Overcrowding in prisons: a health risk in need of (re)consideration.

• Author: le Roux-Kemp, Andra
• Position: South Africa, Russia, European Union

Introduction

It is inherent to prisoners' punishment that they are delivered into the power of the State and that their autonomy and rights to freedom and choice are severely limited. Prisoners are also amongst the most vulnerable in society, however, and "a civilized and humane society demands that when the State takes away the autonomy of an individual by imprisonment, it must assume the obligation [to provide and ensure] conditions of detention that are consistent with human dignity." (1) This includes that prisoners are treated in a humane manner, that their right to dignity is preserved, and that their health needs are met.

This commentary will consider two cases: a decision of South Africa's Constitutional Court, and a Russian case heard by the European Court of Human Rights. In both cases it was argued that the conditions of overcrowding in the prison/detention facility had a direct and negative impact on the inmates' health and well-being. The South African case of Lee v Minister of Correctional Services (2) was the first Constitutional Court case in which it was argued that overcrowding in a prison facility adversely affects prisoners' health rights. And, while the European Court of Human Rights has decided a number of cases on how overcrowding in prisons and detention facilities infringes on inmates' rights to privacy and human dignity, (3) the case of Kalashnikov v Russia (4) was also the first case in which the health risks of overcrowding in prisons and detention facilities were highlighted, and it was demanded that the relevant authorities take responsibility to ensure that prisoners'/detainees' health rights are met and their right to human dignity preserved.

These two cases should furthermore not be seen in isolation. Overcrowding in prisons and other detention facilities is a widespread problem and it is also a reality for the Correctional Service of Canada. The media recently reported that Canada's "prison population has reached an all-time high" and warned that the possibility exists for Canadian prisoners to hold the government liable for "failing to follow its own laws to provide adequate care and protection for inmates." (5) The Office of the Correctional Investigator also reported in its 2011-2012 Annual Report that the prison population will continue to increase as the effects of recent legislative and policy reforms, which include the Truth in Sentencing Act, Tackling Violent Crime Act and the Safe Streets and Communities Act, start to materialise in terms of prison population growth. (6)

The cases reviewed here are thus relevant to contemporary issues facing correctional services in Canada and other jurisdictions. Both decisions emphasise that States have the responsibility to ensure that prisoners/detainees live in conditions that preserve their human dignity and meet their basic health rights and entitlements.

The Court Rulings

South Africa

In Lee v Minister of Correctional Services (7) the plaintiff, Dudley Lee, was detained in a South African prison, Pollsmoor, (8) near Cape Town, for four and a half years from November 1999 to 27 September 2004. In June 2003, whilst incarcerated, he fell ill and was diagnosed with pulmonary tuberculosis (TB). The plaintiff was eventually acquitted of all criminal charges against him and instituted an action for damages against the Minister of Correctional Services (9) on the basis that the prison authorities' failure to take preventative and precautionary measures against the spread of TB in Pollsmoor prison caused him to become infected with TB.

In Pollsmoor prison, the approved accommodation is 1619 inmates but the lock-up total during the plaintiff's incarceration was as much as 3052, constituting a 189% occupation of the facility. (10) Prisoners furthermore spent up to 23 hours a day in their overcrowded prison cells and cigarette smoke filled the cells and corridors. (11) But it was not only the prison that was crowded; whenever the plaintiff went to court he was transported together with many other prisoners in a truck or van and they were then placed in cells which were "jam packed" with prisoners waiting their turn to appear in court. (12)

This overcrowding--which is the norm in most South African prisons (13)--was problematic on a number of levels; it not only made it difficult to isolate infective TB patients from other prisoners, but it also created the ideal conditions for the airborne bacterium, mycobacterium tuberculosis, to survive and infect. The bacterium is sensitive to light and fresh air, two luxuries that prisoners at Pollsmoor prison are not privy to, and the bacterium can furthermore survive and 'drift around for hours' (14) if expelled in a dosed environment like a prison cell. South Africa furthermore has a high incidence of TB--it is estimated that more than half of the population has been infected with TB at one time or another. (15)

While authorities were aware of the presence of tuberculosis in the prison...