First published on The Spinoff on April 5th

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Kelvin Davis’s interview on The Hui last weekend made it clear that precautions taken by Corrections to stop the spread of Covid-19 will create an unprecedented restriction on the movement and rights of people in prisons. No rehabilitation programmes, no visits from family or lawyers, no release to work and for many people, 23 hours a day inside their (in some cases double-bunked) cells.

Emergencies such as the Covid-19 pandemic require unprecedented measures to stop the spread, but it’s vital that in doing so they do not create more harm long term or entrench existing inequities. The best strategy for keeping all of our communities safe in this pandemic is to tackle the other huge public health crisis in New Zealand – prisons themselves.

Prisons are by their very nature vectors of disease. Physical distancing is near impossible with a third of prisoners held in double bunking, open-plan eating spaces and small exercise yards. Access to good health care in prisons is frequently undermined by insufficient resources or staff, not to mention the constant tension between care and control. There is also a huge issue for the government’s obligations under Te Tiriti and equity for Māori, who make up 50% of people imprisoned in Aotearoa and who have been failed over and over again by deeply biased health care and justice systems.

We have an opportunity now to prevent the escalation of the Covid-19 crisis by reducing the number of people inside institutions that cannot meaningfully keep them safe. This includes people held in prisons as well as prison officers and other support staff inside. Once the virus does enter the prisons, it will be extremely difficult to stop the spread into the wider community, and the impact will be devastating. Prevention is key.

The first priority for a compassionate public health-based response is the release of elderly people in prison. Already they are significantly less likely to reoffend, and of course they are at profound risk of serious ill health or death from Covid-19. People with pre-existing health conditions or who are immunocompromised should also be released where they can, particularly people being held for non-violent offences. This is a massive issue of equity for Māori; the Ministry of Health has reported that 47% of Māori men in prison have a chronic condition, with the most common being asthma. And anyone with only six months left to serve on their sentence should also be considered for early release.  

These urgent, public health-based steps are already being taken around the world – in New Jersey, Oklahoma, California, New South Wales and even Iran. Canada and the UK are considering similar actions.

One of the many issues that can keep people trapped in the justice system or in prisons is the denial of access to a safe home – because people are experiencing homelessness, have family with criminal records who are prevented from housing them or live somewhere where they can’t be monitored on electronically monitored bail. There is currently a rare window of opportunity with the sudden availability of accommodation across New Zealand since the abrupt end to domestic and international tourism. Releasing people to self-isolate in motel units or available houses is a pragmatic option, with support and oversight where appropriate.

Releasing people back to their communities or into supported living situations may not be possible in the next two weeks, but if the appropriate plans are put in place now, then when restrictions do eventually ease the system can act quickly to reduce the risk posed by overcrowded prisons.

Alternative accommodation could also address the crisis that our policy settings have created in remand, whereby 34% of people in our prisons currently are being held prior to conviction or sentencing. This is a long-standing issue, thanks to a toxic combination of reactionary law changes, intense pressures on housing and delays in the courts. Both Andrew Little and Kelvin Davis have raised this issue and claimed it is a priority for their government, so now is the time to act.

Remand will likely escalate the public health crisis caused by Covid-19, because of the churn of people regularly coming into remand from the outside. The “bubbles” that we are all so desperately trying to hold would be burst over and over again.

To prevent the spread of the virus, police must urgently review the criteria under which they oppose bail. At the moment, opposing bail is often the first course of action for police rather than a case-by-case assessment. In some cases, there are genuine causes for concern on the basis of the safety of the community, but every decision on bail should now consider the public health implications of detaining more people in crowded buildings where the disease will spread. This is particularly urgent given that an unknown number of hearings for people being held in remand were cancelled due to the lockdown, despite the assurances of the chief district court judge. It’s a far cry from the example set in Tulsa, Oklahoma, where public defenders and prosecutors joined forces to get 75 people released from jail in a single day.

There is the potential to use the sudden and immense demand for remote working systems to reduce the enormous delays in our courts. As Marie Dyrbergh explained on RNZ, the use of AVL or other effective systems that can assist with timely court processes could make a huge impact on the injustices and delays currently plaguing our system.

We are all in this together, and stopping the spread requires all of us to act responsibly and with compassion. To quote Andrew Geddis, “over the next four weeks human kindness and concern will matter every bit as much, no… will matter far more than, coercive enforcement of ‘the rules’.”

Kelvin Davis is right that these decisions are not Corrections’ alone to make. To stop the spread and protect all of us we need ministers of justice, health and police to also get on board and work collaboratively. We urge them to take the compassionate and pragmatic path to protect the health and survival of everyone in our community.

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