Our correctional medicine experts are often asked to opine on cases involving injury and death at the hands of negligent (and sometimes deliberately harmful) medical providers; in those cases, the adverse health outcome can indicate the need for reform. But minimum standards regarding how to protect prisoners’ rights have already been spelled out. In 1955, just when the world was uncovering the horrors of Axis POW camps, the United Nations adopted the Standard Minimum Rules for the Treatment of Prisoners. In 2015, the rules were revised and renamed the Nelson Mandela Rules, after South African prison reform advocate Nelson Mandela. These rules provide a comprehensive guide to the agreed minimum standards for the treatment of incarcerated individuals.
The Nelson Mandela Rules derive from five basic principles:
- Safety and respect:
All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.
- Non-discrimination:
The present rules shall be applied impartially. There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status. The religious beliefs and moral precepts of prisoners shall be respected.
In order for the principle of non-discrimination to be put into practice, prison administrations shall take account of the individual needs of prisoners, in particular the most vulnerable categories in prison settings. Measures to protect and promote the rights of prisoners with special needs are required and shall not be regarded as discriminatory.
- Avoid unnecessary suffering:
Imprisonment and other measures that result in cutting off persons from the outside world are afflictive by the very fact of taking from these persons the right of self-determination by depriving them of their liberty. Therefore the prison system shall not, except as incidental to justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
- The purpose of prison is to protect society and rehabilitate prisoners:
The purposes of a sentence of imprisonment or similar measures deprivative of a person’s liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.
To this end, prison administrations and other competent authorities should offer education, vocational training and work, as well as other forms of assistance that are appropriate and available, including those of a remedial, moral, spiritual, social and health- and sports-based nature. All such programmes, activities and services should be delivered in line with the individual treatment needs of prisoners.
- Remove aspects of prison life that are degrading, discriminatory, or not conducive to rehabilitation:
The prison regime should seek to minimize any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.
Prison administrations shall make all reasonable accommodation and adjustments to ensure that prisoners with physical, mental or other disabilities have full and effective access to prison life on an equitable basis.
From these principles, the UN drafted 122 rules and ethical principles outlining how to manage prisons and preserve prisoners’ rights. They include a broad range of policies that extend to every part of prison life, from admitting new prisoners to punishments to keeping staff safe. A large part of the rules, however, are dedicated to upholding prisoners’ human rights, as defined in the UN’s Universal Declaration of Human Rights.
Rules 24 through 35 directly address prisoners’ rights to healthcare services, though many of the other rules also implicitly address healthcare. Some of the more explicitly health-oriented rules are the following:
- Prisoners have the right to care at the same level that they would have received outside of prison.
- All prisons will have a healthcare facility on-site with an interdisciplinary team of providers, including mental health providers and dentists.
- Prison healthcare providers must be independent from prison administration and not involved with any aspect of prison administration or prisoner punishment. Nonmedical prison staff cannot override medical decisions made by healthcare providers.
- Physicians must treat a prisoner like any other patient and not discriminate based on their legal status.
- All new prisoners must be seen by a physician or other qualified healthcare provider as soon as possible and then seen as necessary.
- Prison health providers should have links to health providers in the community to ensure continuity of care for prisoners once they are released.
Why, then, aren’t these rules being followed?
One reason might be a lack of enforcement. The Nelson Mandela Rules are not legally binding, so they may not be adequately implemented in U.S. law and regulation. Even if the Rules were binding, the federal government would have difficulty managing every jail and prison in the country. Any attempt by the federal government to extend their reach would certainly face opposition from advocates against an increase in federal power and trigger a massive debate on state independence.
A larger reason, though, might not be that the rules are not being implemented, but that regulation makers do not know how to implement them. The role of bureaucrats in translating legislative directives into their own department or agency’s rules cannot be understated—a law that cannot or will not be enforced is not a law at all. For the Nelson Mandela Rules to mean anything, they must be placed not only in U.S. law, but also federal, state, and local correctional and health departments.