Alternatives to detention: A human rights assessment tool

It is now very common to hear that drug policy must be carried out in full conformity with human rights. But what does this mean on the ground? The United Nations (UN) Standard Minimum Rules for Non-custodial Measures (also known as the Tokyo Rules) were adopted over 30 years ago. They aim to address the overuse of detention in criminal justice. That aim, however, has been hindered by punitive approaches to drugs. Currently, approximately two million people worldwide are imprisoned for drug offences, of which hundreds of thousands are in prison for drug use or possession.i Further, many more people are administratively detained as a component of involuntary drug treatment.

The first step in making this commitment to human rights a reality in drug policy is to understand how human rights law applies. The International Guidelines on Human Rights and Drug Policy were developed for exactly this purpose. The Guidelines contain numerous provisions that direct States away from detention in relation both to criminal offences and to drug treatment. The point, of course, is to translate standards into action.

The Guidelines may be applied in several ways:

• Mapping: using the catalogue of rights (in Section II) and thematic annexes (development, criminal justice, and health) to map which rights might be affected positively or negatively in laws, policies, and practices.
• Legal analysis: using the Guidelines and their commentaries to investigate compliance with international human rights law.
• Assessment: using the Guidelines as a basis for a participatory assessment process (such as a legal environment assessmentii).

This tool is aimed at facilitating the above pathways for implementation with respect to alternatives to detention. Human rights standards can sometimes be broadly written, so it is not always obvious what those standards require in terms of specific policy and practice.

This tool is based on a model for human rights assessment of drug policies developed by the Pompidou Group of the Council of Europe. HR-DP collaborated in the development of that tool and it is adapted here with the permission of the Pompidou Group.

Rather than a general assessment of human rights compliance in drug policy, this tool focuses on alternatives to sentencing and detention as well as on pathways to detention. Alternatives to detention include measures to decrease the risk of incarceration or to avoid the criminal legal system altogether (such as decriminalisation of drug use and of possession and cultivation of controlled drugs for personal use); measures to reduce criminal prosecution; measures to limit pre-trial detention and the deprivation of liberty as punishment; and measures to decrease the time that people are deprived of liberty for drug-related crimes.

The document begins with a brief overview of alternatives to detention, adopting the broad approach noted above. It then connects existing alternatives and relevant human rights standards contained in the Guidelines. This provides users of the tool with an initial snapshot of the applicable Guidelines and how certain alternatives can facilitate human rights progress.

The tool itself is constructed around a series of exploratory questions connected to alternatives to detention. These questions help bridge the gap between a broad standard and the situation on the ground in differing contexts.

• The first question in each section is a binary yes/no question on a key human rights issue.
• This question is then followed by additional questions that invite the user of the tool to explore the issue further. Some of these questions are binary while others are more open ended.
• Each binary question is connected to a simple traffic light system to indicate what kind of action might be required depending on the answer:
• Green: low risk of human rights concerns
• Amber: further exploration may be needed
• Red: law, policy, or practice changes may be required
• There may be questions for which there is no clear answer. The absence of answers might also indicate the need for action in fulfilling a human rights information gap.
• The tool also suggests possible sources of information where answers to these questions tend to be found.

The outcome of using this tool is a mapping of legal and practice-based alternatives to detention in a specific country (or sub-national jurisdiction), linked with human rights standards. The traffic light system will provide a snapshot of where there are positives and negatives, and where more information is needed to advance human rights progress. The table on page 6 provides an overview of the concept.

This tool is not a set of standard indicators (though the yes/no questions may be used as indicators or variables in later research). It is intended not to compare situations across countries but to serve as an entry point for advocates, affected populations, civil servants, human rights mechanisms, and others to map a particular situation and initiate a participatory process for ensuring the protection and realisation of human rights in drug policy. In this respect, the value of the assessment lies not only in its concrete outcomes but in the process itself, through which a shared understanding of the situation and opportunities to address it can be developed.

Readily available sources of information should be sufficient to conduct the assessment, which should help minimise the time needed to carry out this work. As noted, the tool is designed in a way that encourages the participation of stakeholders from different backgrounds, recognising that distinct, often overlapping expertise resides among all stakeholders, as well as the importance of building and strengthening communication and participation between and among them.

Key stakeholders include people who use drugs (including those with experience with the criminal justice system) and their representative organisations; civil society organisations working on human rights (e.g., women’s rights, children’s rights, and the rights of people deprived of liberty); prosecutors; legal service providers; and law enforcement authorities and representatives from relevant government ministries (e.g., human rights, justice, children, gender, and corrections).

In some cases, partnerships may already exist that could facilitate information gathering and minimise the time needed to conduct the assessment (such as Country Coordinating Mechanisms in countries that receive funds from the Global Fund to Fight AIDS, Tuberculosis and Malaria where people who use drugs are a target population).

There may be some questions that are difficult to answer with available data or for which States do not currently have an answer. Identifying such knowledge gaps can help pinpoint areas for action.

Sources of information

Laws governing detention and available alternatives may be found in statutes and case law and complemented by regulations, policies, guidelines, and strategies. These include:

• Criminal/Penal Code and Criminal/Penal Procedure Code
• Prison Act, Criminal Executive Code, and Penal Enforcement Act
• Probation Act
• Drug control laws and laws on specific drug offences
• Specific legislation relating to children (e.g., Children’s Act, Juvenile Justice Act)
• Specific legislation relating to women
• Health legislation (e.g., regarding drug treatment and rehabilitation)
• Administrative Code
• Annual reports from court systems
• Reports from parliament or parliamentary committees focusing on health, criminal law, drugs issues, correctional systems, juvenile justice, children’s rights, or women’s rights
• Reports and policy guidance from the ministries responsible for health, justice, correctional systems, women’s issues, or children’s issues
• Reports, directives, or guidelines from policing and prosecutorial authorities
• Reports, directives, or guidelines from health authorities
• Reports by national human rights institutions and national preventive mechanisms
• Reports by human rights and civil society organisations working on drug policy, criminal justice, children’s rights, or women’s rights
• National constitutions
• State reports to human rights treaty bodies

In some countries, laws, regulations, policies, guidelines, and strategies from provincial or municipal authorities may complement these sources.

Criminal court judges and donor organisations working on criminal justice issues may provide information on alternatives to detention.

Databases that provide country-specific information relevant to alternatives to incarceration include:

• Child Rights International Network database on minimum age of criminal responsibility, https://home.crin.org/issues/deprivation-of-liberty/minimum-age-of-criminal-responsibility
• UN Office on Drugs and Crime database of legislation on drug control, https://sherloc.unodc.org/cld/v3/drugcontrolrepository/enl/index.html?lng=en#/country
• Office of the United Nations High Commissioner for Human Rights database on human rights recommendations from UN human rights monitoring mechanisms, https://uhri.ohchr.org/en/

Additional resources on alternatives to incarceration, with some country-specific examples, include:

• UN Office on Drugs and Crime, Criminal Justice Assessment Toolkit (2006), https://www.unodc.org/documents/justice-and-prison-reform/cjat_eng/3_Alternatives_Incarceration.pdf
• UN Office on Drugs and Crime, Toolkit on Gender-Responsive Non-custodial Measures (2020), https://www.unodc.org/documents/justice-and-prison-reform/20-01528_Gender_Toolkit_complete.pdf

The International Guidelines on Human Rights and Drug Policy are the result of a partnership between HRDP and the United Nations Development Programme, in addition to a three-year international consultative process, aimed at applying contemporary human rights legal standards to drug policy. Covering the entire supply chain from supply to use, and grounded in basic human rights principles, the Guidelines address the catalogue of core internationally recognised rights, as well as drug policy themes (health, development, and criminal justice) and groups (children, women, and indigenous peoples). The Guidelines highlight the measures States should undertake or refrain from undertaking in order to comply with their human rights obligations, while taking into account their concurrent obligations under the international drug control conventions. They are intended as a normative reference for parliamentarians, diplomats, judges, policy makers, civil society organisations, and affected communities.

www.humanrights-drugpolicy.org

Established in 2009, the International Centre on Human Rights and Drug Policy (HRDP) is an academic programme dedicated to developing and promoting innovative and high-quality human rights research and education on issues related to drug laws, policy, and enforcement. HRDP is based at the Human Rights Centre, University of Essex.

• Decriminalisation is the removal or non-enforcement of criminal sanctions for certain offences that divert people from the criminal justice system in the first place. ‘De jure’ decriminalisation is the elimination of criminal penalties for certain offences as a matter of law. ‘De facto’ decriminalisation is the decision in practice or as policy not to apply criminal penalties for certain offences – for example, as a matter of police discretion. Decriminalisation is not the same as legalisation, which is the process of ending prohibition across the supply chain and replacing it with legal regulation and control.
• Diversion programmes aim to reduce people’s exposure to the criminal justice system at arrest, pre-prosecution, prosecution, or sentencing. These include diversion to harm reduction, drug education or treatment, and housing or social services as an alternative to arrest or criminal charge, and court-mandated treatment as an alternative to prosecution.
• Alternatives to pre-trial detention spare individuals from detention while awaiting trial. They include bail, house arrest, and supervised release.
• Alternative punishments operate on the principle of using imprisonment as a last resort. They include verbal sanctions, economic penalties, house arrest and probation, sentence suspension or deferral, and community service or treatment order.
• Sentencing guidelines permit judges to impose sentences commensurate with the degree of responsibility and the specific circumstances of the offence, taking into account the role of the offender (leading, significant, or minor), the type of crime committed, the type and quantity of drugs at issue, and any aggravating or mitigating circumstances.
• Early release mechanisms restore an individual’s liberty while at the same time decreasing their exposure to the harms of incarceration. These mechanisms include amnesty, pardon, furlough (authorised absence from prison), halfway houses, work or education release, paroles or conditional releases, open prison systems, and suspended sentences.