Australia must raise the standard of prisoner rights

The high mortality rate in Australian prisons is alarming — as shown by more progressive nations, it doesn't have to be. Gerry Georgatos reports.

HOW MUCH LONGER will Australia pretend its prison population has rights? As a social justice academic and former PhD law researcher into deaths in custody and prison reform, I argue, to this day, that nowhere near enough has changed.

Since the tabling of the Royal Commission into Aboriginal Deaths in Custody Report in 1992, not enough has been done to reduce or end non-natural deaths in prison custody.

High mortality rates in Australian prisons

Three decades on, there are still about 100 deaths in Australian prisons annually, which include at least 20 deaths in prison custody of First Nations people.

Though death rates seem higher for Australians not of First Nations heritage, when we disaggregate non-natural death rates and natural death rates, we find that First Nations people die at a much higher rate from non-natural causes. Disaggregating further, we find that they die by suicide at an even higher rate.

First Nations peoples in prisons also die much younger, and their average and median ages of death are more than ten years younger than the rest of those incarcerated.

If you die in an Australian prison aged 19, you were likely a Black youth — more than 90% of prison deaths at that age are comprised of Black 19-year-olds. These are youth, who, from the beginning of life never stood a chance, being born into overwhelming unfairness and disadvantage. If you die in an Australian prison aged 20, you were likely a Black youth — 85% of deaths in this age group are Black.

No one should be dying in prison of unnatural deaths, but they do and at appalling rates. Little-known are the horrific death rates of both First Nations and non-Indigenous prisoners. For First Nations people in the first year post-release, the death rate is at least four times higher than that of non-Indigenous prisoners. Nearly all deaths within the first year after release are non-natural deaths.

Here stands my long-held premise that people leaving prison in general come out in worse states than prior to incarceration.

Tragically, the death rates after custody, in the first year, are nearly ten-times more for First Peoples. Suicide in that first-year post-release is the leading cause of death — and the suicides are increasing.

Australia's prison system killed Cleveland Dodd

The fate of Cleveland Dodd was determined by a cruel incarceration system that is designed to punish instead of reform.

Lack of legal protection for prisoners

There will be many who argue that prisoner rights do exist in Australia, though they are not enshrined in a single constitutional document like in other countries. Instead, prisoners are arguably protected through a combination of statutory law, common law and international obligations.

Under the Human Rights (Parliamentary Scrutiny) Act 2011, federal laws must be assessed for compatibility with human rights, including the International Covenant on Civil and Political Rights (ICCPR).
Each Australian state and territory has its own Corrections Act, which sets standards for the treatment of prisoners. These include access to healthcare, visits and correspondence, religious and cultural practices and protection from inhumane treatment
Anti-discrimination laws apply in prisons as well, particularly for First Nations prisoners and prisoners with disabilities.

I am calling these paper-thin rights BS. They barely exist, and in effect where they may exist, they are regularly suspended. Solitary confinement, indefinite confinements, three-point shackling, rolling lockdowns, overcrowded cells, stir-crazy, grotesque cells, substandard healthcare and high rates of non-natural death rates counterclaim a lack of immutable rights and protections.

Countries with stronger prisoner rights and positive outcomes

Prisons are the only places in Australia where there is zero Medicare, and therefore, healthcare is abysmal. Prisoners have no rights, no access to external notification services. Prisoners' lives do not matter. Prisons in Australia are purely carceral, unlike the Nordic and Dutch nations, where prisons have been reformed to become life-transformative, genuinely rehabilitative, specialist therapeutic, restorative and educational.

Norway

Rehabilitation means punishment is the restriction of liberty and nothing more, shown by:

open prisons (like Bastøy Island) feature normal living conditions, education, job training and autonomy;
recidivism rate of less 20% (one of the lowest in the world);
normalised environments that reduce trauma;
focus on skills and therapy prepares inmates for authentic reintegration; and
guards are more like social workers.

Germany

Prisoner dignity is protected under the Basic Law for the Federal Republic of Germany, including:

emphasis on resocialisation;
recidivism rate of around 35% (lower than many Western countries);
family visits, personal privacy;
inmates can wear their own clothes and cook their own meals; and
extensive vocational and educational programs; mandatory education for the illiterate.

The Netherlands

Progressive policies such as using alternative sentencing (e.g community service) have yielded positive results, including:

focus on mental health and specialist addiction treatments;
closed prisons due to declining incarceration rates, 23 prisons have closed; and
dropping recidivism and prison population.

Locking people up in prisons is not the answer

Imprisonment and punishment do not lead to more harmonious and prosperous societies, writes Gerry Georgatos.

Examples of reforms that have worked:

Norway: “Normality principle"

Prison life should resemble outside life as much as possible;
guards receive three-year training with focus on conflict resolution; and
prisoners have freedom of movement, cook for themselves and attend classes.

Finland: “Decarceration strategy”

Since the 1970s, reduced prison population by 60%;
focus on early release, probation and community-based sanctions; and
crimes like petty theft and drug use often result in non-custodial sentences.

Germany: Prisoner work & education

Most prisoners work (e.g. in carpentry, printing), earning modest wages;
funds used for restitution, savings and basic needs; and
mandatory education for illiterate or undereducated prisoners.

Netherlands: Therapeutic justice

Specialised courts for drug offenders, mental illness and youth;
courts work with social services, not just police; and
rehabilitation plans replace standard sentencing for eligible cases.

The need for legislation to protect prisoners

There must be prisoner rights enshrined in law and until then, we are a nation not only a laggard but obscenely discriminative. The only recommendation not accepted by the Australian Senate from the 339 recommendations of the Royal Commission into Aboriginal Deaths in Custody Report was Recommendation 329.

Recommendation 329 calls for a National Standards Body to draft and introduce legislation embodying Standard Guidelines and incorporate prisoner rights. It was not approved by the Northern Territory and hence the Australian Senate did not endorse Recommendation 329.

Had Recommendation 329 been endorsed, the creation of warranted legislation could have ensured prisoner rights were the equivalent of all Australians and prisoners were protected in well-resourced and therefore humane and safer custodial settings. Recommendation 329 was one of the few recommendations, which explicitly required the crafting of legislation — to arise, ensure and preserve universal rights for prisoners that are not suspended while incarcerated.