Christopher Alexander | 21 July 2023

On 18 April 2023, the Special Rapporteur on extrajudicial, summary or arbitrary executions, Dr Morris Tidball-Binz, published a report on the prevention and investigation of custodial deaths, focusing on preventable prison deaths. Together with the Global Research Initiative on Forensic Medicine and Human Rights (Monash University) and the Graduate School of Business and Law (RMIT), Eleos Justice is pleased to have collaborated on this report, which contributes to a growing body of literature recognising deaths in custody as a form of state-sanctioned killing, furthering our commitment to combat all forms of state-sanctioned killing globally.

The report begins by outlining the legal responsibility of States for custodial deaths, noting that States ‘assume direct responsibility for the lives of individuals deprived of liberty’. Citing the Human Rights Committee, the report observes that the duty to protect life is heightened with respect to incarcerated persons, and that States may not rely on lack of financial resources or other logistical hurdles to avoid this responsibility. Flowing from this obligation is the legal presumption that, where a death in custody occurs, the State is responsible for the fatality unless evidence sufficient to rebut the presumption is adduced. The Special Rapporteur also notes that this presumption applies not only to those deaths occurring inside prisons, but also to those occurring during custody but outside prison (such as during transport) and within 30 days of release from prison.

Preventing deaths in prisons

The report identifies violence, suicide, and communicable disease as the leading proximate causes of preventable prisoner deaths. Other issues that may put the lives of prisoners at risk include lack of nutritious food or potable water, inadequate hygiene or sanitation, infestation or dilapidation of prison facilities, and mental illness. Such conditions may be exacerbated by overcrowding, and may contribute to inter-prisoner violence and riots leading to deaths.

In light of this, the report calls for a reduction in incarceration and details various ways in which this may be realised. These include investment in community and institutional infrastructure to address social and economic drivers of crime; adopting non-custodial alternatives in sentencing; reducing the number of people in pretrial detention by creating a legislative presumption of bail and abolishing mandatory pretrial detention; and decriminalisation of victimless and religious crimes. For example, since Portugal’s decriminalisation of drug offences in 2001, the proportion of individuals imprisoned for such crimes has dropped by approximately 25 per cent. In Malawi, an initiative educating the public about the right to bail and providing bail assistance to those convicted of minor offences addresses the country’s lack of legal aid lawyers. The Special Rapporteur also advocates innovative justice processes and diversion away from conventional criminal justice altogether—such as transformative and restorative justice, verbal sanctions, arbitrated settlements, victim restitution, and community service orders.

The more people are imprisoned, the more people will die in prisons.

In addition to rectifying the aforementioned risk factors (such as overcrowding, lack of cleanliness, and inadequate nutrition), fulfilment of the right to health requires that States take necessary steps to prevent physical and mental illness and injury among prisoners, including self-harm. The existing health conditions and disabilities of incarcerated persons must be appropriately addressed and accommodated for, and prisoner vulnerabilities (such as age, gender, and sexual orientation) should be considered in their prison placement, as well as in ensuring their access to programmes and health care. In Ghana, intensive HIV education and prevention programmes in all prisons have resulted in a significant reduction in HIV prevalence among prisoners throughout the country. Canada has responded to drug-related deaths in prisons by introducing the world’s only prison-based drug consumption room. In the United Kingdom and Northern Ireland, a suicide prevention initiative involving talk therapy and distress reduction has been introduced.

Investigating deaths in prisons

Given the presumption that all prisoner deaths engage the responsibility of the State, the State bears a corresponding obligation to investigate all such deaths. Indeed, the duty to investigate all unlawful deaths has attained customary status in international law. However, such deaths are rarely investigated. Deaths may go unrecorded, or there may be an absence of political will to investigate the death. Even where investigations are carried out, various deficiencies may exist. Investigations may lack independence, expertise, forensic medical services, or coordination; bodies of the deceased or family members may be mistreated.

In the absence of any international treaty setting out the requirements of prison death investigations, such investigations should comply with the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, as supplemented by the Minnesota Protocol on the Investigation of Potentially Unlawful Death. Investigations must be carried out by an independent, impartial expert body, and in a prompt, effective, thorough, and transparent fashion. The purpose of such investigations is to establish the truth of the circumstances resulting in the death, information that may inform prosecution and punishment of those responsible. In addition to identifying the deceased, this includes identifying the cause of death, remaining cognisant of the fact that ‘what appears to be a natural death may well have been caused or contributed to by prison conditions’.

The independent investigating authority must be advised of any prison death immediately. All evidence should be secured, recorded, and preserved, including witness testimonies of other prisoners. Autopsies must be conducted in all cases. The deceased prisoner’s next of kin should be informed of the death of the prisoner at the earliest opportunity, be regularly updated as to the progress of the investigation, and be offered culturally-sensitive support throughout the investigation. Investigation findings should be public available in the interests of transparency, and should be studied to inform potential prevention policies and system reform. Criminal justice processes should be pursued wherever necessary to ensure accountability for prison deaths. Finally, the dignity of the dead must be respected throughout the investigatory process, and the body and possessions of the dead should be delivered to the next of kin as soon as possible.

Information collection

Finally, the report turns to the collection and analysis of data on prison deaths. Comprehensive and reliable data on prisoner deaths 'are necessary to inform policy and practice and to enable accurate monitoring and evaluation of interventions aimed at preventing prisoner deaths'. The Special Rapporteur notes that even where such data exists, they are often incomplete or inadequate. This is, in large part, due to the lack of any standardised classification system for the causes of prison deaths. To this end, the Special Rapporteur advocates the development of a ‘universal, easy-to-apply classification system’ for natural and non-natural prisoner deaths, recording factors such as the context, cause, and manner of death. Moreover, it is acknowledged that prisoner deaths are often highest among disadvantaged and marginalized populations—and, accordingly, that detailed and disaggregated data on the identities (sex, gender, sexual orientation, age, language, ethnic origin, disability, religion, etc.) of all prisoners should be kept and regularly updated, and made available in death investigations.

Deaths in custody are a silent global tragedy. […] Upholding the right to life is the minimum that States must achieve; rebuilding lives is the ultimate goal.

Despite international law identifying reformation and social rehabilitation as the ‘essential aim[s]’ of incarceration, prison deaths continue—and needlessly so. When sentencing people to imprisonment, States are, in reality, sending them to their deaths. In this report, the Special Rapporteur underscores the importance of preventing custodial deaths, and while respecting the right to health of prisoners is certainly crucial in this pursuit, the stark reality is that decades of penitentiary reform efforts have failed to achieve this. Preventable deaths in custody are State-sanctioned homicides, and as this report makes clear, much more work needs to be done.

Christopher Alexander is researcher at Eleos Justice.