Side Event: Implementing the United Nations Bangkok Rules: Women and Drug Policies

Organised by the Government of Canada, Centro de Estudios Legales y Sociales, the International Drug Policy
Consortium, the Office of the High Commissioner for Human Rights, Penal Reform International, the Washington Office on Latin America and WHRIN

 

Introduction and Chairing by Marie Nougier, International Drug Policy Consortium

Kristin McLeod (Canada): Canada is especially committed to gender equality – it is enshrined in our constitution, which sets out that every individual has the right to equal protection, without discrimination including based on sex.

We recognise the importance of implementing the SDGs, which are a blueprint for international peace and prosperity, and reducing inequality at home and abroad. Goal number 5 in particular – on gender equality – should be taken into account in all policies and programmes affecting young girls. This means policies and programmes relating to drug policies, too.

A consequence of women being a minority prison population is that prisons are designed for men – including architecture, healthcare, and other features. The unique needs of women and the challenges they faced often lead them susceptible to further vulnerabilities.

Female offenders are disproportionately likely to have been victims of domestic and sexual abuse – and face further risk of abuse by police, prisoners and others.

Canada recently announced a strategy to address gender based violence: prevention, support, and responsible legal and justice systems. Our correctional services have adopted a holistic women-centred approach on managing female offenders. We have adopted trauma-informed interventions and services and training opportunities, designed for women, which take into account their socio-economic situations. For instance, we know that fostering ties with children reduces the risk of re-offending. The programme helps to foster positive relationships by keeping women and children together and creating a positive environment.

Our federal treatment court funding, which aims to reduce offending by drug dependency through treatment. In 2015, the need for women-only activities was recognised, particularly in group activity. interventions focus on the importance of relationships in their lives and more prevalent experiences of trauma, mental  health problems and parenting. All programmes have a women-centred perspective.

We continue to strive for gender equality. In line with the Bangkok platform, we remain committed to gender-based analysis. We recognise that the commitment must be a shared responsibility. We remain mindful of the unique needs of the different populations.

Olivia Rope (Penal Reform International): For those of you who don’t know, we are a human rights and governmental organisation and we work on promoting fair and effective criminal justice systems internationally.

We have prioritised women as a population in criminal justice systems over the past ten years. In December it will be ten years since the UN Bangkok Rules were adopted, which set out rules for treatment of women in prison. But they also look at sentencing and alternatives to imprisonment. Lots of attention has been given to detention conditions for women – and lots of initiatives to improve these – but less attention to promoting alternatives and stopping this trend where female prison populations are increasing.

The number of women in prison has increased by more than 50% between 2000 and 2017. In a global prison population of 11 million people, women remain a minority. However, the increase is what we need to note: the 50% increase was against an overall prison population increase of 20%.

It’s clear from country-based research that the number of women in prison has grown because of political choices – including harsh drug policies. We also know from the recent study of women deprived of liberty that there are around 19,000 children living in prison with their mothers and millions of others impacted by incarceration.

The UN Bangkok Rules encourage non-custodial alternatives because of the effect on women and their children.

Drug policies disproportionately impact women. The UNGASS Outcome Document and others seek to combat this. There are a larger proportion of women in prison for drug policies – 35% of women are there for drug offences, compared to 19% of men. In Thailand, this is 82%. Studies suggest that this is owing to the lesser role that women play in drug trafficking rings, making them easier to target and less likely to be given plea bargain deals – meaning they’re more likely to be sentenced to a prison term.

To really understand these statistics, you really need to look at the people behind this data. Here are eight women in prison in Latin America – whose stories are different, but have common threads.

Some of the key issues: vulnerable family situations; experiences of violence as children – which often goes through to their adult life, including through partners – who may be the reason they are involved in drug crimes; 80% have young children and many are pregnant when arrested. They face stigma when arrested, and many play the role of ‘drug mules’. Behind any financial benefit is the pressure that they need some money, and often have a lack of a support net. When women are arrested, they often have mental health issues relating to their experiences – and little knowledge about their rights, and often left without legal representation.

The UN Bangkok Rules are clear that these situations should be taken into account during sentencing – gender-sensitive sentencing. This includes situations of poverty, and situations with children.

Today we are publishing a brand new report: this looks at what is the law and practices around sentences of women for drug offences. We did this with Linklaters, and wanted to identify good practice. We will use this evidence base for adopting recommendations for reform.

The report covers 18 jursdictions, in the Americas, Asia and Europe. We couldn’t get any lawyers to look into the African region but are looking at doing this separately.

We had five research questions which looked at the definitions of drug-related offences generally, and whether any of the instruments included explicit or specific reference to factors most relevant for female offenders. Then we looked at the practice: do courts have discretion and they use that discretion, in terms of taking into account women-specific issues? Then, what actually is imposed: are they prison sentences, are there non-custodial sentences? Also whether there’s any wider discussion of these issues in the 18 countries.

A few key findings:

  • The complex reasons and pathways for these women to committing drug-related offences are generally inadequately reflected across the 18 countries
  • There are some considerations – often pregnancy or young children – e.g. in England and Wales the lesser role of women in drug-trafficking charges can lessen the sentence
  • But the impact on their sentence is less certain
  • Huge variance in type of sentence given
  • When imprisonment is given, the length

When mules are given cocaine or heroin to carry, it arrives pre-packed, and often they don’t know what or how much they’re carrying. So when courts come to decide their sentence, this is what they primarily take into account:

  • Type
  • Amount
  • Value

Other mitigating factors (may be)

  • ‘Lesser’ role
  • Childcare
  • Pregnancy
  • Personal circumstances
  • Exploitation or violence
  • Poverty
  • Vulnerability

In countries with very harsh drug laws, they may end up serving life imprisonment (Philippines) or long sentences over 10 years (Hong Kong). There were good examples of non-custodial sentences, but it’s difficult to see how mitigating factors went into these decisions as often men received they same sentences.

Leigh Toomey (UN Working Group on Arbitrary Detention): An overview of the Working Group: we’re a group of five members, and have five members represented with all the UN regions. We meet in Geneva five times a year and undertake a couple of different functions: our core business is receiving complaints from around the world about arbitrary detention, and we issue 80-90 opinions a year.

By ourselves and in conjunction with other mandate-holders, we issue urgent appeals and communications involving urgent situations of arbitrary detention. We adopt deliberations on arbitrary detention – with the purpose similar to General Comments of UN Treaty Bodies. We also undertake country visits.

We look at arbitrary detention through a very structured lens; the Human Rights Committee looks at article 9 ICCPR broadly; we look at it through five categories:

  1. When someone is detained without a legal basis (i.e. a woman serving a sentence for a drug-related offence, detained after her sentence – which would be arbitrary detention)
  2. Detention for the exercise of their rights (e.g. religious freedoms, using drugs during religious ceremony)
  3. Fair trial violations (e.g. not having a lawyer)
  4. Prolonged, administrative detention of asylum seekers and refugees
  5. Detention for other factors, including gender

Practical measures to prohibit arbitrary detention: key amongst these are alternatives to detention. These are important because when someone’s not in detention, the violations they would otherwise experience are absent. But also, in our jurisprudence we have been taking account of experiences faced by women in prison – e.g. overcrowding. When these things happen and amount to a restriction on someone’s ability to exercise their defence, may violate a fair trial and may be arbitrary detention. This is the link.

There are alternatives to detention clearly set out in the Bangkok Rules. In Rules 57 and 58, diversionary measures are referenced, as well as alternatives. There’s also Rule 61, which takes into account mitigating factors, and Rule 63 which takes into account post-sentencing; e.g. parole, conditional release and the like.

The key times at which we come across violations is during country visits, when we’re on the ground where women are held. The Bangkok Rules are certainly not being implemented uniformly across regions. Recently, we were on a visit where there was an option to release women and men to open-air prisons, back to the community, but the way it had been designed was principally for men – there was only one open-air prison across the country for women, making it significantly harder. Drug treatment facilities may also be available for men, but not women (with the excuse being that not enough women use drugs).

Some of the issues that we see when communications are brought to us exist before people come into contact with the justice system. Good practice amounts to diverting people; exercising police and prosecutorial discretion; but also ensuring access to drug treatment. We sometimes see compulsory detention facilities where people are detained of liberty. We issued a statement last year urging states to consider closing this as these are places of deprivation of liberty in many cases, in preference for voluntary, rights-based, evidence-informed centres in the community.

We often see violations of the right to a fair trial during pre-trial detention; e.g. mandatory pre-trial detention, including for drug offences. In a series of opinions, we have held this this violates Art. 9(3) ICCPR and the right to the presumption of innocence and infringes on the right of judicial independence.

At the post-conviction and sentencing stage, we have seen that women in particular are detained on drug-related offences not being given opportunities that men or others would be given for early release.

Country visits are probably our most fruitful way of finding out this information, but we’re presently undertaking a study on arbitrary detention. In September last year, the HRC mandated us to take a study on arbitrary detention relating to drug policies – we’re currently in consultation phase and have sent questionnaires to governments and civil society etc., the deadline for which is 1 April 2020.

Valérie Lebaux (UNODC): Our office has the mandate to respond to drugs and crime, but also to develop and promote the implementation of the UN standards and norms in crime prevention and criminal justice – including the Bangkok Rules.

Congratulations to Olivia on this new report, which confirms notions and ideas which were familiar or already based on information, but this is really essential to have a formal study on what we thought was the case. This increase in the women’s prison population and the reasons you have elaborated on, I am looking forward to reading in your report.

I want to share briefly a few remarks on the implementation of the Bangkok Rules to remind us that they were adopted in 2010 and were at the time seen as complementing the UN Standard Minimum Rules – dating back to 1957. As we know, in the meantime, the SMR have been revised (1/3 of the rules) and upgraded through the adoption of the Nelson Mandela Rules. It is important not to forget to refer to these when we consider the situation of women offenders and prisoners, and not to follow a notion that there is for men the Nelson Mandela Rules and for women the Bangkok Rules. The NMR have upgraded the original standards, e.g, on disciplinary measures and use of restraint – these are covered in the Bangkok Rules but not at the same level of protection for prisoners’ rights.

I want to mention that, in order to promote the application of the NMR in Vienna, a group of friends of these rules has been established by member States: 35 countries have declared that they are members of this group but all member States are invited. At the founding meeting of this group in Vienna, several member States made the point that this group should also promote the Bangkok Rules – this is an important point to consider.

I wanted to mention also another set of standards and norms which consider access to legal aid in criminal matters: Leigh made this point – violations of fair trials and those principles and guidelines, including specific guidelines on access to legal aid for women. Access to legal aid, especially at early stages of contact with the criminal justice system, is crucial protection of rights of suspects, which often will decide as a whole where the justice system will take them – e.g. diversion at an early stage, or whether alternatives to imprisonment will be sought or overlooked.

In that respect, having mentioned both the Bangkok Rules and the NMR, to draw your attention to some of the rules we’ve been developing:

  1. An e-learning course aimed at prison staff, which relates to the NMR and is based on scenarios that have been seen in various prisons around the world
  2. Our handbook issued recently on ensuring quality of legal aid processes
  3. A training tool on gender-sensitive legal aid services – being piloted in Sierra Leone and Liberia at present
  4. A handbook with WHO on those with drug-use disorders in contact with the criminal justice system: this has led UNODC to provide technical assistance to various countries on the applications of alternatives to imprisonment for those with drug-use disorder
  5. We are working on a toolkit on gender-responsive non-custodial measures, forthcoming.

Marie Nougier (IDPC): Before we move on to the Q&A, we felt that it would be important to bring the voices of women affected by drug policies – in particular incarceration for drug offences. I give the floor to Ruth Burgen, who’s been working for the Women and Harm Reduction Network, to share her experiences:

Ruth Birgin (Women and Harm Reduction Network): An experience in Indonesia: (all identifying information has been adjusted).

Hannah is a single mother with HIV and one child; was in her early 30s when arrested for drug carrying. She said at the time most of her money was being used for drugs. Every day she had to get enough money to function for the day, and get food, pay rent and school fees. Eventually I started working as a drug courier, getting a small commission for each sale used to pay for my own supplies. Only through this could I be responsible for my son.

After six years I was arrested, I was sentenced to imprisonment and my son became homeless.

Frieda (Mexico) lost contact with her daughter while detained by police in Mexico. They snatched my little girl and handcuffed me. She started crying and so did I. They found out I was using drugs and said she’d be sent to child protection. They gave my daughter to my mother in law who took her over the border to the USA and later told me my daughter had died. I never saw the paperwork and I’ve lost contact with my mother in law.

Another: I was sentenced to 24 months for a drug offence. We had to sleep on the floor with no bedding – 28 women. It was very difficult to even sit in the room. Sometimes police came in and searched us, including by violation us and touching us in an uncomfortable manner. We were verbally and physically abused.

Each of these accounts speaks to a farcry from the promise of the Bangkok Rules.

Marie Nougier: And now some questions from the floor.

Question: What are these  alternatives to imprisonment?

Question: The rise in the female prison population is alarming. What are the main reasons and the key messages to member States, and main recommendations to UNODC as a custodian of international standards?

Question: (Phillip Meissner, UNODC): Regarding mandatory pre-trial detention, could you share with us additional remarks as to the scope you have encountered in terms of member States having this mechanism in place and mandatory minimum sentencing laws.

Olivia Rope: I think one of the things that we see with alternatives to imprisonment where available is that they’re often not suited to women: they’re not given, or women fail on conditions and end up there anyway. A concrete example in an east-African state was that probation required them to attend the probation service and attend community service, but the hours for community service meant that women couldn’t fulfil casual employment so couldn’t look after their children. We worked with the probation service on this.

In England they have a range of ‘women’s centres’: a woman given a non-custodial sentence reports to the probation office here and is given practical and legal help and can access services there. We need to draw on these good examples.

Political choices that have been made – we would say, there’s a range of things that need to be done, but mainly pre-trial detention needs to be used as an exception and not the norm. Any prison sentence needs to be proportionate, and needs to be an exception not just a ‘this woman needs support’, because in the end she’ll return to the same situation.

Leigh Toomey: The worrying thing about some cases we receive is that the particular norm of law is in the Constitution, so can be much harder to change for certain detentions (e.g. mandatory pre-trial). It’s often very politicised as part of the war on drugs, making changing it even more difficult. For mandatory minimum sentences – we would say reduce both minimums and maximums – always seeking proportionality in sentences. These take away judicial independence.

Valérie Lebaux: On alternatives, I would refer to the tool on treatment as an alternative, which is relevant for cases of women in prison for offences linked to their personal consumption. One of the testimonies exampled how this plays out. I would refer to my colleague sat here who is working on the drug prevention and health branch.

On what member States need to do, in the context of UNGASS on the world drug problem, a very strong call (and in my view a big step in this direction) was done by calling member States to respect the principle of proportionality. This needs to be followed, systematically.

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