Telematic Control and Semi-Freedom as a Response to the Pandemic: The Spanish Penitentiary System Experience

ABSTRACT

In response to the pandemic that started in early 2020, prison systems around the world have adopted various strategies to prevent the spread of Covid-19 (coronavirus disease 2019). In Spain, the main strategy used by the State Penitentiary Administration against the pandemic has focused on the use of the “third degree” of prison or “semi-freedom” with telematic control (or electronic monitoring, as it is better known in the rest of the world). While in closed prisons the main measures to manage the pandemic have been focused on avoiding contact with outside, in open prisons inmates who could have introduced the virus into prison facilities due to their semi-freedom have been released and sent “home,” in order to prevent the spread of the virus. The author analyzes the data provided by the Spanish prison statistics during the pandemic, illustrating the evolution of the numbers of convicts classified in “open regime” and under electronic monitoring. At the same time, the author highlights some of the ethical and public security implications that might be posed by the quasi-massive release supported by the expansion in the use of open regime with telematic control, and some recommendations thereon are proposed.

KEYWORDS:

• Spanish penitentiary system
• Covid-19
• prison population
• electronic monitoring
• semi-liberty
• pandemic
• alternatives to incarceration
• early release mechanisms
• prison reform

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. The countries that showed a variation between −4 and +4% in relation to the prison population during the pandemic have been considered as “stable” prison administration.

2. Mainly one: in case of serious offenses, when the length of the sentence is longer than five years the judge can order that the classification in third degree (i.e., the placement of the convict in open regime) does not take place until half of the sentence has been served inside.

3. State of Alarm accorded by Royal Decree 463/2020, published on the Official State Gazette, Madrid, Spain, on March 14, 2020.

4. The control of some noncustodial sentences, such as the “prohibition to reside in a particular place or come to it” are the responsibility of the State Security Forces, as is the implementation of one of the deprivation of freedom penalties known as “permanent location.” This penalty was introduced into the Spanish Penal Code in 2003 and corresponds to what is usually known as “home detention,” one of the most used alternatives to incarceration.

5. Normally, to evaluate the capacity of the sentenced person to live in the open regime, the conditions taken into account are the length of the sentence, the time served in prison (although there is no specified minimum period of time), the sentenced person’s penitentiary evolution and behavior, their level of participation in activities, their involvement in treatment programs, their use of leave (in cases where the person enjoyed any periods of leave from prison), etc. The assessment is individualized and flexible. As explained, only in cases of serious offenses for which the sentence is longer than five years of prison, will the convict have to complete at least the half of the sentence before being classified as third degree.

6. Spanish penitentiary law also provides mothers with the right to keep their children with them in prison until the children reach the age of three (see Cerezo, 2016).

7. Normally this modality of “restricted open regime” with less time outside of the prison, is applied because of the risk of recidivism or the lack of outside work. These prisoners are allocated in semi-open facilities but cannot go out ordinarily.

8. Also, some alcohol intake analyzers with a face viewer (even personal identification voice detectors) are available, but are residually used; according to the data provided by the General Secretariat of Penitentiary Institutions in 2019 there are registered approximately 10 cases of the use of alcohol intake analyzers with a face viewer.

9. Which does not include Catalonia. The autonomous region of Catalonia enjoys implementing powers on prison management. Catalonia is the only Spanish autonomous region that has assumed penitentiary competences. Relating to prisons and probation services, the rest of the autonomous regions are under the competence of the State General Administration, whose data and information are explained in this article.

10. Information available on: https://www.attentigroup.com/intl/.

11. Which belongs to the General Deputy Direction of Open Regime and Alternative Sanction and Measures, of the General Secretariat of Penitentiary Institutions. Information available on: https://www.institucionpenitenciaria.es/es/web/home/el-medio-abierto/control-telematico.

12. Data provided at June 30, 2019.

13. Data provided at June 26, 2020.

14. Data provided at March 6, 2020.

15. Data provided directly by the General Secretariat of Penitentiary Institutions.

16. An inmate can be without classification because the individual is waiting to be classified, that is, to be evaluated by the technical team, or because the individual is in pretrial detention (awaiting trial).

17. As explained previously, the autonomous region of Catalonia enjoys prison management implementation powers. While the basic legislation (the Spanish prison rules) is common for the whole country, implementation powers have been delegated to Catalonia. Therefore this region can deviate from state policy and practice, and has its own penitentiary instructions.

18. I should note that some authors warned that there is a real possibility that without proper controls in place, the expansion of alternative sanctions using electronic monitoring could even increase prison populations because of technical violations that can provoke the return to prison of users under electronic supervision (see Byrne, 2016).