Pushed to the Limit: Double-Bunking and New Zealand’s Overcrowded Prisons

Anuja Mitra

From the Waikeria prison,[1] to controversy over the use of solitary confinement,[2] to a recent United Nations ruling that New Zealand had abridged the rights of prisoners in preventative detention,[3] prisons have been frequently hitting the media recently. Prisoners “double-bunking” is the latest issue to do so. Individual cells are the norm for New Zealand prisons, but the Corrections Amendment Bill progressing through Parliament permits double bunking — otherwise known as cell-sharing between prisoners — in a greatly expanded number of circumstances. But is this compatible with international standards on the humane treatment of prisoners? And even if not, are we simply more focused on accommodating new prisoners in our already overcrowded facilities?

The Nelson Mandela Rules

First adopted in 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, the United Nations Standard Minimum Rules for the Treatment of Prisoners were revised in 2015 and named “the Nelson Mandela rules” to honour Mandela and the time he spent imprisoned for his advocacy of human rights.[4] These rules provide a set of non legally-binding standards that states should follow when detaining their citizens in penal institutions. They cover, among other things, the need for prisoners to live in hygienic conditions, have the chance to get regular exercise, complete work that is not “afflictive”, be removed and transported in humane ways, have access to medical treatment and not unduly be placed in physical restraints. In terms of accommodation, the rules state:

  1. (1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.

New Zealand was a founding member of the United Nations and party to several important human rights instruments;[5] therefore, we can be said to endorse the Mandela rules. This is further suggested by the fact that we are bound by the most important treaty on the rights of prisoners, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[6] Under the Optional Protocol to the Convention against Torture, the Ombudsman acts as an independent monitor visiting prisons to check their compliance with human rights.[7] Therefore, New Zealand is clearly committed to ensuring fair standards for prisoner living, and has international obligations to do so.

The Double-Bunking Controversy

Under the current Corrections Regulations 2005, prisoners must be detained in individual cells “as far as practicable in the circumstances”.[8] The Regulations outline situations in which prisoners may be placed in shared cells, but what is apparent overall is that single cells are the norm. In contrast, the proposed Corrections Amendment Bill makes cell-sharing the acceptable norm unless a prisoner is unsuited for that type of accommodation.[9] The Law Society criticised this in their submission on the Bill. They noted 12(1) of the Mandela rules and stated that while cell-sharing may sometimes be “unavoidable”, it should not become the default.[10] The submission from the Human Rights Commission expressed similar concerns about making double-bunking the norm instead of the exception, which is at odds with the UN rules’ determination that cells should be shared only for “special reasons”.[11] Both submissions highlight the negative impacts of sharing a cell, with the Law Society referring to a 2006 UK inquiry recommending that the UK Prison Service eliminate the practice.[12]

A frequent complaint from prisoners about sharing a cell is the lack of privacy. This involves physical privacy, as double-bunked prisoners have to undress and use the toilet in close proximity, yet also includes emotional privacy (the need to express emotions privately instead of having to “bottle up” in front of a cellmate).[13] Cell-sharing can also expose prisoners to greater risk of violence, though evidence drawing a clear correlation is limited here.[14] In the UK, prison homicides and sexual violence “disproportionately” involve cellmates.[15] New Zealand Corrections data from 2010 to 2016 revealed 1200 physical assaults on double-bunking prisoners, and 15 prisoners reported sexual assault by their cellmate during that period.[16] In one 2017 case, the perpetrator was a repeat sex offender negligently allowed to choose his young cellmate.[17] In another, the perpetrator had raped three of his cellmates over his time in prison and was found guilty of fourteen charges including sexual violation and threatening to kill.[18] Examining 54 units across 4 prisons, Corrections found that the rate of “incidents” (such as assaults) did not increase as the number of shared cells increased.[19] Yet regardless of the amount of violent incidents overall, the fact that any prisoner might be placed in a dangerous situation due to having to share cells with another prisoner — and having the determination of who they should share with done poorly — is alarming. Some prison staff have stated that even a careful assessment of the compatibility of cell-sharing prisoners does not definitively reduce the risk of harm, because “prisoner behaviour always involve[s] a degree of unpredictability.”[20]

On the other hand, there may be benefits to cell-sharing. Several prisoners interviewed for a Corrections study said that having a cellmate made them feel less lonely, as they had another person to share their emotions with. Some said that they and their cellmate could “learn from each other”, with a few prisoners helping cellmates improve their language and literacy levels.[21] In this sense, double-bunking can accelerate processes of rehabilitation and reintegration into society. Yet critics argue that the increase in double-bunked cells is more to do with governmental interests than perceived benefits to prisoners.[22] The UN Standard Minimum Rules include rule 12 for a reason, which Parliament should give serious consideration to before departing from it. This is especially since several countries such as Canada, Denmark and Finland have been moving to phase out cell-sharing as much as possible.[23]

The Bigger Picture: New Zealand’s Struggling Prison System

New Zealand prison capacity as of May 2018

 

In the end, the Corrections Amendment Bill’s double-bunking clause is symptomatic of the problem of prison overcrowding in New Zealand. The Department of Corrections has been increasing the number of double-bunked cells “to address a looming capacity crisis” since at least 2009[24] — and this crisis has only worsened over the years. But should accommodating this flood of prisoners come at the expense of providing them with safe and sufficient living conditions? A 2012 Corrections report concluded that “safe and humane containment under double bunking conditions requires that certain risks are monitored and managed”.[25] But if cell-sharing is the new norm, prisons must not only ensure that staff are particularly vigilant but that the facilities themselves are adequate. Earlier this year, the Ombudsman visited Arohata Upper Prison amid proposals to double-bunk the prison and found even its single cells to be substandard.[26] If the peak in the prisoner population is due to a tougher stance on crime (as has been claimed in the past),[27] now is the time for New Zealand to recognise the failings of this position. We must reckon with the underlying issues behind incarceration instead of only focusing on how to accommodate people once they are in the system.

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Featured image source: https://nphr.wordpress.com/2017/02/23/throw-back-thursday-jails-as-insane-asylums/

[1] See Alex Braae “When is an expanded prison not a mega prison?” (June 13 2018) The Spinoff <thespinoff.co.nz>.

[2] Kirsty Johnson “United Nations report slams New Zealand’s use of solitary confinement” (27 April 2017) NZ Herald <www.nzherald.co.nz>.

[3] “NZ preventive detention violates human rights: UN experts” (19 April 2018) Scoop <www.scoop.co.nz>.

[4] United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) GA Res 70/175, A/Res/70/175 (2015).

[5] “Activities of the Member States: New Zealand” UN Member States <www.un.org/depts>.

[6] Above n 5.

[7] “Monitoring Places of Detention / OPCAT” Human Rights Commission <www.hrc.co.nz>.

[8] Reg 66.

[9] Corrections Amendment Bill 2018 (35-1) cl 35; New Zealand Law Society “Corrections Amendment Bill” at [19].

[10] New Zealand Law Society, above n 9, at [23].

[11] Human Rights Commission “Submission on the Corrections Amendment Bill” at [48].

[12] New Zealand Law Society, above n 9, at [22].

[13] Department of Corrections Prisoner Double-bunking: Perceptions and impacts (April 2012) at 9.

[14] At 6.

[15] At 6.

[16] Edward Gay “Prisoners lodge complaints of sexual assault by cellmates” (25 July 2017) Radio NZ <www.radionz.co.nz>.

[17] Gay, above n 16.

[18] Edward Gay “Prisoner found guilty of raping three cellmates” (7 September 2017) Radio NZ <www.radionz.co.nz>.

[19] Department of Corrections, above n 13, at 27.

[20] At 14.

[21] At 9-10.

[22] Michael Bott “Double-bunking really a label for prison overcrowding” (18 May 2010) Stuff <www.stuff.co.nz>.

[23] Department of Corrections, above n 13, at 6.

[24] “Minister welcomes double-bunking judgment” (19 December 2009) Beehive <www.beehive.govt.nz>.

[25] Department of Corrections, above n 13, at 4.

[26] Peter Boshier OPCAT Report: Report on an unannounced inspection of Upper Prison (Arohata) Under the Crimes of Torture Act 1989 (Office of the Ombudsman, March 2018) at 22-23.

[27] See for example “More inmates to ‘double-bunk’ as prison numbers rise” (17 February 2016) Radio NZ <www.radionz.co.nz>.