The Covid Sentence: Imprisonment during a Pandemic

It is undeniable that imprisonment during the Covid-19 pandemic has become a more severe punishment and is more restrictive of liberty than a prison sentence during ordinary times.

When deciding whether imprisonment is necessary, judges are relying on the case of Manning, which found that the impact of Covid-19 restrictions on prison conditions could be taken into account by sentencing courts as a legitimate factor. Besides the clear increased risk of infection in prison, experts continue to warn about the dangers Covid-19 restrictions pose for the mental health of people in prison settings.

Recently published government statistics support those findings. On 28 January 2021, the Ministry of Justice published the latest statistics on deaths and self-harm in prisons in England and Wales. As the overall number of deaths in prisons continues to rise, one of the most worrying aspects of the figures is the stark increase of self-harm in women’s prisons in the last year: there has been an 8% annual increase in self-harm incidents, with 35% more than the year before requiring hospital. Youth Justice Statistics published on the same day are also alarming. The number of self-harm incidents are at a five-year high, having increased by 35% since 2018-2019, with the highest rate amongst girls aged 10-14 years.

Beyond the fear and reality of contracting Covid-19, there are various factors which are contributing to the deterioration of the mental health of people in prisons. Social visits, rehabilitating activities, mental health services and regular exercise have been effectively replaced with daily 23-hour lock-up for extended periods of time.

Some people in the prison system continue to lack access to hot water and/or adequate heating in the midst of winter while the use of physical force used against people both in prisons and the youth justice system saw a stark annual increase.

Those on remand already faced the huge backlog of criminal trials, now exacerbated by the pandemic, with some trials seeing delays of up to three years.

Finally, a report authored by the Prison Reform Trust (PRT) earlier this year has shown that efforts to reduce racism in criminal justice settings have declined. Notably, more than 50% of children in the youth justice system were from BAME backgrounds in 2020, disproportionately subjecting them to harsher Covid-19 prison sentences. The Shadow Justice Secretary David Lammy expressed his outrage over these figures, pointing to the structural racism that underpins their reality.

The End of Custody Temporary Release scheme, which sought to release low-risk prisoners, was suspended in August 2020; although the Joint Committee on Human Rights is making efforts to revive the scheme, real progress is yet to be seen.

Although the long-term effects of the above illustrated issues are yet to be seen, it has already been noted that even short Covid-19 prison sentences can cause and exacerbate mental health issues. As the PRT report notes, community orders tend to be more effective in reducing re-offending than short prison sentences for the same crimes. It is thus pertinent that, particularly during a pandemic, imprisonment is considered a last resort.