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Getting the balance right with COVID-19 and prisons



Many of us working in the criminal justice sector had been dreading but were not surprised by, the arrival of positive cases of COVID-19 in prisons in mid-July. COVID-19 was already a reason we were using for people to be released on bail and for having sentences reflect the harsher prison environment that the pandemic had brought.

Woman wearing handcuffs (Nichcha Sombutpanich/Getty Images)

The rising level of fear and anxiety of prisoners and their families was, and is, completely understandable. With COVID-19 having reached the prison population, the risks for prisoners are real. It is plain to see that prisons are vulnerable environments. Hundreds of people detained in close confined quarters and concerns around hygiene standards and access to masks are but some of the issues that make them fertile ground for the virus to grow in. Access to essential health care is vital.

Exacerbating our concern is that many prisoners are already in poor health and susceptible to illness when they come into contact with the justice system. A high proportion of people detained have various underlying physical and mental health issues, and their needs are often complex. Many prisons are not places just filled with violent hardened criminals that one might imagine are best locked away. Many prisoners are either victims themselves, have been diagnosed with significant physical, psychiatric, and mental conditions, are children, are Aboriginal and Torres Strait Islander people, are from refugee backgrounds, are homeless, or are stuck in a cycle of poverty, unemployment, and disadvantage. Therein frequently lies a collection of traumatic, unfair, and abusive stories.

Aside from the higher risk of contracting the virus in the prison system, the COVID-19 era has also brought significantly harsher conditions for those currently on ‘remand’ or serving sentences in Victorian prisons. Being on remand in custody is the period spent awaiting the determination of one’s matter where bail in the community has not been granted. Remand prisoners may be awaiting a bail application or it may have been refused and the next step is trial. It’s important to note that these people have not been found guilty as yet and the presumption of innocence is still very much in play. 

As a protective measure, all prisoners, including children, are being tested and quarantined in isolation for 14 days as soon as entering the prison population. And while it is a necessary health step, that doesn’t make the actual reality of being effectively in solitary confinement for days on end any easier. Thereafter, and particularly if prisons are in ‘lockdown’, prisoners may remain separated and have severely limited ‘yard time’ for fresh air and exercise. Personal or social visits have been suspended across both adult and children’s prisons, and access to rehabilitative programs has been affected. Such conditions are particularly onerous on children who cannot see any family and have limited access to education and treatment services. It’s now more important than ever to keep children out of custody whenever possible.

Compounding their isolation and uncertainty, prisoners’ access to their lawyers has also had new challenges. Given the huge increase in phone calls and online communications, contact and communication between clients and their lawyers can take time (and even a phone call can be cancelled at short notice if a prison goes into lockdown) and there can be delays in seeking instructions for bail applications and the hearing of matters. And when there is contact, discussions often occur in extra/unusually pressured environments. In most circumstances, face-to-face instructions are no longer being sought, and phone calls are not always effective with people under such significant stress or with underlying complex needs.


'During this pandemic, the transformative role of prisons is questionable or even diminished and is risking people being released back into society in a worse state than when they entered.'


While acknowledging that restrictive steps must be taken for health measures and to prevent the spread of COVID-19, it must be said that this new level of instability and fear complicates an already vulnerable environment. Among defence lawyers, there is an ongoing urgency to ensure every effort is made to keep the numbers of infections inside as low as possible. Some lawyers and advocates are calling for the release of children, of those over 65, of non-violent offenders, and those coming to the end of their sentences in order to reduce prison numbers. Such practices have been implemented in international jurisdictions, such as the USA, in a bid to bring the numbers down and reduce the potential for the virus to spread.

Prisons are inevitably lonely places at the best of times. Part of their purpose is to punish and deter, but they can also perform an important rehabilitative role, treating and supporting prisoners for a myriad of often complex social, mental, and addiction issues. During this pandemic, the transformative role of prisons is questionable or even diminished and is risking people being released back into society in a worse state than when they entered.

Most in the justice system are desperate to put the brakes on the cycles of crime that see people going in and out of the revolving prison door. But those needing support in the community or on being released will find that COVID-19 has had a huge impact on community services’ ability to provide counsel for issues such as abuse, trauma, grief, mental health, addiction, and anger management. Every one of us can understand that phone counselling or video appointments have limitations and restrictions, and may not have the same rehabilitative or therapeutic impact as face to face sessions. Coupled with rising unemployment levels and ensuing poverty, the pandemic is causing enormous strain on people and their ability to cope, and the consequences for society’s mental health, addiction, and family violence will inevitably lead to greater offending.

Imprisoning a person is not a decision the government or judiciary makes lightly. Particularly during the COVID-19 pandemic, there is a critical need to get the balance right. The dignity of each and every individual, especially of our most marginalised, whose voices have long been muffled, deserves the right that they are seen through the lens of this critical health crisis. Now more than ever our prisons must be seen as a last resort.



Clare JohnstoneClare Johnstone (Stone) is a lawyer with a passion for justice, both local and global. Her career has taken her to the United Nations office of Amnesty International in New York, to the Victorian Attorney General’s office as a legal adviser, and, for the past 15 years, to working as a criminal defence lawyer with the marginalised in Melbourne. Clare advocates passionately for the disadvantaged in our society believing in the right of every individual to live with dignity, and with opportunity. She has also been a long-term Board Member for Wombat Housing Support Services, assisting Melbourne’s most vulnerable to find and retain accommodation. Clare is a representative of the Mother's Association at Xavier College and is proud to be supporting Xavier Social Justice Network's 2020 'Dare To Be Different' Forum. 

Main image: Woman wearing handcuffs (Nichcha Sombutpanich/Getty Images)

Topic tags: Clare Johnstone, justice, COVID-19, prisons, health



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Existing comments

Thank you for the overview of the many ways that the COVID-19 reality impacts adversely on those in prison and those associated with them. There is more that can be said – extended delays in the hearing of cases, restrictions on chaplaincy access, the fear associated with powerlessness to mitigate risk, etc. As with so many vulnerable and marginalised groups, people in prison are exposed to much greater risk and consequences than the population as a whole, and this in part because of pre-existing disadvantage. As you conclude: ‘Now more than ever our prisons must be seen as a last resort.’

Denis Fitzgerald | 15 September 2020  

A valuable analysis, thanks, Clare. However, given the rate at which our prison population has grown in Victoria in recent decades, I think you may be too generous in stating: "Imprisoning a person is not a decision the government or judiciary makes lightly."

Peter Johnstone | 18 September 2020  

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