Pardons are Not a Solution to Prison Overcrowding

The first half of 2012 brought a bumper crop of prison pardons, with at least 14 countries reporting them in the media. Nine prisoners were pardoned in Azerbaijan for their involvement in a demonstration; in Somaliland, 43 people were let out of jail, where they were serving sentences of five to 25 years; and in the grandest gesture, 40,365 pardoned in South Africa, many of them convicted for theft and fraud.

Pardons often serve as dramatic gestures, used to mark significant days such as Independence Day, Christmas or Africa Freedom Day. But many governments also use pardons as a way to fight overcrowding, and to create space for new prisoners. The President of Burundi recently announced that the presidential pardon has two main purposes: to enable prisoners to celebrate Burundi’s 50 years of independence, and to address prison overcrowding.

Which leads to the question: are prison pardons an effective prison management tool?

The answer is, despite being a longstanding and widespread practice, there are serious questions as to whether ad hoc pardons are a sustainable way to deal with overcrowding, as well as whether pardons ensure the rights of all detainees and manage safety and security issues.

A few more recent examples illustrate how pardons can only be small piece of the solution to overcrowding.  

• In Malawi, in early July, the newly inaugurated President Joyce Banda commemorated 48 years of independence by pardoning 377 prisoners. Those eligible were prisoners doing time for lesser crimes, who had completed two-thirds of their sentences and shown good behavior, or were terminally ill. A few days later five prisoners escaped from one of the prisons in protest over the pardons, stating that two prisoners sentenced for murder and sex crimes had been released. Malawian prisons certainly face severe challenges: the total prison population stands at over 12,000 detainees in a system designed for less than half this number. Prisons are seriously overcrowded and while only 12% of the prison population comprises pretrial detainees many spend lengthy periods awaiting trial, further taxing the system.
• In Turkmenistan there have been two presidential pardons so far in 2012. The latest, in May, was in honor of the anniversary of the country’s constitution. It was unclear, however, exactly how many prisoners were freed and how the conditions for eligibility were managed as the primary criterion appears to have been whether the prisoner had “sincerely repented for their deeds.” Turkmenistan, compared even to its Central Asian neighbors, has a very high rate of incarceration. For every 100,000 citizens, there are estimated to be 543 prisoners—the global figure is around 160 prisoners per 100,000 of the general population—and detention facilities house over three times the number they were designed for.
• In Uganda the Prison Services recently submitted a list of over 1,000 prisoners to be considered for the presidential pardon ahead of the upcoming 50th anniversary of independence in October 2012. Those eligible include those on death row, minor offenders who have surpassed half of their sentence, pregnant women, the terminally sick, breastfeeding mothers and the elderly. The Commissioner General of Prisons, Johnson Byabashaija, is keenly aware of many of the problems in Uganda’s prisons, including the fact that overcrowding stands at 250 per cent. At a recent forum he stated that “prisons are overcrowded because criminal justice systems are not deposing of cases in time.” He noted that 52 per cent of the inmates are awaiting trial and appealed to the agencies that deliver justice to harmonize their activities to ensure that there is faster dispensation of justice.

Pardons provide, at best, only temporary relief for broken systems. At worst, they distract from the need for more fundamental change. They are not an effective tool for addressing overcrowding.

In many instances pardoned prisoners are, sooner or later, “recycled” back into the criminal justice system. In South Africa less than a month after a presidential pardon earlier this year, 43 prisoners were back behind bars for re-offending. The case in Malawi of prisoners protesting against pardons indicates actual or perceived differential treatment. Many people also have legitimate public security concerns and these mass releases risk undermining confidence in a fair and independent criminal justice system. The National Institute for Crime Prevention and the Reintegration of Offenders in South Africa said following the recent presidential pardon that prisoners had received very limited preparation for reintegration and had thus been set up for failure. They predict that nearly half of those released will end up back behind bars. In a report on prison overcrowding presented at a UN conference in Brazil in 2010, Hans-Jörg Albrecht concludes that prison pardons undermine principles of sustainability, the rule of law, and the separation of powers and that the amnesties usually have a rather short-lived effect on the prison population.

So, what are more effective and sustainable solutions to overcrowding?

Strategies to reduce overcrowding and ensure effective management within the criminal justice system need to start from the entry point to the system when a suspect is arrested by the police and continue all the way along the criminal justice chain to the rehabilitation and reintegration of offenders. As the Ugandan Commissioner General pointed out, all the agencies that deliver justice need to harmonize their activities.

A number of key practices should be considered essential for any criminal justice system:

• Arrests are based on solid investigation and for offences set out under national laws;
• Minor cases are diverted away from the criminal justice system;  

• Pretrial detention is used as a measure of last resort and alternatives to detention are available and utilized on a regular and systematic basis;
• Where pretrial detention is absolutely necessary it is for a minimal period of time and subject to regular review;
• Cases are bought speedily to trial and measures taken to ensure their progression;
• Non-custodial sentences are utilized where possible;
• Effective rehabilitation and reintegration programmes are implemented; and
• Sustainable parole programmes are introduced.   

In combination, these practices have the potential to significantly reduce overcrowding and offer a more sustainable solution. Further suggestions can be found in a 10-point plan to reduce prison overcrowding developed by Penal Reform International and in the reports and pilot projects of the Global Campaign for Pretrial Justice that advocates a more rational and exceptional use of pretrial detention.