Why releasing some prisoners is essential to stop the spread of coronavirus (COVID-19)

9th Apr 2020

In a national emergency, governments typically pursue punitive law-enforcement agendas. They can also repurpose prisons and prisoners for forced labour, war efforts and so on.

In response to the COVID-19 pandemic, governments have tended towards punitive controls and sanctions on movement and hoarding.

But the Australian government has been silent on prison policy in its COVID-19 control measures. The well-documented history of the transmission of infectious diseases in prisons rings alarm bells for the threat of COVID-19 to prisoners and society at large. This blind spot could have a devastating effect on communities, especially Indigenous communities.

Risks to prisoners

There are about 45,000 adults and children in Australian prisons and youth detention centres. Evidence demonstrates two things we can anticipate if COVID-19 contaminates prisoners:

  • it will spread much more rapidly than in the general population; and
  • there will be more deaths in prisons than in the general population.

The first concern is grounded in research on other diseases, such as tuberculosis (TB), where rates of infection among incarcerated populations are up to 100 times higher than outside of prisons.

In Australian prisons, the prevalence of Hepatitis C is 30%. Overall, communicable diseases are a much more significant issue in prisons than in the general population.

Australia’s overcrowded prisons are unable to guard against the rapid spread of diseases. It is a combined product of the facilities and inadequate sanitation and health services in prisons.

The World Health Organisation (WHO) identifies overcrowding as a structural problem that contributes to the spread of infections in prisons. It acknowledges that an outbreak of disease in prisons threatens people outside prisons.

Second, people in prisons tend to have poorer health, including chronic conditions that predispose them to the worst effects of COVID-19. Inadequate health care in prisons exacerbates poor health. The Guardian’s analysis of deaths in custody over the past decade found 34% of deceased Indigenous people and 21% of deceased non-Indigenous people received sub-standard care from medical staff.

Inadequate health care for prisoners is contrary to the International Covenant on Economic, Social and Cultural Rights. It provides that everyone has a ‘right to the highest attainable standard of physical and medical health’.

Risk to the wider community

For some, it may be a comforting thought that infected people in prisons will be quarantined. But the reality is that a vast number of people detained in Australian prisons are there for a short period. One-third are unsentenced and many may leave following the remand period. This means they will be in prison for less than a few months before being released.

The statistics show Australian prisons have a high churn rate. In the same way prisons are not capable of containing an outbreak, there are not the facilities to quarantine every person who is released from prison into the community.

Given that a significant portion of prisoners have no stable accommodation and many become homeless following imprisonment, self-quarantining is not a viable solution.

Implications for Aboriginal and Torres Strait Islander communities

It is well-documented that Aboriginal and Torres Strait Islander people are overrepresented in prisons. Prisoners and eventually their families and communities have disproportionate exposure to infection, given that 20 in every 1,000 Indigenous people are incarcerated, compared to less than two in every 1,000 of the general population.

Their vulnerability in prisons is aggravated by their poorer health, including rates of diabetes at three times (1 in 9) the rate of non-Indigenous prisoners (1 in 29).

Indigenous people who may be exposed to infection in prisons will return to communities that are ill-equipped to respond to a COVID-19 outbreak. Especially in regional and remote areas where there is a glaring lack of health services and resources. They are more likely to live in overcrowded houses – up to half of houses in remote Indigenous communities – which contributes to the spread of disease. There is also a lack of food and sanitation supplies, which defies the coronavirus policy in some countries to ‘stock up and stay home’.

Poorer health and inadequate housing contributed to Indigenous people bearing the brunt of the 2009 swine flu, with death rates six times higher than the general population.

Why releasing some prisoners is the best option

To prevent prisons becoming COVID-19 hotspots, the only logical response is decarceration. This emergency measure is necessary to protect the health and wellbeing of prisoners and the wider community.

Prisons are the remaining sphere of Australian society that is denied the protection of infection control standards. Prisoners are forced into a possible site of contagion with no choice over the prison facility, or cell mates with whom they will be detained. Imprisonment should not involve forced subjection to a deadly infection.

Release must occur immediately – before infections in prison occur – to safeguard the population. The Australian government needs to coordinate the measure, rather than depend on the discretion of individual state and territory governments.

The release of prisoners should begin with those with health conditions, children and youth, and the substantial number of adult prisoners who are detained for summary offences (unlawful driving, public disorder, fine default and so on), property crimes, common assault and breach of justice procedures. A moratorium should also be imposed on imprisoning minor offenders and unsentenced persons.

Overcrowded prisons are simply incapable of quarantining people. Policies need to be directed to releasing prisoners, and laws governing police, prosecution and judicial discretion need to be changed to prevent further imprisonment.

In a pandemic, the health of the general population is intrinsically linked to the health of the detained population. Immediate attention to the health needs of prisoners is necessary to contain the spread of coronavirus.

This is an extract of an article previously published in The Conversation here. It has been republished with the author’s permission.


The NSW government has introduced the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) (which commenced on 23 March 2020) to address the escalation of COVID-19 cases. Dr Thalia Anthony has written a further article about these reforms for The Conversation (online), which can be accessed here.

Dr Thalia Anthony is a Professor in Law at the University of Technology Sydney. Her expertise is in the areas of criminal law and procedure and Indigenous people and the law, with a particular specialisation in Indigenous criminalisation and Indigenous community justice mechanisms. Her research has had an impact on policy development and public debates in relation to remedies for wrongs inflicted on Indigenous peoples. Her work has been referred to in Senate committee reports, parliamentary debates, policy announcements and law reform committee reports.

EMAIL Thalia.Anthony@uts.edu.au PHONE 0413 992 523 

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Health, medicine and law Incarceration Prof Thalia Anthony Indigenous justice COVID-19