David Biles*

This Discussion Guide has been prepared in order to assist the preparation of background papers for the 21st Asian and Pacific Conference of Correctional Administrators which is scheduled to be held in Chiang Mai, 21 to 26 October 2001. (The abbreviated title of the conference is 21st APCCA, Chiang Mai.)

The APCCA held its first meeting in 1980 and its most recent meeting was in November 2000 in Sydney, Australia. Most meetings of APCCA are attended by senior correctional officials and observers from 20 or more nations in the region. They represent nearly one half of the total population of the world.

Between 1980 and 2000 the APCCA has developed a number of traditions, one of which is that conference delegates prepare papers on each of the substantive agenda items selected for discussion. The papers are generally used as a basis for the presentations to the conference (even though it is not customary for them to be read in full to the assembled conference), and they have also been used to assist with the training of senior correctional staff in some nations in the region. Some of the national discussion papers are also published on the APCCA Internet web site when specific approval has been given.

At the 16th APCCA in New Zealand in 1996 it was agreed that there would be a slight change in the format of the conference in the following year in order to provide more time for discussion and the exchange of views. Specifically, it was agreed that the first agenda item should be a national report from each delegation covering any matters of current interest in each nation or territory. All delegations would be expected to produce a written report and also to address the conference for up to 10 minutes on their reports.

Three other conference agenda items would also be specified and, while all delegations would be asked (if appropriate) to prepare papers on each of these items, they would be asked to formally address the conference on only one of these three items. Thus all delegations will be given two opportunities to make formal presentations to the conference, and all will have adequate time to ask questions and enter into discussions. This format was followed at the 17th APCCA in Malaysia, the 18th APCCA in Canada, the 19th APCCA in China and the 20th APCCA in Sydney and met with the general approval of the delegates.

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* APCCA Coordinator, 25 Kidston Crescent, Curtin, A.C.T. 2605, Australia. Fax: +61 2 6232 4463

It is therefore requested that for agenda items 2,3 and 4, the national discussion papers clearly indicate if these items are regarded as high, medium or low priority.

At all recent conferences the national discussion papers have been copied by the conference hosts and circulated to all delegates in attendance. It has been observed by many delegates that the collection of national papers is so informative and factual that it constitutes an invaluable reference for penal policy in the Asia and Pacific region.

As indicated in previous Discussion Guides the papers themselves need not be very long, the actual length being entirely a matter for individual delegates to decide, but it is common for papers from each nation to include an introductory statement which presents the basic facts about the relevant correctional system. This might include information on the numbers of prisoners, prisons and staff, and also describe any recent changes in general policy or practice. (In order to facilitate the copying of papers for distribution it is suggested that if possible they be prepared on plain paper approximately the same size as this Discussion Guide.)

At the 20th APCCA in Sydney, Australia, the delegates proposed a large number of possible agenda items for the next conference in Chiang Mai, Thailand. The list of suggested items was initially considered by the APCCA Advisory Committee and later considered by the full assembly of conference delegates. The full conference finally approved the four agenda items which are outlined in the following pages.

Following a highly successful workshop on the Classification of Prisoners and Prisons at the 20th APCCA in Sydney it was also decided that provision should be made for optional workshops at the 21st APCCA in Chiang Mai. The topic proposed for these workshops are:

Indigenous Offenders and Restorative Justice, and

Correctional Through-care: the Integration of Custodial and Community

Treatment

Participation in these workshops will be optional and national papers are not expected to cover these topics. It is likely that nations other than the host nation will be invited to take the lead in the presentation of these workshops.

This document is no more than a guide to some of the issues that may be discussed in relation to each agenda item. Delegates should feel free to put their own interpretations on the items. Also, it is recognized that not all of the issues will be equally relevant to all the nations participating in the conference.

1. National Report on Contemporary Issues in Corrections

As indicated above, this agenda item was selected in order to provide an opportunity for conference delegates to report on and discuss any matters of current interest in correctional policy and practice in their own nations or territories. Therefore, the contents of reports are entirely at the discretion of each delegation.

However, it may be useful if reports included an outline of trends in crime and in prison populations, and, (if relevant) trends in community - based correctional populations.

In providing these basic facts it may be helpful if explanations are given of the correctional statistics which are supplied separately. For example, in federated nations it would be helpful to know if offenders held in provincial or local jails, including police facilities, are counted in the total numbers of prisoners that are reported for each nation. (It is specially requested that in federated nations an effort be made to provide a general national picture of the use of custody or detention so that valid comparisons can be made with mono-jurisdictional nations.) Similarly, it would be of interest to know if persons accused of committing offences and who are held in custody (perhaps known as remandees, detainees or on-trials) are counted as prisoners. The same question arises in relation to persons serving periodic or weekend detention orders.

Furthermore, relevant details of the structure or composition of prison populations would be of interest, particularly if any changes or trends have been noticed. For example, are there any changes in the proportions of the total prison populations who are identified as female, indigenous, foreigners, etc.? Is the average age of prisoners increasing? Are there more prisoners serving sentences for particular types of crimes, such as drug offences? And, are there proportionately more or fewer prisoners who have special needs, such as the need for medical isolation because of infectious disease, or need to be protected from other prisoners.

It would also be appropriate if national reports prepared for this agenda item referred to any new or proposed legislation which has had, or may have in the future, an impact on the size of prison populations. Legislation abolishing the granting of remissions to prisoners for good conduct and industry, for example, has in some jurisdictions had a major impact on the total number of prisoners, but this has not always been the case. It would be of interest to know if legislation of this type was seen as reflecting the attitudes of the general public who may be demanding that offenders must be seen to be severely punished. Any other legislative changes or proposals, such as proporsals for treaties facilitating the international transfer of prisoners or the introduction of private prisons, whether or not they have an impact on the total number of prisoners, might also be outlined in the national report.

National report may also provide details of any new treatment or training programs that have been recently introduced or are being planned. Of particular interest here would be programs which aim to correct specific types of offending behaviour, such as drug and alcohol treatment programs, sex offender programs, anger management counselling, and new approaches to dealing with intoxicated and other irresponsible driving of motor vehicles. If any programs of this type have been evaluated, either internally or by external consultants, the results of such evaluations would be of considerable interest.

Any issues relating to staffing may also be considered appropriate for mention in national reports. For example, is it difficult to attract and retain suitable people to work in prisons (and community corrections), what type of pre-service training is provided, and is in-service training also arranged? The negotiation of staff pay scales and working conditions and the influence of correctional staff unions, particularly if there have been recent changes, may be of particular interest to delegates at the conference.

It is suggested that national reports should make reference to current problems and challenges, as well as to positive or successful initiatives, and therefore it would be appropriate for reports to mention matters which are causing concern, such as overcrowding, escapes, deaths in custody, etc.. For each of the problem areas it may also be possible for information to be provided on approaches or initiatives that have been, or will be, introduced to resolve these problems, in either the short or long term.

Finally, while it is suggested that national reports should primarily focus on the general picture of correctional administration in each nation or territory, reference may also be made to some of the specific issues which are scheduled for consideration under later agenda items. In other words, a subject needs not be excluded from the national report simply because it is discussed in more detail under a separate agenda item.

2. Foreign Prisoners and International Transfers

This subject, in one form or another, has been considered by the conference on many different occasions. In 1981 and 1986 there was specific reference in the agenda to either prisoner exchange arrangements or the international transfer of prisoners within the Asia and Pacific region. Also, in 1993 and 1996, the topic was discussed again within a broader consideration of international cooperation. A possible reason for the popularity of this topic within APCCA is the fact that it provokes a wide range of different views as shown by the following extract from the report of the 13th APCCA in Hong Kong in 1993.

With regard to the international transfer of prisoners, it became apparent that there were divergent philosophies and practices. Some nations were currently opposed to such arrangements for a variety of reasons, including the strongly held view that to maintain the integrity of the penal system, convicted offenders should serve their sentences in the place where they were convicted. Other countries expressed the view that the difficulties faced by foreign prisoners were often such that, as a matter of humanity and with a view to achieving the aims of rehabilitation in the course of serving prison sentences, they should be repatriated to their own cultural background if this could be done consistently with justice and respect for domestic criminal laws.

The report then listed seven nations which at that time were reluctant to support international transfers of foreign prisoners, four nations with active international transfer programs, and five nations which had the subject under consideration. Since that time it is likely that more nations now support the nation of international transfer, but it is safe to predict that there will still be some marked disagreements on this subject.

There are three principal arguments that have been made in favour of international transfer. First, it is claimed to be a humanitarian measure that removes the additional suffering that foreign prisoners may experience as a result of the differences in language, culture, diet, health services, etc.. These considerations do not apply to prisoners serving sentences in their own nations. Secondly, it is claimed that repatriation may contribute to rehabilitation in that it enables the prisoners concerned to maintain closer contact with their families through visits and telephone calls. This argument is based on the belief that prisoners are less likely to reoffend if they have close family ties. Thirdly, it is claimed that international transfers remove some of the difficulties experienced by prison officers in managing foreign prisoners. This may also apply to consular staff in diplomatic missions who endeavour to provide services for their own nationals in foreign countries, as well as the relatives of foreign prisoners who sometimes feel that it is necessary for them to travel to the foreign nation where the offender is in custody in order to assist with legal matters or the provision of dietary or health needs.

Against these arguments, those who oppose the international transfer of foreign prisoners may argue that for justice to be seen to be done the offender must serve the sentence in the nation where the offence was committed, and it may be seen as unfair or unequal if an offender is allowed to go to his home country and suffer less harsh conditions just because the person is a foreigner. Also, there may be a belief that if a foreign prisoner is allowed to return to his or her home nation, the sentence that was imposed will not be enforced as rigorously as would be the case in the nation where it was imposed. (An example of this would be the lenient treatment by the French authorities of the offenders in the Rainbow Warrior case in New Zealand.) Furthermore, it may be argued that the deterrent effect of punishment may be reduced if it is perceived that offences committed in foreign countries are not treated equally. Some nations are also concerned that they may receive more of their own nationals back from foreign nations than are transferred out, and thus it would contribute to increased costs and overcrowding.

In practice, the transfer schemes that are in operation only apply to relatively small numbers of prisoners as there are always eligibility criteria that have to be met before any transfer can take place. The multi-lateral Council of Europe convention, which seems to be the most popular around the world, requires that a foreign prisoner would only be eligible for transfer if:

  Both the sending and receiving nation accept the application made by the prisoner,

  The prisoner is serving a known sentence which is not subject to appeal, and,

  The prisoner will have at least six months more to serve after return to his or her home nation.

Some nations, such as Thailand, require that a fixed proportion of the sentence imposed must be served in Thailand before applications for transfer will be considered, the proportion varying according to the length of the sentence imposed.

In addition to the Council of Europe convention dealing with international transfer, the Commonwealth of Nations has published a multi-national treaty, but this has not attracted the same level of support as the Council of Europe convention. In many parts of the world, however, individual nations have negotiated bi-lateral treaties with other individual nations. These endeavour to reflect the particular needs or circumstances of the two nations involved. Also, in some of the very small Pacific nations, it has been reported that some transfers have been made without any legal treaties having been signed by the two nations involved.

One of the many aspects of the international transfer of foreign prisoners that must be resolved in treaties is the precise nature of the sentence that will be served by the prisoner in his or her home nation. The choice is between continuous enforcement or sentence conversion. The first option, which seems to be generally preferred, requires the prisoner to serve the actual sentence that was imposed in foreign nation, while the second option allows the sentence to be adjusted to ensure that it is consistent with sentences imposed for similar offences in the home nation. If the sentencing nation makes wide use of sentence-reducing strategies such as the granting of pardons or reprieves, this may be taken into account within the general philosophy of continuous enforcement.

Another matter that needs to be resolved in treaties is that of costs. This is apparently often a matter for negotiation in individual cases, but the general practice is for the sending nation to pay the transport and escort costs to the international border of the receiving nation. The receiving nation then provides the escorts to take the prisoner to a designated prison, and also meets the costs of keeping the prisoner there for the required period.

It can be seen from this summary of some of the issues associated with the international transfer of prisoners that there are a number of complicated and controversial aspects of the scheme. It is therefore suggested that delegates to the conference may choose to present the general views of their governments without necessarily trying to resolve all of the details.

The complexity of transfer schemes is even greater for federated nations where at least two levels of government are involved. In Australia, for example, after several years of discussion, the national parliament passed legislation in 1997 which provided for transfers to take place, but it was not until late 2000 that reciprocal legislation was passed by each of the six states and two territories where prisoners are held. At the time of writing (February 2001), it will still be necessary for treaties, either multi-national or bi-lateral, to be settled, administrative arrangements to be made, and regulations to be promulgated, before any actual transfers, either into or out of Australia, will be possible.

3. Drug Offenders - Psychological and Other Treatment

Over the past 20 years the APCCA has discussed many aspects of the treatment of offenders and it has become apparent from these discussions that the treatment of drug offenders has been a cause of considerable concern. However, on only one previous occasion, in 1983 in New Zealand, has there been an agenda item specifically directed at drug offenders in prison.

The term “drug offenders” can be defined either narrowly or broadly. A narrow definition might suggest that the term should only be applied to offenders who are addicted to illicit drugs, while a broad definition might suggest that the term is used appropriately when it is applied to persons who have committed offences which are in any way related to drugs. Thus, a broad definition would include growers, manufacturers, suppliers, couriers (whether these individuals are addicted or not) as well as the very large number of offenders who commit robberies, burglaries and thefts in order to obtain money to buy drugs. For the latter group of offenders there may be no reference to “drugs” on the criminal records, and whether or not they are addicts may not be known. (Another definitional issue is the question of whether or not alcohol should be regarded as a drug in this discussion.)

In some jurisdictions, some prisoners have been identified (albeit in relatively small numbers) who exaggerate the level of their drug consumption in the (probably mistaken) belief that if they are classified as drug addicts they will be treated more leniently as they are in need of treatment rather than punishment. Therefore the initial assessment of suspected drug offenders requires considerable skill and experience by classification staff.

The number of prisoners who are identified as drug offenders in any correctional system will depend, to a large extent, on the type of definition that is used, but it is almost certainly the case that, whatever definition is used, the proportion of any prison population who are so identified will have increased significantly in the past one or two decades. It would be of interest to know for all nations in the Asia and Pacific region what proportion, or percentage, of prisoners are thought to be drug offenders, even if the figures are based on estimates rather than precise statistics.

Of even greater interest to the conference would be details of the treatment programs that are pursued for drug offenders. Some nations in the region, such as Singapore, Malaysia and Hong Kong (China), have had many years of experience in the treatment of drug offenders, particularly through the use of intensive programs of physical activity and the medical treatment of the symptoms of illness that occur during detoxification.

A different approach to the treatment of drug offenders (which may or may not be associated with organized physical activity) makes use of other drugs which aim to eliminate any pleasant sensations that may be associated with the consumption of illegal drugs. For example, methadone is claimed to mask the effect of heroin and therefore remove the motivation for the individual to take heroin. This approach has been the subject of controversy, as methadone itself is a drug of addiction, which also has some negative side effects. It has been suggested that to use methadone as a treatment for heroin users is simply to replace one unwelcome drug with another. In recent years, another drug, naltraxone, which is claimed to be non-addictive, has been used with some drug users in nations such as Singapore with considerable success.

A third approach to the treatment of drug offenders makes use of psychological counseling, which may be offered to individuals or to groups, and may also be a supplement to either of the other two approaches mentioned above. In fact, it is sometimes claimed that psychological treatment is more effective if it is just one part of a comprehensive program which incorporates different strategies and methods.

Whatever approach, or combination of approaches, is followed in the treatment of drug offenders, there is a pressing need for rigorous evaluation of the effectiveness of what is offered. At this stage of human knowledge, no-one would claim to be one hundred per cent successful in treating drug offenders, and realistically, if a treatment program can be shown to reduce recidivism, re-offending or relapse from, say, 70 per cent to 30 per cent, that may be as successful and worthwhile as can be achieved. Even lower reductions in expected recidivism may be commendable if the programs are able to quantify the lives that have been saved and the financial and human costs that have been avoided. The results of any evaluation studies would be of great interest to the conference.

Other aspects of the problems caused by drug offenders in prisons are the efforts made by security staff to keep drugs out by the searching of prisoners, visitors and staff, as well as the searching of cells and other areas within the prison. Sniffer dogs and random urinalysis of prisoners may also be used to detect drugs or drug use. An extremely controversial measure adopted in some prisons in the world is the provision of needle exchange arrangements. This has been done where it is recognised that drugs cannot be kept out, and it is argued that it is better to reduce the risk of infection being spread from the use of dirty needles.

Psychological treatment in correctional institutions can be applied, of course, to many other types of offenders other that drug offenders, and considerable progress has been made in recent years with psychological input into sex offender programs, anger management and cognitive skills programs as well as general mental health counseling. Psychologists who work in prisons, however, spend a great deal of their time in writing reports for the courts or for classification authorities, including providing advice on the prevention of suicide or self-harm, and therefore the time that they have available to provide treatment services is often quite limited.

4. The Management of Special Groups of Offenders

This agenda item is intended to provide an opportunity for delegates to exchange views about the different approaches that may be adopted to manage special groups of offenders, such as the young, the elderly, members of gangs or triads, those in need of protection, those with physical or mental disabilities, etc.. Women prisoners will not be included on this occasion as they were discussed at the 20th APCCA in Sydney, and foreign prisoners will also be excluded as they have been considered earlier in the current program.

In the past decade, the APCCA has listed a number of agenda items which are similar to this one. In 1993, for example, the 13th APCCA in Hong Kong considered the effective treatment of different types of offenders, and the following year in Darwin, Australia, the 14th APCCA considered the care and control of minority groups in prison. This apparent repetition is not surprising as the provision of appropriate treatment programs for the wide range of different types of offenders who come to prison must be one of the most challenging and difficult tasks of any prison administrator.

Of all of the identifiable groups of prisoners needing special attention, probably the young are of most concern and challenge, as the consequences of success or failure are greater than is the case with any other group. A young offender who is deterred from further crime will save considerable human and financial costs to the community. That would not be the case with an older offender. For this reason, nearly all prison systems have special programs and facilities for young offenders, even though the definition of what is “young” varies from place to place. An outline of what is done for young offenders in each jurisdiction would be appropriate in the national papers on this item.

At the other end of the age range, many prison systems are being faced with the challenge of managing increasing numbers of old, and even very old, prisoners. As a result of mandatory sentencing, and similar measures, the discretion of judges to take into account the age or health of offenders has been reduced in some jurisdictions. In these situations very long, even life, sentences are unavoidable for those who are convicted a number of times, even if the offences are not at the most serious level. For these and other reasons, prisoners over the age of 80 years are to be found in many systems and their safe custody in traditional prison facilities is very difficult. Any special measures that have been adopted to deal with this problem would be of interest to the conference.

The management of gangs or triads in prison is an issue that is relevant in some nations but not others. Similarly, the proportion of the prison population that is in need of protection from other prisoners varies widely from one nation to another. Nevertheless, all conference delegates would be interested to learn how these problems are tackled in those nations where they are relevant. More common to all prison systems is the challenge of dealing with prisoners who are either physically or mentally disadvantaged and consequently may require special care and attention. There may well be other special groups of prisoners for whom particular care is needed. If so, these could be discussed in national papers in this item.