Authors: Nnamdi Oragwu, Adeyinka Abdulsalam and Sharon Juwah
Keywords: Custodial Sentencing, Infectious Diseases, Prisoner’s Rights, Alternative Sentencing, Future of Criminal Justice
INTRODUCTION
From the Spanish Flu of 1918 to the HIV/AIDS saga and down to the Ebola virus, infectious diseases have constantly changed the modus operandi in all aspects of human living. Now as if on a roll call, the COVID-19 virus has visited with a magnitude like none of its predecessors. The virus has not only disrupted trade and employment but also regular human interaction to the extent that a person can be infected by an asymptomic person through mere conversation. The novelty of this unseen enemy is that not only is it spread through physical contact or indirect contact but also it also lingers in the air. In response to this, governments of the world have implemented travel bans, movement restrictions and a stay-at-home order.
Currently, the courts are shut while prisons have refused to bring inmates out of the prison or allowed new admission into the prison facilities for fear of community spread of the virus within the prison walls. While the concern of the community transmission of the disease is genuine as there are several reported outbreaks of the virus on a large scale in major prisons across the world[1], the mechanism of the lockdown being put in place begs the question- what happens to inmates who are already confined to a specific place and those awaiting trial. This article aims to address the concerns of prisoners’ rights amidst Covid-19 pandemic as well as to consider alternative sentencing as a panacea for prison decongestion in Nigeria.
The Nature of Criminal Justice System.
Any Criminal Justice System is primarily based on two reactive concepts – crime and punishments. While crime can be defined as an unlawful act that is punishable by the law,[2] punishments, on the other hand, entails fines, community services, rehabilitation, jail time, capital punishments (death penalty) and such similar initiatives that may serve as either deterrence or corrective measure. These punishments differ dependent on the gravity of the crime committed being, either a simple offence, misdemeanour or felony.
Criminal Justice entails the delivery of justice to those that have gone against the laws of the state as well as to the victims of these crimes.[3] It is the collective institutions through which an offender passes through until the accusations are justified; convicted or vindicated.[4] The sentencing of a convict is guided by specific laws and include a range of punishments which could be custodian sentences like jail term and rehabilitation or non-custodian sentence like fines, community service amongst others. Punishment and sentencing in criminal justice are premised on five pillars. They are deterrence[5], retribution[6], rehabilitation[7], incapacitation[8] and restitution[9]-. The objective of the criminal justice system is to ensure that the offender is adequately punished[10] for the offence[11], prevent crime by deterring the offender and other persons from committing similar offences[12], to protect the community from the offender[13], promoting the rehabilitation of the offender, making the offender accountable for his or her actions, to denounce the conduct of the offender and to recognize the harm done to the victim of the crime and to the community.
The Need to Enforce Prisoners’ Rights
Nigerian Prisons are generally condensed environments and in recent times have been magnified to be a hotspot for possible large scale community transmission of the virus. Worldwide there are 11million people behind bars.[14] Keeping them under the current standards of living and over-crowded spaces might as well be a death sentence.[15] One message that has been resounded in curbing the spread of the pandemic is the need to embrace and encourage social distancing. This involves staying at least six feet to another person. This is an impossible ordeal in prisons and jailhouses especially in Nigeria due to the fact that they are over-crowded. There is also the insufficient provision of protective gear.
A prisoner can exercise many human rights until incarceration where he or she is denied some rights like the right of liberty, following the conditions of their sentences. In correctional facilities, there is a shortage of health care professionals and prisoners are usually denied access for proper health care services. Most prisons lack sufficient isolation units for the sick and those battling chronic health conditions.[16] The 1999 Constitution of the Federal Republic of Nigeria (As Amended) under Chapter IV has recognized the rights of prisoners. The rights of prisoners are also protected by the international instruments[17] the most important given the current circumstances are the right to life and the right to health. This right to health calls on the prison facilities as well as the law courts to create a safe environment for prisoners to peacefully serve out their term and develop alternative sentencing to ensure the course of justice.
In dealing with the challenge of community transmission of the COVID-19 in prisons, the government is making frantic efforts towards prison decongestion in Nigeria. This is a move to ease the population in prisons, and ultimately avoid the seemingly inevitable outbreak of the virus within prison walls. In this spirit, the Nigerian government has also pardoned 2600 prisoners who were already aged 60 years or more, terminally diseased, have six months to three years left to serve all to curb the spread of the virus.[18]
Alternative Sentencing as panacea for prison decongestion
Generally, sentencing is to be done in accordance with what is prescribed by the statute creating the offence.[19] The court cannot impose a higher punishment than that prescribed for under the law and cannot also go below the prescribed minimum sentence where the law makes provision for such. The problem this poses is that the laws have not acknowledged the different plagues of infectious diseases in determining the particular sentence to be imposed.
Part 44 of the Administration of Criminal Justice Act made provisions for probation and non-custodial alternatives to be adopted by the Court in sentencing convicts. The law allows the court to apply alternative sentencing to Simple and misdemeanor offences. Probation orders, fines and community service, suspended sentence and release on parole are some of the innovative provisions contained in the law. Out of all these alternatives, the most commonly used is the fine option. Judges are so rigid with the application of custodian sentencing that almost all judgments of court carry imprisonment term. Even in cases where the offences are minor or where the Defendant pleaded guilty as charged, a custodian sentence is still imposed by the Court. The mindset and approach of prosecuting counsel who ordinarily view success not from securing conviction of a Defendant but by securing custodian sentence is also a major contributory factor. In most cases, Prosecutors insist on custodian sentence of a convict even in plea bargain agreement. Even innocuous bail applications are opposed by the Prosecution when there is no clear danger that the Defendant would not make himself available for trial.
Furthermore, the provisions of the ACJA as regards community service which seeks to make the convict pay back the community for the harm done by engaging in activities that benefits the public is not being properly deployed. This is in addition to the parole option which allows prisoners who have served one-third of their sentence to be released on parole and appears to be the best mechanism in the effort of government to decongest the prisons. The effective deployment of community service, probation order and parole options under the ACJA appears is being hindered by the structure of the office that is meant to supervise the process. The ACJA attempt to make the probation officers and community service officers be part of the judicial arm as against the executive arm who is constitutionally saddled with the responsibility of the implementation of the law. The attempt by the law to make Court Registrars community service officers and probation officers is a policy summersault. The Registrars of Court not being part of the Executive arm may not be in the best position to identify areas where a convict could be deployed for community service as ordered by the court and may not be properly equipped to monitor the convict except where such is to be done within the premises of the Court.
The failure of the Prison authorities, right group organizations and Counsel to convicts to pursue the option of release on parole is also another cog in achieving the objective of the law. There is no synergy between the Prison authorities and relevant stakeholders to ensure prisoners who have served one-third of their sentence and have conducted themselves in a good manner are released on parole as provided by Part 45 of the ACJA.
Recommendations and Practical Solutions
Custodial sentencing must be frowned upon and in fact, suspended due to the pandemic and on health grounds at the instance of lawbreakers and existing inmates. While the effort by government at decongesting the prison is commendable, there are already laws which would aid the government in achieving these objectives which are not being deployed. We should leverage on the urgency provided by this pandemic to drive the implementation of various non-custodian options provided in our laws. States that are yet to domesticate the Administration of Criminal Justice Act should also as a matter of urgency pass the law in their respective states.
There is also the need for the probation officers and the community service officers to be severed from the judicial arm of government and be made to be part of the machinery of the executives, possibly, an arm of the prison service. This will allow for more coordination toward achieving the objective of the law. The executives are in the best position and are best equipped to determine where a convict sentenced to community service can best service his sentence and would be able to adequately monitor the performance thereof. Also, there is a need to audit our penal legislation and extensively amend the punishments sections to allow for flexibility in sentencing. Most of our laws presently carry mandatory imprisonment term as punishment which does not allow for alternative sentencing.
Conclusively, prisons need to be given a full view of attention to combat the spread of the pandemic. The criminal justice system needs to work, hand in hand to alleviate the surge of the virus in the prisons and jailhouses and in the same breath, alternative sentencing must be adopted to ensure that the criminal justice system remains fully operational and effective.
[1]https://www.theguardian.com/us-news/2020/may/20/california-prisons-covid-19-outbreak-deathsaccessed on 9th June, 2020
[2]VS, ‘What is a crime?’, https://www.victimsupport.org.uk/crime-info/what-crime, accessed May 14th, 2020.
[3]R. Frase, ‘Criminal Justice’, https://guides.temple.edu/criminaljustice, accessed May 14th, 2020.
[4]CJS, ‘Criminal Justice’, http://www.thecriminaljusticecourse.site/introduction/the-nature-of, accessed May 14th, 2020.
[5] Deterrence prevents future crime by frightening the defendant or the public. The two types of deterrence are specific and general deterrence. Specific deterrence applies to an individual defendant. When the government punishes an individual defendant, he or she is theoretically less likely to commit another crime because of fear of another similar or worse punishment. General deterrence applies to the public at large.
[6] Retribution prevents future crime by removing the desire for personal avengement (in the form of assault, battery, and criminal homicide, for example) against the defendant.
[7] Rehabilitation prevents future crime by altering a defendant’s behaviour. Examples of rehabilitation include educational and vocational programs, treatment center placement, and counselling. The court can combine rehabilitation with incarceration or with probation or parole. In some states, for example, nonviolent drug offenders must participate in rehabilitation in combination with probation, rather than submitting to incarceration. This lightens the load of jails and prisons while lowering recidivism, which means reoffending.
[8] Incapacitation prevents future crime by removing the defendant from society. Examples of incapacitation are incarceration, house arrest, or execution pursuant to the death penalty.
[9] Restitution prevents future crime by punishing the defendant financially. Restitution is when the court orders the criminal defendant to pay the victim for any harm and resembles a civil litigation damages award. Restitution can be for physical injuries, loss of property or money, and rarely, emotional distress. It can also be a fine that covers some of the costs of the criminal prosecution and punishment.
[10]https://www.judcom.nsw.gov.au/publications/benchbks/sentencing/purposes_of_sentencing.html accessed on 19th May, 2020.
[11]R v Nomchong (unrep, 10/4/1997, NSWCCA)
[12]See also R v Goodrich (1952) 70 WN (NSW) 42; R v Radich [1954] NZLR 96; R v Cuthbert (1967) 86 WN (Pt 1) (NSW) 272 at 274; Munda v Western Australia [2013] HCA 31 at [54] and R v Zamagias [2002] NSWCCA 17
[13]See the cases of Tilyard v R [2007] NSWCCA 7 at [22]; R v Sharma (2002) 54 NSWLR 300, R v Howard [2004] NSWCCA 348 at [65]–[66]; Haidar v R [2007] NSWCCA 95 at [57]; R v Bezan (2004) 147 A Crim R 430 at [37]; and R v Ha [2004] NSWCCA 386 at [20]; Ma v R [2007] NSWCCA 240 at [97].
[14] E, ‘Prisons worldwide risk becoming incubators of covid-19’, https://amp.economist.com/international/2020/04/20/prisons-worldwide-risk-becoming-incubators-of-covid-19, accessed May 14th, 2020.
[15]M. Hurley, ‘Why prisoners are at higher risk for the coronavirus: 5 questions answered’, https://www.google.com/amp/s/theconversation.com/amp/why-prisoners-are-at-higher-risk-for-the-coronavirus-5-questions-answered-136111, accessed May 14th, 2020.
[16]M. Ayodeji, ‘Prisoners’ rights under the Nigerian law: legal pathways to progressive realization and protection’, https://www.ajol.info/index.php/jsdlp/article/view/128021, accessed May 14thz 2020.
[17]https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.iiste.org/Journals/index.php/JLPG/article/download/36644/37659&ved=2ahUKEwjnqYvV57PpAhUM9IUKHSbmAmEQFnoECAgQAA&usg=AOvVaw0_xIdi-UWVuNteI6nMkGJ1&cshid=1589481371360, accessed May 14th, 2020.
[18]Aljazeera, ‘Coronavirus: Buhari asks Nigeria’s chief judge to free prisoners’, https://www.google.com/amp/s/www.aljazeera.com/amp/news/2020/04/coronavirus-buhari-asks-nigeria-chief-judge-free-prisoners-200422053224030.html, accessed May 14th, 2020.
[19]see also ALI v. FRN (2016) LPELR – 40472 (CA)
