In this truly exceptional context, the extraordinary measures adopted constitute the fulfilment of a duty of assistance and solidarity towards convicted persons.
We are living in a state of emergency, decreed in order to contain a highly contagious viral outbreak that has taken hold among us and which has globally recorded a high mortality rate. This objective will necessarily cover, without exception, all Portuguese people and requires imposing on environments with high population density in order to ensure efforts to contain the Covid-19 pandemic are effective.
As specifically regards the human reality of prisons, as potential foci of infection and the rapid spread of the virus, the priority and urgency of taking measures for inmates serving sentences, protecting the health and safety not only of the inmate population but also of prison guards and their families, becomes clear.
There is no scope here for any ethical dilemma or frustration over complying with sentences, this is rather a humanitarian and public health issue. The aim is to avoid devastation in prisons should such a pandemic wave break out.
Therefore, the decision to make prison sentences more flexible (whether through a partial pardon of prison sentences, a pardon, an extraordinary scheme of administrative leave or an extraordinary anticipation of release on parole) shall allow for the removal of older prisoners, sick people and low-risk offenders from the prison universe.
Clearly, certain requirements must be fully met with assessments therefore having to be on a case-by-case basis and only extending to minor crimes of a non-violent nature with sentences of two years or less and those prisoners sentenced for crimes incurring relative requirements of general and particular prevention, and while stabilising feelings of community security remain especially pressing, must be explicitly excluded.
In short, it is imperative to seek a balance so this type of measure may be justified without triggering any social alarm.
The benefits of such measures, which are guided by criteria of equity and proportionality and based on public health reasons, is clearly greater than that of imprisonment.
As is known, in prison environments, and due to the specific characteristics of the environment, it is unfeasible to practice social distancing, hygiene and the obligatory respiratory etiquette to prevent contagion and transmission of this disease. This constitutes a clear violation of the rights of prisoners and is tantamount to maltreatment.
According to the statement by the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, “Whilst acknowledging the clear imperative to take firm action to combat Covid-19, the Committee for the Prevention of Torture must remind all actors of the absolute nature of the prohibition of torture and inhuman or degrading treatment. Protective measures must never result in the inhuman or degrading treatment of persons deprived of their liberty.”
At a time when we are all public health actors, because the spread of disease does not hesitate, does not respect borders or distinguish between people, the state has a special duty, and a constitutional imperative, to protect the physical and mental health and well-being of all its citizens, including prisoners.
And because in a state under the rule of law, convictions are not, nor should they be, the ultimate function of justice. In this truly exceptional context, these extraordinary measures constitute the fulfilment of a duty of help and solidarity towards prisoners.
in the Jornal Económico newspaper
9th April 2020