Recent decades have seen rapid and sustained growth in prisoner numbers around the globe, with the result that, today, over 11 million people are in prison worldwide. Of these 11+ million, more than three million are being held in pre-trial or other form of remand detention.

The causes of prison population growth are complex, but many of the consequences are clear: they include overcrowded prisons with inhumane and degrading conditions. According to their own official measures of capacity, most prison systems around the world are overcrowded – impacting mental and physical health, the safety of prisoners and staff alike, and prospects of rehabilitation. Among countries with some of the most overcrowded prisons are the Philippines (overall prison occupancy level of around 460%), Haiti (450%) and Guatemala (370%).

Over-use of imprisonment imposes enormous costs on the public purse, while disproportionately harming poor and marginalised groups in all societies. It also limits the capacity of prison systems to deal effectively with the small minority of prisoners who pose serious risks to public safety.

Prison population numbers, rates and trends in our ten countries¶

The jurisdictions in the ten-country project have widely varying prison population numbers and rates. The United States’ prison population is the largest in the world at over 2 million. This equates to a prison population rate – prisoners per 100,000 of the national population – of 639: again, the highest in the world. Thailand’s prison population rate of 459, reflecting a total prison population of around 320,000, is the eighth highest worldwide; Thailand’s prisons are also severely overcrowded, with an overall occupancy level of 340%.

In contrast, India also has a large prison population total of almost half a million, but a very low prison population rate of just 35 – placing India at 209 out of the 223 jurisdictions on the World Prison Brief’s ‘highest to lowest’ ranking of prison population rates. (Another notable feature of the Indian prison population is that almost 70% of prisoners are pre-trial/remand detainees.) The prison population rates of the Netherlands and Kenya are also relatively low, at 63 and 81 respectively.

Among the ten countries are some that have seen dramatic prison population growth within the past 40 to 50 years. The size of the US prison population more than quadrupled from around half a million in 1980 to its peak of over 2.3 million in 2008, with the prison population rate increasing from 220 to 775. Brazil has seen its prison population total increase twenty-fold from around 30,000 in 1973 to more than three quarters of a million today; the rise in the prison population rate over this period was from 32 to 357.

The trend lines also reveal, however, that there is nothing inevitable about prison population growth. The Netherlands saw its prison population rate increase over the 1990s and early 2000s, followed by a marked decline. The previous sharp rise in the United States’ prison population rate has also since gone into reverse, and Brazil’s surging rate appears to have plateaued.

Understanding patterns and trends in imprisonment¶

As discussed in the first published output of the ten-country project, Prison: Evidence of its use and over-use from around the world, variation in prison population rates and trends cannot be explained with reference to a single set of causes. In any given jurisdiction at any given time, the size of the prison population is determined by wide array interlocking factors.

Factors which may lead to prison population growth over time include increasingly punitive public debate and political cultures; more sweeping definitions of ‘criminal’ behaviour; tougher enforcement; and changing patterns of crime. Such factors can conspire to increase the numbers of defendants coming before the courts, and the courts’ resort to custody for those who are convicted. Higher rates of pre-trial detention are another manifestation of punitive penal policies, while also reflecting under-resourcing of, and bottle-necks in, judicial processes.

While there are multiple factors that directly or indirectly promote greater use of imprisonment, so too there are moderating influences and downward pressures. In wealthy and impoverished countries alike, downward pressures include resource constraints, for the simple reason that prisons are expensive. There is growing recognition of imprisonment’s failings as a response to social problems, and that many of these problems are best tackled outside the realm of criminal justice. And whether overtly or covertly, and whether motivated by economic or other concerns, some states have made political choices to curb or reduce the use of imprisonment.

The Covid-19 pandemic has added to the pressures for penal reform and decarceration. When the pandemic was declared, some countries moved decisively to reduce prisoner numbers in order to minimise the health risks presented by overcrowded conditions. The extent to which such measures will be sustained remains to be seen.

Scope for reform¶

Just as there is no single explanation for the widely varying trajectories of differing countries’ use of imprisonment, there is no single route towards effective reform. But it is clear that certain cross-cutting issues must be addressed if reform efforts are to have any success. Key strategic priorities include:

• Determining the functions of imprisonment and their limits;
• Reducing the politicisation of sentencing;
• Decriminalisation of petty and ‘nuisance’ offences;
• Identifying and tackling disproportionate treatment of marginalised groups in pre-trial and sentence decision-making;
• Drug policy reform, encompassing decriminalisation and harm reduction;
• Ensuring pre-trial detention is used only as a last resort, and for the shortest periods possible;
• Addressing the public health consequences of over-use of imprisonment.

All countries use the prison sentence as a response to certain forms of illegal conduct. But countries vary widely in terms of the types of illegal conduct deemed to merit a prison sentence (rather than non-custodial sanctions), and the lengths of prison terms imposed.
Recent decades have seen a marked trend towards tougher sentencing. Imprisonment has become an ever more available sanction, and prison terms are getting longer. Harsher sentencing is an obvious driver of higher levels of imprisonment, but has done nothing to tackle the underlying and complex causes of much (re-)offending. There are vast disparities between countries in the sentences passed for the same conduct. These disparities show that, while all jurisdictions face similar dilemmas in relation to their citizens’ illegal behaviours, they make widely different policy choices in response.

Sentencing drug offences¶

Over 2 million of the world’s prisoners are detained in relation to drugs offences (including possession for personal use). Around a third of all women prisoners are detained because of a drug conviction. Many of these 2 million people will have played a minor, easily replaceable part, for little financial gain, within organised criminal networks; many will simply have been caught in possession of drugs for personal use. Excessive use of imprisonment for drug offences has not deterred suppliers or prevented drug use, but has placed a huge burden on criminal justice systems. Punitive enforcement laws have exacerbated social and economic problems in communities affected by high levels of poverty, unemployment and drug dependency. Harsh sentencing laws are not, however, the universal response to drug offences. Support is growing for treatment-based interventions, whether within or outside the criminal justice system. Decriminalisation and more lenient penalties are now a feature of drugs policy in many parts of the world. Our recommendations for reforming the sentencing of drug offences are geared towards a more proportionate approach.

Previous convictions¶

Prison population growth is fuelled by the practice of imprisoning vast numbers of prolific, but often fairly low-level, usually non-violent offenders.

In almost every country, the law requires that offenders with previous convictions are sentenced more harshly than those without. The rationale is two-fold: repeat offenders are more culpable, having failed to respond to earlier sanctions; and they are more likely to re-offend, so a harsher sentence is needed to tackle that risk. This often means a prison sentence is imposed when, but for the previous history, a non-custodial sanction would have been used.

The evidence is that locking up repeat offenders has little positive impact on re-offending, beyond the temporary incapacitative effect. Not only is it difficult in a prison setting to address the problems underlying entrenched re-offending, like drug dependency, but prison often raises the risk of re-offending, by leaving people with fewer options and less to lose. Our recommendations on sentencing people with previous convictions are geared towards a fairer, more realistic approach.

Short prison sentences¶

Short spells in prison destabilise lives but rarely offer any prospect of constructive intervention to address the causes of offending. They are frequently handed down as a response to repeat convictions. In countries with less provision for non-custodial sanctions, they are routinely used to punish even first-time offenders for less serious crimes, including petty offences. Sometimes people end up in prison for weeks or months simply because they cannot afford to pay a fine or hire a lawyer to defend them.

Our recommendations are designed to prevent disproportionate use of short prison terms, and create space for alternative approaches.

Life imprisonment¶

Around half a million of the world’s 11 million-plus prisoners are serving a life sentence of one form or another, meaning the state has the power to imprison them until death. In some countries, life imprisonment is a mandatory sentence for certain offences.

Use of life sentences has increased greatly in some countries in recent years, reflecting a rise in the number of offences for which life sentences are available – or mandated. This is largely a result of political law-and-order arms races. However, some countries, like Brazil, do not have life sentences. Others hardly ever use them: for example, in the Netherlands, someone convicted of murder would be more likely to receive a custodial sentence of up to twelve years, followed by a period of secure psychiatric treatment (if he is deemed to have a treatable condition).

Life sentences, particularly those imposed with excessive minimum terms or non-eligibility for parole, are widely seen as inhumane. Their mental health impact is severe, due to the uncertainty or impossibility of release and the associated sense of hopelessness. Our recommendations would reduce use of life sentences, remove mandatory life sentences, and ensure proportionality remains the overarching principle in the sentencing of the most serious offences including homicide.

The misuse of pre-trial imprisonment – that is, detention of individuals prior to conviction or definitive sentencing – is a major, but preventable, cause of prison overcrowding; and a severe infringement of fundamental rights. Since 2000, pre-trial prison populations have grown substantially across much of the world. This is despite increased availability of cheaper, less restrictive measures like electronic monitoring.
In many countries, there is a gulf between law and practice relating to the use of pre-trial imprisonment. Although legal systems (in line with international standards) refer to pre-trial detention as an ‘exceptional measure’ it is, in practice, often the norm. The problem is rarely the law itself, but wider socio-economic and systemic factors that influence its (mis)application.

ICPR’s in-depth research – including interviews with over seventy experienced criminal lawyers – has helped explain why this ‘measure of last resort’ is so routinely over-used. Our recommendations for reform draw on the many insights from this research.

Understanding over-use of pre-trial imprisonment¶

• Socio-economic disadvantage. People from backgrounds of disadvantage are more likely to be arrested, often don’t have money to pay bail, are less likely to have good legal representation, and – for these reasons – are more likely to be detained pre-trial.

• Criminal justice systems. Aspects of the wider criminal justice ‘machinery’ are also part of the picture: under-resourced police, prosecution and court services and infrastructure leading to huge backlogs in the investigation and prosecution of cases; inadequate legal aid; too few alternatives to custody. All these factors lead to misuse and prolongation of pre-trial imprisonment.

• Judicial culture and practice. Judges are often too ready to make unsupported assumptions about risk; too quick to dismiss defence arguments about weak evidence or ways to mitigate risk without detaining a suspect; overly influenced by fear of media (and social media) criticism; and disinclined to give concrete, evidence-based reasons for decisions to remand in custody.

Conditions in pre-trial detention¶

In many countries, people in pre-trial detention are held in overcrowded, cramped and insanitary conditions, at risk of mistreatment and violence. The conditions are often worse than for sentenced prisoners. Remand prisoners usually have no access to work, education or rehabilitation.

Defendants in custody may face greater pressures to confess or accept plea deals. Being in prison makes it harder to prepare a defence, consult lawyers or review prosecution evidence. All these factors increase the risk of miscarriages of justice.

In the year 2000, the world’s prison population numbered around 8.7 million; it now exceeds 11 million. The steady growth in prisoner numbers has given rise to severe prison overcrowding, in both developed and less developed countries. Most countries now have overcrowded prison systems.

Because of failings to invest in the extra staff, buildings and other resources needed, millions of prisoners today live in conditions of extreme deprivation, with poor standards of sanitation, healthcare, wellbeing and safety. The consequences for health – not only the health of prisoners and staff but also of their families and wider communities – are serious. People often enter prison in poor mental or physical health, which only worsens in bad detention conditions. And being in prison can in itself bring about new mental or physical health problems.

Over-reliance on criminal justice interventions carries risks for public health and community safety. Other approaches focused on tackling social injustice and health inequality are more likely to reduce crime and lead to better health outcomes.

Scope for reform¶

Governments have a duty to protect prisoners’ physical and mental health by providing decent, humane conditions and adequate healthcare and treatment. But prison is a difficult setting in which to treat health problems; and those who enter detention already carry disproportionately high burdens of ill health. Overcrowded, under-resourced prisons cannot offer healthy environments or adequate care and treatment. What is needed is a health-informed approach to penal reform, based on the following strategic priorities:

• Reducing overall prisoner numbers;
• Reducing numbers of people with mental health conditions who enter (or remain in) prison;
• Providing more effectively for health needs in the community (particularly mental health/drug and alcohol treatment needs);
• Improving access to healthcare, screening and treatment for those who must be in prison;
• Promoting prisoners’ health and wellbeing; and
• Ensuring decent living conditions and safe, healthy regimes.

When COVID-19 was declared a pandemic on 11 March 2020, the need for action in prisons to avert a public health disaster was clear. If outbreaks occurred in the cramped, closed environment of a prison, it would be hard to prevent rapid spread within, and beyond, the prison walls. The lives of prisoners, staff, families and wider communities were at stake. The risks were graver still in with overcrowded prison systems with low staffing levels, poor sanitation and limited healthcare – the reality in most countries in March 2020, as we had reported a few months before.

From early March 2020, prisons across the world quickly locked down. Prisons closed their doors to family and other visitors and routine activities largely stopped. Prisoners spent long periods locked up in their cells, anxious about their health and that of their families in the midst of a global health emergency, their days devoid of meaningful interaction or activity.

The restrictive regimes introduced in prisons remained in place for months and, in many countries, are still in place. The physical and mental health impacts have been profound for many prisoners and their families. ICPR and Prison Insider have gathered first-hand accounts of life in custody immediately before, and during, the pandemic, from a diverse group of countries.

Lessons for policy and practice¶

The pandemic also prompted many countries to take steps to reduce their prison populations to limit the threat of the virus within their prison systems. Early signs suggest that prisoner numbers have begun to fall in many countries. This positive outcome will need to be sustained by means of more targeted, longer term policies. Urgent action is also needed to ensure regime restrictions do not cause disproportionate harm to prisoners’ health and wellbeing or their rehabilitation prospects.

Recommendations¶

Prison life¶

Key short-term priorities for prison administrations should include:

• Restoring a daily routine, with access to work, education and interaction with others, and a full day spent outside the cell, when conditions are safe enough to permit this
• Re-instating in-person family visits, in line with public health guidance
• Supplementing in-person visits with remote contact where possible
• Improving access to healthcare, screening and treatment and addressing treatment backlogs
• Taking proactive steps to promote prisoners’ health and wellbeing and ensure decent living conditions

Decarceration – a health-informed approach¶

Key strategic priorities for achieving sustained reductions in prison populations include:

• Ensuring pre-trial detention is used as an absolute last resort, and for the shortest periods possible.
• Tackling the problem of politicisation in sentencing and parole policy
• Decriminalisation of petty and ‘nuisance’ offences
• Identifying and tackling disproportionate treatment of marginalised groups in pre-trial and sentence decision-making
• Drug policy reform, encompassing decriminalisation and harm reduction
• Reducing numbers of people with mental health conditions who enter (or remain in) prison
• Providing more effectively for health needs in the community – particularly mental health, and drug and alcohol treatment needs