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‘Risk prevention’ just won’t wash. Torture in prisons is torture, and we need to act now

The use of ‘degrading’ and ‘dehumanising’ restraints in New Zealand prisons has been found by the Ombudsman’s Office to breach the UN Convention on Torture. This is no time to be making excuses, writes Elizabeth Stanley.

In New Zealand, “At Risk Units” hold prisoners who are considered at risk of suicide or self-harm. They are environments of deprivation. The Ombudsman’s Office last year reported daily routines of long prisoner lockdowns in “bleak” and “grim” conditions. Prisoners in ARUs are usually locked in a barren cell for up to 23 hours a day. Clothed in anti-rip gowns, they are watched via camera all the time, including when they use their in-cell toilet.

In an unannounced visit to Otago, the Ombudsman found an ARU prisoner who was held “in a waist restraint with his hands cuffed behind his back … due to his self-harming”. Over two and a half months, the man had spent at least 21 hours a day in the restraint:

He was un-cuffed every two hours during the day and every four hours at night in order to stretch his muscles, take a shower or eat his meals (average three hours unlock a day). He was able to watch some TV in his cell from late afternoon.

There was “no evidence of therapeutic intervention or psychological support … having taken place” for this prisoner or any other in the Unit.

Last week, the Ombudsman reported (PDF) further cases. One of a man at Auckland prison who, after three self-harming incidents, spent 37 nights (from 4pm to 8.30am) on a tie-down bed that included torso, wrist and ankle restraints. He had been restrained for close to 600 hours altogether.

Across 64 hours of observation, Ombudsman officers never saw ARU staff flex his limbs. Video footage showed an occasion when up to 14 officers crowded the cell to restrain him. The man was naked for two of the four observed restraints, and staff touched his genitalia so he could urinate into a bottle on the bed. The Ombudsman highlighted that these prolonged restraints and conditions were “degrading” and “dehumanising”. They clearly breached the UN’s Standard Minimum Rules for the Treatment of Prisoners as well as the 1984 Convention against Torture.

We often think of torture solely in terms of “ticking time bomb” scenarios – extracting information from detainees in order to “save the day”. The proposition that torture is capable of extracting the truth or proof has long been dismissed as a false hope. Even the Romans accepted that any retrieved evidence was weak, acknowledging that those subject to torture would either remain silent or lie rather than endure pain.

Instead, torture tends to have other uses for states – as a form of punishment, a deterrence to those who might cause trouble, and a performance of state power. Torture occurs when states denigrate groups. It emerges out of vitriol and also poor training, laziness and inadequate resources.

Torture increasingly emerges in “stealth” forms. The use of restraints, psychological pressures, electric shocks, sleep deprivation are all gaining traction. It is a paradox of the human rights movement – as monitoring has increased, torture has developed in new ways to leave no obvious physical marks. The reason is that most states want to appear compliant to human rights norms and laws. Being labelled as a “human rights abuser” is not a good look and the denial of violations is a preferred option for states.

In response to the Ombudsman’s findings of torture, the Department of Corrections has moved to reinterpret events.

The first reframing suggested that torture was a rights-conscious approach. Tie-down beds, waist restraints, isolation, CCTV, bare cells and rip gowns ensure the “right to life”. The Department’s own Inspectorate recorded that, in Auckland, restraints were “justified” given the escalation of the prisoner’s self-harming behaviours. The result is that the person does not die, or they may be less likely to die. But, along the way, any semblance of humanity or dignity for individuals suffering in extreme circumstances is removed.

Second, the position taken is that torture is a legitimate response to perceived risk. Following media reporting on torture at Auckland, the Chief Executive of Corrections, Ray Smith, said the tie-down bed was a “response to an imperfect situation with a very extreme person”, a prisoner who was “highly manipulative”, who “calculates” and self-harms “to get to hospital to get access to drugs”. There was little empathy for a prisoner with suicidal intention. Instead, his “at risk” status was rearticulated as a matter of security and control.

Third, that torture is a health-based approach. Smith emphasised that restraint decisions were made in relation to a range of health professionals. He noted that health staff had been involved in the decision to “keep him in Corrections and to manage him in the way that we did. So, they were all part of the plan we put together”. The Ombudsman’s report tells a different story – that restraints were used as a “behaviour management tool” rather than a health intervention, while neither his psychologist nor psychiatrist were aware of his extensive restraint. These health professionals had not visited him during “tie down” periods and the psychiatrist presumed that he would have two officers for company. In fact, he rarely saw anyone. It is an illusion of care.

A tie-down bed, Auckland

Torture has been officially renamed as “care” or “risk prevention” or “treatment”. But the UN Convention establishes that torture is never permissible – “no exceptional circumstances whatsoever … may be invoked as a justification”.

In the midst of these interpretive denials, ARU prisoners – who are, often, seriously ill or in great distress – are subject to conditions and treatments that undoubtedly increase their fear, anxiety, depression and despair. Who would admit suicidal thoughts in these circumstances?

There is a need for change. Questions have already been raised. Are Corrections capable of dealing with those with serious mental health problems, or self-harming behaviours (or to provide health care, more generally)? How have long lock-downs, equitable to torturous solitary confinement, become so normalised? Isn’t it about time we had an independent Inspector of Prisons?

Many of these will require significant institutional and cultural shifts. Yet, quicker improvements can occur. Corrections’ chief executive has just reduced the number of “tie-down beds”, to four. Given their potential for misuse, many other countries refuse to have them. We should do the same.


Elizabeth Stanley is a Reader in Criminology at Victoria University of Wellington. She is the author of ‘Torture, Truth and Justice’


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