The modern prison is a perfect breeding ground for COVID-19. For example, more than 20,000 prisoners and 6,400 prison staff have tested positive in the United States (Human Rights Watch 2020), with reports highlighting very high rates of infection of between 74 and 98 per cent of prisoners in correctional facilities in Ohio, California, and Louisiana (Lartey 2020) and a seven-fold infection rate observed in New York City jails (Barnert 2020). Reasons cited for high risk and prevalence within prisons include overcrowding, poor ventilation, close habitation, and social-distancing challenges, all of which can contribute to virus transmission (Montoya-Barthelemy et al. 2020). In both Italy and Colombia, the pandemic has been also a cause of large-scale prison rioting and escape attempts (Anthony 2020).
Australia has, so far, avoided these levels of infection, but the potential for high infection rates remains. Australia has over forty-three thousand prisoners of whom 32 per cent are on remand (awaiting trial or sentencing) and 66 per cent are serving sentences of less than five years (Australian Institute of Health and Welfare 2019). This population has almost doubled in the last twenty years, with Australian prison capacity sitting at around 112 per cent (World Prison Brief 2020). The population is overwhelmingly male (92 per cent), with 27 per cent of the population coming from Aboriginal and Torres Strait Islander backgrounds (Australian Law Reform Commission 2018). There are high rates of recidivism, with 73 per cent of the prison population having been in prison before, and 43 per cent of the Aboriginal and Torres Strait Islander prisoners having been in prison at least five times before.
Research amongst prisoners has identified higher levels of mental health problems, alcohol consumption, smoking, illicit drug use, chronic disease, and communicable diseases than the general population (Binswanger et al. 2016). Significant morbidity exists in the Australian prison population, which places them at risk of complications and compromised health. Recent Australian data indicates that 40 per cent of new prisoners and 37 per cent of discharged prisoners report being diagnosed with a mental health condition (including addiction disorders), with more than one in five (21 per cent) prison entrants reporting a history of self-harm (AIHW 2019). Seventy-five per cent of prison entrants said they smoked, whilst 65 per cent of prison entrants report that they have used illicit drugs during the previous twelve months, with methamphetamine being reported as the most commonly used drug (AIHW 2019). Australian prisoners also have a high prevalence of chronic conditions, with 30 per cent of prison entrants stating that they had a history of arthritis, asthma, cancer, cardiovascular disease, or diabetes (AIHW 2019).
There is also a high prevalence of communicable disease in the prison population. Hepatitis C in the prison population sits at 21 per cent for males and 28 per cent for females (Butler and Simpson 2017). Hepatitis B was found to infect 16 per cent; chlamydia 3.9 per cent; and gonorrhoea 1.5 per cent (AIHW 2019). Six per cent of prison entrants tested positive for syphilis markers (a rate of infection about 250 times higher than the general population) (Butler and Simpson 2017).
Australian prisoners are therefore a vulnerable/at-risk population that is under state care and control. What steps should the state take to protect them? Internationally, concern for COVID-19 transmission within the prison context has brought about calls for the early release of prisoners to minimize the risk (Akiyama, Spaulding, and Rich 2020; Henry 2020; Hawks, Woolhandler, and McCormick 2020; Nowotny et al. 2020; Shinkman 2020; Simpson and Butler 2020). The United Nations Office on Drugs and Crime (UNODC), the World Health Organization (WHO), the Joint United Nations Programme on HIV/AIDS (UNAIDS), and the Office of the High Commissioner for Human Rights (OHCHR) issued a joint statement urging
… political leaders to consider limiting the deprivation of liberty, including pretrial detention, to a measure of last resort, particularly in the case of overcrowding, and to enhance efforts to resort to non-custodial measures. These efforts should encompass release mechanisms for people at particular risk of COVID-19, such as older people and people with pre-existing health conditions, as well as other people who could be released without compromising public safety, such as those sentenced for minor, non-violent offences, with specific consideration given to women and children. (UNODC et al. 2020, ¶4)
Unsurprisingly, risk of COVID-19 infection has been an issue in bail applications and in applications for early release of prisoners. Judges must consider the individual facts of each case against relevant legislation but be “deeply mindful of the wide-ranging consequences of their decisions for defendants and society during the COVID-19 pandemic” (Fuentes 2020, 475).