A new weapon against laws punishing poverty and status

Catherine Heard discusses the 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty, noting their potential to reduce the disproportionately harmful impacts of imprisonment on marginalized and stigmatized communities

An international group of leading jurists collaborated over five years to devise a set of principles to counter the harmful effects of overcriminalisation. The result of their work – the 8 March Principles for a Human Rights-Based Approach to Criminal Law Proscribing Conduct Associated with Sex, Reproduction, Drug Use, HIV, Homelessness and Poverty, published by the International Commission of Jurists – was published in March 2023.

The Principles seek to highlight and combat the detrimental human rights impact of criminal laws targeting conduct associated with poverty, status and identity.  As one of the signatories to the Principles, I believe they have real potential to reduce the use of imprisonment, which is available as a sanction across much of the world for a wide range of criminalised conduct, including rough-sleeping, drug use, sex work, and same-sex activity, to name just a few examples.

The Principles elaborate many harmful impacts of criminalisation in these spheres of human conduct. These impacts include engendering and perpetuating stigma and discrimination, including in relation to sexual orientation, gender identity and other protected fundamental characteristics.

Prison entrenches stigma and marginalisation

With prison overcrowding rife in around two thirds of the world’s countries, and prison populations rising, our role as prisons researchers and compilers of the World Prison Brief database is to highlight the risks that the overuse of imprisonment poses for humanity, especially society’s most vulnerable.

Our own research has shown that in both developed and less developed countries, even a short time in prison can exacerbate and entrench the marginalisation of those arrested, further stigmatising their identities and reducing their personal status in society. The consequences for physical and mental health, access to treatment and other services, and economic and social wellbeing are often devastating for individuals who have been imprisoned, making their punishment greater in duration and impact than the sentence itself and its concomitant loss of liberty.

While the availability of imprisonment for criminal offences relating to poverty, status and identity is frequently rooted in the unequal power relations of the colonial era, the Principles point to another, newer source for this problem. Their Introduction describes a growing trend towards overcriminalisation, as well as backlash against human rights in the context of sexual and reproductive health and changing norms relating to gender and sexuality. Given these trends it was perhaps no surprise that the Principles were greeted in some quarters by false claims and mis-reporting.

Principles will aid work of judges and law-makers

Judges and magistrates are among the stakeholders to whom the Principles will offer practical assistance. Principle 13 states that sanctions must be proportionate and that custodial sentences should only be imposed as a last resort. Although sentencers do not make the laws determining what is criminal, or decide on the available sanctions (these are matters for the legislature), they have responsibility for arriving at proportionate, individualized sentences in the cases that appear before them. This often involves deciding between a custodial sentence or a non-custodial measure like a fine or some form of community resolution.

By setting out the range of conduct whose criminalisation carries the potential for serious harm and infringements of fundamental rights, while offering no tangible benefits for society, the Principles can support the work of sentencers. They aid consideration of the likely impact of custody on the individual – and their family and community – and help to ensure all alternatives (including treatment, community support) are considered so that the overall effect of the sentence preserves, rather than undermines, the fundamental rights of the individual.

Legislators and policy-makers should also be assisted by the Principles, which can inform policy-making seeking to protect stigmatised groups from the harms of criminalisation and incarceration. The Principles provide a template for decriminalisation through the removal of some offences from the realm of criminal law altogether, or the recategorization of existing offences as administrative wrongs attracting warnings or civil rather than criminal penalties. Further, they can help law-makers determine which offences should remain on the statute book as crimes but become non-imprisonable. 

Principles also strengthen hand of civil society

NGOs operating in the areas of sex work, drugs, poverty, HIV/AIDS, and other areas where people and their basic rights are harmed by overcriminalisation have welcomed the Principles as a basis from which to check and reverse the disproportionate application of the criminal law and punishment.

International agencies such as the Office of the United Nations High Commissioner for Human Rights, the World Health Organisation, UNAIDS and other UN bodies have also endorsed the initiative, and I share their hope that the Principles will have a deep and lasting impact.

Catherine Heard is a senior research fellow at the Institute for Crime & Justice Policy Research (ICPR), based at Birkbeck, University of London. Catherine is Director of ICPR’s World Prison Research Programme.