United Nations System Common Position on Incarceration
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United Nations System
Common Position on Incarceration
April 2021
“It is said that no one truly knows a nation until one has been inside its jails.
A nation should not be judged by how it treats its highest citizens, but its
lowest ones.”
Nelson Rolihlahla Mandela
1ABSTRACT
Judicial and prison systems around the globe continue to face fundamental challenges that
undermine the ultimate purpose of incarceration as a sentence, namely, to protect society
from crime and to prevent recidivism by supporting rehabilitation and preparing prisoners for
their social reintegration upon release.
Overincarceration, overcrowding, poor conditions and the serious neglect of prison services
are causing prisons to be a weak link in criminal justice systems and a low priority in reform
efforts. The consequences for public safety, health and human rights, as well as the financial
and socioeconomic costs resulting from these deficiencies, are immense. In some countries,
including those in conflict, post-conflict and other crisis situations, severe prison deficiencies
have had a negative impact on peace, security and stability. The disproportionate impact of
the coronavirus disease (COVID-19) in prison settings has demonstrated what can happen
when already overburdened and ill-equipped prisons are confronted with crises. Addressing
the challenges associated with incarceration, including its overuse, should be a key part of the
effort to “build back better”.
Many problems manifested in prison settings are the result of socioeconomic disparities and
systemic deficiencies in criminal justice systems. Societal, racial and other forms of
discrimination may be equally reflected in criminal justice policies and practices. Effective and
sustainable reform efforts therefore require a holistic reform approach aimed at addressing
the root causes of overincarceration and overcrowding, and shifting policies towards
prevention and alternatives to imprisonment.
The United Nations commitment to “leave no one behind” recognizes prisoners as a
particularly vulnerable and marginalized group that is subject to discrimination and exclusion.
Sufficiently resourced and well-managed prison services and State policies that advance non-
custodial measures are important enablers of the 2030 Agenda for Sustainable Development.
The United Nations system common position on incarceration provides a common framework
for United Nations support to Member States, with the objectives of reducing the overreliance
on incarceration and reducing the prison population, strengthening prison management and
improving prison conditions and advancing the rehabilitation and social reintegration of
offenders.
It is closely informed by research findings and is firmly grounded in both international human
rights law and the United Nations standards and norms in crime prevention and criminal
justice. As such, it constitutes a guide for consistent United Nations advocacy and assistance
aimed at supporting reform efforts in Member States relating to incarceration.
2iCONTENTS
Abstract . . . . . . . . . . i
Purpose and scope . . . . . . . . . 2
Definitions . . . . . . . . . . 2
Global prison challenges . . . . . . . . 3
Overuse of pretrial detention and imprisonment . . . . . 3
Reinforced discrimination and inequalities . . . . . . 4
Prison overcrowding . . . . . . . . . 5
Neglect and abuse . . . . . . . . . 6
Key observations . . . . . . . . . 7
Common approach . . . . . . . . . 8
Shifting policies towards prevention and alternatives . . . . . 9
Strengthening prison management and improving prison conditions . . . 11
Advancing the rehabilitation and social reintegration of offenders . . . . 14
Directions for action . . . . . . . . . 16
3iiPURPOSE AND SCOPE
The present paper sets forth the United This paper focuses on the deprivation of
Nations system common position on liberty in places of detention within criminal
incarceration. 1 It addresses prison and justice systems. It therefore excludes other
associated challenges at the global, regional forms of deprivation of liberty, such as
and national levels and constitutes the immigration-related detention of an
common framework for United Nations administrative nature. 3 The specific
support to Member States in relation to situation of children deprived of liberty is not
incarceration. addressed in detail, as it is governed by an
additional set of legal considerations and
The paper reflects a “One UN” approach obligations.4
aimed at supporting efforts to rethink the
current overreliance on and implementation DEFINITIONS
of incarceration, including through better
coordination and integrated efforts. > Incarceration. The state of being deprived
of liberty in prisons, including pretrial
The United Nations system common
detention facilities.
position on incarceration is based on the
understanding that no one should be > Prisons. All authorized places of
subjected to arbitrary arrest or detention 2 detention within a criminal justice system,
and that the deprivation of liberty in including those used for the purposes of
response to a criminal charge or offence pretrial detention and imprisonment
should constitute a measure of last resort, upon conviction.
with due consideration first being paid to
non-custodial sanctions or measures. > Prisoners. All persons who are held in
prisons as defined above, irrespective of
It also acknowledges that, as part of their legal status, excluding children
individualized, balanced and proportionate accompanying an incarcerated parent.
criminal justice responses to offending, well-
managed prisons constitute an important > Pretrial detainees. All persons who, in
aspect of the justice chain. Prison services connection with an alleged offence, are
that respect human dignity and operate in detained in prison between the time of
line with international norms and standards arrest and the time of judgment at first
constitute a core element of efforts to instance.
maintain peace and security, public safety
and respect for human rights. > Non-custodial measure. A decision made
by a competent authority, at any stage of
As such, prison reform and the treatment of the administration of criminal justice,
offenders should be viewed as an integral that requires a person suspected or
part of the 2030 Agenda for Sustainable accused of, or sentenced for, an offence
Development, in particular with regard to to submit to certain conditions or
Sustainable Development Goal 16, on peace, obligations that do not include
justice and strong institutions, as well as incarceration.
Goal 3, on good health and well-being, Goal
5, on gender equality, and Goal 10, on > Children. All individuals under the age of
reduced inequalities. 18 years.5
2GLOBAL PRISON CHALLENGES “Imprisonment has become an almost
automatic response rather than a last resort,
Criminal justice responses to crime, as mirrored in increasing and
including the deprivation of liberty, are disproportionate penalization, excessive use
implemented by States in the name of of pretrial detention, increased length of
justice. Incarceration and the treatment of prison sentences and little use of non-
offenders should therefore reflect a State’s custodial alternatives. Furthermore, the
obligation to ensure justice, preserve public penitentiary system in most countries is no
safety and hold offenders accountable while longer aimed at the reformation and social
fully respecting applicable human rights in rehabilitation of convicts but simply aims to
the process. punish by locking offenders away. Non-
compliance with international standards in
relation to conditions of detention is caused
Overuse of pretrial detention and by resource constraints and by the punitive
imprisonment approach of most criminal justice systems.”9
In 2019, more than 11 million people, Despite relevant provisions in international
including 410,000 children, were held in law, 10 the overuse and excessive length of
prisons across the globe, representing an pretrial detention remains a global challenge.
increase of 25 per cent since 2000 in the Even though many individuals charged with
total number held. While the number of criminal offences do not pose a risk to public
female prisoners worldwide represented a safety or the administration of justice, their
small minority of the prison population in number among the prison population has
most countries, their number grew by 50 per nevertheless risen by 30 per cent since 2000,
cent over the same period, reaching more to more than 3 million people. Pretrial
than 714,000 women.6 detainees outnumber convicted prisoners in
45 Member States; in 14 of those States,
Member States resort to imprisonment to pretrial detainees represent more than 70
very different degrees. According to per cent of the prison population.11
estimates, while the global average
imprisonment rate stands below 150 In some countries, pretrial detainees remain
prisoners per 100,000 of the overall national in detention for a period longer than the
population, it has reached 300–650 sentence period that would typically apply
prisoners per 100,000 of the overall national to those found guilty of the alleged offence.
population in more than 25 Member States.7 Others are subject to prolonged detention in
police holding cells that are not designed,
Studies have found that general crime and should not be used, for that purpose.
trends do not explain the overall use of
imprisonment. Neither reported crime nor For these reasons, Sustainable Development
victimization are systematically reflected in Goal 16, on peace, justice and strong
incarceration levels.8 institutions, establishes the percentage of
pretrial detainees within prison populations
Despite these circumstances, incarceration as an indicator for measuring the efficiency
often remains the default choice, if not the of, and access to, justice systems.12
only response, to address criminal behaviour.
Investments in the availability, quality and As a result of a limited range of alternatives
use of non-custodial measures continue to to incarceration provided in law, courts may
be overlooked. lack the necessary options to ensure that
3imposed sentences are proportionate to the directly linked to poverty, such as
gravity, nature and circumstances of the homelessness or the inability to pay fines.
offence. More often, however, the problem
is a reluctance to apply non-custodial When poverty and insufficient access to
measures embodied in national law. This social, health and legal aid services for the
may be due to a lack of awareness of, or disadvantaged are combined with policies
confidence in, their effectiveness, a lack, or aimed at being “tough on crime” and
perceived lack, of public support, or systemic forms of discrimination (e.g., based
insufficient health-care, housing and social on race, ethnicity, sex or gender), the result
welfare services. The absence or inadequacy is the overrepresentation of minority and
of the entities and infrastructure required to marginalized groups among prisoners, many
implement alternatives to incarceration, of whom are charged with petty and non-
including restorative justice approaches, 13 violent offences. The time spent in prison is
compounds the problem. likely to aggravate unemployment,
homelessness and poverty, thereby feeding
The overuse of incarceration is often fuelled a vicious cycle of deprivation and exclusion.
by “zero tolerance” policies 14 and populist
rhetoric that call for stricter law “Because law enforcement officials often use
enforcement and sentencing. 15 This occurs ‘poverty’, ‘homelessness’ or ‘disadvantage’
despite research findings indicating that it is as indicators of criminality, persons living in
not the prospect or severity of a prison poverty come into contact with the criminal
sentence that deters crime, but the justice system with a disproportionately high
perceived probability of apprehension.16 frequency. They also encounter considerable
obstacles manoeuvring within or exiting the
For example, the use of life imprisonment, system. As a result, disproportionately high
which has replaced capital punishment as numbers of the poorest and most excluded
the most severe penal sanction in 149 are arrested, detained and imprisoned.”20
countries, increased by 84 per cent from
2000 to 2015, when 479,000 prisoners were Individuals may also be deprived of liberty
serving a formal life sentence. It appears for apostasy or so-called “moral crimes”,
that the progressive abolition of the death many of them linked to discrimination
penalty was not the exclusive driver of that against women and lesbian, gay, bisexual,
increase, as research 17 also points to the transgender or intersex persons.21
application of life sentences to a wider range
of offences and for longer or indefinite time Children may be deprived of liberty for non-
periods, including life sentences without criminal acts that are only prohibited under
parole.18 the law on the basis of the person’s status as
a child (referred to as “status offences”), or
as a substitute for referral to childcare and
Reinforced discrimination and inequalities protection services.
Inequalities and low socioeconomic status Owing to a lack of community-based support
have been found to be relevant to the and public health-care facilities, in
incidence of crime.19 Incarceration therefore numerous countries, persons with mental
disproportionately affects and impacts the health conditions or psychosocial disabilities
segments of society that are living in poverty are often imprisoned, even when they have
or are marginalized. In some countries, not committed any offence or have been
people are imprisoned as a result of factors found not to be criminally responsible.
4Incarceration for the above reasons felt by their families in terms of economic
amounts to arbitrary detention in violation status, compromised family ties and stigma,
of international norms and standards.22 thereby perpetuating inequalities,
discrimination and exclusion. A particularly
The number of individuals convicted for affected group are the children of
drug-related offences is estimated to incarcerated parents, 32 including those
account for 18 per cent of the global prison children who are temporarily allowed to live
population. 23 Reflecting socioeconomic with a parent in prison. Studies indicate that
inequalities, 24 those detained for drug- children of incarcerated caregivers suffer
related offences are often low-level from higher rates of behavioural, emotional
offenders, such as persons who use drugs or and cognitive problems, and are more likely
who have drug use disorders, drug couriers25 to get caught up in a cycle of
or small-scale dealers. The proportion of intergenerational risky behaviour and
women (35 per cent) imprisoned for drug- contact with the criminal justice system.33
related offences is higher than that of men
(19 per cent),26 which illustrates the need to
address intersecting forms of gender-based Prison overcrowding
discrimination, inequality and abuse.27
Prison overcrowding constitutes an acute
In many countries, national drug laws make global human rights, health and security
no or limited provision for alternatives to crisis and stands out as the greatest
imprisonment, even for low-level offenders. contributor to violations of international
In addition, available data point to a lack of minimum standards in prisons. The
evidence-based programmes for the phenomenon continues to affect a majority
treatment of drug use disorders and the of Member States worldwide (110 Member
reduction of the negative health States), with more than 50 Member States
consequences of drug use in prisons,28 and operating prison services at more than 150
to an increased risk of relapse to drug use per cent of their official capacity.34 In many
and drug overdose upon release. 29 Where prisons, overcrowding is so acute that
such evidence-based interventions for prisoners are forced to share beds, sleep in
prisoners with drug use disorders do exist, shifts or on top of each other, or spend the
they have been proved to reduce the risk of night standing.
relapse and recidivism.30
The excessive resort to pretrial detention
The distinct background, profile and specific has been identified as a main contributor to
needs of women and girls in conflict with the prison overcrowding worldwide. While
law tend to be grossly neglected and pretrial detainees should be presumed
subsumed into a male-centred model of innocent until proved guilty by a court of law,
incarceration. 31 Incarceration has a and treated as such, conditions in pretrial
particularly negative impact on women and detention are often worse than those for
their dependants in terms of safety, convicted prisoners, and are characterized
exposure to gender-based violence, mental by, inter alia, poor infrastructure and poor
health and stigma, owing in part to the lack service and programme delivery.
of gender-responsive prison management
practices and rehabilitation programmes. Operating significantly over the intended
capacity of prisons is not simply an issue of
The impact of incarceration extends well lack of space. It also gravely affects the
beyond the actual prisoners. It is also heavily quality of nutrition, sanitation and hygiene,
5health services, rates of transmission of most basic and life sustaining needs of
infectious diseases, the provision of care to prisoners. Budgets for the maintenance,
vulnerable groups, and the physical and refurbishment or construction of sound
mental health of prisoners, as well as their prison infrastructure are scarce or do not
access to constructive activities and take into account evidence-based designs
programmes. Overcrowding generates that would support a safe, decent and
conflicts, fuels violence, decays prison healthy prison environment.
infrastructure and poses immense security
and management challenges. This situation, exacerbated by the typically
poorer health status of prisoners at the time
Insufficient supervision, safety and prisoner of admission and poor linkages with public
classification schemes in overcrowded health facilities, often leads to a higher
prisons can lead prisoners to seek protection mortality rate and the prevalence of
from high-risk prisoners or prison gangs and communicable 36 and non-communicable 37
can provide dangerous entry points for diseases in prisons. Those diseases not only
radicalization to violence. The declining ratio affect prisoners, their families, visitors and
of prison staff per prisoner and adverse work prison officers, but also put an increased
environments have had a negative impact on health burden on society at large.
staff performance, attitudes and well-being. Unsurprisingly, prison settings have been hit
In such circumstances, prison officers are particularly hard by the coronavirus disease
more likely to take on a more authoritarian (COVID-19) and continue to be at severe risk
and less positive role. of amplified transmission and outbreaks of
the disease. It has been estimated that, as of
In summary, the impact of overcrowding April 2021, more than 538,000 prisoners in
multiplies the challenges faced by prison 122 countries have tested positive for the
services in preserving the integrity of prison coronavirus, among which there have been
management, ensuring the health, safety 3,900 COVID-19-related fatalities. 38 In
and well-being of prisoners, maintaining a addition, research in individual countries
rehabilitative prison regime and preserving indicates that, compared to the general
prison security. population, prisoners are more likely to
become infected with the coronavirus and
Neglect and abuse more likely to die from COVID-19.
The neglect of places of detention increases
Incarceration creates a situation in which the risk of inadequate management,
prisoners depend upon prison services for oversight and accountability mechanisms.
the fulfilment of all their day-to-day needs. Even basic and key requirements, such as
Member States therefore owe a heightened the separation of men from women, adults
duty of care and special responsibility 35 to from children and sentenced prisoners from
respect, protect and fulfil the human rights pretrial detainees, 39 are not consistently
of prisoners. In this regard, public scrutiny is met in many countries. Furthermore, the
crucial, owing to the closed nature of prisons. access of prisoners to legal advice, as well as
to representatives of independent
Notwithstanding these factors, prison inspection bodies, may be seriously
management and the treatment of compromised or impeded.
offenders are a low priority in many Member
States. Prisons tend to be underresourced Prison officers 40 are typically held in lower
and often struggle to provide for even the regard than other public officials working in
6the criminal justice system. They tend to commitment to “leave no one behind”
have lower salaries, less training and fewer recognizes prisoners as a particularly
career opportunities. This not only leads to vulnerable and marginalized group
difficulties in recruiting qualified staff, but subject to discrimination and exclusion.44
also has negative consequences on their
morale and performance. > Given the closed nature of prisons and
the inherent risk of abuse and violence in
All of the above factors increase the risk of them, a two-fold system of regular
torture, ill-treatment and other human monitoring and inspections by the prison
rights violations in prisons. Widespread service, on the one hand, and by external,
corruption 41 and security breaches, independent bodies, on the other, is
including continued criminal activity while essential for preventing torture and ill-
imprisoned, can also have a destabilizing treatment.
effect well beyond prison walls.
> Many problems manifested in prison
settings are the result of systemic
KEY OBSERVATIONS
deficiencies in criminal justice systems,
including in relation to racial and gender
Despite commendable initiatives and justice and justice for children. Effective
progress in individual jurisdictions, prison and sustainable reform efforts require a
systems around the globe continue to face holistic approach that identifies
fundamental challenges that undermine the legislative shortcomings, procedural
ultimate purpose of a prison sentence, bottlenecks and deficiencies in physical
namely, to protect society from crime and to rule-of-law infrastructure, and that
prevent recidivism by supporting invests in the use of non-custodial
rehabilitation and preparing prisoners for measures and access to quality legal aid.
their social reintegration upon release.
> Strategies to prevent and combat racism
> Overcrowding, poor prison conditions and racial discrimination in criminal
and the serious neglect of prison services justice systems, in line with human rights
cause prisons to be a weak link in criminal norms, 45 should encompass dedicated
justice systems and a low priority in measures regarding prison management
related reform efforts. The consequences and the treatment of offenders.
for public safety, health, and human
rights, as well as the financial and > The disproportionate impact of COVID-19
socioeconomic costs resulting from these in prison settings has demonstrated what
long-standing deficiencies, are immense. can happen when already overburdened
and ill-equipped prisons are confronted
> Prison management and the treatment of with crises. Addressing the challenges
offenders have an impact on progress associated with incarceration, including
towards a variety of Sustainable insufficient coordination between the
Development Goals,42 and related targets justice and health sectors, should be a key
and indicators. 43 Sufficiently resourced part of the effort to “build back better”.
and well-managed prison services and
entities in charge of non-custodial > The post-COVID-19 recovery will provide
measures are an important enabler of the an important opportunity for criminal
2030 Agenda for Sustainable justice systems to address their chronic
Development. The United Nations shortcomings and engage in holistic
7prison reform. Building on the emergency in prison riots, mass escapes and the
initiatives adopted by Member States, increased potential for the spread of
which have authorized the release of at violent extremist ideology. By serving as
least 700,000 prisoners globally, 46 a drivers of conflict and weakening public
concerted effort is needed to fully confidence in rule-of-law institutions,
implement these results in a sustainable such developments seriously undermine
manner and to urgently rethink the the stabilization and peace sustainment
overuse of incarceration. efforts of United Nations peace missions.
At the same time, efforts to counter
> In many cases, women offenders do not armed groups, deter the perpetration of
pose a serious risk to public safety. serious conflict-related crimes and
Greater efforts to promote gender- ensure the criminal accountability of
responsive alternatives to incarceration, State and non-State actors require
taking into account their specific functioning prison systems.
circumstances, such as pregnancy or
caretaking responsibilities, are essential. COMMON APPROACH
Responses to the distinct backgrounds
and needs of women prisoners and
The United Nations system stands ready to
offenders must be enhanced, including
assist Member States in addressing global
through social reintegration strategies
prison challenges within the framework of
that address the underlying
the 2030 Agenda for Sustainable
socioeconomic issues they may face.
Development.
> Although incarcerated, prisoners remain
All efforts to address global prison
a part of society. Accordingly, civil society
challenges will be based on international
has an important role to play in
human rights law47 and the United Nations
supporting the treatment of offenders in
standards and norms in crime prevention
both the community and in prisons
and criminal justice, 48 including the United
through complementary support,
Nations Standard Minimum Rules for the
monitoring and services in support of
Treatment of Prisoners (the Nelson Mandela
rehabilitation and social reintegration.
Rules). This will not only serve to ensure the
> Public opinion has a major influence on human dignity of prisoners, but will also
how policymakers respond to crime. benefit public safety and the social cohesion
While public demand for harsher of societies at large.
penalties is often used to justify punitive
The United Nations system recognizes that
criminal justice policies, proactive
more needs to be done, and is committed to
information-sharing and awareness-
enhancing its efforts, in a systematic and
raising can result in a more balanced
integrated manner, in three thematic areas:
understanding. Solid research, data and
close collaboration with the media and (a) Shifting policies towards prevention and
communities are key to fostering public alternatives;
support and political will for penal reform.
(b) Strengthening prison management and
> Prison challenges may be particularly improving prison conditions;
acute in conflict, post-conflict and other
crisis settings, resulting not only in (c) Advancing the rehabilitation and social
serious human rights violations, but also reintegration of offenders.
8addressing global prison challenges, as such
Shifting policies towards prevention and
measures directly reduce prison populations.
alternatives
Concrete measures may include: diversion
Incarceration should be used as a last resort, or discharge, including conditional discharge,
taking into account the nature and gravity of at the pretrial stage; status penalties,
the offence, the risk the offender poses to economic sanctions, restitution or
the public and the offender’s social compensation orders, suspended sentences,
reintegration needs. Crime prevention and probation and judicial supervision,
alternatives to incarceration 49 are key to community sentence orders, house arrest or
avoiding the overreliance on, and any other form of non-institutional
inappropriate use of, incarceration. treatment, at the trial stage; and halfway
houses or various forms of parole and
The focus of criminal justice responses pardoning schemes, at the post-sentencing
should be shifted from imposing punishment stage; as well as treatment measures for
and isolation to investing in longer-term offenders with drug use disorders at various
strategies for crime prevention, stages of their contact with the justice
rehabilitation, restorative justice and social system.51
reintegration, with an emphasis on the most
vulnerable. This shift also requires a While a proper balance needs to be struck
movement towards depenalization and between the rights of victims, the rights of
decriminalization in appropriate cases, in offenders and the need for public safety, the
line with international norms and potential of non-custodial measures has not
standards.50 been fully realized in many Member States.
Preventing crime from occurring in the first For various categories of offences and
place is essential for reducing the number of offenders, non-custodial measures can be
people who come in contact with the more effective in reducing the risk of re-
criminal justice system. There are factors at offending, as they can support rehabilitation
the individual, family, community and wider in the community. Given the significant cost
society levels that can place individuals at a of imprisonment, even in low-resourced
higher risk of crime, violence and prison settings, non-custodial measures
victimization. tend to be more cost-effective, enabling
resources to be invested in social, welfare
Identifying and minimizing these risk factors and health services with long-term benefits
is key, and can be accomplished through, for communities at large. As they prevent
inter alia, multi-stakeholder consultations, a the unnecessary exposure to the harmful
review of existing crime data, and empirical impact of incarceration, alternatives are also
research on the structural conditions that a more proportionate and humane criminal
give rise to crime. The findings of such justice response, in appropriate cases.
efforts should inform the design and
implementation of evidence-based crime Prior to any decision to expand prison
prevention strategies and programmes and capacity, States that are confronted with
ensure a more coordinated response from prison overcrowding should first explore and
all relevant services. exhaust opportunities to reduce the prison
population, and then conduct a
The effective use of alternatives to comprehensive and realistic assessment of
incarceration is another precondition to remaining needs.52
9The United Nations system will give priority regard to bodily autonomy and access to
to assisting Member States in moving sexual and reproductive health.
towards appropriate depenalization and
the enhanced use of alternatives to The United Nations will advocate for
incarceration at all stages of the consistent gender analysis and
administration of criminal justice, in responsiveness in all policies, laws and
compliance with the United Nations practices concerning incarceration and the
Standard Minimum Rules on Non-custodial broader criminal justice system, in line with
Measures (the Tokyo Rules). the United Nations Rules for the Treatment
of Women Prisoners and Non-custodial
This approach will be pursued in close Measures for Women Offenders (the
cooperation with all relevant stakeholders, Bangkok Rules).53
including governments, legislators, judges,
prosecutors, the police, lawyers, legal aid Prisons and the resort to imprisonment
providers, social service providers and civil strongly reflect societal inequalities and
society. Analysing the composition and discrimination. Particular vigilance is
characteristics of the national prison therefore required to ensure that persons
population will provide key insights into who belong to minority groups and who are
predominant crime types and in contact with the law, whether they are
overrepresented categories of offenders for suspected, accused or convicted of criminal
whom the deprivation of liberty may be offences, whether they are detained or
unsuitable or disproportionate. imprisoned, or whether they are victims or
witnesses of crime, are protected from all
While they are typically less resource- forms of discrimination.
intensive than incarceration, non-custodial
measures nevertheless require sufficient The United Nations system will advocate for
physical infrastructure and resources, criminal justice and prison systems that are
including for probation and parole agencies, free from racism, racial discrimination,
social services and civil society organizations, xenophobia and related intolerance,
in order to be functional and effective. including by ensuring that recruitment into
public employment within criminal justice
The United Nations system will support systems reflects the diversity of the
Member States in building the capacity of population, including minority groups.
criminal justice, social welfare and other
agencies that supervise and support The best interests of children should be a
offenders who are subject to community- priority in all actions that affect them. In the
based sanctions or measures. case of child offenders, all efforts should be
made to resort to diversion, other non-
Given the particularly harmful impact of custodial measures and restorative justice,
incarceration on women, additional regardless of their alleged associations and
consideration should be given to gender- offences. Any alternative dispositions should
responsive prison design, management ensure that children are dealt with in a
practices and non-custodial measures for manner that is appropriate to their
women offenders, taking into account their circumstances and the nature of their
specific circumstances, the often non-violent offences. A child deprived of liberty should
nature of the offences they commit and any be held separately from adults, unless it is in
wrongful criminalization, including with the child’s best interest not to do so.
10The United Nations system will advocate for effective legal aid and affordable bail, as
the principle that children should only be well as the efficiency of national criminal
deprived of their liberty as a measure of last justice systems, guided by the principles of
resort and for the shortest appropriate time fairness and due process.
period, in line with the Convention on the
Rights of the Child. 54 This objective will be embedded in efforts to
promote proportionate and individualized
Because of the number of criminal justice sentencing that takes into account the
institutions it would involve, reducing the nature, gravity and circumstances of the
overuse and excessive length of pretrial offence, as well as the background of the
detention is one of the most complex offender, and that ensures proper
challenges to be addressed. Reform efforts consideration of diversion and other non-
need to be aimed at ensuring fairness, custodial measures.
efficiency and effectiveness at all stages of
the criminal justice process, including In the case of persons with drug use
investigation, prosecution and adjudication. disorders, the approach will also be aimed at
In order to address procedural delays, case increasing access to evidence-based and
backlogs and miscarriages of justice, it is voluntary drug treatment, as well as to other
crucial to build the capacity of criminal health services at the community level. Not
justice actors, improve inter-agency only is such an approach supported by clear
cooperation, simplify and speed up criminal evidence that health-oriented approaches
justice procedures and improve data are the most effective in reducing drug use
management systems and other and the social harm that it causes, but it is
infrastructure, at the same time ensuring also in full compliance with the international
transparency and accountability. drug control conventions.57
The right of suspects and defendants to have The phenomenon of drug use disorders is a
access to legal representation and advice is public health concern that requires
also important for guaranteeing fair trials evidence-based responses that are health-
that meet the requirements of international centred and in line with ethical standards.
law. 55 This should include timely access to
legal advice at no cost where the person has The United Nations system will support
no means and where the interests of justice reform efforts aimed at ensuring
so require. Early access to effective legal aid, proportionate and individualized
including in police custody and pretrial sentencing policies and alternatives to
detention, is key to ensuring that detainees conviction or punishment in appropriate
are able to effectively challenge the basis for cases, 58 including for minor drug-related
their detention early on, that proceedings offences.59 It will equally advocate for the
are fair and that the rights of detainees and decriminalization of acts that are protected
prisoners are respected. Access to legal by international human rights law.
services has also proved to be a key
safeguard against torture and ill-treatment.
Strengthening prison management and
improving prison conditions
The United Nations system will assist
Member States in restricting the use of
pretrial detention to narrowly prescribed The mission of all prison services is to keep
circumstances 56 through criminal justice prisoners in safe and secure custody, while
reform targeting legislation and access to treating them with respect for their human
11dignity. Constituting the minimum rehabilitation opportunities, including
conditions accepted as suitable by the humane and gender-responsive prison
United Nations, the revised United Nations infrastructure that supports a decent and
Standard Minimum Rules for the Treatment constructive prison environment. Prison
of Prisoners (the Nelson Mandela Rules) conditions constitute a key aspect of the
have led to a renewed momentum in prison overall quality of prison life and the human
reform efforts worldwide, and form the dignity of prisoners. The responsibility of
basis for United Nations support. The Nelson Member States to provide for prisoners’
Mandela Rules promote a human rights- basic needs and well-being cannot be
based approach to prison management that conditional on the material resources
places the human dignity of prisoners at available in those States or be “outsourced”
centre stage and outlines what is generally to the prisoners’ families.62
accepted as being good principles and
practice in the treatment of prisoners and In addition, prisoners need to have access to
prison management.60 health services free of charge and of a
standard of quality at least as high as that
The Optional Protocol to the Convention applicable in the community. These should
against Torture and Other Cruel, Inhuman or include psychological support and sexual
Degrading Treatment or Punishment, which and reproductive health care, as well as
at the time of writing had been ratified by 91 access to essential medicines. Such access is
Member States, establishes a system of particularly important for prisoners, as they
regular visits to places of deprivation of often have poorer physical and mental
liberty in order to prevent torture and ill- health than the general public. In line with
treatment at the national level. The visits are the universal right to health, prison health
undertaken by the Subcommittee on services need to be in a position to provide
Prevention of Torture and Other Cruel, for the health-care needs of prisoners,
Inhuman or Degrading Treatment or including needs of a gender-specific nature.
Punishment and by so-called national Health-care professionals in prisons must be
preventive mechanisms, which are guided by the same ethical and professional
independent national bodies that States standards as those applicable to patients in
parties are required to establish in the community.63
accordance with the Optional Protocol.61
Good health in prisons also benefits public
The United Nations system will align its health outcomes and the prevention of
prison reform support with four thematic recidivism, as many drivers of criminal
priority areas that encapsulate the behaviour, such as drug use or mental health
prerequisites for sound and humane prison disorders, are related to health.
management in line with the Nelson
Mandela Rules and other relevant Thematic priority 2.
international norms and standards. Human rights safeguards for prisoners
Thematic priority 1. Human rights safeguards for prisoners are
Conditions of incarceration crucial for ensuring the integrity,
transparency and accountability of prison
Thematic priority 1, on conditions of management. Prison sentences punish
incarceration, relates to the overall quality offenders through the deprivation of their
of accommodation, sanitation, and hygiene, liberty alone and must not involve additional
and the provision of basic services, as well as hardships or abuse. Concrete mechanisms to
12counter the vulnerabilities that stem from attention of prison managers. In this regard,
closed prison environments, including the related prison management practices, such
unequal power relationship between prison as the classification of prisoners according to
officers and prisoners, are required to individually assessed risks and needs,
ensure safety for all and at all times. corresponding sentence plans and the
prisoners’ subsequent allocation to a
Furthermore, adequate information for suitable prison regime, are indispensable
prisoners on their rights and obligations, an prerequisites. Such practices also serve to
accessible, safe and effective complaints ensure that prison planning and design
system, the access of prisoners to legal aid matches the actual profile of the prison
and regular independent inspections of population.
prisons are all essential to mitigating the
risks of corruption and abuse inherent in More broadly, evidence has demonstrated
prison systems and ensuring the absolute the value of investing in the concept of
prohibition of torture and ill-treatment. dynamic security, which involves fostering
professional and positive prisoner-staff
Certain groups will require particular relations, ensuring adequate ratios between
attention, owing to the specific needs they prisoners and staff, diverting the energy of
have in prisons64 or to the heightened risk of prisoners into constructive activities and
discrimination and abuse, including sexual establishing a decent and balanced prison
and gender-based violence, to which they regime.
may be exposed by prisoners or prison staff.
Categories to which particular attention A particular challenge for prison systems has
needs to be paid include: women;65 children; been offenders who are members of crime
young people; the elderly, including those syndicates or who enter prisons with
with terminal illness; prisoners with extensive organized crime contacts already
disabilities; prisoners with chronic diseases at their disposal. In cases involving such
or mental health-care needs; foreign offenders, ineffective security and safety
prisoners; prisoners belonging to ethnic measures are likely to facilitate their
minorities or indigenous peoples; lesbian, continued involvement in crime and the
gay, bisexual, transgender or intersex exercise of undue control and influence vis-
prisoners; prisoners serving life sentences; à-vis prison officers and prisoners alike.
and prisoners under sentence of death.
More recently, the increasing inflow of
Many of these prisoners are in a situation of individuals charged with or convicted for
vulnerability attributable to more than one terrorism-related offences has highlighted
cause (a concept referred to as the risk of violent extremism in prisons,
intersectionality), thus they may suffer as a including radicalization to violence and
result of their existing special needs, which related recruitment efforts. These serious
may be intensified in prison, and as a result threats must be addressed, as called for by
of the additional risks they face, stemming the Security Council.66
from their particular status.
At the same time, prison security is an area
Thematic priority 3. prone to abuse. Implementing legitimate
Security and safety security measures in line with international
norms and standards, including in relation to
Safety and security are core elements of human rights and the use of force, is
prison systems that require the significant therefore essential.
13Thematic priority 4. International minimum prison standards,
Organizational culture such as the Nelson Mandela Rules, clearly
require that prisons be managed by
The organizational culture in prison services professional prison staff that have civil
greatly influences how the overall principles service status. 71 A contrary decision to
governing prison management are privatize prison management does not
translated into practice. Where and how exonerate States from their responsibility to
prisons are administered within government guarantee prisoners’ human rights and their
plays an important role in this regard. duty of care towards prisoners. 72 Effective
monitoring and accountability mechanisms
In order to ensure a strict separation that protect prisoners’ rights should be in
between law enforcement or military place. 73 Furthermore, it should be noted
entities, on the one hand, and the agency in that there appears to be no solid data or
charge of the implementation of prison conclusive evidence that would suggest that
sentences, on the other, the existence of a privatized prisons are characterized by
civilian prison system with professional enhanced cost-effectiveness.74
prison staff is key. 67 Depending on the
national context and the access to sufficient
resources, this may include placing the Advancing the rehabilitation and social
responsibility for prisons with the Ministry of reintegration of offenders
Justice or a similar government department.
For similar reasons, it is preferable to place Incarceration, by itself, does not have a
the responsibility for health services in reformative effect. On the contrary, it
prisons under the Ministry of Health or to at exacerbates many of the challenges faced by
least ensure a close relationship between individuals who have come into conflict with
prison health-care services and public health the law. In addition, long or harsh prison
authorities. sentences may result in so-called
institutionalization, which affects prisoners’
An enhanced investment in the most personalities and social and life skills in a way
important resource of a prison system, that makes their social reintegration even
namely, its personnel, is crucial in this more difficult.
regard. 68 Supporting an ethos and self-
perception among prison officers, including In line with the Nelson Mandela Rules, the
senior management, that they are not United Nations system will promote a
merely guards or wardens, but rather agents rehabilitative approach to prison
for change, can help to harmonize legitimate management that fosters the willingness
security requirements with those of and ability of prisoners to lead law-abiding
rehabilitation and reform. Improved and self-supporting lives upon release, and
recruitment processes, workplace policies that is embedded in a decent, safe and
and conditions, career opportunities, healthy prison environment and the
tailored training 69 and staff support positive engagement of officers with
infrastructure are key to enabling them to prisoners. 75
fulfil their complex and multifaceted tasks.
Such efforts should be complemented by an Since the vast majority of prisoners will
enhanced public acknowledgement of the eventually return to society, such an
“social service of great importance” 70 approach is a precondition for fulfilling the
provided by prison personnel. ultimate purpose of prison sentences: to
14protect society from crime. Rehabilitation The rehabilitation and social reintegration of
and security are often seen as opposites, prisoners is a societal task that cannot be
however, on the contrary, a rehabilitative fulfilled by prison services alone. More than
prison environment enhances safety and any other aspect of prison management, this
control inside prisons, as prisoners who are is an area for which the support of relevant
involved in constructive and meaningful government entities 77 – complemented by
activities are easier to manage and less the active involvement of civil society78 – is
prone to violence. critical. Such cross-institutional cooperation
ensures that services are provided in
Dedicated programmes should be designed accordance with the standards applicable
to address the root causes of offending and for similar services in the community, and
enhance the social reintegration prospects are continued in the community upon
of prisoners upon release in accordance with release, as required.79
their individual treatment needs. Such needs
may include education; vocational training More broadly, this approach mitigates the
and work experience; counselling; physical isolation of prisons from the outside world
and mental health care, including and contributes to the normalization of
psychological support; treatment for prisons vis-à-vis the community, minimizing,
substance use disorders, cognitive- as much as possible, the differences
behavioural therapy, life skills training and between prison life and life at liberty.80 The
family-oriented programming for approach is also important for preventing
incarcerated parents. Access to constructive any prison-based scheme purported to be
activities should equally include physical rehabilitative from becoming exploitative or
exercise and sports, and spiritual, cultural afflictive in nature. The rationale for
and recreational programmes. rehabilitation programmes must be to
enhance social reintegration prospects as
Women prisoners should not only have per in line with individually assessed risks
equal access to rehabilitation and social and needs, and in consultation with the
reintegration programmes, but also be prisoner concerned.
offered gender-responsive programmes that
address their specific backgrounds, needs The United Nations system will promote an
and perspectives without being limited to all-of-government approach to the
stereotypical activities considered “suitable” rehabilitation of prisoners and offenders, in
for women. close coordination with civil society. It will
not support any programme that is
Many of the above-mentioned activities exploitative or primarily geared towards
require suitable prison infrastructure, which making a profit from prison industries,
is often lacking. Prison facilities should have compulsory treatment or purported re-
sufficient space and capacity to maximize education programmes that run counter to
prisoners’ daily access to related services. In human rights or medical ethics.
addition, rehabilitative prison regimes also
include opportunities for the early, The transition period from incarceration to
conditional or compassionate release of liberty and the period immediately following
prisoners, subject to their behaviour, release are critical and difficult for all
progress and circumstances and in line with prisoners. Social reintegration support must
institutionalized reviews provided for in therefore not end at the prison gate but
national legislation.76 instead ensure a continuity of care, including
15for physical and mental health-related It equally acknowledges, however, that
matters. 81 Even the best prison-based enhanced efforts are required to sensitize
rehabilitation programme will be policymakers and the general public to the
undermined if former prisoners find issue of incarceration and its impact.
themselves without any post-release
support (or supervision, where applicable). The United Nations system will therefore
Community-based support services are work to ensure that incarceration and its
equally important for offenders subject to overuse remain high on the political agenda,
non-custodial measures. including as part of the discussions relating
to the 2030 Agenda for Sustainable
The United Nations system will support Development and the Secretary-General’s
inter-agency arrangements to prepare Call to Action for Human Rights. 82 This will
prisoners for their social reintegration in include advocacy for the core principles and
order to facilitate their gradual and safeguards by which incarceration should be
carefully accompanied return to society, governed. Regular thematic meetings and
coupled with efforts to reduce the stigma debates in relevant intergovernmental
associated with being a former detainee or bodies 83 will be actively encouraged and
offender. supported.
Public attitudes towards prisoners and Priority attention will be paid to building on
offenders play an important role in reducing existing platforms in which Member States
the risk of their return to crime. Reducing are already engaged, such as the Group of
recidivism requires efforts to prepare the Friends of Corrections in Peace Operations
community, including potential employers, (New York) and the Group of Friends of the
to receive former prisoners and offenders Nelson Mandela Rules (Vienna).
and to reduce the severe stigma typically Consultations among Member States
associated with offending. This can include through these processes and other
political support, awareness-raising, multi- multilateral mechanisms will foster the
agency collaboration, incentives and the exchange of promising practices, provide
active engagement of civil society, coupled policy coherence and create opportunities
with efforts to ensure that victims of crime to address emerging challenges.
are not afforded less support and fewer
resources for their recovery and welfare.
Enhance United Nations advocacy efforts in
support of Member States
DIRECTIONS FOR ACTION
In order to alleviate global prison challenges
Ensure that the topic of incarceration and generate tangible positive change, the
remains high on the political agenda United Nations system will intensify its
advocacy efforts at the international,
The United Nations system recognizes that regional and national levels to support
the response of Member States to crime, Member States in addressing those
including by means of incarceration, is challenges.
intrinsically linked to human rights, equality,
public safety, security, health, sustainable Depending on the country context
development and public trust in the fairness concerned, priority objectives will include
and effectiveness of criminal justice systems. the following:
16> Pretrial detention and imprisonment are promote the ratification of the Optional
restricted to measures of last resort and Protocol to the Convention against
are embedded in a variety of non- Torture and Other Cruel, Inhuman or
custodial measures that can serve as Degrading Treatment or Punishment.
effective alternatives.
> Such compliance and related efforts are
> Legislative and policy amendments lead recognized as also constituting a
to proportionate and individualized fundamental basis for the effective
sentencing and the decriminalization of management of high-risk prisoners and
acts that are protected by international for countering the risk of radicalization to
human rights law. violence in prisons.
> Gender analysis and responsiveness are > Rehabilitation and health services in
consistently applied in all policies, laws prisons are integrated, as much as
and practices concerning incarceration possible, in the corresponding public
and the broader criminal justice system. systems, and are provided at a similar
standard as in the community.
> Procedural bottlenecks in criminal justice
systems and other deficiencies that > The buy-in of all relevant stakeholders
contribute to delays and overcrowding and the general public to the societal task
are identified and effectively addressed. of supporting the rehabilitation and social
reintegration of offenders is promoted as
> The access of alleged offenders and a key contributor to public safety.
sentenced prisoners to legal advice,
assistance and representation, including > Lessons learned from the
through legal aid, is guaranteed at all disproportionate impact of COVID-19 in
stages of the criminal justice process. prisons are translated into a renewed
impetus for comprehensive penal reform,
> Drug use and drug use disorders are including sustainable strategies to reduce
acknowledged as a public health concern prison populations.
that require, above all, evidence-based
and health-centred responses in the With regard to entry-points for advocacy, it
community, as opposed to is important to note that, in 2015, the
incarceration.84 General Assembly decided to extend the
scope of Nelson Mandela International Day
> Prison conditions and infrastructure and (18 July) to promote humane conditions of
the treatment of prisoners are in line with imprisonment, to raise awareness of
human rights and are consistently aimed prisoners being a continuous part of society
at strengthening the social reintegration and to value the work of prison staff as a
prospects of prisoners, all the while social service of particular importance.
ensuring safe and secure custody.
In the light of the invitation of the General
> Compliance with international norms and Assembly to organizations of the United
standards related to prison management Nations system to celebrate the occasion in
and the treatment of prisoners, including an appropriate manner, attention will be
the Nelson Mandela Rules and the paid to organizing awareness-raising
Bangkok Rules, is monitored and campaigns and other events on this
enhanced, and efforts are undertaken to particular day.85
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