A reformative or a punitive measure?
By Rene Darmanin - Associate
Some claim that an inmate’s imprisonment should serve as a reformative measure, a learning curve from delinquency to rehabilitation. Others assert that incarceration is a punitive measure, plain and simple. Those in favour of the restorative approach are by and large against the imposition of solitary confinement while others look at solitary confinement as an effective action to hold order, discipline and prevent or punish any misdemeanour.
Notwithstanding solitary confinement having been adopted for more than two centuries, the reasons for use have varied substantially. Initially, its primary objective was to reform offenders. Having said that, nowadays, solitary confinement is rarely adopted as a reformative measure and is instead used to impede criminal activity inside prison walls or as a form of discipline and retribution.
On the other hand, when imposing solitary confinement, one must tread with caution as such measure may also lead to human rights violations when applied for prolonged intervals, when inmates are precluded from any form of social communication or when accompanied by inhumane or degrading conditions.
The Istanbul Statement on the Use and Effects of Solitary Confinement defines solitary confinement as “the physical isolation of individuals who are confined to their cells for 22 to 24 hours a day.” Additionally, Maltese law defines solitary confinement as “…keeping the person sentenced to imprisonment, during one or more terms in the course of any such punishment, continuously shut up in the appointed place within the prison, without permitting any other person, not employed on duty nor specially authorised by the Minister responsible for the prisons, to have access to him.”
In effect, being held in solitary confinement is for most inmates a nerve-racking occurrence with possible detrimental physical and/or psychological impact. The convict is separated from others with contact limited to trivial communication with correctional officers. The prisoner is fully reliant on correctional officers for his essential needs and his movements restricted to a small cell. Studies reveal that occasionally solitary confinement instead of solving prison administration difficulties, may lead to mental health problems and consequently a further problem for said administration. Statistics show that whilst undergoing solitary confinement, inmates tend to suffer from anxiety, nervousness and chronic depression so much so that some feel on the verge of an emotional breakdown. Persistent psychological repercussions of segregation upon prisoners are dependant on the personality of the inmate, the conditions of confinement and the period of separation. Other studies record that, after their release from solitary confinement, detainees tend to suffer from sleep disruptions, emotional reliance and noise sensitivity conditions.
In Malta, the Criminal Code enables the judiciary to condemn a criminal offender to periods of solitary confinement not exceeding 10 days. This may only be imposed in relation to certain crimes only such as in the case of forgery, counterfeiting, instigation of minors to prostitution or to participation in a pornographic material, production and distribution of indecent material of minors as well as in cases of concurrent offences.
In terms of Maltese legislation, solitary confinement shall not exceed ten consecutive days and terms of solitary confinement may only be applied with an interval of two months between one term and another. It shall not be lawful to inflict more than twelve terms of solitary confinement. Our legislator goes the extra mile in order to safeguard the well-being of each and every convict sentenced to solitary confinement and as a matter of fact it allows the judiciary to ascertain, even through medical evidence, that the convict is fit to undergo solitary confinement. Furthermore, in those cases where the prisoner is undergoing solitary confinement and the correctional facility medical officer certifies that said prisoner is no longer fit to endure solitary confinement, such punishment shall be suspended and shall resume as soon as prisoner is fit again.
In accordance with the Maltese Prison Regulations, any person undergoing solitary confinement shall be given special attention by the Prison Chaplain. The inmate is also constantly monitored by the Medical Officer. This may provide the necessary social contact which is vital during such confinement.
Under normal circumstances, all convicted prisoners currently serving their sentence at Corradino, are entitled to receive a visit once a week. However, such right may be suspended whilst said prisoner is going through a period of cellular confinement and this regardless of the fact that European Prison Rules stipulate that punitive practices shall not prohibit family visits unless such preclusion is required in order to maintain safety and security.
Apart from those scenarios where cellular confinement is ordered by the judiciary, in exceptional circumstances, the Director of Prisons may decide to order the temporary confinement of a violent inmate and in those cases where such inmate is kept in confinement for more than 48 hours, the Director shall consult the Medical Officer. The Director is also empowered in terms of the Prison Regulations to impose cellular confinement, which shall not exceed 30 days, if a prisoner is found guilty of an offence against discipline. All decisions taken by the Director of Prisons by virtue of which a punishment of cellular confinement for a continuous period exceeding 6 days is awarded, shall be reviewed by an Appeals Tribunal. In those cases, where the Appeal Tribunal finds that such imposition is not justified, The Tribunal is empowered to order compensation in the form of remission or special privileges.
Back in 2015, the European Committee for the Prevention of Torture visited Malta’s correctional facility and concluded that ‘official’ solitary confinement cells were up to standard with international guidelines however such standards were not met by the cells in Division 6 – where prisoners are often held under restraining conditions.
The European Commission for the Prevention of Torture reiterated that solitary confinement as a disciplinary sanction should not last for a period of more than 14 days consecutively and consequently it recommended that Maltese legislation i.e. Prison Regulations is amended to reflect this. As of yet, after more than 6 years, such provision remains unaltered.
Dr Renè Darmanin is an Associate at PROLEGAL Advocates.
Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Dr Renè Darmanin at firstname.lastname@example.org.