Record of the 22nd APCCA
Agenda Item One
National Reports on Contemporary Issues in Corrections
Introduction
All delegations presented National Reports on Contemporary Issues. This practice, which started in 1997, provides an opportunity for the first formal sessions of the Conference to reflect upon the key issues currently facing each nation or territory as well as identifying more general regional themes. The national reports vary in their structure, tone and content because of the economic, socio-political and cultural differences across the Asian and Pacific region. Nevertheless, as in previous years, this Conference revealed a number of common trends and a high level of agreement on most of the key issues facing correctional administrators.
The papers revealed a broad range of issues but the overriding concern was undoubtedly the problem of increasing prison populations and decreasing budgets. This review therefore addresses, as its primary theme, the extent of such problems and the main strategies that have been adopted to address them.
Socio-Political Changes
Previous Reports of APCCA Conferences have stressed the fact that correctional systems do not operate in a vacuum, but are very directly affected by the broader socio-political and economic conditions that exist in any particular nation or territory. This conference again revealed some striking examples of the way in which broad socio-political and economic factors impact upon the structure of correctional services, the make up of the prisoner population and the constraints facing correctional administrators and staff. The Indonesian Report made the point as follows: “The implementation of the correctional system … is strongly related to the impacts of the strategic regional situation …. Global transformation also affects the degrees, forms, types and subjects of crime…. Such dynamic rhythms will always give impact to life in correctional institutions.”
There were many other illustrations of the impact of socio-political change. China reported that the “gradual establishment of the market economy” has resulted in “higher requirements for the correction of prisoners” and drew attention to several initiatives that have sought to integrate punishment and reform. In Mongolia, the democratic reforms of 1990 resulted in a re-assessment of policies with respect to the prison system “with the implementation of human rights, a market economy and an approach to world standards.” In Cambodia too, the structure and development of the Prisons Department has reflected broader political changes: in March 2000, the Department was “civilianized and separated from the National Police Force, following Royal Decree” and the government is making strong efforts, with overseas aid, to address the “legacy of long decades of war.”
Fiji provides a particularly interesting example of how political instability can directly impact on the prison population and cause security and management problems for prison administrators. During the ‘political upheavals’ of May 2000, “many law-abiding citizens got involved in illicit activities” and there were mass arrests. This caused an influx to the prisons of a new type of prisoner, including highly trained ex-army commandoes and others, all of whom are prepared to rebel against the state and are therefore posing difficult management problems.
Socio political change has also affected the profile of the offender population in Vietnam, where “the economic integration and the transformation of management regime has caused a rapid increase in social evils and crimes such as transnational crime, organised crime, money laundering and drug-related crime, making the prison population larger, more diversified and more complicated.”
Economic Constraints
Virtually all the national reports were very pessimistic about both current and future levels of funding for correctional systems. Comments in the report from Japan encapsulate the overall feeling: on the one hand, “high quality public service” is expected but, on the other, a “sluggish economy and limited national budget” has resulted in staff reductions even during a period of increasing overcrowding. The report from Thailand described the current situation in that country as “Mission Impossible” and noted that despite the fact that the majority of Thailand’s prison population are drug offenders, no budget has yet been allocated to meet the aims of the Drug Rehabilitation Act 1991.
In previous years, Hong Kong (China) has expressed less concern than most other jurisdictions about the level of resources. However, it is currently experiencing an economic downturn and this poses significant challenges with respect to overcrowding and limited resources. The delegation commented that there is no immediate prospect of improvement and that it is likely that “the priorities of public spending will go to funding economic relief measures” rather than corrections. In Tonga, efforts to improve the conditions in prisons and to make advances in the treatment of prisoners are being “hampered by financial constraints.” Similar views were expressed by Fiji.
The report from Brunei drew attention to another way in which economic conditions can affect correctional services; namely, the common influx of prisoners at times of increasing unemployment. In Brunei, the largest number of prisoners is in the 18 to 30 age group, the same age group that is experiencing the worst of a “rising national unemployment rate.” The delegation from Korea made similar observations.
Prison Populations and Overcrowding
With very few exceptions, prison populations are increasing across the region. An increase in prisoner numbers will not result in overcrowding if sufficient additional capacity is either available or constructed. However, demand is generally outstripping supply and overcrowding is on the increase. Indonesia provides a good example. The prison population has increased rapidly since 1994 and it now exceeds total capacity for the first time. As pointed out by Malaysia, overcrowding not only creates issues for prisoners; it also generates serious management problems and impedes the ability of correctional systems to meet expected standards, including the United Nations Standard Minimum Rules for the Treatment of Prisoners. Fiji talked of the “detrimental implications” for security and the increased likelihood of escapes.
The following nations and territories reported particular concern about prison population growth and overcrowding: Brunei; Cambodia; China; Hong Kong (China) (a 17% increase in receivals); Fiji (10% over-capacity); India (28.5% over-capacity and rising); Japan (a 25% increase in the prison population since 1997); Korea (population slightly down in 2002 but well above 1990 levels); Malaysia (20% above capacity); Philippines; Sri Lanka (“grossly overcrowded” and over 100% above capacity); Singapore (48% above design capacity); Thailand (a further 5% increase over the past year, coming on top of big increases throughout the past decade); Tonga (100% over-capacity); and Vietnam.
It is also clear that overcrowding rarely occurs “across the board” but tends to be concentrated in certain areas. The reports showed three main factors behind these concentrations of overcrowding. First, geographical areas; for example, in Fiji and Indonesia, overcrowding is particularly acute in major cities, and in China, prisons in coastal regions experience particular problems. Secondly, concentrations of overcrowding can reflect prisoner demographics; for example, in many parts of the region, women’s prisons appear to be more overcrowded than men’s prisons. Finally, security classifications affect levels of overcrowding in different classes of institution in Japan, Australia and a number of other jurisdictions.
Canada and New Zealand went against the general trend and reported slightly reduced prison populations and in Macao (China), the prison population has remained relatively stable. In New Zealand, the downward trend would have been more marked if there had not been a significant increase in the number of unsentenced prisoners following the introduction of tougher bail laws in 2000. However, New Zealand does not anticipate that the trend will continue and expects a rise in the prison population because of demographic factors (an age-group ‘bulge’ is coming up) and new sentencing laws that are intended to increase penalties for offences of violence.
Australian prison populations show some interesting trends. The national imprisonment rate has increased but the trends are very different in different parts of the country. For example, Queensland and South Australia have experienced large increases and there have also been increases in New South Wales, Victoria and Tasmania. However, the Northern Territory and Western Australia have seen a decline. These patterns, and the experiences across the region, raise some intriguing questions about how to address overcrowding. Some of the options and approaches are outlined later.
Prison Populations and Crime Trends
As in previous years, the national reports demonstrate that prison population levels have no clear or direct relationship with changes in the rate of crime. In Cambodia, for example, the increasing imprisonment rate does not seem to reflect changes in ‘real’ criminal behaviour so much as the increasing success of police in clearing up crime and the fact that a new Penal Code has introduced a wide range of new offences.
Australia, Canada and Hong Kong (China) provide other interesting examples. In Western Australia, the imprisonment rate has declined despite a slight increase in the general crime rate. On the other hand, in Queensland and Victoria, the increased rate of imprisonment has accompanied an increasing crime rate. In Hong Kong (China), the crime rate has declined but the imprisonment rate has increased. In Canada, the trends are in the opposite directions: the imprisonment rate is declining at the same time as an increase (albeit slight) in the crime rate.
It would be necessary to conduct far more detailed analyses of each jurisdiction in order fully to understand these complex trends. However, it would appear that public fear of crime, and political responses to such fears, have at least as much impact on incarceration rates as the objective ‘facts’ about crime rates.
Addressing Public Attitudes
Several reports, including that from the Philippines, noted that public and political attitudes can often shape attitudes towards sentencing and imprisonment even where those attitudes are out of line with the ‘reality’ of the crime problem. However, the conference did provide some positive experiences of jurisdictions that have attempted systematically to address public concerns (see also the report of the Workshop on “Community Participation and Engagement in Corrections”).
Singapore embarked on an ambitious campaign to reach out to the public via the press, television and bus advertising under the banner: “Rehab, Renew, Restart.” Surveys have shown that this campaign has improved public understanding and raised public perceptions of the prison service. The delegation from Canada noted that public perceptions are a problem, but stated that, following a systematic education campaign over many years, the Canadian public now appears more understanding and less punitive. For example, fewer people now support capital punishment (52% compared with 73% in 1987); and there is a very high level of support for parole (80%, compared with 75% in 1998). Hong Kong (China) has also conducted a comprehensive and well-targeted campaign which appears to have enhanced public understanding and to have brought the public more ‘on side’ with the objectives of the Correctional Services Department.
Offence Type
Most of the national papers (including Australia, Brunei, Fiji, Japan, Korea, Macao (China), Malaysia, Sri Lanka, Thailand, Tonga and Vietnam) expressed concern about the increasing number and proportion of prisoners who have been convicted of drug-related offences; in other words, of offences relating to the possession and/or supply of drugs or of offences (such as stealing, burglary or robbery) which have been committed to “feed an addiction.” Across the region, there appears also to have been a shift in the nature of the drug problem, with amphetamine-based drugs tending to displace heroin as the major problem.
Several jurisdictions (including Australia, Canada, Mongolia and New Zealand) also reported an increase in the number of prisoners serving sentences for violence – and often facing long sentences.
Offender Demographics
All of the reports made mention of the demographic characteristics of prisoners. To the extent that it is possible to generalise, it would appear that, across the region, the ‘typical’ prisoner is aged 20-35, unemployed, from a lower socio-economic background and with limited educational achievements (or in India, “illiterate or semi-literate”).
Although there are a number of variations, some other common themes and trends can be identified.
¨ Women
Three main points emerged from the national papers. First, the proportion of female prisoners is generally in the range of 3% to 8% (for example, in Australia, Brunei, Canada, Japan, Korea and New Zealand). India was somewhat higher (11%) and two jurisdictions reported a notably higher rate. Hong Kong (China) stated that around 20% of the prison population was female, a figure which is largely explained by a high number of illegal immigrants (72% of all female prisoners). Thailand’s figure is 17.5% - primarily for drug-related crimes. At the other end of the scale, women constitute less than 1% of prisoners in Tonga. There is also some evidence to suggest that increases in the number of female prisoners are generally attributable to drug offences.
Secondly, whilst female prisoners still constitute a relatively small proportion of the total inmate population, the female prisoner population is generally growing at a much faster rate than that of males. This is the case in Australia, Canada (the female prison population has almost doubled since 1995), Macao (China) and Thailand (a 9% increase compared with a 5% increase for men). After some increases in earlier years, the proportion of women prisoners in New Zealand has remained constant.
Thirdly, as a consequence of these trends, women often face more severe levels of overcrowding than men. This issue was expressly mentioned by some Australian jurisdictions, Hong Kong (China) and Thailand.
¨ Age
Figures with respect to age were not available for all parts of the region but again, there are some general trends. Several papers identified a growing problem with respect to ‘elderly’ inmates (usually defined as prisoners aged 50 or more). They included Australia, Canada (almost a 20% increase over the past 8 years) and Korea. These inmates tend to pose problems in terms of both physical and mental health care. At the other end of the age scale, Macao (China) reported an increase in the proportion of younger inmates (aged 16-20).
¨ Indigenous Prisoners
Australia, Canada and New Zealand noted the continuing gross over-representation of Indigenous people in the prison population. All three countries are actively exploring initiatives to encourage Indigenous people’s participation in programmes. Canada and New Zealand appear considerably more advanced in terms of promoting Indigenous programme delivery and in promoting initiatives such as developing “healing houses” than most Australian jurisdictions. However, much remains to be done in all of these countries and they share a concern that the rate of Indigenous over-representation seems likely to increase rather than decrease. This is largely the result of demographic trends and socio-economic considerations.
Sentenced and Unsentenced Prisoners
There is considerable regional variation with respect to the position of unsentenced persons (the ‘remand population’). In part, these differences reflect different investigative procedures, legal requirements and criminal justice traditions. However, it is clear that the incarceration of unsentenced people is presenting some major difficulties and that the situation is generally deteriorating.
It appears to be common, across the region, for remandees to constitute, on average, between 15 to 25 per cent of the prison population. However, the proportion varies widely. India clearly faces the most dramatic problems. Its national report comments that it is relatively easy to obtain bail and yet remand prisoners outnumber sentenced prisoners by a staggering 3 to 1. In Sri Lanka, the remand population is around 50% of the total prison population and the figure is also high in Korea (38%).
In some jurisdictions (including Japan and Canada), trends with respect to the unsentenced prisoner population mirror those with sentenced prisoners. However, most of the papers reported a much faster growth with the remand population. This is especially noticeable in New Zealand and Australia, both of which have seen legislation to restrict bail in cases involving charges of serious offences. In Australia, the remand population is increasing faster than the sentenced prisoner population and, in New Zealand, the sentenced prisoner population has declined despite the remand rate having risen.
It would appear that the issue of remand prisoners is one of increasing significance throughout the region.
Strategies to Address Overcrowding
It is clear from this review of prisoner characteristics and demographics that the factors that contribute to overcrowding vary between different jurisdictions. Consequently, the strategies that need to be adopted to reduce prison populations will differ. At first sight, it may appear that the ‘answer’ is more prison capacity. However, the papers revealed the operation of a number of ‘front end’ and ‘back end’ strategies.
¨ Bail and court processes
In jurisdictions such as India and Sri Lanka, where there is a very large remand population, there will need to be a concerted focus on improving court processes. The experience in Macao (China) is instructive: there, the remand population is declining and this is attributed to greater “court efficiencies.” In India, there are some more promising signs in that the High Court is more actively involved in monitoring the progress of subordinate court trials.
¨ Prosecutorial discretion
It appears that one of the most important strategies in managing the expanding prison population in Korea has been the role of the office of the public prosecutor, which reduced the number of indictments and thereby reduced the number of remandees. However, this is not a solution that would be available in those jurisdictions (especially the Commonwealth nations), where prosecution decisions are seen as wholly independent from correctional concerns.
¨ Non-Custodial Sentences
There are wide regional variations in the availability and use of non-custodial options but there was clear agreement that these options, including the use of electronic monitoring, should be expanded. Several jurisdictions which make comparatively little use of non-custodial measures expressed a desire to introduce a wider range of options (including Cambodia, China, India, Indonesia, Malaysia and Singapore). Those jurisdictions that already make greater use of non-custodial measures also hope to expand their operation (notably Australia, Canada, New Zealand). Western Australia is even expected to abolish prison sentences of six months or less and to require courts to use non-custodial options in cases that would previously have attracted short terms of imprisonment.
¨ Redistributing prison capacity
Several jurisdictions have identified the need to ‘redistribute’ some of the existing prison estate in order to meet particular pressure points. For example, Hong Kong (China) is exploring the option of converting some male places to female and of future male / female co-locations.
¨ Expanded prison capacity
Most jurisdictions have accepted the need to expand prison capacity (but very different views were expressed as to the role of the private sector in such expansions).
¨ Expanded schemes for early release
The national papers showed that a range of early release mechanisms have been adopted. Without these measures, the prison population would have expanded even more quickly. Some jurisdictions, including Indonesia and Vietnam, have offered amnesties or national day remissions. Others (notably Korea), have expanded the operation of parole schemes and a number of jurisdictions (including Malaysia and China) are actively exploring the concept of parole.
In Australia, Canada and New Zealand, parole systems are well established and there was widespread agreement that, in principle, there is much to be said for offenders serving the last part of their sentence under community supervision. This can assist in both the prisoner’s reintegration and the protection of the public. In Canada, there appears to be a particularly high public acceptance of parole for these reasons.
Foreign Prisoners
The 2001 APCCA Conference Report included a detailed review of the issues surrounding foreign prisoners, and the specific question of international transfer. This conference showed a continuing commitment to developing transfer agreements across much of the region. Hong Kong (China) continues to be the leader in terms of signed agreements, but other jurisdictions are also actively pursuing agreements. Australia and Thailand have recently signed off on an agreement and are exploring other options. Japan has enacted legislation to permit transfers under the Council of Europe protocols and procedures. China and India are also closer to developing transfer arrangements.
Legal Framework of Corrections, Standards and Accountability
During recent APCCA conferences, there has been a growing interest in prison standards, including compliance with international obligations such as the United Nations Standard Minimum Rules for the Treatment of Prisoners. This remained a consistent theme in this year’s national papers. Indonesia stressed the importance of strengthening “law enforcement and human rights.” China’s national report identified “safeguarding the legal rights and benefits of prisoners” as one of the key cornerstones of correctional administration and has adopted legislative standards across many areas. Cambodia reported that its system is “changing, albeit slowly, to operate within the UN Standard Minimum Rules.” Brunei, Korea, Malaysia and Thailand were amongst the other countries to recognise the importance of United Nations standards to the development of prisons.
The Fiji paper provided a striking example of a situation in which the UN Standard Minimum Rules were relied upon by a domestic court. In July 2001, the Fiji High Court ruled that conditions in the Natabua remand block failed to meet the requirements of the UN Standard Minimum Rules and were also in breach of the Occupational Health and Safety Act. The Indian report also noted that its High Court is increasingly prepared to exercise powers of judicial review.
Korea reported that a new Penal Administration Act has afforded greater priority to inmates’ human rights, including legal constraints on punishment regimes and greater access to correspondence and telephones. Korea now also has a Human Rights Committee, which came into force in November 2001. Prisoners can make complaints to that Committee and it also has the power to carry out its own inspections of correctional facilities.
Several jurisdictions (including Fiji, India, Japan, Malaysia, Sri Lanka and Tonga) referred to the need for new prisons legislation.
Integrated Offender Management
As in 2000 and 2001, there was evidence of an increasing commitment across the region to an approach to offender management that seeks to integrate both ‘incare’ and ‘outcare.’ Aspects of these themes are more fully discussed in the report of the Workshop on “Correctional Standards, Service Quality, Benchmarking and the Risk of Reoffending.”
Conclusion
It is clear that prison population levels, overcrowding and severe resource constraints are the predominant concern of prison administrators in the Asian and Pacific region. It appears likely that overcrowding will increase unless governments are prepared to commit to measures such as those that have been outlined in this report. Across the region, there also appear to be some common pressure points. These include female prisoners and remand prisoners - both groups growing at a faster rate than the total prison population.
However, whilst prison administrators will continue to face considerable difficulties as a result of these trends, there are some positive developments. First, all jurisdictions appear to be effectively meeting the core functions of custody and control, with few reports of major disturbances. Secondly, some jurisdictions have made positive steps in fostering public support and involvement in corrections. Finally, there is a uniform commitment to meeting international standards and legislation and court decisions are giving greater backing to such standards.