Corrections (Including Incarceration)

Feedback from public consultations

On 18 February 2020, our team held a public consultation on strengthening access to justice through OGP commitments. Hosted by OGP’s research, analytics, and insight team, the goal was to identify data sources, measurement standards, and compelling examples of governments or citizens who are increasing access to justice. This information will be shaped into policy suggestions for OGP-participating governments. On the recommendation of early interviews, and feedback from OGP entities, we’ve divided access to justice into three phases of the criminal justice experience: policing and arrests; court systems, and corrections. Below is a summary of what we discussed.

Existing OGP correctional facility commitments: 

• Prison engagement is recent:
  • Argentina is the first OGP member to have multiple commitments on prison transparency
  • Paraguay and Italy are publishing data on prisons and prison services
• Citizen involvement in data collection and publishing.
  • Brazil is working with CSOs to develop an information system, including prison services but also funding, contracts, etc.
  • Scotland is working with CSOs to provide health services for inmates

What we heard from you: 

1. Data Collection Resources:
   1. The Rule of Law Index examines 128 countries in eight themes, including criminal justice and the rights of prisoners. We conduct household surveys as well as contacting defense attorneys about prisoner treatment. (See criminal justice methodology on p 32.)
   2. Mexico: INEGI surveyed over 60,000 inmates on due process, prison facilities, etc. World Justice Project (WJP) analyzed these surveys to assess the implementation of the 2016 criminal justice reforms. (See also state-level analysis and a study on torture in Mexico’s prison system.)
   3. UNODC data, Pathfinders’ Justice for All Task Force report, American Civil Liberties Union, Canadian Civil Liberties Union, Penal Reform International
   4. Administrative data released in-country police forces or agencies.
      1. This data won’t capture won’t capture input from citizens who fear authorities.
2. Collecting accurate data from inmates while guards are nearby
   1. WJP surveyed five prisons in Afghanistan. However, in order to conduct surveys without guard presence, WJP was asked to promise no questions would concern treatment within the prison facilities.
   2. Solution:
   3. Conduct surveys via audio and computer so guards can’t hear prisoner feedback.
3. There’s no global standard for accurately comparing prisons across countries. The greater the number of countries being compared, the more generalized the data has to account for a greater number of variables (different country standards, currency of data).
   Solution:
   1. Gather available data and set a hierarchy of the best standard and proxies to use if that data is unavailable.
4. Prisoners get lost in the system. A lack of data can lead to forgotten prisoners who even the government doesn’t realize are still jailed.
   Solution:
   1. The Network for University Legal Aid Institutions (Nigeria) trains law students to be court observers and ensure basic procedural and administrative laws. They’ve found simply providing access to legal counsel can encourage courts to keep track of what prisoners they are currently holding.
   2. Namati has promoted community paralegal programs in many different countries
   3. Timap (Sierra Leone): Partners with Namati and lawyers to train inmates.
   4. USAID (El Salvador): Works to get supply basic infrastructure and information to defense attorneys’ to better serve detainees
   5. USAID (Haiti): PROJUST works in jails and pretrial detentions to provide legal assistance to people in prolonged detention. An impact evaluation revealed that those individuals in prolonged pretrial detention, who received a legal aid assistance with the support of USAID, were more likely to be released, or serve shorter sentences
5. How can we engage prisons when greater transparency will expose harsh realities? 
   1. Data collection often prompts citizens to think about issues they hadn’t previously focused attention on, such as court access, judicial corruption, prison conditions, etc. This can establish expectations that may not be met, and set out facts that are inconvenient. Perceptions of corruption increase when corruption is being dealt with because people become aware of it.
      Solution: 
      1. Coalition building: informal, constructive dialogues where people can talk about these concerns and brainstorming with government to propose solutions. (E.g., Scotland, Brazil). Solution-driving dialogue rather than naming-shaming dialogue.
      2. Reward first-movers, especially ones who are working in good faith, and punish laggards. Transparency is the means to get to accountability, which builds trust
      3. Engage institutions – both corrections institutions and public advocacy organizations – to acknowledge the issues and propose solutions. Close the feedback loop and trying to strengthen public accountability.

How we plan to address/incorporate your feedback: 

We plan to closely review these inputs as we begin framing our policy series which will identify major areas for innovation on opening up courts in OGP. In particular, we what more standardized, people-centered open data would look like in corrections, as well as the roles of inmate advocates.

We’ll pull effective corrections commitments from our database of 4,000 OGP commitments and map them against third-party data to see the extent to which OGP countries are innovating and addressing the challenges of trial processes within their action plans.

We will continue to engage and work with participants and partners to identify adaptation-ready emerging practices to OGP action plans.

What’s next?

• We welcome your feedback below (in the public comment box) or to our email at research@opengovpartnership.org. We are going to close comments on Monday, March 23, 2020. If you would like to talk to us, please reach out to the email above to schedule a phone call. You can also reach out to us even after the deadline during the production process.
• For the areas that require further research, we may commission research by partners to help inform the final report.

Thank you to everyone who participated in the consultations during the live sessions and in writing!

Background

The 2015 United Nations Standard Minimum Rules for the Treatment of Prisoners, known as the Nelson Mandela Rules, established global norms for the treatment of prisoners. Since the passage of the Rules, OGP countries have begun to address the issue of penitentiary openness through their two-year action plans. A cursory look through OGP data reveals that penitentiary institutions are increasingly involved in the OGP process, and perhaps more importantly, that governments are beginning to make concrete commitments focused on penitentiary reform. However, the next step is to move beyond a few isolated cases of reform.

Proposed Data

We are considering using the following data sets to benchmark OGP performance in this area. We would love your opinion on which ones are your favorites, why, and what is missing.

• World Prison Brief: Collects data on prisons and prison populations, pre-trial detainees, female prisoners, foreign prisoners, juveniles, and capacity/occupancy levels.
• World Justice Project (WJP): The WJP Rule of Law Index uses expert surveys to track the rights of prisoners, including overcrowding, access to health care, and abuse.
• United Nations Office of Drugs and Crime: Collects data on prison populations, as well as on SDG 16.3.2 on unsentenced detainees.
• Open Data Inventory: Tracks incarceration rate data on national statistical office sites.
• Measures for Justice: Detailed criminal justice data collected in various US states.
• Vera Institute of Justice: Incarceration Trends: Data visualization of US data.

Possible Issues and Reforms to Highlight

1. Access to information about the penitentiary system
   1. Possible framework
      1. Information on prison living conditions
      2. Information on prisoners
      3. Information on prison management
   2. Possible cases
      1. Panama (2013): Published number of prison officials sanctioned for corruption, as well as how many officials were dismissed.
      2. Argentina (2015): New Corruption Prevention Service within the Federal Prison Service developed an anti-corruption action plan that calls for greater transparency.
2. Prison monitoring and inspection
   1. Possible framework
      1. Monitoring by internal government agencies
      2. Monitoring by civil society organizations
   2. Possible cases
      1. Brazil: Community Councils must include representatives from industry, public defenders, social workers, etc. and visit prisons monthly.
      2. Kenya: Trains and mentors Prison Service officials to conduct audits.
      3. Australia: Western Australia Independent Prison Visitors provide prisoners with information, record complaints, and document visits.
      4. England / Wales: Requirement that monitors inspect prison incidents.
3. Independent complaints mechanisms
   1. Possible cases
      1. Scotland: Prison Complaints Commissioner
      2. Canada: Correctional Investigator

OGP Commitments for Analysis

• Paraguay (2018): Establish an information system on prison data
• Scotland (2019): Involve CSOs in delivering health and social services to prison patients and develop more transparent reporting on patient outcomes
• Argentina (2017): Publish the Argentina Penitentiary Auditor’s recommendations, report on progress made by prisons, and involve citizens in monitoring progress
• Brazil (2016): Work with civil society to develop an information system with data on  prison inputs, documents, contracts, and criminal services
• Italy (2016): Publish prison information sheets and digitize prison services

Further Questions

• Which aspects of prison information should be prioritized for data collection and disclosure? Do certain datasets already exist? Which need to be built from scratch?
• Does UNODC or other data organizations (at least informally) track data gaps across countries in their reporting?
• Are there particular subtopics, such as private prisons, overcrowding, immigrant detention, and/or anti-corruption that deserve special attention through the open government lens?
• What is the role of data privacy protections in the disclosure of data about detainees?
• What are some examples of institutionalization of CSO prison monitoring? Are there examples of scalable models?