenders were driving theirown acceptance.

b.

Family and friends rendering supporting and encouragement - Family acceptance andforgiveness were the first steps towards the creation of a conducive environment for
reintegration. A strong social support network for ex-offenders gave them the courage tomove on in their lives and increased their chances of starting lives anew.

c.

Community oﬀering a helping hand - Singaporeans working together to strengthen the social
fabric of the nation. The acceptance of volunteers, employers and colleagues would help
support the reintegration journey of ex-oﬀenders back to society.

2009 Events Highlights

Yellow Ribbon Culinary Programme 2009: Tribute of Love I Father’s Day Luncheon (26 May and 20 June2009) and Tribute of Love II for the Community (26 September 2009)30.
The Yellow Ribbon Culinary Programme 2009 not only provided the opportunity for inmatesto discover their culinary talents, but also paved the way for a career in the Food & Beverageindustry. The programme included a culinary competition where inmate finalists were selected toattend a 26-week Certiﬁcate in Basic Culinary Skills training by an established culinary institute,
Shatec Institutes. This training was sponsored by one of our corporate partners. The inmate
ﬁnalists were also given the opportunity to present their winning dishes to their family members ina special Yellow Ribbon Tribute of Love Fatherʼs Day Luncheon held on the 20 June 2009. The
programme culminated on 26 September 2009 with the inmates cooking for 520 less privileged elderly
and children. More than 120 ex-oﬀenders and volunteers helped serve the meals, bringing together
inmates, ex-oﬀenders and volunteers to serve the needy in the community.
Yellow Ribbon Art Competition (1 July 09) and Yellow Ribbon Community Art Exhibition (9 to 20 Sep 09)
31.
Art therapy has been found to be an eﬀective tool in rehabilitation. The Yellow Ribbon Art
Competition was a platform for inmates and ex-offenders to discover their artistic talents. There
were 450 artworks produced by inmates and ex-oﬀenders along the theme of Vision of Hope , whereparticipants painted their hope for a new life after release. The top 30 entries were selected for theﬁnals held on 1 July 2009. These artworks were then exhibited at the Singapore Art Museum during
the Yellow Ribbon Community Art Exhibition. The exhibition was attended by 1,300 visitors and241raised about S$36,000 for the Yellow Ribbon Fund and other agencies as part of giving back to thecommunity.
Wear-A-Yellow- Ribbon (Entire Month of Sep) / Yellow Ribbon Street Donation Day (Friday, 28 Aug 09)
32.
The simple act of wearing the Yellow Ribbon was an active display of the communityʼs support
for oﬀering second chances and acceptance for ex-oﬀenders. Each Yellow Ribbon was handmade by
an inmate and symbolised his or her hope for forgiveness and acceptance. Our signature activity, theYellow Ribbon Street Donation Day held on 28 August 2009 saw 1,691 volunteers coming forward to
distribute Yellow Ribbon Packs and raised funds for the YRF. A total of S$37,000 was raised in the
Wear-A-Yellow-Ribbon Street Donation Day.
Yellow Ribbon Prison Run 2009 - Beyond the Run (6 Sep 09)
33.
The inaugural Yellow Ribbon Prison Run on 6 September 2009 saw the participation of morethan 6,000 runners. A contingent of 80 reformed ex-offenders also participated in the Run. Aptly
themed Beyond the Run , runners lend their collective voice to a message of encouragement for all
ex-oﬀenders to pick themselves up after having fallen down. As part of giving back to the community,
reformed ex-oﬀender turned marathoner, Mr Hanniel Choong of 48 years of age, raised S$35,000 for
YRF through his challenge of ﬁnishing the 10km race in 48 minutes.
Contributing to the Nation’s Birthday
34.
On 9 August 2009, while thousands of spectators received their gift packs at the Singapore
National Day Parade (NDP), some of them were surprised to ﬁnd their gift packs containing a Yellow
Ribbon pack. This year, 88 inmate volunteers participated in the Nationʼs celebration by packing
35,000 gift packs for the NDP. Through this gesture, they showed that they are contributing citizensof Singapore even while serving time.
Yellow Ribbon Tattoo Removal Programme
35.
In July 2009, YRP started a two-year tattoo removal programme costing $1 million. The
programme, fully sponsored by our corporate partner, aimed to help inmates renounce their gangmembership (often signiﬁed by elaborate gang-related tattoos) and facilitated their reintegration into
society as law-abiding and gainfully employed citizens. One of the inmates who received treatment on
his arm said, Many of us wanted to stay clean of gangs. However, we are easily identiﬁed by gangs
because of our common tattoos. Removing our gang tattoos is more than just a symbolic act for us - itgives us the chance at a clean slate of life. A total of 39 inmates had since undergone the programme,with 50 more waiting to have their tattoos removed and start their lives afresh.

THE IMPACT36.
The YRP has generated a lot of interest and support since its inception. Its positive outreachand message of Help Unlock the Second Prison has permeated into all levels of society. The logo of
the Yellow Ribbon is now synonymously recognized as a symbol of giving hope and second chances
to ex-offenders in Singapore. The Singaporean public, community leaders, ex-offenders and theirfamilies have publicly embraced the philosophy of YRP and shown their support by participating in our
activities.
37.
A public perception survey was commissioned in 2007 to elicit the Singaporean publicʼs
attitudes towards ex-offenders and their awareness of the YRP. Findings showed that 94% of the
respondents were aware of the YRP, indicating that our outreach and media eﬀorts have by and large
been successful in creating awareness of the YRP cause. The ﬁndings also showed that more than
60% of respondents had generally positive attitudes towards ex-oﬀenders, with most agreeing that exoﬀenders deserve a second chance and hence were willing to accept them back into society.

242

38.
The Registration of Criminals (Amendment) Act was amended in May 2005 to help deserving
ex-oﬀenders reintegrate into society. The amended Act would allow an ex-oﬀender convicted of a lessserious crime to have his record considered spent if he met the speciﬁed criteria and stayed clean fora ﬁve-year period. Following this, the Singapore Civil Service amended their job application form on
1 April 2006. Candidates with spent records could now indicate that they did not have any criminal
records, thus increasing their opportunities in their job search. In 2006, the Ministry of Transport,
Land Transport Authority reviewed the guidelines for issuance and renewal of vocational licences fordrivers of public service vehicles to make it more ﬂexible for ex-oﬀenders to get the license.
39.
YRP received an international affirmation from the United Nations Department of PublicInformation in 2007 when, arising from SPSʼs work in YRP, SPS was given an Honourable Mention
for outstanding achievement in public relations campaigns which best exemplify the ideals and goals of
the United Nations. Locally, YRP received the National Community Safety and Security ProgrammeAward in 2007 and 2008 for two of our community engagement programmes. The award recognises
outstanding projects and community volunteers on a nation-wide level that contributes to tacklingcommunity issues and problems addressing the safety and security of the community. It also received
the Public Relations in the Service of Mankind (PRISM) Excellence Award under the Public Service
Campaigns category in 2008. In 2009, the Yellow Ribbon Tattoo Removal Programme received theMinistry of Home Aﬀairʼs Operational Excellence Award.
40.
a)
b)
c)
d)
e)
f)

The key achievements of YRP from 2004 to 2009 were as follows:
1.985 million Yellow Ribbons distributed.
313,000 Singaporeans participated in our events.
807 new employers registered with SCOREʼs Job Bank.
908 volunteers signed up to volunteer with us.
S$7.8 million raised for Yellow Ribbon Fund.
More than 400 inmates and ex-oﬀenders mobilised for each campaign.

41.
Another significant milestone for our YRP was the initiation of the Yellow Ribbon Fund
(YRF). YRF is the first national charitable fund devoted entirely towards the development andimplementation of rehabilitation and reintegration programmes and services for ex-oﬀenders and theirfamilies. Registered under the National Council of Social Service, YRF was granted Institute of Public
Character (IPC) status from 1 August 2004.

CONCLUSION
42.
Ex-oﬀenders need the support of their families and the community for them to reintegrate into
society successfully. Rehabilitation programmes would help to reform and prepare the ex-oﬀender for
release. However, what is equally critical is to prepare the community to accept the reintegration ofthese ex-oﬀenders.
43.
Recognising that a prejudiced mindset and stigmatisation of criminals are impediments to thereintegration of ex-offenders, a concerted effort is required to effect a mindset change. Only withthe close partnership and commitment between the Government, community partners, companies
and individual members of the public will we succeed in giving ex-offenders a second chance. The
Singapore community as an inclusive society would oﬀer support to reformed ex-oﬀenders to become
contributing members of society. Ultimately, we would achieve a safer and more secure home for all.
44.
The YRP bears testament of the power of garnering a group of like-minded organisations in theform of CARE Network to bring about community transformation towards ex-oﬀenders and committing
in a common purpose to help our ex-oﬀenders reintegrate back into society.

243

244

A PROMISSING PERSPECTIVE FOR PRISONS IN AFRICA:
A More Community-based Correctional System

INTRODUCTION
The perspective emerged out of empirical materials collected in the Democratic Republic of Congo(N. Masamba Sita, 1989); the UNAFRI and the Uganda Prisons Service (UPS) joint project on Social
Rehabilitation and Reintegration of Prisoners in their Communities of origin or choice; and from anumber of United Nation Instruments. It explores the prospects of getting, whenever possible, local
communitiesʼ members eﬀectively involved in the Criminal Justice System (CJS) process, at the Pretrial, Trial and Post-trial levels. The ultimate aim of this perspective is to reduce overcrowding inprisons.
It goes beyond the CJS in exploring the downstream of the CJS, in view of getting the inmates
and their local communities be prepared for reunification. This facilitates their effective social
rehabilitation and reintegration. The inmate, the social worker or probation officer, members ofcommunities (relatives, neighbours, friends and others), have been identiﬁed as key stakeholders. And
to be eﬀective, the process requires a shift from the strictly punitive, retributive logic of the penal
style to compensatory/conciliatory styles of social control described by A. V. Horwitz (1990:22).
The presentation clariﬁes the concept of Local communities (Section 1), examines brieﬂy somestyles of social control (Section 2), proposes a reference framework (Section 3), and in using empiricalmaterial, it reveals the types of (human, material, socio-cultural, ﬁnancial, etc.) resources available
within local communities; or of contribution the members of the concerned local communities oﬀer or
may oﬀer for the CJS to achieve its mission: the eﬀective social rehabilitation and reintegration of
the law breakers (Section 4). Due to its exclusive focus on a retributive justice, the CJS is unable toget access to the above resources, which pave way to restorative outcomes. The same explains thefailure of alternatives measures.

SECTION 1: LOCAL COMMUNITIESThe concept Local Communities or communities in general is referred to as a micro-sociologic level concept, that helps get access to local available (human, material, socio-cultural, ﬁnancial)resources. It involves, as key social actors, relatives (of the offender and the victim), neighbours,
friends, local authorities and other members sometimes diﬃcult to categorise, but quite relevant in thehealing process of the community.

245

DIAGRAM 1: SOCIAL STRUCTURES WITHIN LOCAL COMMUNITIES

Relatives
Friends

Local
Authorities

Neighbours

Among others, the following has been observed:••••

When there is a problem, the quality and the nature of the existing relationship will determine
the way the problem will be handled.
In case of good relationship, the involved actors will often opt for a restorative outcome,through a restorative process.
Restorative process is mainly about compensation and/or reconciliation.
Local community members contribute to the process, whose outcome is not only the
successful handling of a problem out of the CJS; but also the successful social rehabilitation andreintegration of former prisoners in their communities of origin or choice for the cases thathave gone through the CJS. On release of an oﬀender, members of the community are kin tofacilitate his/her social rehabilitation and reintegration (mainly when well prepared by a social
worker or a probation oﬃcer).

The concept is in use in some International Instruments such as the Basic Principles on the use of
Restorative Justice Programmes in Criminal Matters (ECOSOC Resolution 2002/12, annex). Principle 20 of
the Resolution posits:“Member States should consider the formulation of national strategies and policies aimed at thedevelopment of restorative justice and the promotion of a culture favourable to the use of restorative
justice among law enforcement judicial and social authorities, as well as local communities”.
These Instruments recognise the important role communities have to play for effective crime
prevention. Paragraph 16 of the ECOSOC Resolution 2002/13, annex on Guidelines for the Prevention of
Crime posits:“In some of the areas listed below, Governments bear the primary responsibility. However, the active
participation of communities and other segments of civil society is an essential part of effective crime
prevention. Communities, in particular, should play an important part in identifying crime prevention
priorities, in implementation and evaluation, and in helping to identify a sustainable resource base”
Our opinion is that the important part played or to be played by local communities, is nottaken into consideration by policymakers and traditional stakeholders. Practices observed within
local communities reveal that provisions of a number of international instruments are effectively
implemented, unfortunately not reported as they do not necessary take place within the Criminal
Justice System (CJS). These practices eﬀectively contribute to the achievement of the mission of CJS:
1This modality of justice is often wrongly referred to as informal, but in the context of those who refer to it as arecognized way of resolving local conﬂicts in their communities, it is a legitimate option for dispute resolution.

246

the successful social rehabilitation and reintegration of oﬀenders.
Reference to public should be understood as communitiesʼ involvement. Rule 17.1 of Tokyo Rules
stipulates that:“Public participation should be encouraged as it is a major resource and one of the most importantfactors in improving ties between offenders undergoing non-custodial measures and the family and thecommunity. It should complement the efforts of the criminal justice administration”.
Therefore, the evaluation of such practices should be seriously envisaged and the training
curriculum of correctional officers in particular and of the CJS officials in general, should refer tosuch innovations for a more community-based Criminal Justice System, as realistic and needed penal
reform in particular in Africa whereby local communities members informally 1 contribute to the
CJS measures. This should facilitate to get the CJS aligned to the observed practices in the local
communities as stipulated in a number of international instruments.

SECTION 2: STYLES OF SOCIAL CONTROL
It has been observed that to solve a conﬂict, and depending on the quality and nature of the existing
relationship (relatives, neighbours, friends, etc.), members of a given local community often look at
a restorative outcome. This leads us to the Compensatory and Conciliatory Styles of Social Control of
Horwitz.
TABLE 1: ELEMENTS OF MAJOR STYLES OF SOCIAL CONTROL (A .V. HORWITZ: 1990:22)
STYLE
ELEMENTPENALCOMPENSATORYCONCILIATORYTHERAPEUTIC

1 HARMVALUE

MATERIAL

RELATIONALPERSONALITY

2 LIABILITYINDIVIDUAL

GROUPSHAREDNONE

3 GOALRETRIBUTION

SETTLEMENTRECONCILIATIONNORMALITY

4 SOLUTIONPUNISHMENTPAYMENTNEGOTIATIONTREATMENT

Under compensatory and conciliatory styles of social control, the liability is respectively on thegroup or shared. Settlement and/or negotiation are initiated for a restorative outcome. This leads us
to state that without an eﬀective involvement of the concerned groups (communities), access to local
available resources is compromised and consequently a restorative outcome is doomed to failure orprone to serious challenges.

SECTION 3: A FRAMEWORK OF REFERENCE
The following international instruments serve the purpose:
1. The United Nations Standard Minimum Rules for non-custodial Measures (Tokyo Rules);2. The Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters (ECOSOC
Resolution 2002/12, annex);
3. The Kadoma Declaration on Community Service and recommendations (Seminar held in San
José, 3-7 Febr4ary, 1997);
4. The Lilongwe Declaration on Accessing Legal Aid in the CJS measures in Africa (ECOSOC
Resolution 2007/24).
These instruments introduce a new perspective in the CJS, focusing principally on the effective
involvement of local communities; considered as key stakeholders, in the implementation of the
CJS measures. This approach aligns the CJS to the practices observed within local communities andfacilitates, among others, the implementation of the above instruments by Member States. Hereafter
are some illustrations.
2

See Diagram 1, p. 2.

247

1. Tokyo Rules:

Tokyo Rules call for the involvement of the community. For illustration, Rule 13.4 stipulates that:“The competent authorities may involve the community and social support system in the application of
non-custodial measures”.

Let us refer among others to Community Service Order as non-custodial and a post-trial measureof the CJS that is mainly meant to facilitate the successful social rehabilitation and reintegration of
oﬀenders.

2. Basic Principle on the Use of Restorative Justice Programmes in Criminal Matters:

The actors of the structures identified above2 often are directly affected and are parties to the
problem. Operative paragraph 1.4 of the Basic Principles deﬁnes parties as follows:“Parties” means the victim, the offenders and any other individuals or community members affectedby a crime who may be involved in a restorative process.”
The victim is not necessarily an individual. Other members: relatives, neighbours, friends, etc.
are also victims depending on the nature and quality of the relationship as already indicated above.
Each involved actor has a status and will act accordingly consistent with his/her status. There are also
facilitators. Paragraph 19 singles out a condition being met by local communities and even sometimes
observed by CJS oﬃcials (e.g. social workers, probation oﬃcers), that stipulates:“Facilitator shall possess a good understanding of local cultures and communities and, whereappropriate, receive initial training taking up facilitation duties”.
UNAFRI training course for correctional oﬃcers3, as facilitators involved in the process of social
rehabilitation and reintegration of prisoners, serves the purpose. The course helps them comply withthe requirements mentioned in the instruments, and take advantage of the available local (human,material, socio-cultural, etc.) resource in communities for an effective social rehabilitation andreintegration of prisoners in their communities.

3. The Kadoma Declaration:

The Kadoma Declaration on Community Service recognises the value of traditional practicesof healing the damage caused by crime as observed in local communities. Its Operative paragraph 3
posits:“Community service is in conformity with African traditions of dealing with offenders and withhealing the damage caused by crime within the community. Furthermore, it is a positive and cost-effective
measure to be preferred whenever possible, to a sentence of imprisonment”.

4. The Lilongwe Declaration:

This is also an instrument that recognises traditional and community-based alternatives to formal
criminal processes. Paragraph 5 stipulates:“Traditional and community-based alternatives to formal criminal processes have the potential toresolve disputes without acrimony and to restore social cohesion within the community. These mechanisms
also have the potential to reduce reliance upon the police to enforce the law, to reduce congestion in the
courts, and to reduce the reliance upon incarceration as a means of resolving conflict based upon alleged
criminal activity. All stakeholders should recognise the significance of such diversionary measures to the

3

UNAFRIʼs specialized course for correctional oﬃcers from East African sub-region took place in May 2009 at the
Secretariat. The same course is proposed to other sub-regions. Workshops were organized in Kampala (Uganda),
Nairobi (Kenya), Lusaka (Zambia) and in Juba (Sudan) in November-December 2008.

248

administration of a community-based, victim-oriented criminal justice system and should provide support
for such mechanisms provided that they conform to human rights norms”.

SECTION 4: LOCAL COMMUNITIES’ MEMBERS CONTRIBUTION
The diﬀerent instruments referred to above and the perspective they pave, are realistic as it is insupport of practices already in use within local communities and sometimes in the CJS. Policy makers
and implementers should be sensitized about such studies reveling the ﬁeld social realities for needed
and realistic reforms. Some few quotations hereafter show how, at Pre-trial (with a focus on pretrial detainees) and Post-trial levels of the CJS, and even after a CJS caretaking, some of the selected
instruments are implemented due to the eﬀective involvement of local communitiesʼ members.

1. The Pre-trial Level

Statistics at our disposal (See ICPS Report 2007) led us to consider that overcrowding in the
African prisons is the consequence of long illegal detention (long periods awaiting trial, undue delay incommencement of trial). Some statistics from the Washington and Lee University project in Liberia
on the implementation of the Lilongwe Declaration reveal the impact of an eﬀective implementationof the Declaration. It is an eﬀective implementation because it involves communitiesʼ members in theexercise.
It is reported that the Central Prison in Monrovia, Liberia, was built to take in 300 inmates andprior to the implementation of the Lilongwe Declaration, there were 2000 inmates, as a result of
the factors referred to above. About 400 participants including lawyers, magistrates, communitiesʼ
advocates, law enforcement agents, tribal and religious authorities were trained. These trainees had
also trained a countless number of other people. After a year of the implementation of the project:
August 2008 to April 2009, only 700 remained in the Central Prison. The project has been extended toother areas (S. Nkouli, 2009).

2. The Post-trial Level

Quotations hereafter reveal what the contribution of the members of a local community may be.
In order to get access to these local available resources, social workers or probation oﬃcers shouldbe trained to shift from exclusively penal style to compensatory and or conciliatory styles of Social
control. This helps them, inter alia, to identify the local available resources within local communities.
The statements here below reveal the types of contributions or assistance a neighbor, a friend and alocal authority may oﬀer for an eﬀective implementation of the CJS measure.

1. Neighbours’ contribution:

A young woman with children, sentenced to a Community Service Order in Kadoma, Zimbabwe (…),
had to serve her sentence in a hospital. When asked who was taking care of her children every time
she was at the hospital. She answered that:“I have very good neighbours. When I am here, they take care of my children. I am lucky having
them”.

2. A friend’s contribution:

The second illustration is in line with the mission of the CJS: the social rehabilitation andreintegration of prisoners . It reveals the type of support a friend was able to offer to a former
prisoner. A friend facilitated a former prisoner to get a job giving him the opportunity to practice theskills learnt in prison (N. Masamba Sita et al., 2005:27). During the social worker visit to AS (initialsof the name of the former prisoner), one of his friends reported to the social worker the following:“Truly I convinced AS to come to stay with me. He brought all his family this way. We are going tostart a project with him. I have a school down here, it is a Muslim school. As is an expert in tailoring, so I
would like him to teach the children tailoring …”.

249

3. A Local Authority’s Contribution:

This is about a Local Council 1 Oﬃcial (LC 1), the lowest administration unit in Uganda, who has
connected KM, a former prisoner, to his employer who gave him the job of driver. The social worker
reported the following:“I asked him whether he was the one who had secured a job for KM. He said that since he knew that
KM was a driver, he had a friend who was looking for one; so, it was easy to connect KM to him. Luckily
enough he started working straight away, and informed me that everything had been a success for him
and his family ever since he started working”.

IN CONCLUSION
Cases referred to above reveal that the perspective sketched in the selected instruments isrealistic. The exclusive focus on the traditional operation of the CJS, leaves unreported useful andinnovative practices, accounting for the key role local communities have to play in support to theCorrectional System in particular and to CJS mission in general.
UNAFRI calls upon Members States to internalise in their legislations the related instruments asthey pave a realistic and a needed penal reform that leads to: a more Community-based Criminal
Justice System in Africa and wherever it is appropriate. This perspective gives access to local
available (human, material, socio-cultural, etc.) and crucial resources for an eﬀective implementationof the CJS measures; and consequently facilitates restorative outcomes.
UNAFRI also calls upon it partners to reinforce their collaboration in order to oﬀer Member States
the needed technical assistance in the fields such as: action-oriented and/or evaluative research;capacity development of the CJS personnel, whose attitude generally is punitive, retributive, andreveals a conflict of caretaking logics: punitive/ retributive versus compensatory and conciliatory
caretaking logics that lead to effective implementation of alternative measures for a restorative
outcome.
This will deﬁnitely help to make this perspective fully operational. Such a perspective may help
involve local communities even in the peace-keeping processes, in preparing both those who havebeen responsible for atrocities and the members of their communities of origin or of their choice, foran eﬀective social rehabilitation and reintegration after release. The mission of the CJS, even during a
post-conﬂict situation, does not change.

250

PUBLIC CONFIDENCE IN PAROLE - AND THE PAROLE BOARD

Parole is all about risk and risk assessment. However accurate that assessment, it is inevitablethat at some stage, a Parole Board will release someone who goes on to commit a serious oﬀence. The
Parole Board has a duty to do two things - the ﬁrst and most important is to do all possible to ensurethat its decision making and the systems that underpin it are sound; the second is to do what it can toinform and engage its stakeholders about its work.
A few years ago, when I was Chief Executive of the Parole Board for England and Wales, we had
two cases in a very short period when men we had released had gone on to kill. We had already taken
many actions to up our game in terms of quality of decision-making. We had also done quite a lot to
inform and involve stakeholders. Those actions helped a little in dealing with the media storm that we
faced. But we knew that they had to be built on and I set out below the key elements of our strategy our quality agenda.

•

The four pillars of wisdom - our starting point. This was a stringent appointment process forrecruitment of new members, excellent training and mentoring arrangements, a formal (andmeaningful appraisal system for members - we were the ﬁrst organisation to appraise judgesʼ
performance) and lastly a review system where people we released re-oﬀended.

•

The Review System looked at all cases where a person we released went on to commit aviolent or sexual oﬀence. A Committee of experienced members, chaired by the Boardʼs ViceChairman, a High Court Judge, considered all such cases. The system was strengthenedby having distinguished external members on the Committee, including a Chief Constable.
Feedback on the Committeeʼs views was given individually to members and learning points
shared both by inclusion in the Boardʼs member newsletter as well as feeding into training. We
also involved an external academic psychologist to utilise outcomes to look for patterns as well
as setting up a Joint Review Process including other agencies such as the Prison Service and
the Probation Service to see if there were shared learning points to improve public safety.

•

Member accreditation. We set up a system of career progression for members so that they
moved on to more challenging work only after additional training and formal accreditation. We
also set up a Quality Unit which supervised the routine monitoring of panel decisions to test
a sample of decisions for each Board member. Again, feedback was given to individuals andfurther training or mentoring arrangements made if necessary.

•

Research. Our budget was not large but we managed to set up our lifer database which
recorded the outcomes of all lifers we released with a complex coding system. We had one
research project with Oxford University which considered the data and produced one important
report. We co-hosted a conference with Cambridge University from which a book was
published.

•

An international proﬁle. We joined the Association of Paroling Authorities International andattended and presented at conferences, learning much from other practices. We hosted many
international visits and assisted in setting up or improving parole systems in other countries.

•

Regular stakeholder events. We held events where we explained what we were doing andasked for input and feedback. We launched our annual reports in this way. We used the events251

to involve stakeholders in policy development and to consult and share information.
•

Working with victims. We attended many victim events - presenting where invited. We
appointed one of our Directors to the Victim portfolio. We ensured that victims were included
in all our stakeholder events and that they were fully involved in setting up our new website.
Victim representatives were invited to observe panel hearings and contributed to member
training (as did ex-prisoners).

•

Prisoners maintaining innocence. We took the same steps here as for victims. We hosted aseminar which investigated what could be done to improve and make fairer the systems for
those in prison maintaining their innocence.

•

VIP visits. We had a programme of invitations to policy leaders, politicians, senior members of
the judiciary and other VIPs to observe panels to ensure a better understanding and respect for
the Boardʼs work.

•

Media. We appointed a full-time Head of Communications who ensured good relations withspecialist journalists and led on media contact to ensure a single voice. We worked with the
BBC on radio programmes about the Board and three television documentaries - Lock themup or let them out which were well received. The Chairman and I spoke regularly at highprofile public events and conferences, on radio and TV and wrote articles for appropriate
journals.

•

Website. We won the best website award from the Chartered Institute of Public Relations.
On our website, we included a short ﬁlm trying to debunk the main criticisms levelled at theBoard and showing some of our members to show that they were impressive and part of thecommunity. There are also contributions from some of our stakeholders. This ﬁlm is what I
will show to delegates at the workshop.

252

TORTURE PREVENTION NETWORK: TOPICS FOR PLANNEDACTION

1. Introduction
Eﬀorts to ensure better protection for the rights to decent treatment and, accordingly, the rights
not to be a victim of torture and other cruel, inhuman or degrading treatments, through international
human rights law, are being pursued using various standards and institutions, both governmental
and civil-society-based, at the local, regional and worldwide levels. These standards and institutions
are inevitably changing in a gradual and complementary way in order to achieve this goal. And in thisconstant quest being undertaken by humanity and its institutions we cannot ignore the inadequacyof efforts to date, given the continued and spreading use of torture and other inhuman treatments
throughout the world.
Taking into account the building of the new system for prevention of torture under the UN
Convention Optional Protocol against Torture and Other Cruel, Inhuman or Degrading Treatments or
Punishments (OPCAT), through periodic visits to all places of detention, is creating tension, conﬂict
and consensus generated by new actors and new dialectics. In this process, complementarity between
the work of international organizations, both regional and worldwide, and that of local institutions andorganizations must be strengthened.
An analysis of what has been done in recent years to eradicate or reduce torture and other inhumantreatments reveals that the new paradigm made up of a large mass of international standards andbodies created within the United Nations, which have in diﬀerent ways sparked the reform of domestic
constitutions, basic codes and procedural legislation, has not been adequate. Among other problems,
the fundamental institutions of the rule of law that bear responsibility in this area for ruling the law
have been incapable of halting the use of torture. I am referring in particular to institutions in the law
enforcement, judicial (judges, prosecutors and defence counsel) and penitentiary ﬁelds.
Against this background, the long struggle waged by numerous actors to achieve OPCATʼs coming
into force calls for each of us, within the context of our various responsibilities, to think and act in themost eﬀective possible way, both individually and collectively, and to report our actions.
I intend to begin this article, therefore, by identifying the conceptual guidelines that run through
OPCAT within a dynamic approach to the national preventive mechanisms (NPMs) in particular. I shallthen analyse the mandate of the Subcommittee on Prevention of Torture (SPT) and review the issues
about the desirability of creating a specific network for the prevention of torture. Thus, I suggest
some thoughts about strategic planning in the context of the international human rights bodies.

2. The Three Themes
A new system for periodic visits to all places of detention cannot be put force practice eﬀect without
taking into account the mistakes made and obstacles faced by international human rights bodies,both worldwide and regional. In particular, the implications of the non-fulfilment of the repeatedrecommendations made by such bodies, which undermines their effectiveness, must be addressed.
There is provision for this in the core elements of the well-developed text of OPCAT, the result ofmany years of deliberation. Hence I propose that we should look at what we might call the dynamic
elements for the construction of this new system to prevent torture: such a preventive system must
be independent in order to gather and generate relevant information while operating in inter-institutional253

mode.

2.1. Independence

The two prevention institutions created by OPCAT - the SPT and the NPMs - must be structured
so as to ensure their independence, mainly through the mechanisms for appointment and removal.
They must respect basic rules of transparent and open elections while fostering stability and allocating
material and human resources so as to ensure optimal functioning for the enhanced protection of
persons deprived of their freedom against torture and other inhuman treatments.
There will be several points of tension in these structures for building a new preventive system.
Sociological analysis of law enforcement, judicial and penitentiary institutions, for example,
reveals that their culture, structure and procedures fall well short of humanist standards. There
are great diﬀerences between formal, oﬃcial functions and those that are actually carried out, withcorresponding violations of human rights through actions, omissions or willingness to turn a blind eye.
We may also point out the strong impact that the leadership of such institutions has when it is in
the hands of persons who are truly committed to human rights, as demonstrated through their lives
and work. An example is the new Supreme Court of Argentina and the direct eﬀect of its decisions interms of pulling down the barriers of impunity represented by the due obedience and clean slatelaws.
I also wish to point out that proper selection of members of the bodies within the new system for
prison visits is essential; seeking candidates suitable for the performance of their tasks. In addition
to an appropriate structure, it is necessary to include persons with multidisciplinary and crossdisciplinary knowledge. By the latter, I mean persons with knowledge of the world behind prison bars,
and not necessarily formal knowledge (for example, former prisoners and their relatives, and not justlawyers). Geographical and gender diversity would likewise help to achieve the desired ends.
To this , it must be added what the SPT stated in its ﬁrst annual report1 as part of its guidelines
for the ongoing development of national preventive mechanisms, many of which are relevant to thesubject of independence.
Subcommittee for the Prevention of Torture: guidelines for the ongoing development of national
preventive mechanisms:(i) The mandate and powers of the national preventive mechanism should be clearly andspeciﬁcally established in national legislation as a constitutional or legislative text. The broaddeﬁnition of places of deprivation of freedom, in accordance with the Optional Protocol, shallbe reﬂected in that text;(ii) The national preventive mechanism should be established by a public, inclusive and transparent
process, including civil society and other actors involved in the prevention of torture; where
an existing body is considered for designation as the national preventive mechanism, is issue
should be open for debate, involving civil society;(iii) The independence of the national preventive mechanism, both actual and perceived, should
be fostered by a transparent process of selection and appointment of members who are
independent and do not hold a position that could raise questions of conﬂict of interest;(iv) Selection of members should be based on stated criteria related to the experience and expertise
required to carry out national preventive mechanism work eﬀectively and impartially;(v) National preventive mechanism membership should be gender-balanced and have adequate
representation of ethnic, minority and indigenous groups;(vi) The State shall take the necessary measures to ensure that the expert members of the national
preventive mechanism have the required capabilities and professional knowledge. Training
1

254

First annual report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT/C/40/2), 25 April 2008.

should be provided to national preventive mechanisms;(vii) Adequate resources should be provided for the specific work of national preventive
mechanisms, in accordance with article 18, paragraph 3, of the Optional Protocol; these shouldbe ring-fenced, in terms of both budget and human resources;(viii) The work programme of national preventive mechanisms should cover all potential and actual
places of deprivation of freedom;(ix) The scheduling of national preventive mechanism visits should ensure eﬀective monitoring ofsuch places with regard to safeguards against ill-treatment;(x) Working methods of national preventive mechanisms should be developed and reviewed with aview to eﬀective identiﬁcation of good practice and gaps in protection;(xi) States should encourage national preventive mechanisms to report on visits with feedback
on good practice and gaps in protection to the institutions concerned, and address
recommendations to the responsible authorities on improvements in practice, policy and law;(xii) National preventive mechanisms and the authorities should establish an ongoing dialogue basedon the recommendations for changes arising from the visits and the actions taken to respond tosuch recommendations, in accordance with article 22 of the Optional Protocol;(xiii) The annual report of national preventive mechanisms shall be published in accordance witharticle 23 of the Optional Protocol;(xiv) The development of national preventive mechanisms should be considered an ongoingobligation, with reinforcement of formal aspects and working methods increasinghly reﬁned
and improved.
(xv) 2.2. Information
Independence with such built-in features, stemming from and focused on human rights, will help
to create substantial databases related to the prevention of torture and other inhuman treatments.
A body that is independent in terms of culture, know-how and experience will set up bases with theessential major indicators. Good information leads to a diagnosis that is indispensable for planning andsupporting eﬀective action in this area.
We could say, Show me your appointment book and Iʼll see how independent you are . The
attitudes that encourage transparency and indicate timely and appropriate decision-making on the partof each of the responsible bodies will help to give visibility to progress and regression and show where
responsibility lies. The opposite attitudes will foster opacity and concealment of all or part of thephenomena of the use of torture.
It should be added that bodies which are so designed and are devoted to shedding light on humanrights violations, have a tendency to be subjected to harassment, obstruction and disruption. These
human rights violations are prove to be cancealed or denied in various ways. Hence the need for
effective independence that prevents the bodyʼs structure and operations from being affected byremovals, budgetary cut-backs, dismissals from duty and similar manoeuvres. The idea has thus
evolved from the original one of strictly conﬁdential visits to one involving the mandatory publicationand circulation of the annual reports of the NPMs and aims at the same for the SPT, while preserving
the restricted nature of certain information in order to protect those concerned.
The abundant and important information available in several local, regional and worldwide databases
needs to be compiled and systematized to facilitate its appropriate use in formulating recommendations
to prevent torture and other inhuman treatments and also for follow-up activities. For all thesereasons, it is advisable to have structures and know-how, both in the SPT and in the NPMs, to carryout this collection, production and systematization of suitable information and its strategic use.

2.3. An inter-institutional approach

Experience shows that weaknesses continue to exist in the current arrangements for visits toplaces of detention, due to several reasons. Among the main factors it should be pointed out:(a) Shortage of human and material resources;255

(b) Lack of clarity in objectives and appropriate training;(c) Duplication and gaps of various types.
In order to overcome these limitations, what is needed is appropriate coordination carried out
rigorously enough. We can learn important lessons about coordination from other areas (for example,
security) so as to avoid making the same mistakes. To start with, it is not clear who should be involved
and what the shared objectives are. In addition, there is much lack of continuity among coordination
bodies, which are often used as instruments for whitewashing or falsely demonstrating that everythingis all right.
We can see that multisectoral eﬀorts range from a methodology in which everyone operates in an
isolated way to inter-institutional integration in which everyone brings in something new - in otherwords, new practices are created. Between these two extremes, however, we see hybrid situations
that are not clear cut. This is because of the lack of appropriate institutional machinery and operating
regulations in which all the sectors preserve their identity while integrating clearly their mandates andavoiding the above-mentioned duplications and gaps.
Coordination is necessary in order to strengthen capacities through cooperation . Confusion of roles
results in duplication, which is strategically and tactically inadmissible where there is a widespreadshortage of resources, while simultaneously undermining proper accountability. By way of a rule, let
us say that we need to seek an appropriate interdependence.
Here follows few more recommendatios:
2.3.1. Formalized coordination relations
While a degree of informality facilitates the free flow of information, it can also jeopardize
confidentiality on certain subjects. At the same time, an informal approach may be adopted on thepretext of getting things done , thereby bypassing controls and hence reducing transparency. Thisapproach ultimately leads to self-deception, sometimes for the purpose of hanging on to power;
it creates false expectations and erodes trust, and thus, it is a bad approach for fostering andstrengthening inter-institutional relations.
Carrying out the activities mandated by OPCAT at various levels, in various spheres and among
various participants needs the establishment of relations of trust, which must be sustained throughconstant, conscientious and continuous eﬀort. This I believe this is essential as it defuses tensions,avoids confusion in roles and breaks down stereotypes caused by a lack of real understanding of otherinstitutions or their staﬀ.
Regard this, anticipating somewhat the next point, we must promote and create, among otherthings, training opportunities for those who will be responsible for coordinating networks for carryingout periodic visits to places of detention with a view to overcoming misunderstandings and mistrust.
The SPT has taken part in multisectoral meetings to build bridges among participants, for example
during missions concerning the NPMs in Peru, Bolivia, Paraguay and Brazil, with the invaluable
support of the Association for the Prevention of Torture.
2.3.2. Accountability
Proper inter-institutional work will facilitate accountability since now it is not clear who is
responsible for what and to whom. Accountability directly aﬀects the legitimacy of bodies which are
guided by this regulation. In the case of the NPMs, this can be ensured, among other means, throughan appropriate mechanism for appointing their members as well as the eﬃcient administration of theirresources.

2562.3.3. Procedures and models
In the search for efficiency and effectiveness, we sometimes concentrate exclusivity on the best
institutional model, disregarding the external or contextual aspects that aﬀect relations of cooperation(for example, brainstorming and discussions) and trust.
If we concentrate exclusively on the best model for NPMs (the same applies to the SPT, mutatis
mutandis) in terms of eﬃciency and eﬀectiveness in carrying out their respective tasks and functions,
we run the risk of ignoring the transparency necessary for the development of relations of trust
between the State and civil society. We must not disregard aspects that may be unquantifiable yet
are key to the creation of common ground between the State and civil society, promoting relations ofcooperation, reciprocity and interdependence rather than competition and isolation.
We must even add that the search for eﬀective theoretical models must not lead to paper NPMs ,a common phenomenon in judicial, law enforcement and imprisonment institutions, where in practice,
the actual or possible functions diverge from the formal or oﬃcial ones. This will mean greater politicalcosts and a new loss of conﬁdence due to the generation of false expectations.

3. The Subcommittee on Prevention of Torture (SPT)The task of preventing torture and other cruel, inhuman or degrading treatments or punishments
by enhancing protection of persons deprived of their freedom in concert with State parties necessitates
the building of a new system for periodic visits to be carried out by international, regional and national
bodies. The role of the SPT,2 at this groundbreaking stage, with all the strengths, weaknesses,
opportunities and risks that it represents, is to carry out its functions in a balanced way regarding thethree conceptual cores of its mandate as laid down in article 11 of OPCAT, which states:
The Subcommittee on Prevention shall:(a) Visit the places referred to in article 4 and make recommendations to State parties concerning
the protection of persons deprived of their freedom against torture and other cruel, inhuman ordegrading treatments or punishments;(b) In regard to the national preventive mechanisms:(i)
Advise and assist State parties, when necessary, in the creation of their producers;(ii)
Maintain direct, and if necessary confidential, contact with the national preventive
mechanisms and offer them training and technical assistance in order to a view tostrengthen their capacities;(iii) Advise and assist them in the evaluation of the needs and the means necessary tostrengthen the protection of persons deprived of their freedom against torture andother cruel, inhuman or degrading treatments or punishments;(iv) Make recommendations and observations to the States parties with a view tostrengthening the capacity and the mandate of the national preventive mechanisms
for the prevention of torture and other cruel, inhuman or degrading treatments or
punishments;(c) Cooperate, for the prevention of torture in general, with the corresponding United Nations
bodies and mechanisms as well as with the international, regional and national institutions
or organizations working towards the strengthening of the protection of all persons against
torture and other cruel, inhuman or degrading treatment or punishment.3

2

3

Current membership: Vicechairman Mr. Mario Luís Coriolano (Argentina), Mr. Emilio Ginés Santidrian (Spain),
Ms. Marija Definis Gojanovic (Croatia), Mr. Zdenek Hajek (Czech Republic), Mr. Zbigniew Lasocik (Poland),Vicechairman Mr. Hans Draminsky Petersen (Denmark), Mr. Malcolm Evans (United Kingdom), President Mr.
Víctor Manuel Rodríguez Rescia (Costa Rica), Mr. Miguel Sarre Iguiniz (Mexico), Mr. Wilder Tayler Souto(Uruguay).
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, art. 11 (emphasis added by the author).

257

Taking into account the guidelines, we can observe that, unlike other international organizations
that carry out their work through the examination of reports from States and also, in somecases, through the handling of individual cases and possible visits, the Subcommittee will makerecommendations and observations to State parties concerning public policies for the prevention of
torture and other inhuman treatments. We must fulfil this function in a complementary way, andour activities must be guided by proper planning of the new system of periodic visits including andnecessarily getting feedback from a network of NPMs and other international, regional and localorganizations ﬁghting torture.
This torture prevention network must be supported and sustained by the broad and intensive
eﬀorts of civil-society organizations and some State sectors which have traditionally done such work in
isolation, even at very hard times. It does not mean cleaning the slate and starting again or continuing
this way. The aim is to strengthen the current work being carried out by many persons and institutions
to ﬁght torture.
The mandate to carry out visits while interacting not only with States parties and the NPMs
but also with various institutions, organizations and individuals chosen by the SPT because of theirrelevant information, as well as the freedom to choose places that are to be visited, oﬀer a desirable
new starting point. The aim is to launch a new system of independent periodic visits involving an interinstitutional approach and the provision of important information in order to make recommendations
and observations designed to strengthen the protection of persons deprived of freedom against tortureand other inhuman treatment.
The greater the visibility and awareness of the problems that can be generated by the various
participants, the better the opportunities for achieving changes will be for preventing violations.
The core of the mandate of the SPT, like that of the other international, regional and local actors(both from civil society and from the State), contains the necessary foundations to enable new eﬀorts
without undermining existing ones. This should help to strengthen the rule of law which calls for new
institutions oriented and created from and for human rights, synonymo of rule of law.

4. Torture Prevention Network
The social movements that arose in connection with the struggles waged by groups associated withfeminism, environmentalism, trade unionism and anti-discrimination, among others, provide examples,with distinctive regional features, of how to bring together very diverse sectors. At the same time,
there has been a new approach to the relations between the new social movements and the State:
on one hand, civil society has been invited to become involved in the drafting and implementationof government policies, and on the other, the State has gained certain influence in the way theappointment work of civil society are organized.
In general, we can say that the will of State parties, expressed through their ratiﬁcation of OPCAT,
and the strengthening of the human rights movement will be a formula enabling us to work together tobuild a new system of periodic visits to eﬀectively prevent torture. OPCAT4 clearly refers to the needfor relations of cooperation in such ﬁelds as advice and assistance by the SPT to State parties in theestablishment of NPMs in order, where necessary, to make recommendations and observations with aview to strengthening the capacity and the mandate of the NPMs.
At the same time, work must be done to improve the conceptualization of specific prevention
efforts in relation to torture and other inhuman treatments; it should be done in an authentic way.
Extrapolation from other ﬁelds, reductionism, or falling into the trap of false antagonisms within thisﬁeld, especially with regard to civil security, should be avoided.
The levels of analysis of torture and other inhuman treatments throughout the historical-political,
4258

I am referring speciﬁcally to art. 2, para. 4, art. 11 (b) (i) and art. 11 (b) (iv) of OPCAT.

social-institutional and psychologico-social aspects lead us to revise the much repeated indications andrecommendations focused on reformist type aspects that emphasize improvements of a structural andfunctional type (for instance in building matters, doctors and lawyers assistance, etc.) but neglect theunderlying cultural or ideological aspects or those which give rise to structures and routines. Hence,
we must move towards strategies for integral transformation involving both aspects - structural andideological-cultural - while encouraging public debates on the subject.
Facing the challenge of articulating this new prevention network, we must avoid both the false
optimism of believing that consensus will not be troublesome, and the sterile pessimism of emphasizingthat the State, represented by any of its components, will always look for ways of continuing to apply
torture. Both positions are subjective and prejudiced and, in my view, improperly juxtaposing conﬂict
and consensus.
Instead, we must highlight, support and promote the semble processes of building torture
prevention networks that have been generated by OPCAT in various areas. We can also identify andreject situations that involve more exclusion and opacity than inclusiveness and transparency, essential
features for the new institutional framework that OPCAT is calling on us to build.
The development of NPMs of mixed origin made up of State and civil society, generates therelational dynamics already mentioned with respect to social movements. Having greater civil
responsibility in handling public aﬀairs involves certain risks concerning discipline and control which
are leading civil society to wonder whether or not they should become involved in NPMs. Here,the SPT should encourage channels for dialogue and cooperation with the features we have been
describing and with long-term beneﬁts since they promote relations of trust and reciprocity without
ignoring areas of tension.
We will strengthen all the sectors involved in the prevention of torture through a cooperation
network that is well designed, straightforward and open, with speciﬁc contributions to be made without
loss of identity. The methodology for building inter-institutional relations is a key issue. There is no
single formula for creating an ideal NPM, and this will have to be determined for each speciﬁc context- applying the slogan of the new social movements in the environmental ﬁeld, thinking globally andacting locally - . However, care should be taken to avoid rhetorics that leads to complexities in theimplementation. Solitary or isolated eﬀorts, which may be attractive in the short term because of theirlower costs, mean the weakening of the struggle for preventing torture.
It seems to me that we should engage in the construction keeping in mind achievements andfailures, progress and draw backs. This includes dismantling authoritarian and violent institutions,or their authoritarian past behaviours, creating new practices compatible with the culture of humanrights.

5. Inter-Institutional Strategic Planning
Lastly, by way of a proposal, I should like to raise a number of ideas on how to achieve the greatest
possible impact in the articulation and operativeness of the network composed of various United
Nations regional international protection bodies together with local institutions - State and civil-society
bodies - in the light of the diﬀerent mandates of the bodies involved in ﬁghting torture.
In addition to the network of NPMs and a multiplicity of local actors, we have a situation where the
SPT must closely cooperate - in the areas of planning, action and follow-up - with the United Nations
treaty bodies (Committee against Torture, Human Rights Committee, CEDAW Committee, Committee
on the Rights of the Child, etc.) and with the various special procedures (Special Rapporteur on
torture, Working Group on Arbitrary Detention, Special Rapporteur on summary executions, etc.),
as expressly laid down in article 11 (c) of OPCAT. It is also necessary to cooperate with otherinternational bodies (such as the International Committee of the Red Cross) and regional bodies (InterAmerican Commission on Human Rights, European Committee for the Prevention of Torture, African259

Commission on Human and Peoplesʼ Rights, etc.). Similarly, close ties must be sought with institutions
and agencies working in important thematic areas, such as health, and protection of vulnerable
population groups - for example, against slavery or traﬃcking in women, to cite one example amongmany.
The diagnosis of the situation regarding torture, and action to combat it, which would underpin
rational planning of this prevention network, could be formed as follows. Firstly, by categorizing
the Member States of the United Nations in terms of whether they have ratiﬁed or signed OPCAT.
Secondly, we take account of the range of activities by the various United Nations bodies and special
procedures (country reports; complaints in individual cases; ﬁeld visits and advocacy), supplemented
by the activities of the regional human rights agencies. Thirdly, we classify the situations in eachregion, and country by country, on the basis of the extent of the use of torture and other inhumantreatments. Fourthly, by taking into account the existence and eﬀectiveness of local institutions in thearea, especially NPMs. The SPT will thus be able to design and carry out a set of diﬀerent activities inaccordance with an annual or periodic plan.
Such planning would call for basic measures of institutional engineering, such as the constructionof a forum for coordination among secretariats (or if possible through the construction of a single
secretariat) which, together with an inter-committee working group and special procedures, would
collect and systematize all the information relatied to the four points mentioned above. In this way,
it would be possible to create a dynamics of joint work in the evaluation, design and implementationof such action plans, which would be periodically assessed and redesigned. And in that way to makestrategic use of the vast and valuable information which already exists, but is dispersed.
On this basis, the SPT will be able to better perform its tasks in a rational, strategic and planned
manner. In particular, it will decide on the implementation of:(a) Missions to State parties to visit places of detention and make or follow up recommendations of greater or lesser duration and greater or lesser urgency;(b) Missions to States parties to provide advice and support for the establishment or upgrading ofan NPM;(c) Advocacy to foster the signing or ratification of OPCAT. It will be also possible to forpromotion of the activation choose of other United Nations and regional procedures (forexample, complaints in individual cases) and to report on the need to call for support from thevarious assistance or cooperation funds for the implementation of recommendations to prevent
torture and improve conditions in detention.
In this way, the SPT will be able to achieve greater impact in the prevention of torture and otherinhuman treatments, gaining through its achievements the place it deserves as a global reference inthe ﬁeld of prevention of torture.

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CONCLUSIONS AND RECOMMENDATIONS
Conclusions and Recommendations of the Workshop on
Strategies and Best Practices against Overcrowding
in Correctional Facilities
The Workshop reached the following conclusions and recommendations:1.

Overcrowding in correctional facilities is one of the most serious impediments to compliance by
Member States with relevant United Nations instruments and standards and norms and violates
the human rights of inmates;
2. Crime is a social problem to which criminal justice systems can provide only part of the solution.
Taking action against poverty and social marginalization is key to preventing crime and violence
and, in turn, reducing prison overcrowding;
3. Member States should deﬁne prison overcrowding as an unacceptable violation of human rights
and consider establishing a legal limit to their prison capacity;
4. Member States should consider reviewing, evaluating and updating their policies, laws andpractices to ensure the development of a comprehensive criminal justice strategy to address the
problem of prison overcrowding, which should include reducing the use of imprisonment andincreasing the use of alternatives to prison, including restorative justice programmes;
5. Policies and strategies to address prison overcrowding should be evidence-based;
6. Member States should implement reforms and strategies to reduce overcrowding in a manner thatis gender-sensitive and that eﬀectively responds to the needs of the most vulnerable groups;
7. Member States are encouraged to review the adequacy of legal aid and other measures, including
the use of trained paralegals, with a view to strengthening access to justice and public defence
mechanisms to review of the necessity of pre-trial detention;
8. Member States are invited to conduct a system-wide review to identify inefficiencies in thecriminal justice process that contribute to prolonged periods of custody during the pre-trial andtrial processes, and to develop strategies to improve the eﬃciency of the criminal justice process,which includes measures to reduce case backlogs, and to consider introducing time limits on
detention;
9. Member States should be encouraged to introduce measures providing for the early release ofprisoners from correctional institutions, such as referral to halfway houses, electronic monitoring
and reduction of sentences for good behaviour. Member States should consider reviewing theirrevocation procedures to prevent unnecessary return to prison;
10. Member States are invited to develop parole and probation systems;
11. Member States should ensure effective implementation of alternatives to imprisonment by
providing necessary infrastructure and resources;
12. Member States should promote the participation of civil society organizations and local
communities in implementing alternatives to prison;
13. Member States should raise awareness and encourage comprehensive consultative processes,
involving the participation of all relevant sectors of government, civil society, in particular
victimsʼ associations, and other stakeholders in the development and implementation of national
strategies, including action plans, to address overcrowding;
14. Member States should ensure that evidence-based information on crime and criminal justice iscommunicated to legislators, politicians, decision makers, criminal justice practitioners, the public
and the media. For this purpose, Member States should be encouraged to continue research on
factors contributing to prison overcrowding;
15. Relevant offices and bodies of the United Nations working on different issues relevant to the
problem of prison overcrowding should strive to better co-ordinate their activities and initiatives
in order to more eﬀectively assist countries in reducing prison overcrowding; and261

16. UNODC should continue to provide assistance and support to countries, upon their request, toaddress prison overcrowding.

262

CLOSING REMERKS

Thank you Ms. Chairperson. Distinguished delegates, and ladies and gentlemen,First of all, I would like to express my sincere thanks to the chairperson for her guidance andchairmanship. And as the co-ordinator of this workshop, I would like to express my sincere gratitude
and appreciation to the moderators, presenters and panellists for their great contribution to thisworkshop. I also thank the delegates for their participation.
I believe that this workshop served as a great opportunity to share the wisdom of many criminal
justice specialists concerned about the problems of prison overcrowding. The strategies and bestpractices presented and exchanged here will contribute immensely to Member States' efforts toredress the harm caused thereby. Thus, I am glad that our workshop has become an importantmilestone on the road to the resolution of this signiﬁcant problem.
For countries aﬄicted with prison overcrowding, UNAFEI, the United Nations Asia and Far East
Institute for the Prevention of Crime and the Treatment of Offenders, plans to further disseminate
the outcomes of this workshop. So that the insights and knowledge derived here today will have along-lasting, practical impact, UNAFEI will incorporate them into its future training programmes andinclude them in its publications. As such, I genuinely hope that UNAFEI, as a co-ordinator, will beable to further contribute to advancing the achievements of the workshop.
In closing, once again, let me express my sincere gratitude to you all for your fruitful discussions
and inputs.
Thank you very much.

263

264

ANNEX

List of Participants (Moderators, Speakers and Panellists)***

List of Experts in the Preparatory Meetings***

Photographs

265

266

List of Participant (Moderators, Speakers and Panellists)
BrazilDr. Ela Wiecko Volkmer de Castilho

FinlandDr. Tapio Lappi-Seppälä
Germany
Prof. Dr. Dr. h.c. Hans-Jörg Albrecht
Japan

Mr. Toshihiro Kawaide

MalawiMr. Cliﬀord Wayamuka Msiska
New Zealand
Sir Judge David J. Carruthers
Singapore
Mr. Soh Wai Wah
ThailandDr. Kittipong Kittayarak
UgandaMs. Elinor Wanyama Chemonges
United Kingdom
Mr. Rob Allen

Ms. Christine Glenn

Member of the Federal Public Prosecution
Service, andNational Council on Criminal and Penitentiary
PolicyDirector
National Research Institute of Legal Policy
Managing Director
The Max Planck Institute for Foreign andInternational Criminal Law
Professor
Graduate Schools of Law and Politics,
The University of Tokyo
National Director
The Paralegal Advisory Service Institute
Chairman
New Zealand Parole Board
Director of PrisonsSingapore Prison Service
Permanent Secretary for Justice
Ministry of JusticeNational Coordinator
The Paralegal Advisory Services
Foundation for Human Rights Initiative
Director
International Centre for Prison Studies
Kingʼs College, University of London
Parole Commissioner of Northern Ireland, andImmigration Judge

The Subcommittee on Prevention of Torture (SPT)Dr. Mario Luis Coriolano
Vice President
The Subcommittee on Prevention of Tortureand other Cruel, Inhuman or Degrading
Treatment or Punishment (SPT)ILANUD
Mr. Elias Carranza
Director
United Nations Latin American Institute for
the Prevention of Crime and the Treatment ofOﬀenders (ILANUD)
Ms. Maria Noel Rodriguez

Director
The Programme on Woman and Jail,

267

UNAFRI
Dr. Masamba Sita

ICCLR&CJP
Prof. Yvon Dandurand

268

United Nations Latin American Institute for
the Prevention of Crime and the Treatment ofOﬀenders (ILANUD)
Director
United Nations African Institute for thePrevention of Crime and the Treatment ofOﬀenders (UNAFRI)
Senior AssociateInternational Centre for Criminal Law Reformand Criminal Justice Policy (ICCLR&CJP)

List of Experts in the Preparatory Meetings(Expertsʼ positions and organizations are as at the time of the preparatory meetings)
BrazilDr. Marcia Alencar Araujo Matos
FinlandDr. Tapio Lappi-Seppälä
Germany
Prof. Dr. Dr. h.c. Hans-Jörg Albrecht
Japan

Mr. Toshihiro Kawaide

New Zealand
Sir Judge David J. Carruthers
Singapore
Mr. Peter Ng Joo Hee
ThailandDr. Kittipong Kittayarak
Mr. Wisit Wisitsora-At
United Kingdom
Mr. Rob Allen

Ms. Christine GlennILANUD
Mr. Elias Carranza

UNAFRI
Dr. Masamba Sita

ICCLR&CJP
Ms. Eileen Skinnider
ISPAC
Mr. Gary Hill

General Coordinator of the Alternative Prison
Program
Ministry of JusticeDirector
National Research Institute of Legal Policy
Managing Director
The Max Planck Institute for Foreign andInternational Criminal Law
Professor
Graduate Schools of Law and Politics,
The University of Tokyo
Chairman
New Zealand Parole Board
Director of PrisonsSingapore Prison Service
Permanent Secretary for Justice
Ministry of JusticeDeputy Permanent Secretary for Justice
Ministry of JusticeDirector
International Centre for Prison Studies
Kingʼs College, University of London
Parole Commissioner of Northern Ireland, andImmigration Judge
Director
United Nations Latin American Institute for
the Prevention of Crime and the Treatment ofOﬀenders (ILANUD)
Director
United Nations African Institute for thePrevention of Crime and the Treatment ofOﬀenders (UNAFRI)
Associate
International Centre for Criminal Law Reformand Criminal Justice Policy (ICCLR&CJP)
Scientiﬁc Coordinator

269

UNODC
Ms. Claudia Baroni

Ministry of Justice, Japan
Mr. Takashi Kubo

Crime Prevention and Criminal Justice Oﬃcer
Organized Crime and Criminal Justice Section
Division for Treaty Aﬀairs
United Nations Oﬃce on Drugs and Crime
Director of the Amnesty Oﬃce,
General Aﬀairs Division
Rehabilitation Bureau

Mr. Satoru Ohashi

Director of the First Division,
Takamatsu Regional Correction Headquarters

Mr. Masato Uchida

Assistant Director,
International Aﬀairs Section
Prison Service Division
Correction Bureau

UNAFEI
Mr. Keiichi Aizawa
Mr. Masaki Sasaki
Mr. Takeshi Seto
Mr. Jun Oshino
Ms. Fumiko Akahane
Ms. Ayako Sakonji
Mr. Ryuji Tatsuya
Mr. Junichi Watanabe
Ms. Grace Lord

270

International Scientific and Professional
Advisory Council of the United Nations Crime
Prevention and Criminal Justice Programme(ISPAC)

Director (July 2006 - July 2009)
Director (July 2009 - present)
Deputy Director
Professor
Professor
Professor
Professor (April 2007 - March 2009, Programming
Oﬃcer of the Workshop)
Professor (April 2009 - present, Programming
Oﬃcer of the Workshop)
Linguistic Adviser

PHOTOGRAPHS

Preparatory Meeting at UNAFEIThe Congress Workshop

271

Participants of the Congress Workshop

Remarks by General Moderator, Prof. Albrecht

272