COVID in Our Prisons - An Open Letter to the Justice Sector

We are calling on leaders in the Justice Sector to implement the following recommendations:

For the Chief Justice, the Attorney-General and Solicitor-General and for the Minister of Justice:

The Justice Sector COVID-19 Working Group must issue new guidance for bail decisions that recognises the risk of viral spread in prisons, prioritises release of people into the communities, and does not encourage criminal justice system actors to illegitimately invoke the COVID-19 context to remand people in custody or resist bail applications;
The Working Group should also focus on how the Government can address the practical difficulties created by COVID-19 conditions on granting bail and handing down community-based sentences by providing accommodation and transport. This is an equity issue and likely to disproportionately impact on Māori;
Where an individual is not currently remanded in custody and a custodial sentence is the most likely outcome, encourage judges to use the provisions already set out in the Sentencing Act to defer the start date of a sentence. Further, advise Judges that the current COVID-19 conditions in prisons should be taken into account in sentencing;
Encourage the judiciary to consider risk to the health of individuals, their whānau and the wider community as a factor weighing against the imposition of a short term of imprisonment, and counting towards the imposition of non-custodial alternatives;
Use s25 of the Parole Act to designate a “class of offenders” who have not reached their parole eligibility date who could be considered by the Board for early release, for example people with underlying health conditions that put them at greater risk of harm from COVID-19;
Expedite parole hearings for all eligible prisoners;
Identify and put in place temporary changes to bail requirements that could safely reduce the number of people held on remand.
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For the Minister of Corrections:

Direct all prison managers that COVID-19 is a matter that affects eligibility for parole and ask them to consider additional people to be referred to the Parole Board, per s26 of the Parole Act. This is urgent given the implications for parole eligibility for those who have had rehabilitation programmes cancelled or deferred;
Prioritise the release or transfer to alternative facilities of older people, pregnant people, and those with relevant pre-existing health conditions (including COPD, respiratory illnesses and those with compromised immunity);
Ensure that people in prison have access to AVL rooms to communicate privately with legal representation and continue with steps to improve access to AVL facilities and other options for prisoners to remain in contact with family or whānau who cannot visit in person;
Direct the Chief Executive to provide advice to you as to whether any legislative changes are required to ensure the safe custody and welfare of prisoners through an immediate modification order under the Epidemic Preparedness Act 2006. This advice should include the impact of the suspension of rehabilitation programmes and effective 23 hour cell lockdowns on the health and well-being of people in prisons;
Deny recall to prison applications by the probation service for breaches of release conditions that do not involve undue risk to the public;
Direct the Department to provide assistance in finding accommodation and transport for those on bail, community-based sentences, or release conditions, and prioritise the allocation of available accomodation (e.g motels) for these people to increase supported bail/release options for people being bailed, sentenced and paroled and as an alternative to being held in custody;
Any additional capacity resulting from a shift in focus in the health sector should be directed towards providing additional mental health and addiction support to parolees and as an alternative to incarceration;
Ensure that, at all times, incarcerated people have equitable access to the standard of PPE recommended by Ministry of Health guidelines;
Address sanitation issues in prisons, in particular the many reported instances of poor ventilation;
Provide air purifiers, prioritising prisons and blocks within prisons that have been identified to have poor ventilation;
Ensure Corrections officers are not working across different units, to minimise the opportunity for spread of COVID-19 between units;
Continue with efforts to ensure unvaccinated people in prisons have the information, confidence and assurances they need to accept COVID-19 vaccination when offered.
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For the Minister of Police:

Use existing Police discretionary powers and support from AWHI to prioritise diversion over criminal prosecution, where that is consistent with public safety;
Ensure additional funding is available for programmes and support services offered by iwi and hapu through Pae Oranga/Iwi Community panels as soon as they resume, to help tackle the drivers of offending.