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Early release measures: Immediate ways to address over-incarceration

10 Jul 2021

By Ambika Satkunanathan  In December 2020, the Government announced it would commute the sentences of everyone on death row to life sentences and resume the process of evaluations, whereby every person with a fixed sentence would be evaluated every four years and based on progress in rehabilitation, persons would be released early. This is a progressive and positive decision since the call for commutations and resumption of evaluation has been consistent and continuous. It is a request I have heard from persons on death row and those with long-term sentences at every prison I have visited. More recently, persons on death row expressed their anger about the unfair, arbitrary, and non-transparent nature of the granting of pardons, after a presidential pardon was granted to Duminda Silva, and demanded they be pardoned or their sentences be commuted.   It is important to note that the 2016 report of the Ministry of Justice Task Force on Judicial and Legal Causes for Prison Overcrowding and Prison Reform recommended the commutation of sentences of persons on death row and with life sentences. It also called for the evaluation of the rehabilitation of persons with long-term sentences with a view to early release and social reintegration. The taskforce made the recommendation based on its recognition that the large numbers of persons on death row and with life and long-term sentences contribute greatly to prison overcrowding.   Our long-term goal should be to reduce the prison population and prevent persons from being imprisoned. To achieve this, the Government must invest in social protection mechanisms to address the drivers of crime. This entails increasing employment opportunities, preventing homelessness, directing persons away from prison to alternatives to incarceration for non-violent offences, and crafting community responses to non-violent offences and decriminalising them. In the short and medium term, expeditious efforts must be made to release those who have been languishing in prison for many years through existing early release measures.   Arbitrariness of the commutation process  Even though there are various measures in the law to enable the early release of the imprisoned, the process is rife with administrative challenges that limit their effective use.  Prior to 1996, the President granted annual commutations of sentences. For example, annually, all persons on death row were commuted to life imprisonment, and all persons serving life imprisonment had their sentences commuted to a sentence of 20 years. Once the sentence of a person on death row has been commuted to a life sentence, the person becomes eligible to be assessed according to the system of evaluations.   Commutation committees are appointed by the Ministry of Justice to commute death and life sentences, as well as commute long-term sentences to a specific term of imprisonment, usually 20 years. Through the years, ad hoc commutation committees have been established as a solution to the growing number of persons on death row and persons with long-term sentences. These committees have no consistent established working methods or standard criteria, and hence the working methods adopted by each subsequent ad hoc committee can differ from previous committees. The lack of established rules and guidelines may lead to arbitrary decision-making by the committee, which makes recommendations to the minister. The minister forwards the recommendations to the president who commutes the sentences. The ad hoc nature of the committee itself exacerbates its arbitrary nature and the lack of certainty attributed to the entire process. The lack of objective criteria and mandatory processes means that the personal prejudices and values of members of the committee can impact the decision-making process.   There is no right or opportunity to appeal to the committee if a person does not receive a commutation. This is not in line with the United Nations (UN) Standards Minimum Rules for Non-Custodial Measures (Tokyo Rules), which require any decisions on post-sentencing dispositions to be “subject to review by a judicial or other competent independent authority, upon application of the offender”. The lack of transparency and accountability due to the decisions of the committee not being subject to appeal will also impact the credibility of the committee and public trust in the integrity of the process. The person is also not informed of the reasons why s/he was not commuted.  Evaluation process: Need to address shortcomings   On the completion of the fourth, eighth, 12th, 15th, and 20th years, respectively, of the term of imprisonment of every person in prison, every prison submits reports on each person’s eligibility for early release. Based upon this, the Department of Prisons (DOP) compiles a list and forwards it to the Ministry along with individual reports. The minister forwards the list to the president who has the authority to make decisions on the remainder of the person’s sentence.   Every person in prison, except those on death row, are eligible to be evaluated. In order for persons on death row to benefit from early release measures, their sentences must first be commuted.  According to the report of the National Study of Prisons of the Human Rights Commission of Sri Lanka, all prisoners who are sentenced to at least 8-10 years are eligible to be considered for the first round of evaluations upon the completion of the first four years of their sentence. A prisoner who is sentenced to less than eight years in prison would not be subject to evaluations because, upon the completion of the first four years of the sentence, they would become eligible for home leave and then potentially early release on license. In 1999, the then President suspended early release measures. Regardless, the DOP continued to evaluate persons and send names to the Ministry of Justice, which continued to forward the names to the President. Yet, no action was taken based on the reports.  In practice, officers of the School Master (SM) division of each prison merely complete the assigned evaluation form, instead of conducting an evaluation of each person on pre-determined criteria. It must also be pointed out that officers of the SM branch, which is responsible for maintaining order and discipline in the prison and taking action against persons who have committed disciplinary offences in prison, are not best placed to conduct an independent and objective analysis.      What can be done?  The death penalty should be abolished. In the interim, the sentences of all persons on death row should be commuted with the view to early release following evaluations.   Given that evaluations have not been conducted for decades, action should be taken to expedite the process. The system needs to be strengthened by setting out clear guidelines whereby an expert group independent of prison administration conducts the evaluation.  The evaluation process must take into account the fact that the circumstances of each offence depend on a multitude of social, economic, and psychological factors, which are not measured by the judicial process. For example, everyone who is convicted of murder would not automatically be considered high risk offenders, if extenuating circumstances are identified in the assessment. For instance, a victim of long-term domestic abuse convicted of manslaughter of the abuser may not be considered high risk upon primary assessment, while a prisoner convicted of sexual violence against children may require more individualised physiological assessment.   Detailed recommendations on early release measures are set out in Chapter 18 of the report of the National Study of Prisons conducted by the Human Rights Commission of Sri Lanka at https://www.hrcsl.lk/wp-content/uploads/2020/01/Prison-Report-Final-2.pdf.


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