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Human Rights In Community Corrections

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CHAPTER 4: THE STRATEGIC MODEL

The Working Group will develop a strategic model for respecting human rights in community corrections.

The strategic model presented in our first report identified a number of components that we believe fundamental to a well-structured human rights regime in a correctional setting. After reviewing that model, we find those components hold good for community corrections as well as for the institutional situation.

Essentially, that framework is built around the proposition that any correctional authority must be able to demonstrate to the community that it is fully cognizant of and in compliance with the rule of law as it applies to human rights, and that it has operational systems in place that fully reflect its human rights obligations and provide complete and credible means for achieving, evaluating and accounting for its compliance in that regard. Within this framework, the model sets out three guiding principles:

1. that all parties (employees, offenders, victims and others) must have a clear and common understanding of the human rights in play;

2. that those rights should be firmly and explicitly grounded in the relevant domestic statutes as well as in any applicable international instruments; and

3. that all regulatory procedures for safeguarding and enforcing those rights must be efficient, open and transparent.

Once the relevant laws and regulations are in place and it is clear how they relate to legal obligations, the policy framework serves to contextualize them and make them specific to the work of a particular correctional system. To meet that goal, the formulation of policy must meet the following standards, as outlined in our first report:

1. policy should be issued only to the extent that a practical interpretation of the legal or regulatory rule is indispensable (need);

2. policy should be explicitly linked to its legal and regulatory basis (authority);

3. policy should identify as specifically as possible the rights at issue (specificity);

4. policy should be uniform and consistent for all correctional situations within the system (consistency);

5. as far as possible, policy should not be diluted or confused by locally adopted rules but should issue from a single authoritative source (single-source); and

6. policy should be expressed in the most straightforward and practical language possible (clarity).

Assuming that the policy rules themselves are specific, consistent and unambiguous, the next task is to make certain that they are adequately communicated and understood. The model therefore proposes three requirements for ensuring that legal and policy rules are effectively conveyed to all parties:

  1. regular, accessible and ongoing training for staff that explains both the legal basis and practical implications of those rules;
  2. succinct and readable manuals or other printed material to which regular reference can readily be made; and
  3. equivalent sources of information for non-readers.

Finally, the practical effectiveness of the model depends on the design and use of appropriate monitoring and evaluation mechanisms. These have two main purposes:

1. to provide systematic checks on the extent and quality of the organization's compliance with prescribed human rights safeguards; and

2. to ensure that employees, offenders or other parties have expeditious and credible remedies for any apparent lapses in respecting their rights.

To ensure that the present model fully reflects both the goals and the working context of community corrections, the general outline (as summarized in Annex C) has been modified in the following ways:

1. to reflect the entitlement of offenders in the community to an appropriate balance of supervision and assistance;

2. to ensure that the practical implications of that balance are clearly spelled out in related policies and procedures;

3. to specify that the implications of any rights or entitlements that come into play in community corrections must be a normal component of both initial and ongoing training for the employees concerned; and

4. to require that compliance with those same rights or entitlements is monitored and evaluated in ways that take account of the community corrections context and provide effective remedies.

The model again stresses the need for public scrutiny. This not only means that internal systems of monitoring and evaluation must meet reasonable standards of timeliness and effectiveness from the perspective of those whose rights are involved, it also requires that all aspects of the correctional system be subject to appropriate forms of external monitoring. The principle of independent oversight affords the various parties both a practical assurance that the correctional authority is in full compliance with the rule of law and an effective alternative recourse if they suspect that such is not the case. This is no less important in community corrections than in the institutional setting.

When it comes to monitoring compliance with human rights rules or providing remedies to those who believe that their rights have been violated, the premises and circumstances of community corrections also entail some differences of emphasis or approach. For instance, it seems questionable whether possible rights violations in the treatment of offenders in the community can be either captured or resolved by essentially the same monitoring and grievance mechanisms as are used for institutional inmates. Moreover, any public demonstration that a system of community corrections is meeting its human rights obligations should involve both internal and external evaluations and reviews that clearly target respect for and compliance with those specific sets of rights.

However the concept of community corrections is defined in practice, it necessarily brings more actively into play the rights-related concerns of victims and the community at large. There is, as noted earlier, increasing public pressure to ensure:

1. that the rights of victims within the criminal justice system are fully articulated and protected in law;

2. that their relation to the rights of others is made clear and explicit;

3. that the manner in which any such right may be invoked and enforced is spelled out in terms that are fully intelligible and actively communicated to all concerned; and

4. that the necessary internal and external mechanisms for monitoring and evaluating the effective use of those rights are established and applied.

Although the fundamental principles involved in setting out and enforcing victims' rights are essentially the same as those that inform the model as a whole, for greater clarity its application to community corrections is now made explicit by incorporating the four requirements set out above.

The entitlement of the general public to be both well informed about, and suitably involved in, all aspects of the correctional system, and community corrections in particular, is also incorporated into the expanded model. This has the additional advantage of linking the community corrections model to the Tokyo Rules.