The purpose of this paper is to raise awareness regarding the horrible and unfair incarceration conditions of prisoners in the Third World. Prisoners in those countries have nobody to turn to for help and no money for legal help. Therefore, they need spokesmen to speak out for them. Moreover, the common overcrowding of prisons has direct links with the increase of population of a country and increases in crime rates resulting from socio-economic factors.
This paper hopes to sound the alarm in the minds of those, who have the responsibility to administrate detention facilities but also in the minds of government leaders, because this problem might have strong socio-economic repercussions on the development of a country as well.
Many documents and treaties guaranteed the protection of prisoner’s rights. At the United Nations level, there were both binding and non-binding instruments applicable to prisoners’ treatment or dealing with issues related to the prison services.
Binding documents are the best guarantors for the protection of prisoners, because of their binding nature under international law.
The International Covenant on Civil and Political Rights260 and the International Convention on Economic, Social and Cultural Rights261 are both generally applicable to prisoners following the principle of universality of human rights. Amongst other rights, prisoners had the right to dignity and privacy; the right to education, and to health care and food.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment262 was to a certain extent applicable to prison services, as acts of torture and ill treatment were often committed in prisons. Provisions regarding the criminalization of torture and accountability of perpetrators, as well as the requirement to develop a framework, legislative and administrative, for the prevention of torture are examples of provisions applicable to prison services. The implementation of the Convention against Torture was monitored by the Committee against Torture, which was mandated to evaluate states periodic reports and individual communications against state parties. The newest development in relation to the protection of torture was the development of an Optional Protocol to establish inspections mechanisms at national and United Nations level. The Optional Protocol was the result of a long process and it was approved by the General Assembly in 2002.
The Standard Minimum Rules for the Treatment of Prisoners263 provided for basic rules for the management and treatment of prisoners, including material conditions (food, clothing and personal hygiene), access to health care, disciplinary proceedings and prison activities (educational, vocational training, etc).
Even though the range of areas included in the Standard Minimum Rules was great in scope, it did not aim at creating a set of rigid rules or a prison model. The Standard Minimum Rules provided only basic and minimum requirements for the operation of any prison system: the necessary conditions for a prison system to achieve minimally humane and effective standards.
Other non- binding documents
Although non-binding, some documents are worth mentioning, as they could, to a certain extent, also be used for the advancement of the protection of prisoners. These include:
The Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment264 (1988), the Basic Principles for the Treatment of Prisoners265 (1990) and the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 266(1982) were a few of those documents.
Other non-binding documents of relevance were some of the United Nations Human Rights Commission special mechanisms267. For the prison services area, the Special Rapporteur on torture would be the most relevant special mechanism as its mandate included visits to places of detention in the countries, where the Special Rapporteur chose to undertake a field mission.
The Current Situation
Prisoners in developing countries endured some of the most severe and inhuman treatment in the world. Besides the poor sanitary situations, we will also focus on the malfunction of justice in the third world and its consequences for the prisoners.
Sanitary and health conditions
Overcrowding was without a doubt the biggest challenge in Third World prisons and played a big role in the poor sanitary conditions of those prisons. The developed countries might have a different interpretation of the scale of prison overcrowding than what it means to developing countries. The developed countries used such criteria as minimum floor space, cubic content of air ventilation and other basic amenities to measure overcrowding. To the developing countries, however, the single cell accommodation with specifications considered as minimum by the developed countries would be a luxury. In such countries, overcrowding was necessarily followed by gross inadequacy of essential facilities such as sleeping accommodation, sanitary and bathing installations, medical and recreational facilities. Hence, there were no common criteria on the required accommodation or floor area or other conditions per prisoner in developing countries.
Rule 10 of the United Nations Standard Minimum Rules for the Treatment of Prisoners268 however provided: "All accommodations provided for the use of prisoners and in particular all sleeping accommodations should meet all requirement of health, due regard be paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation”.
The reality was another story. Inadequate living space, poor or nonexistent ventilation, limited sanitation facilities, low levels of cleanliness and hygiene, and inadequate food and medical supplies make prisons life-threatening in many countries.
In a recent Human Rights Watch report269, overcrowding was apparent in 13 out of the 15 African countries surveyed, with many prisons operating at over 50 % of their official capacity, and being unable to provide adequate arrangements to meet the special needs or prevent abuse of incarcerated women and juveniles. In the central prison in Karachi, Pakistan, there were four times as many prisoners as the prison was designed to hold and only two toilets available per hundred prisoners. In Uzbekistan, ten to fifteen inmates were reportedly confined in cells designed for four. The La Loma prison in Mexico, built to hold two hundred prisoners, housed nearly 1,200. In Bolivia, cells were “sold" to incoming prisoners by previous occupants or other prisoners; in the poorest areas, cells measured three or four by six feet and lacked ventilation, lighting, or beds. The crowding in some prisons is so bad that prisoners must sleep sitting up.
Epidemic diseases were spreading rapidly and health care in most prisons was poor to non-existent. The spread of communicable diseases in numerous prison systems was the predictable result of overcrowding, malnutrition, poor ventilation, lack of potable water, inadequate sanitation, and lack of medical care. In 2001,270 there was increasing awareness that Hepatitis-C had joined HIV/AIDS and tuberculosis as a major scourge of prisoners. Twelve percent of the prison population in Kazakhstan had tuberculosis. Access to anti-retro-viral drugs was inexistent. The prevalence of HIV infection in South African prisons was reported to be about 40 %, which was double the level in the general population, but figures are lacking for inmates in many African countries.
HIV/AIDS resulted particularly from the failure of prison authorities both to protect inmates from sexual violence and to offer even simple and cheap services such as access to condoms. South Africa is the only African country where condoms are provided for prisoners on request since 1996.271
In the 2006 edition of the journal, Medical Microbiology272 reporters went inside three prisons in the West African country of Ghana to determine the prevalence of HIV and syphilis. The data provided tangible evidence to support anecdotal suggestions that an outbreak of these infections might be occurring in African prisons, affecting both inmates and prison staff. Furthermore, this high-risk group might represent the nucleus for the beginning of outbreaks in the general population according to the journal. The authors also highlighted the lack of access to medical facilities, and the absence of screening, immunization or health education programs in these penal institutions. Their findings represented the similar state of affairs in penal institutions in many poor developing countries.
As we can imagine, prisons in this part of the world are not maintained correctly partly because of a serious lack of resources. Corruption and extortion accompany the low salaries generally paid to guards and their inadequate training and supervision. In Angola, whose prison population is five times larger than the prison system’s capacity273, many prisons lacked financial support from the government.
In many countries, prison authorities failed to provide basic necessities to prisoners, who were obligated to depend on families, friends or international relief organizations for food, blankets, mattresses, toiletries, and even toilet paper. Insufficient food or poor diet led to many cases of malnutrition, semi-starvation and even death. The prisons are also not well maintained. In some countries, cells lacked toilets or latrines, requiring prisoners to “slop out," using buckets that they periodically emptied out. Inmates at Makala prison274 in the Democratic Republic of Congo had no toilets at all.
Another problem is simply that prison maintenance is a low priority for governments. In countries, where food self-sufficiency itself was out of reach, taking care of criminal offenders is by far their lowest priority.
Insecurity was a problem common to any prison, in a developing or a developed country. Prison homicides and mistreatment were however more frequent in developing countries for a few reasons. In fact, prison authorities were corrupt and often did not interfere when prisoners were hitting on other inmates: In Mexico275 for example, inmates were able to coerce fellow inmates with little interference from prison authorities, and to engage in violence, sexual abuse, drugs and arms trafficking, and influence peddling. The overcrowding made it also difficult, even life threatening for prison staff to interfere. They risked being killed by a perpetrator who could easily hide in the mass of prisoners.
Incidents of collective violence, particularly in South America, also led to inmate deaths and injuries. During 2000, 276 Venezuelan prisoners276 were killed during gang fights or riots.
Physical abuse of prisoners by guards remained another chronic problem. The UN Special Rapporteur against torture reported in April that torture and ill-treatment were widespread in Brazilian prisons and detention centers. Unwarranted beatings were so common as to be an integral part of prison life in many prison systems. In Indonesia277, officers punished inmates with electric shock batons and by stapling their ears, nose and lips.
Women prisoners are vulnerable to custodial sexual abuse. In Haiti278 for example, female prisoners were even held together with male inmates, a situation that exposed them to rampant sexual abuse and violence.
Juvenile inmates are also held together with adults, a situation that was unacceptable for their human dignity because they had no chance to defend themselves and they serve as slaves of adult inmates.
Relevance of imprisonment
The liberal use of imprisonment as a punishment was a big concern in developing countries. In too many cases, imprisonment in those countries was unjustified or excessive.
In some countries, especially in Asia, the biggest prisoner portion was made up of short-term sentences. In Sri Lanka279, sentences of less than a year represented 83.8 % of the convicted population. Out of a total of 20,800 convicted prisoners admitted to prisons in Sri Lanka in 1998, 16,603 or 79.8 % had been fine defaulters, whom the courts initially thought, did not deserve a prison sentence. From the very fact that they were given short-term imprisonment, it was clear that most of them could not have been found guilty of serious offences for which alternative punishments to imprisonment could not have been given. The admission of large numbers of offenders to prison for non-payment of fines was also contributing largely to the problem of overcrowding, particularly in Asia. In the third world in general, people were imprisoned for minor infractions such as stealing of insignificant objects, minor violations of traffic laws, etc. Some people even went to prison for stealing a fruit at the market. Even if they offered to repay a stolen object, individuals were still sent to jail. Once in jail, a long journey that was supposed to last only a few months could last for years, if they did not get legal help or because of delays and remanding. More than that, the damage was done and those individuals might become worse men than they were prior to being sent to jail. Furthermore, they had lost the respect of society and had a hard time landing a job after their stay in jail.
Another recurrent problem was the delay in bringing prisoners to trial, a result of the slow penal system and corruption in developing countries. Available statistics showed that a large proportion of the Third World’s prisoners had not been convicted of any crime, but were instead being detained pending trial, creating unnecessary overcrowding. In Sri Lanka280, 13 % of the remanded had to wait for periods more than a year until their cases are heard, and about 3 % had to wait for periods over two years for their trial. In many cases, prisoners exceed their jail sentence before being even convicted. As long as they had not been in court, they were not eligible for release.
In many developing countries, remanding was resorted to as a punitive measure by the police. Ticketless travelers, vagrants, drunkards, persons of unsound minds, prostitutes and drug addicts, are all lingering in prisons on being remanded. The absence of legal help and small number of lawyers compared to the staggering number of prisoners could also further extend this delay.
Excessive bail or inadequate use of bail provisions was also part of the problem. Traditionally, bail was, according to Wikipedia,281 some form of property deposited or pledged to a court in order to persuade it to release a suspect from jail, on the understanding that the suspect would return for trial or forfeit the bail (and be guilty of the crime of failure to appear). In most cases bail money would be returned at the end of the trial, if all court appearances were made, no matter whether the person is found guilty or not of the crime accused.
However, this traditional use of bail provisions was distorted in the Third World. In countries, where the vast majority of the population lived with less than one US dollar a day, paying a bail for stealing a fruit was impossible. Some people stayed in prison for years if not their whole lives for minor infractions, because they did not have the money to pay for their bail, which contributed unnecessarily to the overcrowding in prisons.
The penal system in the Third World had the reputation of being very slow and bureaucratic, resulting in unnecessary and excessive remanding.
One of the aspects of this bureaucracy was a lack of workers in the courts in comparison to the high number of cases. The result was that remand prisoners have to wait years for their case to be heard and decided. In the meantime, they spent years in inhuman conditions surrounded by dangerous criminals and infectious diseases. Even individuals, who committed minor infractions saw their case being remanded unnecessarily. Remanding was often used by the justice to keep individuals in prison longer than they should have to stay.282
The Way Forward
The conditions described above have had many repercussions on the lives of prisoners, their ability to survive detention and ultimately their reinsertion in society.
Consequences of poor incarceration conditions
The situation in prisons is so bad that it creates more problems than it had solves. Bullying and self-harm are major problems, and suicides in custody are more common than ever. There are a huge number of suicides, because inmates cannot endure these horrible conditions. Most of the time, suicides occur during the first days of their stay and particularly amongst the young prison population and women.
The most obvious consequence of poor sanitary conditions in these countries is the high rate of inmates contracting diseases. This has an impact on public health and the community. Once released from prison, detainees infected with a communicable disease while incarcerated pose a public health risk to the communities to which they return.
These poor detention conditions have created detrimental health effects. In fact, detainees infected with HIV/AIDS, tuberculosis, were likely to pass those to their families and community after their release. Given that the biggest portion of prison population were short term sentenced detainees and remand prisoners, given that they had a high likelihood of eventually being released, the health of detainees should be a serious public health concern. In South Africa, where an estimated 40 % of inmates were reported to be HIV positive, some 25,000 prisoners were released every month.
Overcrowding is the most serious challenge in developing countries prisons. Overcrowding creates security problems and encourages subversive activities among prisoners. The staff becomes unable to intervene and watches them kill each other with no consequences. Prisons become jungles, where only the strongest survive. Moreover, in an overcrowded prison, segregation of dangerous criminals from mild offenders becomes impossible. Overcrowding is also responsible for the severe strain on the essential services mentioned above, resulting in serious health hazards and disruptions in penal reformation and rehabilitation programs. Furthermore, prison overcrowding contributes to additional pressure and strain on the staff and affected their morale.
Excessive use of imprisonment and pretrial detention
Imprisonment was designed to punish offenders and teach them a lesson to make them better and more responsible citizens. Prisoners were supposed to return to a better life than the one they had prior to their imprisonment. However, as we have seen earlier, the use and purpose of imprisonment has been distorted. The consequences are incalculable.
This also had repercussions on the society. Most prisoners condemned for short-term sentences or on remand were treated like dangerous criminals. This affected their confidence and weakened them psychologically. The result was that instead of transforming those men into better citizens, we created criminals, who would be released only to increase the criminality rate. After their jail stay, whether they were in prison on remand for a minor infraction or even declared not guilty after trial, they were still criminals in the eyes of society.
Pretrial detainees could lose their jobs, even if they stayed in preventive detention for a short period of time. Pretrial detainees endured worse detention conditions than their sentenced counterparts. There were locked up 23 hours a day. They also suffered regular invasion of privacy each time they were searched, and often feared danger from those incarcerated with them.
Detention, like incarceration, disproportionately affected individuals and families living in poverty. When an income-producing parent was detained, the family had to adjust to the loss of that income. The impact could be especially severe in poor developing countries, where the state did not provide reliable financial assistance to the indigent and where it was not unusual for one breadwinner to financially support an extended family network.
A hypothetical example from a poor rural community in the developing world revealed the medium-to-long-term economic shocks within a household as a result of the detention of one of its members. In one example, after the male head of a household was arrested and detained, the family had to sell its maize-milling machine to obtain cash for his legal fees, bail, and or money to bribe him out of jail. As the milling machine brought steady income into the household, the sale of working capital meant that soon the family had no money to hire labor or buy inputs for their beetroot plots. Beetroot production ceased, and so did income for crops. The new owner of the milling machine moved it to a distant location. Other households in the village felt the absence of the machine, and women went back to pounding maize, which increased their workload.
Detainees and their families often bribed the administration for their liberty. But corruption destroyed citizen trust in government and undermined government legitimacy. Corruption also exacerbated poverty, deterred foreign investment, and stifled economic growth and sustainable development, and undermined legal and judicial systems. Moreover, by corrupting the administration of justice, and undermining the rule of law, the irrational and excessive application of imprisonment weakened governance overall.
Consequences of the absence of reinsertion strategies
The problem of limited resources and the absence of political will can be applied here again. Following the path of their careless attitude regarding prisoners, no effort was made to facilitate the reinsertion prisoners into society. Prisoners came out of prison with no self-esteem or self-belief, with no money, and most of all with no pride. They feel humiliated, devaluated and unable to find their place in society. Instead of helping them, the society treated them as rejects, no matter what they had done, how they had changed and regardless of their culpability, they were treated with the same intolerance.
Of course, in a poor family, this had deep socio-economic and psychological repercussions. If the man of the house was unable to produce, the income of the family decreased. Even more than the economic dimension, there was a strong psychological tie to this problem. The family is torn apart with disputes, fights, and finally a divorce happened because the woman could not see her man let her and her children down. The ex prisoner found himself alone with nobody to turn to, nobody who could understand his humiliation and what he had just been through.
Society has also put innocent men in jail and released criminals. That was the sad consequence of the careless and marginal attitude of the society and the government towards prisoners. Then criminality added to the endless list of problems that developing countries had to deal with.
Although the situation looks desperate, much can be done to alleviate the conditions of prisoners in detention facilities. Some proposals are as follows:
AIDS is the most feared disease in developing countries. In December 2005, at Africa’s 14th International Conference on HIV/AIDS, the executive director of The Joint United Nations Program on HIV/AIDS (UNAIDS) stated that “urgent and sustained action was needed at all levels to increase access to HIV prevention and treatment services across Africa”283.
One of these levels would be to address the issue of HIV and other blood/sexually transmitted infections in the prison system. Primarily, we needed more research, as the paucity of accurate data impeded proper appraisal of the impact of the prison population on the dynamics of the HIV/AIDS epidemic in Africa. Women accounted for over 50 % of people with HIV/AIDS in Africa284 and this gender disparity is even more marked among those aged 15–24 years.
Therefore, these studies had to investigate the specific characteristics and needs of incarcerated women and juveniles as well as young children who were living in prisons with their mothers. Second, there is a need to identify which policies and intervention programs would work in developing countries’ prisons in the face of limited resources and cultural norms. For example, condom distribution recommended by WHO and UNAIDS remained highly controversial due to moral and legal barriers in many countries.
Education was a key component in a successful health intervention program. The prison offered a controlled environment where health education and risk assessment could be offered to a traditionally hard to reach population. However, what worked well on the outside might not necessarily apply behind prison walls. Therefore, the medium and content of such an intervention needed to take into account the prison “subculture” that put inmates at risk, as well as the deep-seated suspicion of authority and the low literacy rate in the prison population. Even with resource limitations, peer education and counseling programs implemented by inmates (particularly gang leaders) and correctional officers were achievable, as shown by experiences in some African prison systems, and deserve serious consideration.
To make headway in addressing issues of prison health as public health issues, developing nations would benefit from partnerships with non-governmental organizations, donor agencies and international bodies. With such backing, effective prison health initiatives providing counseling, health education, confidential voluntary testing, care pathways, strategies for interrupting transmission as well as harm reduction could be developed and implemented. Such an approach would ultimately benefit the inmates, the correctional officers, families, communities and the general populace.
Overcrowding of convicted prisoners could be reduced to a great extent by courts resorting to alternatives to imprisonment including non-institutional treatment. Some countries such as New Zealand, Australia, and Hong Kong have developed over the years a wide range of alternatives to imprisonment, such as forfeiture and confiscation, restitution and compensation orders, home detention and periodic detention, electronic monitoring and sentencing to drug rehabilitation centers.
Many countries had probation, parole and community service, which were commonly known as traditional alternatives to imprisonment. These non-institutional treatment methods are widely used in many developed countries. However, the facts showed that very few non-institutional methods were used by developing countries. Even these few have not been very effective due to lack of administrative provisions.
The non-institutional measures were mostly community-based corrections. The concept had evolved with the thinking that correction, if linked to the community, will be less costly, more humane and more effective than imprisonment in dealing with offenders convicted of minor offences. There was a need in the field of community corrections for a systematic and orderly development having due regard for local conditions and local needs. In developing such a system it was necessary to ensure that no individual who did not require incarceration for the protection of others was confined in an institution and that no individual was subjected to more supervision or control than required. On the other hand creation of community-based programs should have ensured that they respond not only to the needs of the offenders but also the interest of the community. If they were not administered properly it would amount to the criminal justice system going soft on crimes and criminals.
There were also economic arguments in favor of alternatives. In western societies, the supervision of offenders within a probation system was normally much less costly than the upkeep of a prisoner. On the other hand, western style probation services might not be practical options for many countries, where resources were too scarce to set up and maintain a probation system with adequate staff and finances. In these circumstances, the development of existing structures and the use of existing staff (e.g. staff of magistrates courts, municipal authorities, social agencies, administration staff of institutions where community service is implemented) and volunteers for the supervision of non-custodial sentences might be more viable and effective option (successful examples include Zimbabwe, Latvia and Russia). In Zimbabwe, for example, where a community service scheme was developed on this basis in the early 1990’s, the monthly cost of supervising an offender on community service was estimated to be about one third of that of keeping a prisoner in jail.
In order to counteract some of the negative consequences of prison overcrowding and poor sanitary conditions, specific modalities for the enforcement of custodial sentences should be used as much as possible with the aim of contributing to the treatment and resettlement of prisoners, to maintaining their family and other community ties and to reducing the tension in penal institutions.
Modification of the criminal justice system
An integrated approach involving all parts of the criminal justice system might be part of the solution. However, in practice, each agency worked in tight compartments isolated from each other. In some Asian countries, police, prisons, and probation came under three separate ministries. The courts functioned independently under judicial service commissions. There was very little or no coordination existing between the different agencies, though they work to achieve interrelated objectives. Therefore the problem of overcrowding of prisons became the exclusive problem of the correctional institutions. Having realized the roles the other agencies could play in reducing the prison population such as the police expediting the investigations, and courts expediting the trial process and utilization of non-custodial methods in a greater measure, workshops, seminars and conferences have been conducted involving the different agencies through the initiative of their respective department of prisons and ministry of justice.
It was important to emphasize that the alternatives cited in the previous section alone would have very little effect on the size of the prison population. In order to meet the goal of reducing the number of prisoners, comprehensive reforms of criminal legislation need to be undertaken and sentencing practices need to be changed. Measures could include decriminalizing certain acts, providing shorter terms of imprisonment for certain offenses in addition to introducing a wide range of non-custodial sentences as an alternative, and widening possibilities for parole. By reducing the number of detainees, most countries would save enough money to build schools, instead of prisons.
However, the goal of introducing alternatives to prison was not only to address the problem of overcrowding in prisons. The wider use of alternatives reflected a fundamental change in the approach of crimes, offenders and their place in societies. This changed the purpose of penitentiary measures from punishment and isolation, to restorative justice and reintegration. When accompanied by adequate support for offenders, it assisted some of the most vulnerable members of society to live a life without having to relapse back into criminal behavior patterns. Thus, the implementation of penal sanctions within the community, rather than through a process of isolation from it, offered in the long term a better protection for society.
The private sector could provide alternative methods of design, construction, management and financing of new prisons. In fact, prisons did attract many private prison management companies and investors as long as these countries implement a series of acts designed to mitigate risks. Prisons are profitable, because prisoners represent a cheap workforce. Private management of prisons benefits prisoners also, because they have more money to invest in the maintenance of prisons, more control over the staff and offer them employment while they are in jail.
However, the most viable alternative would be a private/public cooperation to ensure the government still has some sort of control over the operations of those private companies, while it simultaneously benefits from the private sector’s financial contribution.
States that spent large amounts of money on incarceration in an effort to promote public security could arguably use some of that money more effectively on crime prevention.