A global analysis of prisoner releases in response to COVID-19 - DECEMBER 2020 - DLA Piper

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A global analysis of prisoner releases in response to COVID-19 - DECEMBER 2020 - DLA Piper
A global analysis of
prisoner releases in response
         to COVID-19
            DECEMBER 2020
A global analysis of prisoner releases in response to COVID-19 - DECEMBER 2020 - DLA Piper
A GLOBAL ANALYSIS OF PRISONER RELEASES IN RESPONSE TO COVID-19

Contents
Part 1 – Introduction                                                                                                                                      3
Introduction3

Executive summary                                                                                                                                          3

Background to report                                                                                                                                       6

Approach to report                                                                                                                                         9

Part 2 – Key findings                                                                                                                                     10
Data on COVID-19 related prisoner releases                                                                                                                10

Implementation of prisoner release measures                                                                                                               11

Decision-making authority and administrative release process                                                                                              16

Prisoner release eligibility criteria20

Conditions attached to prisoner releases                                                                                                                  29

Duration of prisoner releases                                                                                                                             32

Release of pre‑trial detainees                                                                                                                            34

Release of children in prison                                                                                                                             38

Support measures available to prisoners on release40

Mechanisms to reduce new prison admissions                                                                                                                41

Successes and challenges with prisoner release schemes                                                                                                    42

Part 3 – Conclusion                                                                                                                                       46

Conclusion                                                                                                                                                46

Annexure A – Infographic summary of key findings                                                                                                          47

Annexure B – Research Questionnaire                                                                                                                       49

Annexure C – Jurisdictions included in study                                                                                                              51

DLA Piper is a global law firm operating through various separate and distinct legal entities. For further information please refer to www.dlapiper.com.

NOTE: the research in this report is only intended as a general overview and discussion of the issues dealt with. It is not
intended to be, and should not be used, as a substitute for taking legal advice in any specific situation.

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Part 1 – Introduction
Introduction
                                                                                                                with large numbers of prisoners
This report was prepared by DLA Piper with the support
                                                                                                                released and low short-term
and input of the Association for the Prevention of                                                              recidivism rates. However, the
                                                                                                                sustainability of such programs
Torture (APT). DLA Piper is a leading global law firm with
                                                                                                                may become critical, to ensure
offices in more than 40 countries across Asia Pacific,                                                          prison decongestion strategies
                                                                                                                continue and overcrowding levels
Europe, the Middle East, Africa and the Americas.
                                                                                                                do not return to those seen before
It has a long-standing commitment to promoting                                                                  the pandemic

fairer justice systems through its pro bono program.
                                                                                                                The objective of the report is to:
DLA Piper is a trusted advisor to governments and
                                                                                                                • compare the approaches taken
supported governments around the world to reform                                                                    by governments globally to
                                                                                                                    decongest prisons through
justice systems to deliver enhanced community
                                                                                                                    prisoner release schemes and
outcomes and increased efficiency. The Association for                                                              limiting new prison admissions;

the Prevention of Torture is the leading, independent,                                                          • identify effective approaches and
                                                                                                                    examples of good practice that
non-governmental international organization whose
                                                                                                                    can be adopted and/or replicated
vision is for societies to exist without torture or ill                                                             elsewhere; and

treatment. APT works with governments, justice                                                                  • support governments, particularly
                                                                                                                    in countries with severe
systems, National Preventive Mechanisms (NPMs),
                                                                                                                    overcrowding to safely reduce
national human rights institutions (NHRIs) and civil                                                                prison populations to reduce
                                                                                                                    the burden on the public purse,
society to take effective actions to prevent torture and
                                                                                                                    limit the risk of transmission of
other ill-treatment.                                                                                                COVID-19 and other viruses and
                                                                                                                    infectious diseases, create safer
This report was commissioned                           through early release programs                               working conditions for prison
to assist policy makers from a                         (for both adults and children1) and                          staff, reduce the strain on public
range of jurisdictions seeking to                      slowing new prison admissions.                               and prison health services and
identify effective mechanisms to                                                                                    effectively manage risk and
protect the health and safety of                       While some governments were                                  ensure public safety.
correctional staff, prisoners, and the                 able to use existing legislative and
broader community, by reducing                         regulatory mechanisms, others                            Executive summary
prison populations.                                    implemented new programs, via                            and recommendations
                                                       executive powers or legislation.                         In March 2020, the COVID-19
The report analyses the diverse                        While many COVID‑19 related                              pandemic was declared. Overnight,
approaches taken by governments                        prisoner release programs are                            prisons became a key public
around the globe to respond to the                     still in their infancy, initial data                     health concern for governments.
COVID‑19 pandemic and reduce the                       suggests they have been successful                       Prisons – particularly overcrowded
risk of transmission within prisons                    in reducing prison populations,                          facilities and those with poor

 This report takes into consideration that the age of criminal responsibility is different in all jurisdictions. The terms “child” and “juveniles” will be used to
1 

 refer to persons under the age of 18 in compliance with international law.

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A GLOBAL ANALYSIS OF PRISONER RELEASES IN RESPONSE TO COVID-19

sanitation, hygiene and ventilation                    design and implementation                               (47% of jurisdictions). A similar
– are known to act as a source                         of prisoner population                                  number of jurisdictions (43%)
of infection, amplification and                        reduction schemes:                                      relied on release approval
spread of infectious diseases.                                                                                 being granted by senior public
Urgent action was required to                          • All jurisdictions included in our                     servants within the prison or
limit the transmission of COVID-19                        study had existing mechanisms                        corrections administration and
to prisoners, staff and the                               which allowed for the release of                     a third of jurisdictions (32%)
broader community.                                        pre-trial and convicted prisoners.                   relied on judicial approval. In
                                                          In many jurisdictions these                          terms of achieving the related
Recognizing the challenge and                             mechanisms were relied upon                          goals of protecting public health,
potential serious health risks,                           to release prisoners in response                     speed and efficiency, the use of
governments globally took swift                           to COVID‑19 (approximately                           administrative decision-making
action to decongest their prison                          three-quarters of jurisdictions                      within a strict framework can be
systems through releasing prisoners                       relied on existing laws). Despite                    an effective way to quickly reduce
and limiting new admissions.                              this, two-thirds of jurisdictions                    prisoner populations, but this
                                                          implemented new measures                             should be supplemented by a
This report analyses the approach                         to release prisoners given                           parallel judicial process where
to decongesting prison systems                            the unique risks associated                          discretion can be exercised to
adopted by governments in                                 with COVID‑19 infection and                          achieve fairness through the
53 jurisdictions across Asia Pacific,                     transmission in overcrowded                          exercise of discretion and/or
Europe, the Middle East, Africa,                          facilities. Of the jurisdictions that                judicial review.
North and Central America. The                            implemented new measures,
                                                                                                            • Almost all jurisdictions within
results of those 53 jurisdictional                        28% enacted new legislation
                                                                                                               the study released convicted
analyses have been summarized                             via parliaments and 72% relied
                                                                                                               prisoners in response to
into key findings set out in Part 2 of                    on executive powers to release
                                                                                                               COVID-19. Release eligibility was
this report and in an infographic at                      prisoners via regulations and
                                                                                                               based on three key criteria: (i) the
Annexure A.                                               decrees. In terms of good
                                                                                                               nature of the offence committed
                                                          practice, identifying and using
                                                                                                               by the prisoner, (ii) the nature or
The study concluded that at least                         existing mechanisms brings
                                                                                                               status of the prisoner’s sentence,
475,000 prisoners comprising                              significant advantage in terms
                                                                                                               and (iii) whether the prisoner
convicted prisoners and pre-trial                         of speed, which may well prove
                                                                                                               had particular vulnerabilities.
detainees, and both adults and                            critical in limiting the spread of
                                                                                                               Jurisdictions commonly applied
children, were released across the                        COVID-19 and other viruses.
                                                                                                               a combination of these three
53 jurisdictions between March and                        Existing mechanisms for early
                                                                                                               criteria, meaning a prisoner
July 2020. Official prisoner release                      release should be supplemented
                                                                                                               needed to satisfy various eligibility
data was however inconsistent                             where necessary with additional
                                                                                                               tests to be released.
and incomplete (only a quarter of                         measures, including measures
jurisdictions published up-to-date,                       to remove elderly people or                          • In terms of the offence
disaggregated data on prisoner                            other prisoners in situations of                        committed by the prisoner,
releases). In some countries, the                         vulnerability2 who pose no or low                       the main groups of released
legal basis underpinning the release                      risk to the community.                                  prisoners were those convicted
programs and/or the conditions                                                                                    of non‑violent or minor
                                                       • Under the various prisoner
applying to the release schemes,                                                                                  offences and therefore posed
                                                          release schemes, approval
were unclear.                                                                                                     no great risk to the community
                                                          was commonly required by a
                                                                                                                  (83% of jurisdictions expressly
                                                          government official such as
The study identified a                                                                                            referred to such offence
                                                          a president, state governor
number of trends and good                                                                                         criteria). Serious violent
                                                          or minister, often through an
practices with respect to the                                                                                     offenders and sexual offenders
                                                          executive pardon or clemency

2 
    Within the broader framework of challenging issues that affect people in prison, certain segments of the prison population are especially vulnerable

    and therefore at much higher risks of contagion. Those who are particularly vulnerable are elderly people, and detainees suffering from a chronic health

    condition, among others.

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        were regularly called out as                          governments to achieve                      or ill health. Releases of pre-trial
        ineligible for release, although                      substantial reductions in elderly           detainees were effected through
        only a quarter of jurisdictions                       people and other people in                  a combination of existing
        expressly excluded prisoners                          situation of vulnerability being            provisions (often bail hearings)
        at risk of, charged with, or                          detained , reducing COVID-19-               as well as new release measures
        convicted of domestic violence                        related risks and limiting the              which were implemented to
        related offences from release.                        high ongoing costs associated               speed up the release process
        Given many countries have                             with the incarceration for this             and reduce the burden on
        reported increased incidents of                       specific group of people.                   individual judges. Although
        domestic violence during the                                                                      the increasing use of remote
                                                        • In a third of jurisdictions, release
        pandemic, it is recommended                                                                       video technology represented
                                                           eligibility was further linked to
        that the risks posed to a                                                                         a valuable tool for judges in
                                                           the availability of accommodation
        domestic partner be considered                                                                    certain jurisdictions during the
                                                           for a prisoner on release and the
        as part of the decision-making                                                                    pandemic, the judiciary should
                                                           ability of a prisoner to financially
        framework for early release.                                                                      remain vigilant to ensure that
                                                           sustain themselves. Such
                                                                                                          disparities in access to technology
    • In terms of nature or status of                      considerations are contextual and
                                                                                                          do not serve act as barriers to
        sentence, 85% of jurisdictions                     may or may not be appropriate
                                                                                                          engagement with the courts.
        linked the release of convicted                    depending on other social and
                                                                                                          Courts should consider adopting
        prisoners to the prisoner                          cultural factors. A small number of
                                                                                                          guidelines to mitigate any harm,
        having served a minimum                            jurisdictions (8%) also considered
                                                                                                          including on attorney-client
        period in prison or being                          the status of any outstanding
                                                                                                          communications and relations.3
        within days or months of their                     fines or debts owed by the
                                                                                                          Only a third of jurisdictions
        release date/completing their                      prisoner. These criteria likely
                                                                                                          released children in prisons,
        total sentence.                                    served as a barrier to release
                                                                                                          including both convicted and
                                                           for many poor and/or homeless
    • In terms of prisoner                                                                                pre-trial detainees. Unfortunately,
                                                           prisoners and those without
        vulnerability, almost two-                                                                        there was very little data on the
                                                           support networks on the outside
        thirds of jurisdictions (62%)                                                                     number of children released from
                                                           and limited the effectiveness of
        considered the vulnerability                                                                      prison and there was limited
                                                           early release programs from a
        of prisoners in their release                                                                     information about the criteria
                                                           public health perspective. A third
        criteria. The criteria focused on                                                                 used to determine eligibility
                                                           of jurisdictions further considered
        prisoners who were particularly                                                                   for release. Some jurisdictions
                                                           the wishes of victims as part of
        vulnerable to COVID‑19;                                                                           took the approach of a blanket
                                                           the release eligibility assessment,
        namely elderly prisoners aged                                                                     release of any child in detention
                                                           although it is unclear what weight
        anywhere between 50 and                                                                           facilities, whereas other
                                                           was given to such considerations.
        70 (38% of jurisdictions) and                                                                     jurisdictions applied similar
        prisoners with chronic health                   • Almost half of the jurisdictions                criteria to the releases of adults
        issues (55% of jurisdictions).                     released adult pre-trial detainees             with the focus being on children
        A quarter of jurisdictions also                    (43%) despite pre-trial detainees              charged with, or convicted of,
        released female prisoners,                         making up large portions of                    minor or non-violent offences.
        pregnant or breastfeeding                          prison populations. Eligibility                In general, children should not be
        prisoners, and mothers with                        criteria uniformly included that               incarcerated, except as a measure
        children living with them in                       the person was charged with                    of last resort. When detention is
        prisons given their vulnerable                     a minor or non‑violent offence                 absolutely necessary, it should be
        status. The pandemic created                       and/or fell into a vulnerable                  used for the shortest appropriate
        an opportunity for many                            category of prisoner due to age                period of time and should aim at

3
    https://www.dlapiper.com/en/uk/insights/events/2019/06/access-to-justice-and-technology-summit/17-june-2019/

    https://www.pilnet.org/effect-of-covid-19-on-access-to-justice/

    https://www.pilnet.org/effect-of-covid-19-on-access-to-justice-2/

    https://www.pilnet.org/effect-of-covid-19-on-access-to-justice-3/

    https://www.pilnet.org/effect-of-covid-19-on-access-to-justice-4/

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A GLOBAL ANALYSIS OF PRISONER RELEASES IN RESPONSE TO COVID-19

    rehabilitating and reintegrating          jurisdictions released prisoners       management, and hence on
    children into society. Where these        temporarily, which meant certain       prison staff whose health and
    principles are followed, early            prisoners were required to return      safety were put at risks during the
    release of children should not            to prison after a fixed period of      pandemic. The responses provided
    result in significant reductions of       time or after the COVID‑19 health      by authorities varied across
    the detainee population. Also, as         crisis resolved.                       jurisdictions. Some good practices
    the characteristics of COVID-19                                                  were identified, including providing
                                            • About 70% of jurisdictions
    became better understood,                                                        security bonus to security, medical
                                              reported some degree of support
    and the risks posed to children                                                  and administrative personnel; the
                                              programs available to prisoners
    (or by children) were known to                                                   establishment of inter-institutional
                                              on release, although the extent
    be limited, focus likely shifted                                                 dialogues between penitentiary
                                              to which those services were
    to adult detention facilities. It is,                                            authorities and unions; periodic
                                              practically accessible and effective
    however, very likely that in some                                                specialized training using the
                                              (particularly during the pandemic)
    instances, governments used                                                      new technology: for instance
                                              is unknown. In contrast, very few
    the pandemic as an opportunity                                                   in Guatemala, the School of
                                              jurisdictions implemented new
    to reduce the total population                                                   Penitentiary Studies continued
                                              support programs to respond
    of juvenile detainees using early                                                to teach courses through digital
                                              to the increased numbers of
    release measures – especially in                                                 platforms. The courses included
                                              released prisoners and the
    countries where children were                                                    the management of emotions
                                              particular circumstances of the
    being held in adult prisons.                                                     in times of COVID-19, as well as
                                              COVID‑19 pandemic.
                                                                                     implementation of biosecurity
• Releases were often conditional
                                            • In addition to releasing               protocols. Strategic plans for
    on a prisoner complying with one
                                              prisoners, half the jurisdictions      vaccination took into consideration
    or more terms (three-quarters
                                              undertook measures to                  prison staff and detainees, although
    of jurisdictions imposed at least
                                              reduce new prison admissions           their priority levels varied drastically:
    one condition). The conditions
                                              – a critical, complementary            in some jurisdictions, staff and
    commonly imposed on released
                                              strategy to alleviate prison           detainees are equally a priority
    prisoners included good
                                              overcrowding. Policies adopted         group for vaccination, in others only
    behavior (42%), supervision by
                                              by police, prosecutors and             staff is considered a priority, while in
    prison or corrections staff (34%),
                                              judges included the use of cite        others, only detainees.
    compliance with COVID‑19
                                              and release notices, ceasing
    directions including quarantining
                                              arrests for minor offences,            COVID-19 has demonstrated that
    and testing (13%), home
                                              postponing prosecutions, the           governments, when willing, can
    detention (13%) and electronic
                                              use of summons to attend court,        effectively and swiftly implement
    monitoring (21%). It may well
                                              suspending short-term prison           prisoner release programs to
    be that a lasting impact of the
                                              sentences and only imposing pre-       decongest prisons (whether through
    COVID-19 pandemic will be a shift
                                              trial detention in the most serious    existing or new mechanisms)
    towards alternatives to full-time
                                              of cases.                              while appropriately balancing
    custody, as the costs and public
                                                                                     risks to the community and
    health risks make alternatives          Although it is too soon for formal
                                                                                     supporting prisoner reintegration.
    increasingly attractive. In many        evaluation of release programs
                                                                                     Governments must continue
    Least Developed Countries, it is        implemented in response to
                                                                                     this momentum by maintaining
    hoped that increased investment         COVID‑19, early analysis of
                                                                                     prisoner release programs as a
    into supervision and monitoring         recidivism rates across the study
                                                                                     core, long-term strategy to reduce
    capabilities will achieve substantial   suggests that released prisoners
                                                                                     prison overcrowding well beyond
    savings over the medium term.           have not reoffended at high rates.
                                                                                     the pandemic.
                                            This indicates that release programs
• Where releases were granted,
                                            have been successful, and, in a few
    most were granted on a                                                           Background to report
                                            jurisdictions, governments have
    permanent basis (83% of
                                            confirmed their programs will be         GLOBAL PRISON LANDSCAPE
    jurisdictions facilitated some
                                            continued beyond the pandemic.           More people than at any time
    degree of permanent release
                                                                                     in human history are detained
    of prisoners) consistent with
                                            The COVID-19 pandemic has put            in prisons around the globe.
    a long-term strategy of prison
                                            an important stress on prison            As estimated by Penal Reform
    decongestion. Only 17% of

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International, more than 11 million                     floor space where they can                        to develop non-custodial measures
people were detained in prisons                         sleep, eat, sit, exercise, access                 to reduce the use of imprisonment
in 2019.4 That figure includes                          toilet and washing facilities and                 from pre-trial to post-sentencing
700,000 women, 19,000 children                          maintain personal hygiene.13                      dispositions; the 2010 United
living in prisons with their mothers,                   It also restricts prisoners’ rights to            Nations Rules for the Treatment of
and around 410,000 children                             access appropriate healthcare.               14
                                                                                                          Women Prisoners and Non-custodial
in juvenile detention facilities.5                      The effects of overcrowding are dire              Measures for Women Offenders
In addition, it is reported that more                   – the inhumane living conditions                  (the Bangkok Rules), and the
than 3 million people are held in                       lead to tensions and outbreaks of                 2015 United Nations Standard
pre-trial detention with a further                      violence, higher rates of deaths in               Minimum Rules for the Treatment of
1 million children detained in                          custody, and poor physical health,                Prisoners19 (Nelson Mandela Rules).
police custody.6 As governments                         mental health and rehabilitation
detain people at higher rates for                       outcomes for detainees.15 Prison                  Addressing prison overcrowding is
longer periods, prison systems are                      overcrowding also negatively affects              no doubt challenging. Overcrowding
strained, causing severe levels of                      the entire criminal justice system,               has multiple and cumulative causes,
overcrowding within some facilities.                    resulting in staff demotivation,                  often external to the prison system
At the end of 2019, more than                           development of parallel coping                    itself, including other spheres of State
124 countries reported exceeding                        mechanisms and corruption.             16
                                                                                                          responsibility such as social welfare
their maximum prison occupancy                                                                            policies, access to health services,
rates.7 Some of the highest levels                      Since at least 1985, the United                   education and employment.20 Key
of overcrowding reviewed as part                        Nations has highlighted the high                  root causes include limited access to
of this report include Guatemala                        levels of overcrowding that existed               justice for people in conflict with the
at 374%,8 Honduras at 204%9 and                         in many countries and the need                    law, overuse of pre-trial detention,
United Arab Emirates at 160%.10                         for States to use alternatives to                 punitive drug laws and policies,
                                                        imprisonment to reduce populations                inappropriate use of imprisonment,
Overcrowding is a serious                               and support the reintegration of                  lack of non-custodial alternatives,
humanitarian concern.11 It                              prisoners.17 This subsequently                    limited prisoner rehabilitation
undermines hygiene, health, safety                      led to seminal agreements such                    programs as well as offenders’
and human dignity.12 It denies                          as the 1990 United Nations                        socio-economic marginalization and
prisoners their basic rights to                         Standard Minimum rules for                        inequality.21 Given the complexity of
safe and clean accommodation                            Non-custodial Measures           18
                                                                                                          the issues, long-term, sustainable
with ventilation and minimum                            (Tokyo Rules) which obligates States              reductions in overcrowding can

4
     Global Prison Trends 2020, Penal Reform International and Thailand Institute of Justice, pg 7
5
     Global Prison Trends 2020, Penal Reform International and Thailand Institute of Justice, pg 7
6
     Global Prison Trends 2020, Penal Reform International and Thailand Institute of Justice, pg 6
7
     Global Prison Trends 2020, Penal Reform International and Thailand Institute of Justice, pg 8
8
     https://prisonstudies.org/country/guatemala
9
     https://prisonstudies.org/country/honduras
10
     https://prisonstudies.org/country/united-arab-emirates
11
     Pg iii, Handbook on Strategies to Reduce Overcrowding in Prisons, UNODC, 2013
12 
     UNODC, WHO, UNAIDS, OHCHR Joint Statement on COVID-19 in prisons and other closed settings, 13 May 2020, accessed at https://www.who.int/news/

     item/13-05-2020-unodc-who-unaids-and-ohchr-joint-statement-on-covid-19-in-prisons-and-other-closed-settings
13
     Such rights are set out in the Nelson Mandela Rules 12-23.
14
     Such rights are set out in Nelson Mandela Rules 24-35.
15
     Global Prison Trends 2020, Penal Reform International and Thailand Institute of Justice, pg 8
16
     Pg iii, Handbook on Strategies to Reduce Overcrowding in Prisons, UNODC, 2013
17 
     Resolution 16, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26 August – 6 September 1985, A/

     CONF.121/22/Rev.1 adopted by UN General Assembly on 29 November 1985 A/RES/40/32
18
     A/RES/45/110
19
     A/RES/70/175
20
     Pg iv, Handbook on Strategies to Reduce Overcrowding in Prisons, UNODC, 2013
21
     Pg 35, Handbook on Strategies to Reduce Overcrowding in Prisons, UNODC, 2013

                                                                                                                                                         7
A GLOBAL ANALYSIS OF PRISONER RELEASES IN RESPONSE TO COVID-19

only be achieved with a holistic,                      It is well documented that prisons                   confined settings in which they
coordinated response from a broad                      act as a source of infection,                        reside.28 People in prisons live
range of authorities, including                        amplification and spread of                          in very cramped conditions,
the legislature, judiciary, police,                    infectious diseases within and                       for prolonged periods of time,
prosecutors, court administration and                  beyond the prison system.24                          with little ventilation.29 They are
oversight bodies, as well as society                   Overnight, COVID‑19 became a                         forced into close proximity with
at large.22                                            major problem for governments                        each other, increasing infection
                                                       and their congested prison                           and the spread of COVID‑19.30
Despite international commitments                      systems. Overcrowded facilities                      Social distancing is impossible,
to decongest prisons, little                           present an insurmountable                            meaning disease transmission
progress globally has been                             obstacle for preventing, preparing                   is inevitable.
made. The prevailing approach                          and responding to COVID‑19
of many governments is to be                           and a health response alone is                       Hygiene and sanitation are also very
“tough on crime,” leading to                           insufficient. COVID‑19 is not only
                                                                      25
                                                                                                            poor, with limited access to soap
progressively more punitive                            a risk to prisoners, but also the                    and hand sanitizer. Prisoners share
criminal justice policies. Combined                    broader community. Every day                         communal bathrooms and eating
with stigmatization of prisoners,                      large numbers of people come                         areas, and typically sleep in shared
community attitudes towards                            and go from prisons – prison staff,                  cells or dormitories. In some cases,
crime, growing inequality and                          contractors, health professionals,                   cells only distribute lukewarm water,
inadequate social safety-nets,                         educators and visitors, which                        preventing prisoners from effectively
holistic criminal justice reform and                   creates ample opportunity for                        washing their hands and bodies, or
implementation of non‑custodial                        COVID‑19 to both enter a prison                      cleaning their cells.31
measures that focus on diversion                       and then be taken back out to
and rehabilitation of prisoners has                    the community.                                       Prisoners also typically have a
been significantly inhibited.                                                                               greater underlying burden of
                                                       Governments recognized that the                      disease and worse health conditions
COVID‑19 has however provided a                        risk of rapidly increasing transmission              than the general population.32
unique opportunity for a change                        of COVID‑19 in prisons would have                    This means the risks for prisoners
in course.                                             an amplifying effect on the epidemic,                if they contract COVID‑19 are
                                                       swiftly multiplying the number                       even more severe, and the cost
THE IMPACT OF COVID‑19                                 of people affected.26 Efforts to                     of providing care even higher.
On March 11, 2020, the World                           control COVID‑19 in the community                    However, despite experiencing
Health Organisation Director-                          would fail unless strong infection                   poorer health, prisoners have very
General declared COVID‑19 a                            prevention and control measures,                     limited access to healthcare.
global pandemic.23 COVID‑19 is a                       adequate testing, treatment and care
respiratory disease that can cause                     were carried out in prisons.27                       The first prisoner infected with
death and spreads from person                                                                               COVID‑19 was identified in Iran
to person through close human                          Prisoners are more vulnerable                        as early as February 19, 2020.33
contact, droplets in the air or                        to COVID‑19 than the general                         By February 29, more than 806
touching infected surfaces.                            population because of the                            prisoners had been infected in

22
     Pg iv and 1, Handbook on Strategies to Reduce Overcrowding in Prisons, UNODC, 2013
23
     https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/novel-coronavirus-2019-ncov
24
     Pg 1, WHO Interim Guidance, “Preparedness, prevention and control of COVID-19 in prisons and other places of detention”, 15 March 2020
25 
     UNODC, WHO, UNAIDS and OHCHR Joint Statement on COVID-19 in Prisons and Other Closed Settings, 13 May 2020 accessed at https://www.who.int/

     news/item/13-05-2020-unodc-who-unaids-and-ohchr-joint-statement-on-covid-19-in-prisons-and-other-closed-settings
26
     Pg 1, WHO Interim Guidance, “Preparedness, prevention and control of COVID-19 in prisons and other places of detention”, 15 March 2020
27
     Pg 1, WHO Interim Guidance, “Preparedness, prevention and control of COVID-19 in prisons and other places of detention”, 15 March 2020
28
     Pg 1, WHO Interim Guidance, “Preparedness, prevention and control of COVID-19 in prisons and other places of detention”, 15 March 2020
29
     Preparedness, Prevention and Control of COVID-19 in prisons, World Health Organisation, 2020, pg. 9
30
     Preparedness, Prevention and Control of COVID-19 in prisons, World Health Organisation, 2020, pg 9
31
     As reported in Rowson v Department of Justice, Corrections Victoria and the State of Victoria [2020] VSC 236
32
     Preparedness, Prevention and Control of COVID-19 in prisons, World Health Organisation, 2020, pg 9
33
     https://iranprimer.usip.org/blog/2020/mar/03/coronavirus-spreads-iran%E2%80%99s-prisons

8
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Chinese prisons.34 Shortly after this,                by governments to understand                      Prisoner Releases in response to
major outbreaks of COVID‑19 were                      how such schemes reduced                          COVID‑19 – Individual Research
being reported in Iran, China and                     overcrowding. The research included               Reports for 53 Jurisdictions.39
the US.                                               the releases of convicted prisoners
                                                      as well as pre-trial detainees, and               The legal research for the
As the COVID-19 health crisis                         both adults and juveniles.                        questionnaires was desk-
spread, UN High Commissioner                                                                            based only. Where possible, the
for Human Rights, Michelle                            The jurisdictional research was                   research was conducted using
Bachelet, called for States to “not                   undertaken by lawyers at DLA Piper                primary source material such as
forget those behind bars” and                         with, in some cases, support                      legislation, regulations, and other
“act quickly to reduce the number                     from law students who are part                    government documents and
of people in detention”35 as well                     of DLA Piper’s Global Scholarship                 statements. However, in a number
as implement other prevention                         Program. Where possible, locally                  of jurisdictions, primary source
measures including use of PPE,                        qualified lawyers supported and                   materials were not readily available,
physical distancing, much improved                    supervised local law students                     and accordingly the research relied
sanitation and cleaning practices.                    to undertake the research. The                    on secondary source materials such
A swift, firm, whole of government                    research was conducted between                    as media and civil society reports.
response aimed at ensuring healthy                    May and July 2020 using a standard
and safe custody, and reducing                        scope and format. A copy of the                   Following completion of
overcrowding, would be essential                      questionnaire is at Annexure B.                   the individual jurisdiction
to mitigating the risk of COVID‑19                    The questionnaire only considered                 questionnaires, results were
entering and spreading in prisons.               36
                                                      release measures and steps taken to               compiled to form the basis of this
                                                      reduce new prison admissions; it did              report. The report was drafted by
In response to the UN’s call, many                    not consider COVID‑19 prevention                  DLA Piper between September and
governments implemented a range                       measures including increased                      November 2020.
of measures to prevent outbreaks                      sanitation, PPE, or physical
and transmission of the virus. One                    distancing procedures that may                    It is important to note that this
of the key measures was to reduce                     have been implemented.                            report uses the broad term
prison populations by releasing                                                                         “prisoner” to refer to both a person
prisoners and pre-trial detainees                     The questionnaire was                             who has been convicted of an
and limit new admissions into prison                  completed for 53 jurisdictions                    offence (also known as a convicted
systems. These measures are the                       across Asia Pacific, Europe, the                  prisoner or offender) as well as
subject of this report.                               Middle East, Africa, North and                    a person who has been charged
                                                      Central America. A list of those                  and is awaiting trial in detention
As at November 5, 2020, more than                     jurisdictions is at Annexure C.                   (also known as an untried prisoner,
283,332 prisoners had reportedly                      The jurisdictions selected were                   pre-trial detainee or remandee).
contracted COVID‑19 across                            those countries that publicly                     Where the treatment of a prisoner
115 countries with more than
                    37
                                                      reported prisoner population                      differed depending on their status
2,537 prisoners in 39 countries                       reduction in response to COVID‑19                 as a convicted person or a person
having died from the disease.38                       – either through existing or new                  on pre-trial detention, a distinction
                                                      measures. Due to their length,                    is made and the terms “convicted
Approach to report                                    the completed questionnaires                      prisoner” or “pre-trial detainee”
The first stage in the study was                      for each of the 53 jurisdictions                  are used.
undertaking legal research into                       are published in a separate,
prisoner release schemes adopted                      accompanying report called

34
     https://theconversation.com/why-releasing-some-prisoners-is-essential-to-stop-the-spread-of-coronavirus-133516
35
     https://news.un.org/en/story/2020/03/1060252
36 
     UNODC, WHO, UNAIDS and OHCHR Joint Statement on COVID-19 in Prisons and Other Closed Settings, 13 May 2020 accessed at https://www.who.int/

     news/item/13-05-2020-unodc-who-unaids-and-ohchr-joint-statement-on-covid-19-in-prisons-and-other-closed-settings
37
     https://www.jpp.org.pk/covid19-prisoners/
38
     https://www.jpp.org.pk/covid19-prisoners/
39
     Available at https://www.dlapiper.com/en/us/focus/probono/overview/

                                                                                                                                                   9
A GLOBAL ANALYSIS OF PRISONER RELEASES IN RESPONSE TO COVID-19

Part 2 – Key findings
                                                                                                          by the prisoner and the length of
This section sets out the key findings identified across
                                                                                                          time the prisoner served for that
the 53 jurisdictional reports on prisoner release                                                         offence before being released.43
                                                                                                          Pennsylvania (US) also offered
schemes. The findings are also summarized in an
                                                                                                          transparent data, publishing daily
infographic set out at Annexure A                                                                         the number of prisoner releases
                                                                                                          that had been implemented in
Data on COVID-19-                                      number of prisoners released                       response to COVID‑19.44
related prisoner                                       since the pandemic commenced.
releases                                               One example is Honduras40                          While no formal data was provided,
                                                       where no up-to-date, official data                 Washington (US) 45 and Rwanda46
LACK OF DATA
                                                       on people in detention (even                       published the names of the
One of the most concerning but
                                                       pre‑COVID‑19) was available.                       prisoners who were granted early
perhaps unsurprising findings
                                                                                                          release via executive order.
in the study was the lack of
                                                       Where no prisoner release data was
publicly available, timely, accurate,
                                                       published by governments, the only                 ESTIMATED NUMBER OF
disaggregated data provided
                                                       available information was figures                  PRISONER RELEASES
by governments on prisoners
                                                       that were reported in the media as                 Given the lack of official data on
released in response to COVID‑19.
                                                       part of statements by government                   prisoner releases, the study was
A number of jurisdictions published
                                                       officials or other news reports.                   unable to confirm the exact number
data on total prisoner populations
                                                       In certain jurisdictions, including                of prisoners released across the
month by month; however, it was
                                                       Northern US states41 and Germany,42                53 jurisdictions in response to
impossible to determine to what
                                                       capturing data on prisoner releases                COVID‑19. Nevertheless, using both
extent any reductions were a direct
                                                       was particularly complicated by                    official and non‑official prisoner
consequence of COVID‑19 release
                                                       the fact that state and county level               release data, it is estimated that,
measures or otherwise the usual
                                                       prisons do not aggregate their                     between March and July 2020,
fluctuation in prisoner numbers.
                                                       data and therefore there was no                    at least 475,000 prisoners were
Where possible, the jurisdictional
                                                       complete or comprehensive data set                 released across the jurisdictions
research focused on prisoner
                                                       to rely on.                                        in the report. It is, however, noted
release data (as opposed to general
                                                                                                          that the figure of 475,000 includes
prisoner population data), but this
                                                       In contrast, some jurisdictions in                 temporary releases (ie the prisoner
was not always available.
                                                       the study published excellent data                 was released but required to return
                                                       on COVID‑19 prisoner releases.                     to prison after a set period of time)
A number of the jurisdictions in the
                                                       Typically available on the relevant                and therefore it is not reflective of a
study have a history of poor data
                                                       Corrections Department website,                    net reduction of people in detention
collection with respect to people in
                                                       the data was regularly updated                     globally. By the time of publication
detention generally. Such data gaps
                                                       and publicly accessible. Some of                   of this report, we estimate that
have been amplified by COVID‑19,
                                                       the best examples of this were                     prisoner release programs in the
with about three-quarters of
                                                       Scotland, which published monthly                  53 jurisdictions will have exceeded
governments in the study failing
                                                       prisoner release numbers, broken                   1 million people.
to publish any official data on the
                                                       down by the offences committed

40
     See further Honduras Report, Part 1.
41
     See further various Northern states of United States of America Reports, Part 3.
42
     See further Germany Report, Part 3.
43
     See further Scotland Report, Part 3.
44
     See further Pennsylvania Report, Part 3.
45 
     https://www.doc.wa.gov/news/2020/docs/covid-19-reduction-efforts-commutation.pdf. See further Washington Report, Part 13.
46
     Annex of the Ministerial Order Nº 08/MOJ/AG/20 OF 19/05/2020 Granting Release on Parole, Official Gazette n° 14 of 19/05/2020. See further Rwanda

     Report, Part 3.

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Some of the largest reported                            COVID-19-related release measures,                   specific to COVID‑19, to facilitate the
prisoner releases were in                               which in turn, has reduced global                    early release of convicted prisoners
jurisdictions with no official,                         overcrowding in prisons. It is therefore             and pre-trial detainees. Approaches
supporting data and included:                           recommended that, consistent with                    to limiting new prison admissions is
                                                        States’ international obligations,                   discussed further at Part 10.
• Iran which reportedly released                        any future prisoner releases are
     104,000+ convicted prisoners;47                    accompanied by regular and timely,                   Of the 53 jurisdictions in the study:
                                                        publicly available data, disaggregated
• India which reportedly released
                                                        at the very least by the status of the               • 40% relied on existing release
     68,200+ prisoners (including
                                                        prisoner (convicted or remandee), age                   measures, as set out in existing
     both convicted prisoners and
                                                        (including juveniles) and gender.                       laws and regulations/decrees;
     pre-trial detainees);48
                                                                                                             • 28% relied on new release
• Iraq which reportedly released                        Implementation of
                                                                                                                measures which were specifically
     62,000+ prisoners (including                       prisoner release
                                                                                                                created in response to COVID-19
     both convicted prisoners and                       measures
                                                                                                                via new legislation or regulations/
     pre‑trial detainees);49                            As discussed above, COVID‑19 forced
                                                                                                                decrees; and
                                                        governments to quickly implement
• Ethiopia which reportedly
                                                        measures to reduce prison                            • 32% relied on a combination
     released 40,000+ prisoners
                                                        populations and limit the spread of                     of both existing and new
     (including both convicted
                                                        the virus within facilities. While the                  release measures.
     prisoners and pre-trial
                                                        causes of overcrowding are complex
     detainees);50 and
                                                        and cannot simply be resolved                        EXISTING PRISONER
• Indonesia which reportedly                            through releases, releasing convicted                RELEASE MEASURES
     released 38,000+                                   prisoners and pre-trial detainees                    Non-custodial measures are
     convicted prisoners.51                             can be an effective strategy to                      fundamental elements of all criminal
                                                        decongest prisons quickly. Releases                  justice systems and required
Some of the smallest prisoner
                                                        must however be coupled with a                       under the Tokyo Rules. Non-
releases in total numbers were
                                                        simultaneous strategy of limiting                    custodial measures must balance
also in jurisdictions without publicly
                                                        new prison admissions to ensure                      the rights of offenders, victims
accessible data including Nevada
                                                        the released prisoners are not                       and concerns of society for safety
(US),52 which reportedly only
                                                        simply replaced by new prisoners                     and crime prevention54. However
released 115 convicted prisoners
                                                        in the system.                                       they can helpfully serve to reduce
and Botswana,53 which only released
                                                                                                             prison populations by keeping
164 convicted prisoners.
                                                        With regards to releasing                            convicted or charged persons out
                                                        prisoners, the study found that                      of the prison system and in the
Without accurate, up-to-date data,
                                                        governments either released                          community. They are intended
it is impossible to determine the
                                                        prisoners using existing                             to limit institutionalization and
true extent to which the number of
                                                        mechanisms set out in their laws                     assist offenders with reintegration
people in detention has reduced
                                                        and regulations, and/or they                         into society.55
as a direct consequence of specific
                                                        implemented new measures,

47 
     https://www.rferl.org/a/iran-says-1000-foreign-prisoners-released-temporarily-due-to-virus-outbreak/30568248.html and https://en.irna.ir/

     news/83798747/Supreme-Leader-pardons-commutes-prison-terms-of-3-721-inmates See further Iran Report, Part 3.
48 
     Data provided by the Commonwealth Human Rights Initiative https://www.humanrightsinitiative.org/content/stateut-wise-prisons-response-to-covid-19-

     pandemic-in-india. See further India Report, Part 3.
49
     https://nrttv.com/En/News.aspx?id=20870&MapID=2 See further Iraq Report, Part 3.
50 
     https://www.unodc.org/unodc/frontpage/2020/May/to-address-fears-of-prisoners-from-covid-19-and-minimize-risk-of-transmission--unodc-donates-

     medical-supplies-to-ethiopias-prisons.html See further Ethiopia Report, Part 3.
51
     https://infografik.bisnis.com/read/20200429/547/1234450/dua-sisi-kebijakan-pembebasan-napi See further Indonesia Report, Part 3.
52
     Responses to the Covid-19 Pandemic, Prison Policy Initiative, https://www.prisonpolicy.org/virus/virusresponse.html See further Nevada Report, Part 3.
53
     https://www.dailymaverick.co.za/article/2020-05-15-prisons-breeding-grounds-for-communicable-and-infectious-diseases-including-covid-19/#gsc.tab=0

     and https://taarifa.rw/botswana-pardons-15-zimbabwean-prisoners-amid-covid-19/. See further Botswana Report, Part 3.
54
     Rule 1.4 Tokyo Rules.
55
     Rule 9 Tokyo Rules.

                                                                                                                                                           11
A GLOBAL ANALYSIS OF PRISONER RELEASES IN RESPONSE TO COVID-19

Consistent with the Tokyo Rules,                           • warnings/undertakings                          • In NSW (Australia), there was a
all jurisdictions in the study have                                                                            3% increase in the imposition of
                                                           • monetary penalties including
non‑custodial measures set out                                                                                 community based corrections
                                                             fines and compensation
in their laws which can be used as                                                                             orders from March to July 2020.61
alternatives to detention at different                     • restitution
                                                                                                            • In Italy, the Prosecutor of
stages in the criminal justice process
                                                           • community service orders                          Supreme Court issued a
(namely at pre-trial, on sentence or
                                                                                                               communication62 to all public
post-sentence). The nature and range                       • probation
                                                                                                               prosecutors in the courts
of such non-custodial measures
                                                           • home detention                                    of appeal to encourage the
varied widely from jurisdiction to
                                                                                                               application of non-custodial
jurisdiction, as did the extent to which                   • suspended/deferred sentences
                                                                                                               sentencing measures. Following
they were used by governments to
                                                           In contrast, a few jurisdictions such               this directive, judges increasingly
respond to COVID-19.
                                                           as Bangladesh,57 Kuwait58 and Iraq59                imposed home detention on the
                                                           only permitted one non‑custodial                    basis of elderly age of offenders
Non-custodial pre-trial measures
                                                           sentencing alternative in their                     and postponed the execution
At the pre-trial stage, the most
                                                           criminal legislation, namely, the                   sentence where an offender was
common non‑custodial measure
                                                           imposition of fines. Given the limited              in poor health.63
that jurisdictions permitted at law
                                                           non-custodial sentencing options
was bail. The use of bail to address                                                                        • In France, courts allowed the
                                                           available, these countries tended
overcrowding and release pre-trial                                                                             conversion of prison sentences
                                                           to rely on early release measures
detainees is further discussed                                                                                 for prisoners convicted of delits
                                                           (ie post-sentence dispositions) to
in Part 7.                                                                                                     (a category of crime punishable
                                                           decongest prisons.
                                                                                                               by two months to ten years
Non-custodial sentencing                                                                                       imprisonment) to community
                                                           Despite many jurisdictions having a
measures                                                                                                       service or home detention.64
                                                           range of non‑custodial sentencing
At the sentencing stage, there
                                                           options available, there were                    • In Scotland, the terms of the
was some variance between
                                                           limited examples of jurisdictions      60
                                                                                                               Community Payback Orders
jurisdictions56 as to the extent
                                                           increasingly using such sentences                   (a form of community service)
of non‑custodial options
                                                           in the wake of COVID‑19 to address                  were extended given the inability
available in the relevant criminal
                                                           overcrowding and limit new prison                   of prisoners to complete the
procedure legislation.
                                                           admissions. Some examples of                        terms of such sentences due
                                                           jurisdictions where non-custodial                   to COVID‑19 restrictions.65 This
The vast majority of jurisdictions
                                                           sentences were imposed more                         made community service a more
offered a range of non‑custodial
                                                           frequently after COVID‑19 are:                      accessible sentencing option
sentencing options which included:
                                                                                                               than before.

56
     See generally Part 2 of the Jurisdictional Reports.
57
     Penal Code of Bangladesh 1860. See further Bangladesh Report, Part 2.
58
     https://www.osac.gov/Country/Kuwait/Content/Detail/Report/c5de67ea-8f95-4ebf-8b65-15f4aeb2ac73 See further Kuwait Report, Part 2.
59 
     https://www.ohchr.org/Documents/Countries/IQ/UNAMI_Report_HRAdministrationJustice_Iraq_28January2020.pdf See further Iraq Report, Part 2.
60
     See generally Part 4 of the Jurisdictional Reports.
61 
     Australian Bureau of Statistics, 2020, Corrective Services, Australia, March Quarter 2020, accessed 15 July 2020, . See further NSW (Australia) Report, Part 3.
62
     https://www.giurisprudenzapenale.com/wp-content/uploads/2020/04/Nota_PG_carceri.pdf
63
     See further Italy Report, Part 4.
64
     Ordonnance n° 2020-303 du 25 mars 2020 portant adaptation de règles de procédure pénale sur le fondement de la loi n° 2020-290 du 23 mars 2020

     d’urgence pour faire face à l’épidémie de COVID-19, https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041755529&categorieLien=id.See

     further France Report, Part 5.
65
     Part 6, Sch 4 Coronavirus Act (Scotland) 2020. See further Scotland Report, Part 4.

12
DLAPIPER.COM

• In Germany, various state                              risks for staff overseeing the                       release measures identified in the
     courts increased the number                         programs and prisoners involved                      study were:
     of suspended sentences they                         in such programs. For example,
     imposed on people who failed                        New York (US) suspended their                        • forms of parole/
     to pay their court mandated fine                    community supervision programs                          supervised release
     instead of imposing substitute                      for three months due to the virus
                                                                                                              • conditional release
     prison sentences.66                                 risks for staff and prisoners.70
                                                         France reduced the maximum                           • furlough/temporary release
• In Nigeria, the Chief Justice
                                                         sentence that could be imposed by
     issued a directive to all State                                                                          • home detention with or without
                                                         judges for community service to 35
     judges to impose fines instead                                                                              electronic monitoring
                                                         hours (down from an average 105
     of imprisonment for people
                                                         hours), which meant the sentencing                   • pardon/amnesty/clemency
     convicted of less serious crimes.67
                                                         measure was available to fewer
• In Jordan, the courts increased                        defendants.71 California (US) also                   Approximately three-quarters
     their use of written warnings                       suspended transfers of inmates                       of the jurisdictions in the study
     and undertakings as sentencing                      into Male Community Re-entry                         relied, to some degree, on existing
     alternatives to imprisonment                        programs, Custody community                          early release mechanisms to
     where an accused person                             Re-entry Programs and the                            release prisoners. This was a
     agreed to quarantine and not                        Alternatives to Custody Programs                     logical and practical response
     breach the law.68                                   (all alternatives to prison), thereby                to COVID‑19 as it avoided new
                                                         limiting its operation.72                            programs being implemented and
• Even Honduras, with limited
                                                                                                              allowed existing infrastructure
     non-custodial sentencing
                                                         Although there was no data                           to be employed. Jurisdictions
     options, reported an increased
                                                         available, it is possible that the                   which expanded the operation of
     use in home detention, with
                                                         reduced availability of non-custodial                existing early or temporary release
     an additional 548 people
                                                         sentencing measures may have                         schemes included:
     being granted home detention
                                                         resulted in increased custodial
     sentences in response to
                                                         sentences in some instances.                         • England74 and Ireland75
     the pandemic.69
                                                                                                                 both expanded the criteria
However, while some jurisdictions                        Post-sentence                                           for their temporary release
reported an increased uptake in                          disposition measures                                    programs, allowing more
non-custodial sentencing measures,                       At the post-sentencing stage, all                       prisoners to access early
COVID‑19 also had negative                               jurisdictions73 offered at least one                    release from prison.
implications for the availability such                   measure in their laws which allowed
                                                                                                              • In Italy, through its Curia-
options. Non-custodial sentences                         for the early release of prisoners.
                                                                                                                 Italia Decree Law No 27 of
were reduced due to the COVID‑19                         Common examples of early
                                                                                                                 24 April 2020, the government

66
     https://www.berlin.de/sen/justva/presse/pressemitteilungen/2020/pressemitteilung.908021.php. See further Germany Report, Part 5.
67 
     https://www.channelstv.com/2020/05/15/cjn-orders-speedy-trial-of-cases-decongestion-of-custodial-centres/ See further Nigeria Report, Part 4.
68
     See further Jordan Report, Part 4
69 
     La Tribuna, 60 juvenile offenders will be released from hospital to avoid Covid infections, 16 April 2020, https://www.latribuna.hn/2020/04/16/sacaran-de-

     internamiento-a-60-menores-infractores-para-evitar-contagios-de-covid-19/ See further Honduras Report, Part 4.
70
     Visitation Suspension Details & Community Supervision Restrictions for Office Visits, New York State Department of Corrections and Community

     Supervision, https://doccs.ny.gov/visitation-suspension-details-community-supervision-restrictions-office-visits. See further New York Report, Part 4.
71
     https://oip.org/wp-content/uploads/2020/05/minju-circulaire-200520_application-reforme-justice.pdf. See further France Report, Part 4.
72
     COVID-19 Response Efforts, California Department of Corrections and Rehabilitation, https://www.cdcr.ca.gov/covid19/covid-19-response-efforts/. See

     further California Report, Part 4.
73
     See generally Part 2 and Part 5 of the Jurisdictional Reports.
74
     https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/881060/covid19-use-compassionate-rotl.pdf. See

     further England and Wales Report, Part 5.
75
     http://justice.ie/en/JELR/Pages/Information_regarding_the_Justice_Sector_COVID-19_plans; http://www.justice.ie/en/JELR/Pages/SP20000075. See further

     Ireland Report, Part 5.

                                                                                                                                                              13
A GLOBAL ANALYSIS OF PRISONER RELEASES IN RESPONSE TO COVID-19

     extended the scope of its                             four months to six months78 and                       Sentencing Law, which allowed
     18 Months Home Detention                              it expanded its use of electronic                     prisoners to return to the
     measure by amending the                               control measures to make it more                      community and participate in
     exclusions and simplifying the                        accessible for prisoners to be                        rehabilitation programs82
     approval procedure, therefore                         granted parole who would not
                                                                                                              • In Honduras, an additional 173
     reducing the workload of                              otherwise have been eligible.79
                                                                                                                 people were released on parole
     the administration staff and                          In Minnesota (US), electronic
                                                                                                                 in response to the pandemic83
     shortening the decision time by                       monitoring was used to release
                                                                                                                 Colorado (US) also reported an
     the Supervisory Judge.76                              prisoners who had committed
                                                                                                                 increase of about 1,000 prisoners
                                                           minor offences or were serving a
• In Spain, Norway and Minnesota                                                                                 on parole between January and
                                                           sentence in a county workhouse,
     (US), the governments increased                                                                             May 202084
                                                           allowing them to return home
     the availability of electronic
                                                           at night80                                         • In Rwanda, the Attorney General
     monitoring for prisoners. The
                                                                                                                 issued a Ministerial Order
     Spanish government increased                       • In Washington (US), the
                                                                                                                 granting parole to an extra
     its use of electronic monitoring                      Department of Corrections
                                                                                                                 3,596 prisoners85 Similarly, the
     on inmates who would usually                          granted furlough to an extra
                                                                                                                 South African President issued a
     spend the night in penitentiary                       66 people from Work Release
                                                                                                                 Proclamation to grant parole to
     establishments and instead                            Facilities to release them back into
                                                                                                                 an extra 19,000 prisoners86
     allowed them to stay at home.77                       the community81
     Through its COVID‑19 program,                                                                            • In Bangladesh, the Home
                                                        • In Bahrain, the government
     the Norwegian government                                                                                    Ministry issued a pardon to 2,889
                                                           increased its use of early release
     increased the period electronic                                                                             prisoners as per powers set out
                                                           measures under its Alternative
     monitoring could be used on from                                                                            the Code of Criminal Procedure87

76 
     Section 123 of Law Decree No. 18 of 17 March 2020, as converted into law by Law No. 27 of 24 April 2020. See further Italy Report, Part 5.
77
     https://www.elmundo.es/espana/2020/06/18/5eeb4fb8fc6c831f1d8b45f9.html. See further Spain Report, Part 5.
78
     https://www.kriminalomsorgen.no/measures-in-prison.527287.no.html. See further Norway report, Part 4.
79
     LOV-2001-05-18-21, The Norwegian Execution of Sentences Act section 43 (2) and FOR-2020-03-27-461, Temporary Regulation of Execution of

     Sentences to Mitigate Effects of Covid-19 section 3. See further Norway Report, Part 4
80
     https://www.ramseycounty.us/content/justice-collaborative-works-protect-public-safety-and-health-during-covid-19-pandemic See further Minnesota

     Report, Part 4
81
     https://www.doc.wa.gov/news/2020/docs/daily-situation-report.pdf See further Washington Report, Part 4.
82
     ‘The Minister of Justice, Islamic Affairs and Endowments Shaikh Khalid bin Ali Al Khalifa lauded the royal decree pardoning some convicts for

     humanitarian reasons’ (Ministry of Justice, Islamic Affairs and Endowments, 13 March 2020) https://www.moj.gov.bh/en/sample-news-2. See further

     Bahrain Report, Part 4.
83 
     La Tribuna, 60 juvenile offenders will be released from hospital to avoid Covid infections, 16 April 2020, https://www.latribuna.hn/2020/04/16/sacaran-de-

     internamiento-a-60-menores-infractores-para-evitar-contagios-de-covid-19/ See further Honduras Report, Part 4.
84 
     https://drive.google.com/file/d/1byPip77Gpz4do6Awyd_upD8Fzr8CpSr4/view (Colorado Dept. of Corrections, Monthly Population and Capacity Report as

     of May 31, 2020). See further Colorado Report, Part 4.
85 
     Art. 1 of the Ministerial Order No 08/MOJ/AG/20 of 19/05/2020 Granting Release on Parole, Official Gazette no 14 of 19/05/2020. See further Rwanda

     Report, Part 3 and 5.
86
     https://www.gov.za/speeches/presidency-placement-parole-selected-categories-sentenced-offenders-during-coronavirus See further South Africa

     Report, Part 3.
87
     Bangladesh set to release another 385 inmates early to combat COVID19 risks” Bangladesh News 24, 3 May 2020, https://bdnews24.com/

     bangladesh/2020/05/03/bangladesh-set-to-release-another-385-inmates-early-to-combat-virus-risks. See further Bangladesh Report, Part 5

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DLAPIPER.COM

• In Uganda,88 Ethiopia,89                               early release measure and/or                          The study did not consider
      Botswana, Ghana and Nigeria
                    90          91                 92
                                                         non-custodial sentencing option                       whether the use of legislation or
      the Presidents used their                          available in existing laws, more than                 regulations/decrees to facilitate
      constitutional powers to issue                     half of jurisdictions determined it                   prisoner releases was a better
      pardons and grant releases to                      was necessary to implement new                        approach. Nevertheless, it can
      convicted prisoners.                               mechanisms to more effectively and                    be argued that prisoner release
                                                         robustly respond to the COVID‑19                      measures introduced through
A very small number of early release
                                                         pandemic. Most governments did                        legislation are indicative of
programs were in fact curtailed on
                                                         so quickly, responding swiftly to the                 countries where there was
the basis of COVID‑19 risks created
                                                         COVID‑19 crisis and the UN’s call                     strong, widespread parliamentary
by prisoners. One such example
                                                         to decongest prisons. For example,                    support for decongesting prisons.
was in Florida (US), where the
                                                         by March 23, 2020, France had                         This is despite the fact that
Commission on Offender Review
                                                         introduced new legislation to enable                  enacting legislation is a more
(tasked with reviewing mechanisms
                                                         further prisoner releases. By     94
                                                                                                               time-consuming process because
for prisoner releases including
                                                         March 31, 2020, Indonesia declared                    parliament must be sitting to
conditional medical release, “control
                                                         a public health emergency which                       debate and approve the law
releases” and others) refused to
                                                         quickly precipitated new regulations                  (parliaments were often shut down
release prisoners in response to
                                                         allowing adult and juvenile prisoner                  during COVID‑19) and there must
COVID‑19 and restricted release
                                                         releasesby April 1.95                                 also be a parliamentary support.
programs by shutting down and
                                                                                                               Examples of jurisdictions where
furloughing such programs, to
                                                         Of the jurisdictions that                             new COVID‑19 prisoner release
limit the risk that prisoners would
                                                         implemented new release measures,                     legislation was approved by
transmit COVID‑19 to the public.93
                                                         28% did so by way of new legislation                  parliaments included NSW
                                                         enacted by parliaments and 72%                        (Australia),96 Belgium,97 Poland,98
NEW PRISONER
                                                         did so by way of new executive                        Portugal99 and Mozambique.100
RELEASE MEASURES
                                                         regulations or decrees issued                         Interestingly, new legislation
Despite all jurisdictions having
                                                         by governments.                                       was proposed in Florida
some form of post-sentence,
                                                                                                               (US),101 Lebanon102 and

88
      https://www.monitor.co.ug/News/National/Museveni-pardons-833-prisoners-Attorney-General-Cocid19/688334-5536982-ed9kg9/index.html See further

      Uganda Report, Part 5.
89
      See FDRE Constitution Art 71 (7) with Proclamation No. 840/2014 Art 5 (1). See further Ethiopia Report, Part 5.
90
      https://www.facebook.com/BotswanaGovernment/posts/press-release-presidential-pardonmembers-of-the-public-are-informed-that-his-

      exc/2909960685753237/. See further Botswana Report, Part 5.
91 
      https://www.myjoyonline.com/news/national/president-nana-akufo-addo-has-freed-808-prisoners-on-the-recommendation-of-the-prisons-service-

      council/ See further Ghana Report, Part 5.
92
      https://www.aljazeera.com/news/2020/04/coronavirus-buhari-asks-nigeria-chief-judge-free-prisoners-200422053224030.html See further Nigeria

      Report, Part 5.
93
      www.dc.state.fl.us/comm/covid-19.html#deaths [http://archive.is/F0Wnb]. See further Florida Report, Part 3.
94
      LOI n 2020-290 du 23 mars 2020 d’urgence pour faire face à l’épidémie de COVID-19, https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT0

      00041746313&categorieLien=id. See further France Report, Part 5.
95
      Presidential Decree No. 12 of 2020 in response to the COVID19 pandemic. See further Indonesia Report, Part 5.
96
      COVID-19 Legislation Amendment (Emergency Measures) Act 2020 No 1 (NSW) Schedule 2 and Crimes (Administration of Sentences) Act 1999 No 93.

      See further NSW, Australia Report, Part 5.
97
      Royal Decree No. 3, as published in the Belgian State Gazette on 9 April 2020. See further Belgium Report, Part 5.
98
      http://dziennikustaw.gov.pl/D2020000056801.pdf See further Poland Report, Part 5.
99
      Law No. 9/2020 of 10th April, available at https://dre.pt/pesquisa/-/search/131338919/details/maximized. See further Portugal Report, Part 3 and 5.
100 
      See further Mozambique Report, Part 3 and 5.
101
      https://wusfnews.wusf.usf.edu/post/slew-criminal-justice-bills-are-teed-2020-session-heres-look-few-them [http://archive.is/SUyri]. See further Florida

      Report, Part 5.
102
      https://www.amnesty.org/en/latest/news/2020/04/lebanon-government-must-urgently-release-more-prisoners-to-prevent-spread-of-covid19/

      See further Lebanon Report, Part 5.

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