Complementary Measures Needed for the Rule of Law in Prisons and Detention Centers

Last December, amendments to Taiwan's Prison Act and Detention Act passed their third reading, and the new laws take effect on July 15. The basic principle of both laws is bringing the governance of correctional facilities under the rule of law. In a preparation period of just six months, 32 authorized regulations (including the enforcement rules of the two acts) were adopted, and a large number of old administrative rules and interpretive letters are expected to be repealed and new ones issued. A new rule-of-law approach to correctional governance will be a shock both to correctional staff and to inmates accustomed to rule by individuals.

The shift to the rule of law is especially visible in "disciplinary punishment." In the past, correctional facilities set up disciplinary cells without a clear legal basis, and treatment in these cells varied from facility to facility, giving rise to rumors among inmates that a given prison was "easy" or "hard" to serve time in. Discipline used to be based on a "Reference Table of Inmate Violations and Punishments," whose "Remarks" column stated that the table was only for "reference": violations not listed were to be treated like similar listed ones, and where none was similar, punishment was to be determined objectively according to the seriousness of the case, in complete violation of the modern principle that punishments must be prescribed by law. All this has changed under the new laws. Disciplinary cells now have a legal basis and may not be abused, and treatment in them may not exceed what the law authorizes; disciplinary standards are now set under clear statutory authorization, and conduct not listed may not be arbitrarily deemed a violation and punished.

However, the new laws' rule-of-law approach also brings the risk that people unfamiliar with the law may not know how to use it or may break it inadvertently, which is a particular problem for inmates seeking remedies. The new remedy system is highly complex and fragmented. Sentenced prisoners alone have three channels: complaints against prison decisions go to the prison, complaints against decisions of the Agency of Corrections go to the Agency, and denials of parole by the Ministry of Justice go to the Ministry for review; in all three cases, those still dissatisfied may file an administrative lawsuit. Detained defendants, besides filing complaints with the detention center or the Agency of Corrections against their decisions and then an administrative lawsuit, must use an interlocutory appeal or a quasi-appeal under the Code of Criminal Procedure against rulings or decisions made under the Detention Act by the court that ordered detention or by the prosecutor. Because Taiwan's prisons often have attached detention centers, and prisoners may also be defendants in other cases, not only inmates but also staff may choose the wrong remedy.

In response, JRF plans to expand the legal consultation letters it accepts from correctional facilities and to compile a handbook on legal issues under the new laws for public reference, so that inmates without proper legal resources do not seek to protect their rights through hearsay and misinformation, which not only fails to achieve their goals but also forces facilities to handle unnecessary cases. We also call on the Agency of Corrections to provide frontline staff with proper training on applying the new laws as soon as possible, to reduce violations caused by unfamiliarity with them. We hope the government and civil society will work together so that Taiwan's correctional governance can successfully complete its transition to the rule of law.

* This article was published in the Liberty Times on July 14, 2020.