Safety in Prison: a (new) duty
Until December, 2015, the standard minimum rules for the treatment of prisoners (SMR) were those which had been adopted in 1955. The process of bringing them up to date took five years and four expert meetings. Quakers, acting through the Friends World Committee for Consultation (FWCC) were involved throughout the process. This account describes the process of updating the SMR, with a focus on prison officials’ duty to maintain safety.
Revision was controversial. Many states argued that the SMR retained their full authority and should not be changed. An open-ended expert group was convened in Vienna, in January 2012, to examine the status of the SMR. The argument for revision built on two factors: first, concepts of human rights had evolved in international instruments since the SMR were agreed; and second, knowledge about managing prisons had moved on.
The first expert meeting agreed that while many of the SMR were fine as they were, some changes were needed. A targeted revision would be restricted to nine areas:
Dignity; Healthcare; Discipline (including solitary confinement); Investigation of deaths and evidence of torture; Needs of vulnerable groups; Legal representation; Complaints and inspections; Replacing outdated terminology; and Training of staff.
A principle was established that no change could lower existing standards. States and NGOs were invited to submit proposed rule changes to the UN Office on Drugs and Crime.
The 1955 SMR did not require that prisons be safe. The text included rules about prison discipline to maintain order, but no explicit statement of a duty to maintain safety. Hence, the SMR did not meet the standard set by the Bangkok Rules for the treatment of women offenders, which declared the right of women “to be free of victimisation while imprisoned” (Bangkok Rules, Preliminary Observations, para 9).
Quakers, joined by Penal Reform International, called for a new rule, establishing prison safety as a duty of states. There were two main reasons: first, the dignity of people in custody depends on their being safe; second, the deprivation of liberty places people in a vulnerable position and therefore the state assumes a duty to protect them. In 2001, Penal Reform International had argued: “When the State deprives a person of liberty, it assumes a duty of care for that person. The primary duty of care is to maintain the safety of persons deprived of their liberty” (PRI, 2001: Making Standards Work; see also ECHR, Salman V Turkey, 27 June 2000, para 99).
But would states agree to undertake such a duty? Could the delegates be convinced that it was even possible to run prisons safely?
In September 2012, prior to the second expert meeting, Quakers submitted a paper listing developments in prison practice which contributed to safety:
“Prisons can be made safe by meeting people’s basic human needs; teaching more effective ways of managing conflict; confronting tactics that escalate disputes; and establishing formal mechanisms within prison which facilitate and promote conflict resolution.”
At the second expert group meeting (Buenos Aires, December 2012) there was a shift in mood. There was a strong commitment to producing a new set of SMR. The chair, Victor Abramovich, was dynamic and positive in approach. He guided the experts to find areas in which there was agreement, and to take note of others where there were strong differences.
A document prepared by the UN Office for Drugs and Crime provided a compendium of rule changes proposed by states and NGOs. The second meeting also drew on a paper produced by experts (including FWCC) convened by the University of Essex. During the second expert meeting, a Quaker oral statement drew attention to the important role prison staff perform in challenging the harmful behaviour that escalates into violence.
A third meeting was convened in Vienna, in March, 2014. This was a drafting session. Rules were proposed in full; the wording was debated in detail; but only a few new rules were produced. The revision was far from complete. The meeting did agree on a new rule that:
“Prison administrations are encouraged to use, to the extent possible, conflict prevention, mediation or any other alternative dispute prevention and resolution mechanisms to prevent disciplinary offences, as well as to prevent and resolve conflicts.”
A fourth expert meeting was arranged, sponsored by the Republic of South Africa. The experts met in Cape Town (March 2015). Judge Dunstan Mlambo chaired this session with wisdom, patience and authority. Differences were raised, debated, and resolved. The difficult questions included: should health care be free to the prisoner? Should inspections be independent? On what aspects should prisoners be able to benefit from legal advice? What does solitary confinement mean?
The meeting was scheduled to run from the 2nd to the 5th. We made amazing progress, working steadily through the rules. The UNODC Secretariat read out proposed text, amendments were suggested, debated and agreed, and we moved to the next rule. On safety, the Secretariat’s working paper included under Rule 1 a basic principle that “The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.”
On the morning of the 6th of March, at about 3 a.m. the 4th expert group concluded its work. A new set of standard minimum rules for the treatment of prisoners had been agreed, henceforth to be called the Nelson Mandela Rules. The revised SMR were agreed as a whole by the UN Commission on Crime Prevention and Criminal Justice in May 2015, and then adopted by the UN General Assembly in December, 2015. Now the challenge is to promote them as a tool to improve prison practice.
Recognition of the Nelson Mandela Rules will form part of the celebrations of Nelson Mandela International Day for Freedom Justice and Democracy on 18 July.
