Discrimination in Australian Prisons – the use of solitary confinement as a risk management tool
Picture Source: http://angola3news.blogspot.com.au/2014/04/a3-newsletter-beyond-imagining-42-years.html
The recent high-profile release of Albert Woodfox, one of the Angola 3, shed an international spotlight on the practice of solitary confinement in the US. Woodfox spent a record 43 years in solitary confinement in the US, and despite his release, must now face the crippling long term psychological and physical effects that can be caused by years in isolation.
More information is available on Woodfox’s plight here: http://www.amnestyusa.org/news/press-releases/amnesty-international-usa-woodfox-s-release-long-overdue
Closer to home, Australian prisoners, in the absence of comprehensive legislation at both a state and federal level, are being subjected to the cruel practice of solitary confinement as an alternative to rehabilitative and psychological care.
What is solitary?
There is no universal definition for solitary confinement, but in 2011 the UN Special Rapporteur on Torture Juan Mendez said it was any regime where an inmate is held in isolation from others, except guards, for at least 22 hours a day. Mr Mendez called for indefinite and prolonged solitary confinement lasting more than 15 days to be banned entirely.[1]
The use of solitary confinement as a prison management tool in Australian prisons appears to be a growing and worrying trend, although there is minimal publicly available data on the issue.
What does the law say?
The Standard Guidelines for Corrections in Australia state that prolonged solitary confinement, corporal punishment, punishment by placement in a dark cell, reduction of diet, sensory deprivation and all cruel, inhumane or degrading punishments should not be used.[2] Many states and territories, however, do not have specific legislation articulating the basic rights of prisoners to be treated equally and with dignity, to access health services, to have time out of their prison cells, or to religious practice.[3] Without a national Human Rights Act, and with overcrowded prisons, prisoners are particularly vulnerable to having their rights abused.
The practice of prolonged isolation violates international laws and standards, including the rights enshrined in the Convention against Torture and the International Covenant on Civil and Political Rights to be free from torture and other cruel, inhuman and degrading treatment or punishment.
Victims of solitary
Internationally, solitary confinement has been used against prisoners who have untreated mental illnesses, are children in need of “protection,” are gay or transgender, are Muslim, or report rape or abuse by prison officials.[4] Currently, only a handful of Australian jurisdictions have specific correctional policies protecting the rights and integrity of transgender people while they are incarcerated; these include the ACT and Victoria. Victoria’s policy is the most comprehensive, and states that transgender prisoners should never be held in more restrictive conditions, such as protective custody or solitary confinement, as a consequence of their gender identity.
Around one in every five prisoners in Australia suffers from serious mental illness, and there is an over-representation of such prisoners held in isolation across the board.[5] There is evidence from across Australia to suggest a link between inadequate mental health care in prisons and management of mentally ill prisoners by segregation which in turn can seriously exacerbate mental illness.[6] While some jurisdictions, such as Victoria, have more developed mental health diversionary programs, which aim to divert people with mental health issues away from the criminal justice system, others, such as the Northern Territory, have none.
Use against children
Some prisons in Western Australia use solitary as a ‘regression’ management regime. Such management regimes at Banksia Hill Detention Centre have seen juveniles placed in solitary confinement for months at a time, one detainee being held for 90 days straight in isolation.[7]
In a New South Wales prison in 2006, the treatment of an Aboriginal juvenile was found by the UN Human Rights Committee to amount to inhumane treatment. The child was placed in isolation in an adult prison, exposed to artificial light for long periods and had his blanket and some of his clothes removed.[8]
In October 2012, a number of children in Victoria were transferred from a juvenile detention facility to an adult prison and held in solitary confinement for a number of months. The children were locked in their cells on their own for 23 hours a day. They were allowed one hour in the exercise yard per day and during that time they were in handcuffs.[9]
The UN Special Rapporteur on Torture has stated that the use of solitary confinement as a punishment on juveniles ‘can amount to cruel, inhuman or degrading treatment or punishment and even torture.’[10] The Committee on the Rights of the Child emphasised that disciplinary measures such as solitary confinement or other punishment that may compromise the physical or mental health of a child are in contravention of Article 37 on the Convention on the Rights of the Child[11] and has urged states to prohibit and abolish the use of solitary confinement against children.[12]
From what data there is available on the extent of isolation practices in Australia, it is clear that vulnerable prisoners, such as children and the mentally ill, are being placed in solitary for the wrong reasons in the absence of appropriate health and correctional facilities. Both the state and federal governments need to enforce our international treaty obligations in ensuring no more prisoners are subjected to the out-dated and ineffective practices associated with solitary confinement.
References
[1] UN News Centre, ‘Solitary confinement should be banned in most cases’ < https://www.un.org/apps/news/story.asp?NewsID=40097 > accessed March 2016
[2] Standard Guidelines For Corrections In Australia at 1.80 http://www.aic.gov.au/criminal_justice_system/corrections/reform/standards.html
[3] Bronwyn Naylor, Castan Human Rights Report 2014, The Castan Centre for Human Rights (2014) 8 <www.law.monash.edu.au/castancentre/policywork/hr-reports/2014/human-rights-report-2014.pdf>.
[4] Solitary Watch < http://solitarywatch.com/facts/faq/ > accessed March 2016
[5] National Human Rights Action Plan, ‘Prisoners and Prison Conditions’ < http://www.humanrightsactionplan.org.au/nhrap/focus-area/prisoners-and-prison-conditions > accessed March 2016
[6] Ibid.
[7] “Torture and cruel treatment in Australia”, Joint NGO report to the United Nations Committee Against Torture < http://www.pwd.org.au/documents/pubs/2014NGO-Report%20to%20UNCAT.doc >
[8] National Human Rights Action Plan, ‘Prisoners and Prison Conditions’ < http://www.humanrightsactionplan.org.au/nhrap/focus-area/prisoners-and-prison-conditions > accessed March 2016
[9] Investigation into children transferred from the youth justice system to the adult prison system, December 2013, Ombudsman Act. < https://www.ombudsman.vic.gov.au/getattachment/6a579e49-212e-42b0-9d3c-791e2d60e102/reports-publications/parliamentary-reports/investigation-into-children-transferred-from-the-y.aspx > accessed March 2016.
[10] Interim Report of the Special Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 66th Session, Provision Agenda Item 69(b), UN Doc A/66/268, (5 August 2011) [81] http://solitaryconfinement.org/uploads/SpecRapTortureAug2011.pdf
[11] CRC/C/GC/10, para. 89
[12] CRC/C/15/Add.151, para. 41; CRC/C/15/Add.220, para. 45 (d).
