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Pathway to Decarceration: protecting Victorians from COVID-19 outbreaks

Pathway to Decarceration: protecting Victorians from COVID-19 outbreaks

By Legal Policy

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The Federation of Community Legal Centres and the Law Institute of Victoria have released a nine-point plan to reduce the number of people in Victoria’s prison system to protect Victorians from further outbreaks of COVID-19.

The Pathway to Decarceration: A Justice System Response to COVID-19 outlines nine key areas in which the government could make changes that would reduce the number of people in prison.

High rates of community transmission in Victoria and positive COVID-19 tests of people in the prison system, including staff, has increased the risk of COVID-19 spreading like wildfire through prisons in Victoria.

The high rate of ‘churn’ in the system also poses a significant public health risk should an outbreak occur, placing additional pressure on the health care system and emergency services.

Director of Policy and Engagement at the Federation of Community Legal Centres, Shorna Moore said the Federation and Law Institute of Victoria acknowledge the complex challenges facing the Government during the crisis and the difficult decisions necessary for prisons to meet their duty of care to people living and working in prisons.

However she said to better reduce the impact of COVID-19 on the Victorian community, the government needs to take a holistic look at the systems and structures in place that can impact its strategy.

“One of those systems is the prison system,” she said.

“Just under 7000 people are in Victoria’s prison system, add to that prison staff and contractors and suddenly you have a large proportion of the population operating within a system in which physical distancing is difficult if not impossible. Reducing the number of people in prison, who do not pose a threat to the community or individuals, is the only way to reduce the potential threat of an outbreak of COVID-19 on the system.”

The report, recommends the government implements a whole-of-government response to facilitate decarceration.

The report is clear however, that while decarceration is necessary to reduce the potential impact of COVID-19, any mechanism must have regard for the safety of victim-survivors of family violence who may be impacted by the release of their perpetrators.

It recommends that decarceration only be considered if a person does not pose any threat of harm to the Victorian community.  It recommends:

  • Establish a whole-of-government commitment
  • Encourage police to use discretion for low-level offences or bail offences
  • Provide non-custodial options for low-level offending
  • Use diversionary measures where appropriate
  • Bail reform
  • Provide supported accommodation and court integrated services for people without a home
  • Use of existing legislative measures
  • Greater use of parole
  • Provide adequate post-release housing

Around six per cent of the prison population is over the age of 60 while a third have a chronic medical condition such as asthma, cancer, cardiovascular disease, diabetes or are living with a disability, putting them at greater risk of the effects of COVID-19.

Senior policy advisor at the Federation, Lara Freidin said the report provided a roadmap to reducing prison numbers and saving lives in the event of a COVID-19 outbreak.

“We know that people in prison are some of Victoria’s most disadvantaged people, including victim-survivors of family violence or sexual abuse, Aboriginal and Torres Strait Islander people, people experiencing mental health issues, homelessness or substance addiction and people with a disability,” she said.

More than 40 per cent of females in prison are currently on remand waiting for the outcome of their charges.

In addition, many people in the prison system are there for low-level offending and do not pose a significant risk to the community. According to Corrections Victoria figures in 2018-19, 27.7 per cent of people discharged from prison served a sentence of less than one month, and 76.2 per cent of people had served less than six months.

Co-Chair of the LIV Criminal Law Section Mel Walker said the pandemic presented the criminal justice system with extraordinary challenges and policy has adjusted to address these.

“However one of the most significant challenges - the prison population - has remained the same.  This is not about numbers - this is about the safety of some of the most vulnerable in our community whose well-being is the responsibility of Corrections Victoria.  We have a unique opportunity to review the hardline policies on punishing low level crimes that can be dealt with in a more constructive and rehabilitative outcomes as alternatives to incarceration and address the underlying causes of crime such as homelessness and poverty.  There are no barriers to exploring a program of decarceration and positive diversion programs to better support those who come into contact with our criminal justice system.  The result can only be the protection of the whole of the community.”

Co-Chair of the LIV Criminal Law Section Nicole Spicer said the pandemic had revealed many of the cracks in our society.

“Much of what was invisible has been exposed, be it the casualisation of the workforce, the abuses in the aged care sector or the plight of the homeless. It has also demonstrated to us clearly that the health of the most vulnerable and marginalised are integrally connected to the health and safety of our community as a whole. Whilst we are fortunate that, unlike in other countries in the world, we have so far avoided a major outbreak of COVID-19 in our prison systems, imprisoned persons remain extraordinarily vulnerable. There is still an opportunity for us to act to prevent significant and unnecessary harm to our prison population, and by extension their family members, those who work in prisons, and the community at large. The strategy prepared jointly by the FCLC and LIV provides a sensible pathway for action whilst there remains a window of opportunity”. 

Read the full report here.


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