United Nations System Common Position on Incarceration

April 2021

“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

Nelson Rolihlahla Mandela

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ABSTRACT

Judicial and prison systems around the globe continue to face fundamental challenges that undermine the ultimate purpose of incarceration as a sentence, namely, to protect society from crime and to prevent recidivism by supporting rehabilitation and preparing prisoners for their social reintegration upon release.

Overincarceration, overcrowding, poor conditions and the serious neglect of prison services are causing prisons to be a weak link in criminal justice systems and a low priority in reform efforts. The consequences for public safety, health and human rights, as well as the financial and socioeconomic costs resulting from these deficiencies, are immense. In some countries, including those in conflict, post-conflict and other crisis situations, severe prison deficiencies have had a negative impact on peace, security and stability. The disproportionate impact of the coronavirus disease (COVID-19) in prison settings has demonstrated what can happen when already overburdened and ill-equipped prisons are confronted with crises. Addressing the challenges associated with incarceration, including its overuse, should be a key part of the effort to “build back better”.

Many problems manifested in prison settings are the result of socioeconomic disparities and systemic deficiencies in criminal justice systems. Societal, racial and other forms of discrimination may be equally reflected in criminal justice policies and practices. Effective and sustainable reform efforts therefore require a holistic reform approach aimed at addressing the root causes of overincarceration and overcrowding, and shifting policies towards prevention and alternatives to imprisonment.

The United Nations commitment to “leave no one behind” recognizes prisoners as a particularly vulnerable and marginalized group that is subject to discrimination and exclusion. Sufficiently resourced and well-managed prison services and State policies that advance non- custodial measures are important enablers of the 2030 Agenda for Sustainable Development.

The United Nations system common position on incarceration provides a common framework for United Nations support to Member States, with the objectives of reducing the overreliance on incarceration and reducing the prison population, strengthening prison management and improving prison conditions and advancing the rehabilitation and social reintegration of offenders.

It is closely informed by research findings and is firmly grounded in both international human rights law and the United Nations standards and norms in crime prevention and criminal justice. As such, it constitutes a guide for consistent United Nations advocacy and assistance aimed at supporting reform efforts in Member States relating to incarceration.

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CONTENTS

Abstract ...... i

Purpose and scope ...... 2

Definitions ...... 2

Global prison challenges ...... 3

Overuse of pretrial detention and imprisonment . . . . . 3

Reinforced discrimination and inequalities ...... 4

Prison overcrowding ...... 5

Neglect and abuse ...... 6

Key observations ...... 7

Common approach ...... 8

Shifting policies towards prevention and alternatives . . . . . 9

Strengthening prison management and improving prison conditions . . . 11

Advancing the rehabilitation and social reintegration of offenders . . . . 14

Directions for action ...... 16

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PURPOSE AND SCOPE

The present paper sets forth the United This paper focuses on the deprivation of Nations system common position on liberty in places of detention within criminal incarceration. 1 It addresses prison and justice systems. It therefore excludes other associated challenges at the global, regional forms of deprivation of liberty, such as and national levels and constitutes the immigration-related detention of an common framework for United Nations administrative nature. 3 The specific support to Member States in relation to situation of children deprived of liberty is not incarceration. addressed in detail, as it is governed by an additional set of legal considerations and The paper reflects a “One UN” approach obligations.4 aimed at supporting efforts to rethink the current overreliance on and implementation DEFINITIONS of incarceration, including through better coordination and integrated efforts. > Incarceration. The state of being deprived

of liberty in prisons, including pretrial The United Nations system common detention facilities. position on incarceration is based on the understanding that no one should be > Prisons. All authorized places of 2 subjected to arbitrary arrest or detention detention within a criminal justice system, and that the deprivation of liberty in including those used for the purposes of response to a criminal charge or offence pretrial detention and imprisonment should constitute a measure of last resort, upon conviction. with due consideration first being paid to non-custodial sanctions or measures. > Prisoners. All persons who are held in prisons as defined above, irrespective of It also acknowledges that, as part of their legal status, excluding children individualized, balanced and proportionate accompanying an incarcerated parent. criminal justice responses to offending, well- managed prisons constitute an important > Pretrial detainees. All persons who, in aspect of the justice chain. Prison services connection with an alleged offence, are that respect human dignity and operate in detained in prison between the time of line with international norms and standards arrest and the time of judgment at first constitute a core element of efforts to instance. maintain peace and security, public safety and respect for human rights. > Non-custodial measure. A decision made by a competent authority, at any stage of As such, prison reform and the treatment of the administration of criminal justice, offenders should be viewed as an integral that requires a person suspected or part of the 2030 Agenda for Sustainable accused of, or sentenced for, an offence Development, in particular with regard to to submit to certain conditions or Sustainable Development Goal 16, on peace, obligations that do not include justice and strong institutions, as well as incarceration. Goal 3, on good health and well-being, Goal 5, on gender equality, and Goal 10, on > Children. All individuals under the age of reduced inequalities. 18 years.5

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GLOBAL PRISON CHALLENGES “Imprisonment has become an almost automatic response rather than a last resort, Criminal justice responses to crime, as mirrored in increasing and including the deprivation of liberty, are disproportionate penalization, excessive use implemented by States in the name of of pretrial detention, increased length of justice. Incarceration and the treatment of prison sentences and little use of non- offenders should therefore reflect a State’s custodial alternatives. Furthermore, the obligation to ensure justice, preserve public penitentiary system in most countries is no safety and hold offenders accountable while longer aimed at the reformation and social fully respecting applicable human rights in rehabilitation of convicts but simply aims to the process. punish by locking offenders away. Non- compliance with international standards in relation to conditions of detention is caused Overuse of pretrial detention and by resource constraints and by the punitive imprisonment 9 approach of most criminal justice systems.”

In 2019, more than 11 million people, Despite relevant provisions in international 10 including 410,000 children, were held in law, the overuse and excessive length of prisons across the globe, representing an pretrial detention remains a global challenge. increase of 25 per cent since 2000 in the Even though many individuals charged with total number held. While the number of criminal offences do not pose a risk to public female prisoners worldwide represented a safety or the administration of justice, their small minority of the prison population in number among the prison population has most countries, their number grew by 50 per nevertheless risen by 30 per cent since 2000, cent over the same period, reaching more to more than 3 million people. Pretrial than 714,000 women.6 detainees outnumber convicted prisoners in 45 Member States; in 14 of those States, Member States resort to imprisonment to pretrial detainees represent more than 70 very different degrees. According to per cent of the prison population.11 estimates, while the global average imprisonment rate stands below 150 In some countries, pretrial detainees remain prisoners per 100,000 of the overall national in detention for a period longer than the population, it has reached 300–650 sentence period that would typically apply prisoners per 100,000 of the overall national to those found guilty of the alleged offence. population in more than 25 Member States.7 Others are subject to prolonged detention in police holding cells that are not designed, Studies have found that general crime and should not be used, for that purpose. trends do not explain the overall use of imprisonment. Neither reported crime nor For these reasons, Sustainable Development victimization are systematically reflected in Goal 16, on peace, justice and strong incarceration levels.8 institutions, establishes the percentage of pretrial detainees within prison populations Despite these circumstances, incarceration as an indicator for measuring the efficiency often remains the default choice, if not the of, and access to, justice systems.12 only response, to address criminal behaviour. Investments in the availability, quality and As a result of a limited range of alternatives use of non-custodial measures continue to to incarceration provided in law, courts may be overlooked. lack the necessary options to ensure that

3 imposed sentences are proportionate to the directly linked to poverty, such as gravity, nature and circumstances of the homelessness or the inability to pay fines. offence. More often, however, the problem is a reluctance to apply non-custodial When poverty and insufficient access to measures embodied in national law. This social, health and legal aid services for the may be due to a lack of awareness of, or disadvantaged are combined with policies confidence in, their effectiveness, a lack, or aimed at being “tough on crime” and perceived lack, of public support, or systemic forms of discrimination (e.g., based insufficient health-care, housing and social on race, ethnicity, sex or gender), the result welfare services. The absence or inadequacy is the overrepresentation of minority and of the entities and infrastructure required to marginalized groups among prisoners, many implement alternatives to incarceration, of whom are charged with petty and non- including restorative justice approaches, 13 violent offences. The time spent in prison is compounds the problem. likely to aggravate unemployment, homelessness and poverty, thereby feeding The overuse of incarceration is often fuelled a vicious cycle of deprivation and exclusion. by “zero tolerance” policies 14 and populist rhetoric that call for stricter law “Because law enforcement officials often use enforcement and sentencing.15 This occurs ‘poverty’, ‘homelessness’ or ‘disadvantage’ despite research findings indicating that it is as indicators of criminality, persons living in not the prospect or severity of a prison poverty come into contact with the criminal sentence that deters crime, but the justice system with a disproportionately high perceived probability of apprehension.16 frequency. They also encounter considerable obstacles manoeuvring within or exiting the For example, the use of life imprisonment, system. As a result, disproportionately high which has replaced capital punishment as numbers of the poorest and most excluded the most severe penal sanction in 149 are arrested, detained and imprisoned.”20 countries, increased by 84 per cent from 2000 to 2015, when 479,000 prisoners were Individuals may also be deprived of liberty serving a formal life sentence. It appears for apostasy or so-called “moral crimes”, that the progressive abolition of the death many of them linked to discrimination penalty was not the exclusive driver of that against women and lesbian, gay, bisexual, increase, as research 17 also points to the transgender or intersex persons.21 application of life sentences to a wider range of offences and for longer or indefinite time Children may be deprived of liberty for non- periods, including life sentences without criminal acts that are only prohibited under parole.18 the law on the basis of the person’s status as a child (referred to as “status offences”), or as a substitute for referral to childcare and Reinforced discrimination and inequalities protection services.

Inequalities and low socioeconomic status Owing to a lack of community-based support have been found to be relevant to the and public health-care facilities, in incidence of crime.19 Incarceration therefore numerous countries, persons with mental disproportionately affects and impacts the health conditions or psychosocial disabilities segments of society that are living in poverty are often imprisoned, even when they have or are marginalized. In some countries, not committed any offence or have been people are imprisoned as a result of factors found not to be criminally responsible.

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Incarceration for the above reasons felt by their families in terms of economic amounts to arbitrary detention in violation status, compromised family ties and stigma, of international norms and standards.22 thereby perpetuating inequalities, discrimination and exclusion. A particularly The number of individuals convicted for affected group are the children of drug-related offences is estimated to incarcerated parents, 32 including those account for 18 per cent of the global prison children who are temporarily allowed to live population. 23 Reflecting socioeconomic with a parent in prison. Studies indicate that inequalities, 24 those detained for drug- children of incarcerated caregivers suffer related offences are often low-level from higher rates of behavioural, emotional offenders, such as persons who use drugs or and cognitive problems, and are more likely who have drug use disorders, drug couriers25 to get caught up in a cycle of or small-scale dealers. The proportion of intergenerational risky behaviour and women (35 per cent) imprisoned for drug- contact with the criminal justice system.33 related offences is higher than that of men 26 (19 per cent), which illustrates the need to Prison overcrowding address intersecting forms of gender-based discrimination, inequality and abuse.27 Prison overcrowding constitutes an acute In many countries, national drug laws make global human rights, health and security no or limited provision for alternatives to crisis and stands out as the greatest imprisonment, even for low-level offenders. contributor to violations of international In addition, available data point to a lack of minimum standards in prisons. The evidence-based programmes for the phenomenon continues to affect a majority treatment of drug use disorders and the of Member States worldwide (110 Member reduction of the negative health States), with more than 50 Member States 28 consequences of drug use in prisons, and operating prison services at more than 150 to an increased risk of relapse to drug use per cent of their official capacity.34 In many 29 and drug overdose upon release. Where prisons, overcrowding is so acute that such evidence-based interventions for prisoners are forced to share beds, sleep in prisoners with drug use disorders do exist, shifts or on top of each other, or spend the they have been proved to reduce the risk of night standing. 30 relapse and recidivism. The excessive resort to pretrial detention The distinct background, profile and specific has been identified as a main contributor to needs of women and girls in conflict with the prison overcrowding worldwide. While law tend to be grossly neglected and pretrial detainees should be presumed subsumed into a male-centred model of innocent until proved guilty by a court of law, 31 incarceration. Incarceration has a and treated as such, conditions in pretrial particularly negative impact on women and detention are often worse than those for their dependants in terms of safety, convicted prisoners, and are characterized exposure to gender-based violence, mental by, inter alia, poor infrastructure and poor health and stigma, owing in part to the lack service and programme delivery. of gender-responsive prison management practices and rehabilitation programmes. Operating significantly over the intended capacity of prisons is not simply an issue of The impact of incarceration extends well lack of space. It also gravely affects the beyond the actual prisoners. It is also heavily quality of nutrition, sanitation and hygiene,

5 health services, rates of transmission of most basic and life sustaining needs of infectious diseases, the provision of care to prisoners. Budgets for the maintenance, vulnerable groups, and the physical and refurbishment or construction of sound mental health of prisoners, as well as their prison infrastructure are scarce or do not access to constructive activities and take into account evidence-based designs programmes. Overcrowding generates that would support a safe, decent and conflicts, fuels violence, decays prison healthy prison environment. infrastructure and poses immense security and management challenges. This situation, exacerbated by the typically poorer health status of prisoners at the time Insufficient supervision, safety and prisoner of admission and poor linkages with public classification schemes in overcrowded health facilities, often leads to a higher prisons can lead prisoners to seek protection mortality rate and the prevalence of from high-risk prisoners or prison gangs and communicable 36 and non-communicable 37 can provide dangerous entry points for diseases in prisons. Those diseases not only radicalization to violence. The declining ratio affect prisoners, their families, visitors and of prison staff per prisoner and adverse work prison officers, but also put an increased environments have had a negative impact on health burden on society at large. staff performance, attitudes and well-being. Unsurprisingly, prison settings have been hit In such circumstances, prison officers are particularly hard by the coronavirus disease more likely to take on a more authoritarian (COVID-19) and continue to be at severe risk and less positive role. of amplified transmission and outbreaks of the disease. It has been estimated that, as of In summary, the impact of overcrowding April 2021, more than 538,000 prisoners in multiplies the challenges faced by prison 122 countries have tested positive for the services in preserving the integrity of prison coronavirus, among which there have been management, ensuring the health, safety 3,900 COVID-19-related fatalities. 38 In and well-being of prisoners, maintaining a addition, research in individual countries rehabilitative prison regime and preserving indicates that, compared to the general prison security. population, prisoners are more likely to become infected with the coronavirus and

Neglect and abuse more likely to die from COVID-19.

The neglect of places of detention increases Incarceration creates a situation in which the risk of inadequate management, prisoners depend upon prison services for oversight and accountability mechanisms. the fulfilment of all their day-to-day needs. Even basic and key requirements, such as Member States therefore owe a heightened the separation of men from women, adults duty of care and special responsibility35 to from children and sentenced prisoners from respect, protect and fulfil the human rights pretrial detainees, 39 are not consistently of prisoners. In this regard, public scrutiny is met in many countries. Furthermore, the crucial, owing to the closed nature of prisons. access of prisoners to legal advice, as well as to representatives of independent Notwithstanding these factors, prison inspection bodies, may be seriously management and the treatment of compromised or impeded. offenders are a low priority in many Member States. Prisons tend to be underresourced Prison officers40 are typically held in lower and often struggle to provide for even the regard than other public officials working in

6 the criminal justice system. They tend to commitment to “leave no one behind” have lower salaries, less training and fewer recognizes prisoners as a particularly career opportunities. This not only leads to vulnerable and marginalized group difficulties in recruiting qualified staff, but subject to discrimination and exclusion.44 also has negative consequences on their morale and performance. > Given the closed nature of prisons and the inherent risk of abuse and violence in All of the above factors increase the risk of them, a two-fold system of regular torture, ill-treatment and other human monitoring and inspections by the prison rights violations in prisons. Widespread service, on the one hand, and by external, corruption 41 and security breaches, independent bodies, on the other, is including continued criminal activity while essential for preventing torture and ill- imprisoned, can also have a destabilizing treatment. effect well beyond prison walls. > Many problems manifested in prison settings are the result of systemic KEY OBSERVATIONS deficiencies in criminal justice systems, including in relation to racial and gender Despite commendable initiatives and justice and justice for children. Effective progress in individual jurisdictions, prison and sustainable reform efforts require a systems around the globe continue to face holistic approach that identifies fundamental challenges that undermine the legislative shortcomings, procedural ultimate purpose of a prison sentence, bottlenecks and deficiencies in physical namely, to protect society from crime and to rule-of-law infrastructure, and that prevent recidivism by supporting invests in the use of non-custodial rehabilitation and preparing prisoners for measures and access to quality legal aid. their social reintegration upon release. > Strategies to prevent and combat racism > Overcrowding, poor prison conditions and racial discrimination in criminal and the serious neglect of prison services justice systems, in line with human rights cause prisons to be a weak link in criminal norms, 45 should encompass dedicated justice systems and a low priority in measures regarding prison management related reform efforts. The consequences and the treatment of offenders. for public safety, health, and human rights, as well as the financial and > The disproportionate impact of COVID-19 socioeconomic costs resulting from these in prison settings has demonstrated what long-standing deficiencies, are immense. can happen when already overburdened and ill-equipped prisons are confronted > Prison management and the treatment of with crises. Addressing the challenges offenders have an impact on progress associated with incarceration, including towards a variety of Sustainable insufficient coordination between the 42 Development Goals, and related targets justice and health sectors, should be a key 43 and indicators. Sufficiently resourced part of the effort to “build back better”. and well-managed prison services and entities in charge of non-custodial > The post-COVID-19 recovery will provide measures are an important enabler of the an important opportunity for criminal 2030 Agenda for Sustainable justice systems to address their chronic Development. The United Nations shortcomings and engage in holistic

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prison reform. Building on the emergency in prison riots, mass escapes and the initiatives adopted by Member States, increased potential for the spread of which have authorized the release of at violent extremist ideology. By serving as least 700,000 prisoners globally, 46 a drivers of conflict and weakening public concerted effort is needed to fully confidence in rule-of-law institutions, implement these results in a sustainable such developments seriously undermine manner and to urgently rethink the the stabilization and peace sustainment overuse of incarceration. efforts of United Nations peace missions. At the same time, efforts to counter > In many cases, women offenders do not armed groups, deter the perpetration of pose a serious risk to public safety. serious conflict-related crimes and Greater efforts to promote gender- ensure the criminal accountability of responsive alternatives to incarceration, State and non-State actors require taking into account their specific functioning prison systems. circumstances, such as pregnancy or caretaking responsibilities, are essential. COMMON APPROACH Responses to the distinct backgrounds

and needs of women prisoners and The United Nations system stands ready to offenders must be enhanced, including assist Member States in addressing global through social reintegration strategies prison challenges within the framework of that address the underlying the 2030 Agenda for Sustainable socioeconomic issues they may face. Development.

> Although incarcerated, prisoners remain All efforts to address global prison a part of society. Accordingly, civil society challenges will be based on international has an important role to play in human rights law47 and the United Nations supporting the treatment of offenders in standards and norms in crime prevention both the community and in prisons and criminal justice,48 including the United through complementary support, Nations Standard Minimum Rules for the monitoring and services in support of Treatment of Prisoners (the Nelson Mandela rehabilitation and social reintegration. Rules). This will not only serve to ensure the > Public opinion has a major influence on human dignity of prisoners, but will also how policymakers respond to crime. benefit public safety and the social cohesion While public demand for harsher of societies at large.

penalties is often used to justify punitive The United Nations system recognizes that criminal justice policies, proactive more needs to be done, and is committed to information-sharing and awareness- enhancing its efforts, in a systematic and raising can result in a more balanced integrated manner, in three thematic areas: understanding. Solid research, data and

close collaboration with the media and (a) Shifting policies towards prevention and communities are key to fostering public alternatives; support and political will for penal reform. (b) Strengthening prison management and > Prison challenges may be particularly improving prison conditions; acute in conflict, post-conflict and other crisis settings, resulting not only in (c) Advancing the rehabilitation and social

serious human rights violations, but also reintegration of offenders.

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addressing global prison challenges, as such Shifting policies towards prevention and measures directly reduce prison populations. alternatives

Concrete measures may include: diversion Incarceration should be used as a last resort, or discharge, including conditional discharge, taking into account the nature and gravity of at the pretrial stage; status penalties, the offence, the risk the offender poses to economic sanctions, restitution or the public and the offender’s social compensation orders, suspended sentences, reintegration needs. Crime prevention and probation and judicial supervision, alternatives to incarceration 49 are key to community sentence orders, house arrest or avoiding the overreliance on, and any other form of non-institutional inappropriate use of, incarceration. treatment, at the trial stage; and halfway houses or various forms of parole and The focus of criminal justice responses pardoning schemes, at the post-sentencing should be shifted from imposing punishment stage; as well as treatment measures for and isolation to investing in longer-term offenders with drug use disorders at various strategies for crime prevention, stages of their contact with the justice rehabilitation, restorative justice and social system.51 reintegration, with an emphasis on the most vulnerable. This shift also requires a While a proper balance needs to be struck movement towards depenalization and between the rights of victims, the rights of decriminalization in appropriate cases, in offenders and the need for public safety, the line with international norms and potential of non-custodial measures has not standards.50 been fully realized in many Member States.

Preventing crime from occurring in the first For various categories of offences and place is essential for reducing the number of offenders, non-custodial measures can be people who come in contact with the more effective in reducing the risk of re- criminal justice system. There are factors at offending, as they can support rehabilitation the individual, family, community and wider in the community. Given the significant cost society levels that can place individuals at a of imprisonment, even in low-resourced higher risk of crime, violence and prison settings, non-custodial measures victimization. tend to be more cost-effective, enabling resources to be invested in social, welfare Identifying and minimizing these risk factors and health services with long-term benefits is key, and can be accomplished through, for communities at large. As they prevent inter alia, multi-stakeholder consultations, a the unnecessary exposure to the harmful review of existing crime data, and empirical impact of incarceration, alternatives are also research on the structural conditions that a more proportionate and humane criminal give rise to crime. The findings of such justice response, in appropriate cases. efforts should inform the design and implementation of evidence-based crime Prior to any decision to expand prison prevention strategies and programmes and capacity, States that are confronted with ensure a more coordinated response from prison overcrowding should first explore and all relevant services. exhaust opportunities to reduce the prison population, and then conduct a The effective use of alternatives to comprehensive and realistic assessment of incarceration is another precondition to remaining needs.52

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The United Nations system will give priority regard to bodily autonomy and access to to assisting Member States in moving sexual and reproductive health. towards appropriate depenalization and the enhanced use of alternatives to The United Nations will advocate for incarceration at all stages of the consistent gender analysis and administration of criminal justice, in responsiveness in all policies, laws and compliance with the United Nations practices concerning incarceration and the Standard Minimum Rules on Non-custodial broader criminal justice system, in line with Measures (the Tokyo Rules). the United Nations Rules for the Treatment of Women Prisoners and Non-custodial This approach will be pursued in close Measures for Women Offenders (the cooperation with all relevant stakeholders, Bangkok Rules).53 including governments, legislators, judges, prosecutors, the police, lawyers, legal aid Prisons and the resort to imprisonment providers, social service providers and civil strongly reflect societal inequalities and society. Analysing the composition and discrimination. Particular vigilance is characteristics of the national prison therefore required to ensure that persons population will provide key insights into who belong to minority groups and who are predominant crime types and in contact with the law, whether they are overrepresented categories of offenders for suspected, accused or convicted of criminal whom the deprivation of liberty may be offences, whether they are detained or unsuitable or disproportionate. imprisoned, or whether they are victims or witnesses of crime, are protected from all While they are typically less resource- forms of discrimination. intensive than incarceration, non-custodial measures nevertheless require sufficient The United Nations system will advocate for physical infrastructure and resources, criminal justice and prison systems that are including for probation and parole agencies, free from racism, racial discrimination, social services and civil society organizations, xenophobia and related intolerance, in order to be functional and effective. including by ensuring that recruitment into public employment within criminal justice The United Nations system will support systems reflects the diversity of the Member States in building the capacity of population, including minority groups. criminal justice, social welfare and other agencies that supervise and support The best interests of children should be a offenders who are subject to community- priority in all actions that affect them. In the based sanctions or measures. case of child offenders, all efforts should be made to resort to diversion, other non- Given the particularly harmful impact of custodial measures and restorative justice, incarceration on women, additional regardless of their alleged associations and consideration should be given to gender- offences. Any alternative dispositions should responsive prison design, management ensure that children are dealt with in a practices and non-custodial measures for manner that is appropriate to their women offenders, taking into account their circumstances and the nature of their specific circumstances, the often non-violent offences. A child deprived of liberty should nature of the offences they commit and any be held separately from adults, unless it is in wrongful criminalization, including with the child’s best interest not to do so.

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The United Nations system will advocate for effective legal aid and affordable bail, as the principle that children should only be well as the efficiency of national criminal deprived of their liberty as a measure of last justice systems, guided by the principles of resort and for the shortest appropriate time fairness and due process. period, in line with the Convention on the Rights of the Child. 54 This objective will be embedded in efforts to promote proportionate and individualized Because of the number of criminal justice sentencing that takes into account the institutions it would involve, reducing the nature, gravity and circumstances of the overuse and excessive length of pretrial offence, as well as the background of the detention is one of the most complex offender, and that ensures proper challenges to be addressed. Reform efforts consideration of diversion and other non- need to be aimed at ensuring fairness, custodial measures. efficiency and effectiveness at all stages of the criminal justice process, including In the case of persons with drug use investigation, prosecution and adjudication. disorders, the approach will also be aimed at In order to address procedural delays, case increasing access to evidence-based and backlogs and miscarriages of justice, it is voluntary drug treatment, as well as to other crucial to build the capacity of criminal health services at the community level. Not justice actors, improve inter-agency only is such an approach supported by clear cooperation, simplify and speed up criminal evidence that health-oriented approaches justice procedures and improve data are the most effective in reducing drug use management systems and other and the social harm that it causes, but it is infrastructure, at the same time ensuring also in full compliance with the international transparency and accountability. drug control conventions.57

The right of suspects and defendants to have The phenomenon of drug use disorders is a access to legal representation and advice is public health concern that requires also important for guaranteeing fair trials evidence-based responses that are health- that meet the requirements of international centred and in line with ethical standards. law.55 This should include timely access to legal advice at no cost where the person has The United Nations system will support no means and where the interests of justice reform efforts aimed at ensuring so require. Early access to effective legal aid, proportionate and individualized including in police custody and pretrial sentencing policies and alternatives to detention, is key to ensuring that detainees conviction or punishment in appropriate are able to effectively challenge the basis for cases, 58 including for minor drug-related their detention early on, that proceedings offences.59 It will equally advocate for the are fair and that the rights of detainees and decriminalization of acts that are protected prisoners are respected. Access to legal by international human rights law. services has also proved to be a key safeguard against torture and ill-treatment. Strengthening prison management and

improving prison conditions The United Nations system will assist Member States in restricting the use of pretrial detention to narrowly prescribed The mission of all prison services is to keep circumstances 56 through criminal justice prisoners in safe and secure custody, while reform targeting legislation and access to treating them with respect for their human

11 dignity. Constituting the minimum rehabilitation opportunities, including conditions accepted as suitable by the humane and gender-responsive prison United Nations, the revised United Nations infrastructure that supports a decent and Standard Minimum Rules for the Treatment constructive prison environment. Prison of Prisoners (the Nelson Mandela Rules) conditions constitute a key aspect of the have led to a renewed momentum in prison overall quality of prison life and the human reform efforts worldwide, and form the dignity of prisoners. The responsibility of basis for United Nations support. The Nelson Member States to provide for prisoners’ Mandela Rules promote a human rights- basic needs and well-being cannot be based approach to prison management that conditional on the material resources places the human dignity of prisoners at available in those States or be “outsourced” centre stage and outlines what is generally to the prisoners’ families.62 accepted as being good principles and practice in the treatment of prisoners and In addition, prisoners need to have access to prison management.60 health services free of charge and of a standard of quality at least as high as that The Optional Protocol to the Convention applicable in the community. These should against Torture and Other Cruel, Inhuman or include psychological support and sexual Degrading Treatment or Punishment, which and reproductive health care, as well as at the time of writing had been ratified by 91 access to essential medicines. Such access is Member States, establishes a system of particularly important for prisoners, as they regular visits to places of deprivation of often have poorer physical and mental liberty in order to prevent torture and ill- health than the general public. In line with treatment at the national level. The visits are the universal right to health, prison health undertaken by the Subcommittee on services need to be in a position to provide Prevention of Torture and Other Cruel, for the health-care needs of prisoners, Inhuman or Degrading Treatment or including needs of a gender-specific nature. Punishment and by so-called national Health-care professionals in prisons must be preventive mechanisms, which are guided by the same ethical and professional independent national bodies that States standards as those applicable to patients in parties are required to establish in the community.63 accordance with the Optional Protocol.61 Good health in prisons also benefits public The United Nations system will align its health outcomes and the prevention of prison reform support with four thematic recidivism, as many drivers of criminal priority areas that encapsulate the behaviour, such as drug use or mental health prerequisites for sound and humane prison disorders, are related to health. management in line with the Nelson Mandela Rules and other relevant Thematic priority 2. international norms and standards. Human rights safeguards for prisoners

Thematic priority 1. Human rights safeguards for prisoners are Conditions of incarceration crucial for ensuring the integrity, transparency and accountability of prison Thematic priority 1, on conditions of management. Prison sentences punish incarceration, relates to the overall quality offenders through the deprivation of their of accommodation, sanitation, and hygiene, liberty alone and must not involve additional and the provision of basic services, as well as hardships or abuse. Concrete mechanisms to

12 counter the vulnerabilities that stem from attention of prison managers. In this regard, closed prison environments, including the related prison management practices, such unequal power relationship between prison as the classification of prisoners according to officers and prisoners, are required to individually assessed risks and needs, ensure safety for all and at all times. corresponding sentence plans and the prisoners’ subsequent allocation to a Furthermore, adequate information for suitable prison regime, are indispensable prisoners on their rights and obligations, an prerequisites. Such practices also serve to accessible, safe and effective complaints ensure that prison planning and design system, the access of prisoners to legal aid matches the actual profile of the prison and regular independent inspections of population. prisons are all essential to mitigating the risks of corruption and abuse inherent in More broadly, evidence has demonstrated prison systems and ensuring the absolute the value of investing in the concept of prohibition of torture and ill-treatment. dynamic security, which involves fostering professional and positive prisoner-staff Certain groups will require particular relations, ensuring adequate ratios between attention, owing to the specific needs they prisoners and staff, diverting the energy of have in prisons64 or to the heightened risk of prisoners into constructive activities and discrimination and abuse, including sexual establishing a decent and balanced prison and gender-based violence, to which they regime. may be exposed by prisoners or prison staff. Categories to which particular attention A particular challenge for prison systems has needs to be paid include: women;65 children; been offenders who are members of crime young people; the elderly, including those syndicates or who enter prisons with with terminal illness; prisoners with extensive organized crime contacts already disabilities; prisoners with chronic diseases at their disposal. In cases involving such or mental health-care needs; foreign offenders, ineffective security and safety prisoners; prisoners belonging to ethnic measures are likely to facilitate their minorities or indigenous peoples; lesbian, continued involvement in crime and the gay, bisexual, transgender or intersex exercise of undue control and influence vis- prisoners; prisoners serving life sentences; à-vis prison officers and prisoners alike. and prisoners under sentence of death. More recently, the increasing inflow of Many of these prisoners are in a situation of individuals charged with or convicted for vulnerability attributable to more than one terrorism-related offences has highlighted cause (a concept referred to as the risk of violent extremism in prisons, intersectionality), thus they may suffer as a including radicalization to violence and result of their existing special needs, which related recruitment efforts. These serious may be intensified in prison, and as a result threats must be addressed, as called for by of the additional risks they face, stemming the Security Council.66 from their particular status. At the same time, prison security is an area Thematic priority 3. prone to abuse. Implementing legitimate Security and safety security measures in line with international norms and standards, including in relation to Safety and security are core elements of human rights and the use of force, is prison systems that require the significant therefore essential.

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Thematic priority 4. International minimum prison standards, Organizational culture such as the Nelson Mandela Rules, clearly require that prisons be managed by The organizational culture in prison services professional prison staff that have civil greatly influences how the overall principles service status. 71 A contrary decision to governing prison management are privatize prison management does not translated into practice. Where and how exonerate States from their responsibility to prisons are administered within government guarantee prisoners’ human rights and their plays an important role in this regard. duty of care towards prisoners.72 Effective monitoring and accountability mechanisms In order to ensure a strict separation that protect prisoners’ rights should be in between law enforcement or military place. 73 Furthermore, it should be noted entities, on the one hand, and the agency in that there appears to be no solid data or charge of the implementation of prison conclusive evidence that would suggest that sentences, on the other, the existence of a privatized prisons are characterized by civilian prison system with professional enhanced cost-effectiveness.74 prison staff is key. 67 Depending on the national context and the access to sufficient resources, this may include placing the Advancing the rehabilitation and social reintegration of offenders responsibility for prisons with the Ministry of Justice or a similar government department. For similar reasons, it is preferable to place Incarceration, by itself, does not have a the responsibility for health services in reformative effect. On the contrary, it prisons under the Ministry of Health or to at exacerbates many of the challenges faced by least ensure a close relationship between individuals who have come into conflict with prison health-care services and public health the law. In addition, long or harsh prison authorities. sentences may result in so-called institutionalization, which affects prisoners’ An enhanced investment in the most personalities and social and life skills in a way important resource of a prison system, that makes their social reintegration even namely, its personnel, is crucial in this more difficult. 68 regard. Supporting an ethos and self- perception among prison officers, including In line with the Nelson Mandela Rules, the senior management, that they are not United Nations system will promote a merely guards or wardens, but rather agents rehabilitative approach to prison for change, can help to harmonize legitimate management that fosters the willingness security requirements with those of and ability of prisoners to lead law-abiding rehabilitation and reform. Improved and self-supporting lives upon release, and recruitment processes, workplace policies that is embedded in a decent, safe and and conditions, career opportunities, healthy prison environment and the tailored training 69 and staff support positive engagement of officers with infrastructure are key to enabling them to prisoners. 75 fulfil their complex and multifaceted tasks. Such efforts should be complemented by an Since the vast majority of prisoners will enhanced public acknowledgement of the eventually return to society, such an “social service of great importance” 70 approach is a precondition for fulfilling the provided by prison personnel. ultimate purpose of prison sentences: to

14 protect society from crime. Rehabilitation The rehabilitation and social reintegration of and security are often seen as opposites, prisoners is a societal task that cannot be however, on the contrary, a rehabilitative fulfilled by prison services alone. More than prison environment enhances safety and any other aspect of prison management, this control inside prisons, as prisoners who are is an area for which the support of relevant involved in constructive and meaningful government entities77 – complemented by activities are easier to manage and less the active involvement of civil society78 – is prone to violence. critical. Such cross-institutional cooperation ensures that services are provided in Dedicated programmes should be designed accordance with the standards applicable to address the root causes of offending and for similar services in the community, and enhance the social reintegration prospects are continued in the community upon of prisoners upon release in accordance with release, as required.79 their individual treatment needs. Such needs may include education; vocational training More broadly, this approach mitigates the and work experience; counselling; physical isolation of prisons from the outside world and mental health care, including and contributes to the normalization of psychological support; treatment for prisons vis-à-vis the community, minimizing, substance use disorders, cognitive- as much as possible, the differences behavioural therapy, life skills training and between prison life and life at liberty.80 The family-oriented programming for approach is also important for preventing incarcerated parents. Access to constructive any prison-based scheme purported to be activities should equally include physical rehabilitative from becoming exploitative or exercise and sports, and spiritual, cultural afflictive in nature. The rationale for and recreational programmes. rehabilitation programmes must be to enhance social reintegration prospects as Women prisoners should not only have per in line with individually assessed risks equal access to rehabilitation and social and needs, and in consultation with the reintegration programmes, but also be prisoner concerned. offered gender-responsive programmes that address their specific backgrounds, needs The United Nations system will promote an and perspectives without being limited to all-of-government approach to the stereotypical activities considered “suitable” rehabilitation of prisoners and offenders, in for women. close coordination with civil society. It will not support any programme that is Many of the above-mentioned activities exploitative or primarily geared towards require suitable prison infrastructure, which making a profit from prison industries, is often lacking. Prison facilities should have compulsory treatment or purported re- sufficient space and capacity to maximize education programmes that run counter to prisoners’ daily access to related services. In human rights or medical ethics. addition, rehabilitative prison regimes also include opportunities for the early, The transition period from incarceration to conditional or compassionate release of liberty and the period immediately following prisoners, subject to their behaviour, release are critical and difficult for all progress and circumstances and in line with prisoners. Social reintegration support must institutionalized reviews provided for in therefore not end at the prison gate but national legislation.76 instead ensure a continuity of care, including

15 for physical and mental health-related It equally acknowledges, however, that matters. 81 Even the best prison-based enhanced efforts are required to sensitize rehabilitation programme will be policymakers and the general public to the undermined if former prisoners find issue of incarceration and its impact. themselves without any post-release support (or supervision, where applicable). The United Nations system will therefore Community-based support services are work to ensure that incarceration and its equally important for offenders subject to overuse remain high on the political agenda, non-custodial measures. including as part of the discussions relating to the 2030 Agenda for Sustainable The United Nations system will support Development and the Secretary-General’s inter-agency arrangements to prepare Call to Action for Human Rights.82 This will prisoners for their social reintegration in include advocacy for the core principles and order to facilitate their gradual and safeguards by which incarceration should be carefully accompanied return to society, governed. Regular thematic meetings and coupled with efforts to reduce the stigma debates in relevant intergovernmental associated with being a former detainee or bodies 83 will be actively encouraged and offender. supported.

Public attitudes towards prisoners and Priority attention will be paid to building on offenders play an important role in reducing existing platforms in which Member States the risk of their return to crime. Reducing are already engaged, such as the Group of recidivism requires efforts to prepare the Friends of Corrections in Peace Operations community, including potential employers, (New York) and the Group of Friends of the to receive former prisoners and offenders Nelson Mandela Rules (Vienna). and to reduce the severe stigma typically Consultations among Member States associated with offending. This can include through these processes and other political support, awareness-raising, multi- multilateral mechanisms will foster the agency collaboration, incentives and the exchange of promising practices, provide active engagement of civil society, coupled policy coherence and create opportunities with efforts to ensure that victims of crime to address emerging challenges. are not afforded less support and fewer resources for their recovery and welfare. Enhance United Nations advocacy efforts in support of Member States DIRECTIONS FOR ACTION

In order to alleviate global prison challenges Ensure that the topic of incarceration and generate tangible positive change, the remains high on the political agenda United Nations system will intensify its advocacy efforts at the international, The United Nations system recognizes that regional and national levels to support the response of Member States to crime, Member States in addressing those including by means of incarceration, is challenges. intrinsically linked to human rights, equality, public safety, security, health, sustainable Depending on the country context development and public trust in the fairness concerned, priority objectives will include and effectiveness of criminal justice systems. the following:

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> Pretrial detention and imprisonment are promote the ratification of the Optional restricted to measures of last resort and Protocol to the Convention against are embedded in a variety of non- Torture and Other Cruel, Inhuman or custodial measures that can serve as Degrading Treatment or Punishment. effective alternatives. > Such compliance and related efforts are > Legislative and policy amendments lead recognized as also constituting a to proportionate and individualized fundamental basis for the effective sentencing and the decriminalization of management of high-risk prisoners and acts that are protected by international for countering the risk of radicalization to human rights law. violence in prisons.

> Gender analysis and responsiveness are > Rehabilitation and health services in consistently applied in all policies, laws prisons are integrated, as much as and practices concerning incarceration possible, in the corresponding public and the broader criminal justice system. systems, and are provided at a similar standard as in the community. > Procedural bottlenecks in criminal justice systems and other deficiencies that > The buy-in of all relevant stakeholders contribute to delays and overcrowding and the general public to the societal task are identified and effectively addressed. of supporting the rehabilitation and social reintegration of offenders is promoted as > The access of alleged offenders and a key contributor to public safety. sentenced prisoners to legal advice, assistance and representation, including > Lessons learned from the through legal aid, is guaranteed at all disproportionate impact of COVID-19 in stages of the criminal justice process. prisons are translated into a renewed impetus for comprehensive penal reform, > Drug use and drug use disorders are including sustainable strategies to reduce acknowledged as a public health concern prison populations. that require, above all, evidence-based and health-centred responses in the With regard to entry-points for advocacy, it community, as opposed to is important to note that, in 2015, the incarceration.84 General Assembly decided to extend the scope of Nelson Mandela International Day > Prison conditions and infrastructure and (18 July) to promote humane conditions of the treatment of prisoners are in line with imprisonment, to raise awareness of human rights and are consistently aimed prisoners being a continuous part of society at strengthening the social reintegration and to value the work of prison staff as a prospects of prisoners, all the while social service of particular importance. ensuring safe and secure custody. In the light of the invitation of the General > Compliance with international norms and Assembly to organizations of the United standards related to prison management Nations system to celebrate the occasion in and the treatment of prisoners, including an appropriate manner, attention will be the Nelson Mandela Rules and the paid to organizing awareness-raising Bangkok Rules, is monitored and campaigns and other events on this enhanced, and efforts are undertaken to particular day.85

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Strengthen United Nations capacity to frameworks and, where applicable, respond to requests for assistance integrated strategic frameworks, as an integral part of the overall technical assistance provided by the United Nations in Strengthened United Nations capacity will the country. enable the United Nations system to better support countries that lack the expertise and The United Nations system will focus on resources to address incarceration-related delivering technical assistance that is challenges. Given the increasing number of consistent across all lead agencies, in order requests from Member States for advisory to harmonize efforts and with a view to services and technical support in the fields of generating sustainable change. prison reform and penal reform, strong and well-coordinated United Nations capacity Establish a centralized United Nations will play a vital role in responding to such information hub on incarceration requests in a timely, effective and consistent manner. The United Nations system and its High-level advocacy aimed at the principal specialized entities continuously monitor, organs and subsidiary bodies of the United collect and analyse a variety of data and Nations Secretariat, as well as at Member develop technical guidance manuals, States, including host countries and donors, training curricula and other tools and is required to ensure sustained engagement resources that include promising practices, in this area. all of which are highly relevant to informing prison and penal reform processes in Closely guided by the present common Member States. position, the United Nations system will leverage the specialized expertise of the In an effort to consolidate and further United Nations Office on Drugs and Crime enhance this wealth of expertise and to (UNODC), 86 the Department of Peace facilitate access by both United Nations Operations 87 and the Office of the United entities and Member States, the United Nations High Commissioner for Human Nations system will work towards Rights (OHCHR) 88 , working in close establishing a digital “one-stop-shop” on coordination with other relevant United issues related to incarceration. Nations entities.89 The United Nations will also seek to As part of the United Nations rule of law strengthen its research capacity and that of arrangement, the senior United Nations Member States to continuously assess the official in-country 90 will assist in building effectiveness, including the cost- political consensus at the country level on effectiveness, efficiency and human rights the need to address prison challenges, in compliance of criminal justice responses to resolving political obstacles and in crime, and to generate a solid evidence- coordinating United Nations country base. 91 With regard to the generation of support on the rule of law. United Nations data, the United Nations Survey of Crime resident coordinators, country teams and Trends and Operations of Criminal Justice operations will work to ensure that the topic Systems will be a priority source for relevant of incarceration and associated criminal statistics and data analysis,92 complemented justice challenges will be mainstreamed into by the Health in Prisons European Database, sustainable development cooperation as a source of health-related data.93

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Enhancing prison support in United Nations > Ensuring accountability in the criminal field missions and other crisis settings justice system and the safe and secure custody of perpetrators of atrocity crimes, terrorist offences and other serious While safe, secure and humane prisons are crimes that fuel armed conflict, including critical to the efforts of United Nations conflict-related sexual violence. peacekeeping and special political missions to sustain peace, support stabilization and The Global Focal Point for the Rule of Law95 protect civilians, prison reform tends to will serve as the main forum for United remain a low priority. More robust support Nations inter-agency coordination on the from host countries and the international rule of law in post-conflict and other crisis community to enable the United Nations to situations. The United Nations system will adequately respond to the issue of also ensure that efforts invested in incarceration in these settings, including the supporting criminal justice systems, explicit provision of corrections mandates including prisons, are continued after the for field missions and the allocation of conclusion of field operations, so that the 94 sufficient resources, is critical and a gains achieved are not reversed during and collective responsibility. after mission transitions.

United Nations support in field missions and other crisis settings will be strategically Strengthen partnerships with international aimed at improving prison conditions, organizations and civil society strengthening prison management and reducing the unnecessary use of The United Nations system will further incarceration, as part of the mission’s strengthen its coordination and partnerships broader peace and security objectives. with international and civil society Particular emphasis will be placed on the organizations, including women and youth- following measures: led organizations, as well as renowned research institutes, think tanks and local > Establishing, from the outset, stronger communities. linkages and cooperation between police, justice and corrections authorities, and with security, development and humanitarian partners.

> Advocating for and supporting adequate

international and national investments in

prison systems to ensure safe, secure and

humane custody, complemented by

community outreach strategies.

> Addressing overincarceration, including the excessive use of pretrial detention, and fostering commitment at the national

level to enhance the resort to non- custodial measures, including law reform and increased access to legal aid.

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1 The United Nations system common position on Rules for Non-Custodial Measures (the Tokyo Rules), incarceration was developed by a working group of rule 6.1. relevant United Nations entities under the co- 11 See the United Nations Surveys on Crime Trends and leadership of the United Nations Office on Drugs and the Operations of Criminal Justice Systems, Crime (UNODC), the Department for Peace Operations complemented by data from the “World and the Office of the United Nations High pretrial/remand imprisonment list”, compiled by the Commissioner for Human Rights (OHCHR), within the Word Prison Brief; see also Catherine Heard and Helen framework of the Secretary-General’s Executive Fair, Pre-trial Detention and Its Over-use: Evidence from Committee. Ten Countries (London, Institute for Crime and Policy 2 See Human Rights Committee, general comment No. 35 Research, Birkbeck, University of London, 2019). (2014) on liberty and security of person 12 Indicator 16.3.2 (Unsentenced detainees as a (CCPR/C/GC/35). proportion of the overall prison population) of 3 For relevant standards in this regard, see the guidance target 16.3 (Promote the rule of law at the national and developed by the Human Rights Committee, the international levels and ensure access to justice for all) Working Group on Arbitrary Detention, the Committee under Sustainable Development Goal 16 (Promote on the Protection of the Rights of All Migrant Workers peaceful and inclusive societies for sustainable and Members of Their Families, and the Committee on development, provide access to justice for all and build the Rights of the Child (CCPR/C/GC/35; A/HRC/39/45, effective, accountable and inclusive institutions at all annex; CMW/C/GC/3-CRC/C/GC/22; CMW/C/GC/4- levels). CRC/C/GC/23). 13 Any process in which the victim and the offender, and, 4 Including the Convention on the Rights of the Child and where appropriate, any other individuals or community relevant United Nations standards and norms in crime members affected by a crime, participate together prevention and criminal justice, such as the United actively in the resolution of matters arising from the Nations Rules for the Protection of Juveniles Deprived crime, generally with the help of a facilitator (Economic of their Liberty (General Assembly resolution 45/113, and Social Council resolution 2002/12, annex, para. 2). annex), the United Nations Standard Minimum Rules 14 Including, inter alia, mandatory minimum sentencing for the Administration of Juvenile Justice (the Beijing laws, an increase in longer sentences and changes in the Rules) (General Assembly resolution 40/33, annex) and eligibility for early release. the United Nations Model Strategies and Practical 15 This concern also represents a challenge in the context Measures on the Elimination of Violence against of immigration detention in countries that rely on Children in the Field of Crime Prevention and Criminal criminal law to enforce immigration statutes – a Justice (General Assembly resolution 69/194, annex). problem in itself that risks leading to arbitrary 5 Art. 1 of the Convention on the Rights of the Child. detention (International Organization for Migration 6 See the United Nations Surveys on Crime Trends and (IOM), World Migration Report 2020 (Geneva, 2019)). the Operations of Criminal Justice Systems, 16 Daniel S. Nagin, “Deterrence in the twenty-first complemented by data from the “World prison century”, Crime and Justice, vol. 42, No. 1 (August 2013). population list” and the “World female imprisonment 17 Dirk van Zyl Smit and Catherine Appleton, Life list”, compiled by the World Prison Brief, Institute for Imprisonment: A Global Human Rights Analysis Criminal Policy Research, and Birkbeck, University of (Cambridge, Massachusetts, Harvard University Press, London; see also the report of the Independent Expert 2019). for the United Nations global study on children 18 Life without parole is a criminal sentence that requires deprived of liberty (A/74/136). The 2019 estimate of the serving of a lifelong sentence in prison without the the global prison population refers to the total numbers possibility of parole. Life without parole means that the of prisoners at a specific date as opposed to the total sentenced person will spend the rest of his or her life in number of persons that were detained or imprisoned prison, where he or she will eventually die. throughout the year. 19 Tim Newburn, “Social disadvantage, crime, and 7 Ibid. punishment”, in Social Advantage and Disadvantage, 8 Tapio Lappi-Seppälä, “Causes of prison overcrowding”, Hartley Dean and Lucinda Platt (Oxford, Oxford paper submitted to the workshop on strategies to University Press, 2016); Pablo Fajnzylber, Daniel reduce prison overcrowding in correctional facilities; Ledermann and Norman Loayza, “Inequality and violent Twelfth United Nations Congress on Crime Prevention crime”, Journal of Law and Economics, vol. 45, No. 1 and Criminal Justice (Salvador, Brazil, 12–19 April 2010); (April 2002). Oliver Roeder, Lauren-Brooke Eisen and Julia Bowling, 20 A/66/265, para. 65. What Caused the Crime Decline? (New York, Brennan 21 Such as adultery, homosexuality or the mere act of Center for Justice, York University School of Law, 2015). accessing sexual or reproductive health care. 9 A/68/295, para. 85. 22 International Covenant on Civil and Political Rights, arts. 10 International Covenant on Civil and Political Rights, art. 9, 11, 17, para. 1, and 18, para. 1; United Nations 9, para. 3, and art. 14, para. 2. With regard to Standard Minimum Rules for the Treatment of corresponding provisions in the United Nations Prisoners (the Nelson Mandela Rules), rule 109. standards and norms in crime prevention and criminal 23 World Drug Report 2016 (United Nations publication, justice, see the United Nations Standards Minimum 20160, pp. 101–102.

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education), Goal 5 (Gender equality), Goal 6 (Clean 24 World Drug Report 2020, booklet 5, Socioeconomic water and sanitation) and Goal 8 (Decent work and Characteristics and Drug Use Disorders (United Nations economic growth). publication, 2020). 43 Including, in particular, target 16.3 (Promote the rule of 25 Often referred to as “drug mules”; this term refers to law at the national and international levels and ensure people, often women, who agree to transport drugs equal access to justice for all) and its indicator 16.3.2. within the borders of a country or from one country to (Unsentenced detainees as a proportion of the overall another for small amounts of money. prison population), as well as target 10.3 (Ensure equal 26 World Drug Report 2019, booklet 2, Global Overview of opportunity and reduce inequalities of outcome, Drug Demand and Supply (United Nations publication, including by eliminating discriminatory laws, policies 2019). and practices and promoting appropriate legislation, 27 World Drug Report 2018, booklet 5, Women and Drugs: policies and action in this regard) and its indicator Drug Use, Drug Supply and Their Consequences (United 10.3.1 (Proportion of population reporting having Nations publication, 2018). personally felt discriminated against on the basis of a 28 World Drug Report 2019, booklet 2. ground of discrimination prohibited under international 29 Elizabeth L.C. Merrall and others, “Meta-analysis of human rights law). drug-related deaths soon after release from prison”, 44 United Nations System Chief Executive Board for Addiction, vol. 105, No. 9 (September 2010). Coordination, Leaving No One Behind: Equality and 30 Amanda E. Perry and others, “Interventions for drug- Non-discrimination at the Heart of Sustainable using offenders with co-occurring mental health Development (New York, 2017). problems”, Cochraine Database of Systematic Reviews, 45 António Guterres, Secretary-General, “The highest No. 10, art. No. CD010901 (2019); Dominique de aspiration: a call to action for human rights” (February Andrade and others, “Substance use and recidivism 2020). outcomes for prison-based drug and alcohol 46 United Nations Office on Drugs and Crime, COVID-19 interventions”, Epidemiological Reviews, vol. 40, No. 1 Guidance Note: Emergency release mechanisms for (May 2018). detainees and prisoners during COVID-19: Findings and 31 Prevention of torture and ill-treatment of women recommendations (Vienna, 2021). deprived of their liberty (CAT/OP/27/1). 47 Particularly the International Covenant on Civil and 32 See A/74/136, chap. 10. Political Rights, the International Covenant on 33 Eric Martin, “Hidden consequences: the impact of Economic, Social and Cultural Rights, the Convention incarceration on dependent children”, National against Torture and Other Cruel, Inhuman or Degrading Institute of Justice Journal, No. 278 (2017); Adele D. Treatment or Punishment, including its Optional Jones and Agnieszka E. Wainaina-Woźna, eds., Children Protocol, and the Convention on the Rights of the Child. of Prisoners: Interventions and Mitigations to 48 Particularly the United Nations Standard Minimum Strengthen Mental Health (Huddersfield, United Rules for the Treatment of Prisoners (the Nelson Kingdom, University of Huddersfield, 2013); Peter Mandela Rules), the United Nations Rules for the Scharff-Smith and Lucy Gampell, eds., Children of Treatment of Women Prisoners and Non-Custodial Imprisoned Parents (Copenhagen, Danish Institute for Measures for Women Offenders (the Bangkok Rules), Human Rights, European Network for Children of the United Nations Standard Minimum Rules for Non- Imprisoned Parents, University of Ulster and Custodial Measures (the Tokyo Rules), the United Bambinisenzasbarre, 2011). Nations Rules for the Protection of Juveniles Deprived 34 See footnote 6. of their Liberty, the United Nations Standard Minimum 35 Reports of the United Nations High Commissioner for Rules for the Administration of Juvenile Justice (the Human Rights on human rights in the administration of Beijing Rules), the United Nations Model Strategies and justice (A/HRC/42/20) and on human rights Practical Measures on the Elimination of Violence implications of overincarceration and overcrowding against Children in the Field of Crime Prevention and (A/HRC/30/19). Criminal Justice, the United Nations Principles and 36 Such as tuberculosis, hepatitis C, sexually transmitted Guidelines on Access to Legal Aid in Criminal Justice infections and blood-borne diseases, including HIV. Systems, the Basic Principles on the Use of Force and 37 Including mental health and substance use disorders. Firearms by Law Enforcement Officials and the basic 38 Justice Project Pakistan, COVID-19 and Prisoners, principles on the use of restorative justice programmes “COVID-19: infected prisoners and deaths across the in criminal matters. world”. Available at www.jpp.org.pk/covid19-prisoners/. 49 It being understood that alternatives are not being used 39 International Covenant on Civil and Political Rights, art. in addition to, but instead of, imprisonment. 10; the Nelson Mandela Rules, rule 11. 50 The Tokyo Rules, rule 2.7. 40 Alison Liebling, David Price and Guy Shefer, The Prison 51 Ibid., rules 3, 5, 6, 8 and 9. Officer, 2nd ed. (London, Routledge, 2012). 52 Under no circumstances should business interests 41 United Nations Office on Drugs and Crime (UNODC), involved in privatized prisons, where applicable, create Handbook on Anti-Corruption Measures in Prisons, a pressure to incarcerate or undermine efforts to Criminal Justice Handbook Series (Vienna, 2017). implement alternatives to incarceration (Rob Allen and 42 In addition to Goal 16 (peace, justice and strong Paul English, “Public-private partnerships in prison institutions) and Goal 10 (Reducing inequalities), these construction and management”, Justice and include Goal 1 (Ending poverty), Goal 2 (Ending hunger), Goal 3 (Good health and well-being), Goal 4 (Quality 21

71 Ibid., rule 74, para. 3. Development Working Paper Series, No. 25 72 CCPR/C/NZL/CO/5; see also Draft articles on (Washington, D.C., World Bank, 2013). responsibility of States for internationally wrongful acts 53 The Bangkok Rules, rules 57–58, 60, 61–64. Particular (Yearbook of the International Law Commission, 2001, attention will be paid to pregnant women, mothers and vol. II, part two (United Nations publication, 2004), art. women accused or convicted of drug-related offences. 5. 54 Convention on the Rights of the Child, arts. 3, para. 1, 73 Human Rights Committee, general comment No. 35 37 (c) and 40, para. 3 (b). (2014), art. 9. 55 International Covenant on Civil and Political Rights, art. 74 Allen and English, “Public-private partnerships in prison 14; United Nations Principles and Guidelines on Access construction and management; James Byrne, Kimbery to Legal Aid in Criminal Justice Systems. R. Kras and Lina Marmolejo, “International perspectives 56 That is to say, only when there is reasonable grounds to on the privatization of corrections, Criminology and believe that the individual has been involved in the Public Policy, vol. 18, No. 3 (May 2019). commission of the alleged offence and that there is an 75 The Nelson Mandela Rules, rules 4, para. 1 and 91; see evidence-based risk of the person absconding, also art. 10, para. 3, of the International Covenant on committing a further criminal offence or interfering Civil and Political Rights, which prescribes that the with the course of justice if he or she is set free or penitentiary system shall comprise treatment of subjected to alternative measures. prisoners the essential aim of which shall be their 57 United Nations Convention against Illicit Traffic in reformation and social rehabilitation. Narcotic Drugs and Psychotropic Substances of 1988, 76 This rationale applies to all prisoners, including those arts. 3, paras. 2 and 3, para. 4 (d), art. 3, para. 1 and 3, serving life sentences. Dedicated bodies authorized to and para. 4 (d). review the progress of life-sentenced prisoners during 58 Including education, rehabilitation and social their imprisonment and to recommend or grant release reintegration, as well as evidence-based treatment and or remission, if appropriate, should therefore be in aftercare, where applicable. place (e.g., after a fixed minimum time as required by 59 Also see the United Nations system common position national law). supporting the implementation of the international 77 Including ministries and associated entities in charge of drug control policy through effective inter-agency education, vocational training, labour, health, social collaboration (CEB/2018/2). services and justice. 60 The Nelson Mandela Rules, preliminary observations 1 78 It being understood that the primary responsibility for and 2, para. 1. With regard to children, the United the rehabilitation and social reintegration of offenders Nations Rules for the Protection of Juveniles Deprived remains with the State. of their Liberty provide additional guidance. 79 For example, with regard to educational curricula, 61 Optional Protocol to the Convention against Torture working conditions, health and safety precautions and and Other Cruel, Inhuman or Degrading Treatment or medical treatment. Punishment (General Assembly resolution 57/199, 80 The Nelson Mandela Rules, basic principles, rules 3 and annex, parts III–IV). 5. 62 Human Rights Committee, general comment No. 21 81 Continuity of health-care services is crucial to ensuring (1992) on humane treatment of persons deprived of that the benefits of treatment, started before or during their liberty (HRI/GEN/1/Rev. 9(Vol.I), para. 4). incarceration, are not lost upon release, to preventing 63 International Covenant on Economic, Social and the development of resistance to medication and to Cultural Rights, art. 12; the Nelson Mandela Rules, rules reducing the risks of drug-related overdose or the 24–35; the Bangkok Rules, rules 6–18. transmission of disease from prisons to communities. 64 As related to, inter alia, language, nutrition, religion and 82 Guterres, “The highest aspiration” (see footnote 45). beliefs, as well as suitable prison infrastructure and 83 Such as the General Assembly, the Security Council, the access to specialist care. United Nations Congress on Crime Prevention and 65 Including women prisoners with increased vulnerability, Criminal Justice, the Peacebuilding Commission, the such as pregnant women, breastfeeding mothers and Human Rights Council, the Commission on Crime mothers with children in prison or with dependent Prevention and Criminal Justice and the Commission on children outside of prison. Narcotic Drugs. 66 Security Council resolution 2482 (2019), preliminary 84 In this regard, due consideration should be given to the para. 15, operative para. 20. decriminalization of drug possession for personal use 67 The Nelson Mandela Rules, rule 74, para. 3; Principles (see CEB/2018/2, annex I). and Best Practices on the Protection of Persons 85 General Assembly resolution 70/175, para. 7. Deprived of their Liberty in the Americas, principle XX; 86 As the custodian of the Nelson Mandela Rules and other European Prison Rules, rules 71 and 78. United Nations standards and norms related to the 68 In general, prison staff should be employed on a full- treatment of offenders and the three international drug time basis with security of tenure (the Nelson Mandela conventions, UNODC provides expert advice and Rules, rule 74, para. 3). technical assistance on the basis of both a network of 69 Including in areas such as human rights, and further field-based prison reform programmes, the Global encompassing specialized training for all staff that Programme on Addressing Prison Challenges and the come in contact with women prisoners or children continued publication of relevant technical guidance. deprived of liberty. 70 The Nelson Mandela Rules, rule 74, para. 2. 22

United Nations Children’s Fund (UNICEF), the United 87 The Office of Rule of Law and Security Institutions in the Nations Office of Counter-Terrorism, IOM, and the Department for Peace Operations works as a United World Food Programme. Nations system-wide provider with other partners to 90 Pursuant to the Secretary-General’s Decision No. support the implementation of justice, police and 2012/13 on the “Rule of Law Arrangements”, para. (ii), corrections efforts in peace operations and other field this will include special representatives or executive presences, focusing on activities that are key to representatives of the Secretary-General or, in non- preventing violent conflict and sustaining peace and mission settings, resident coordinators. security while establishing the foundation for longer- 91 Specific research on children in contact with the term rule of law reform. criminal justice system should be aligned with the 88 OHCHR advocates for the respect, protection and Manual for the Measurement of Juvenile Justice fulfilment of human rights for all persons deprived of Indicators, jointly published by UNODC and UNICEF in their liberty and the non-discriminatory use of criminal 2007. law, including through thematic reporting, the 92 Available at www.unodc.org/unodc/data-and-analysis/. monitoring of detention facilities and the provision of 93 Available at https://apps.who.int/gho/data/node.prisons. technical advice to improve detention conditions and 94 Security Council resolution 2447 (2018), para. 1. oversight mechanisms. 95 Encompassing peacekeeping operations, special 89 Including the United Nations Development Programme, political missions and priority non-mission conflict- the United Nations Entity for Gender Equality and the affected countries responding to field requests and Empowerment of Women, the United Nations High priorities (Secretary-General’s Decision No. 2012/13 on Commissioner for Refugees, the United Nations Office the “Rule of Law Arrangements”, para. (iv), annex). for Project Services, the World Health Organization, the

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