Philippine jails are known for two things – the dancing inmates of Cebu who to the tune of Michael Jackson’s “Thriller” landed a Netflix series called “Happy Jail” and a smothering 534% national congestion rate, making it as one of the most overcrowded prison systems in the world.
While the dark irony of inmates dancing in full choreography at day while taking turns so they could sleep at night has piqued global attention, the right to health and general well-being of these detainees had not become part of national conversations. They brought amusement to the public and by virtue of their youtube hits, became the source of some twisted sense of national pride. But come COVID-19, particular concerns about sanitation, ventilation, and lack of access to healthcare inside Philippine jails have become the source of new panic. Reports of infection and deaths in detention facilities all over the country created a delayed sense of urgency. Visitors were not allowed to enter, in-court hearings were suspended, and a set of guidelines to decongest prisons were issued.
According to the Philippine Supreme Court, 81, 888 inmates had already been released as of October 16, 2020. This, according to them, is due to serious efforts to decongest jails through virtual hearings, streamlined rules on early release, and reduction of bail. But this going rate is nowhere near enough to ease prison overcrowding in the country, even before the pandemic. At a basic level, much more is needed to even impose a social distancing standard inside these human cages. For long-time prison reform advocates, these efforts have never been adequate; the national failure to decongest comes as no surprise.
“They didn’t and won’t work since the requirements for early release are overwhelmingly voluminous and the processes are just tedious,” observed Rommel Alim Arbitria, Executive Director of Humanitarian Legal Assistance Foundation or HLAF, an organisation advocating for the rights of persons deprived of liberty in the Philippines. For years, HLAF has been helping decongest jails through paralegal trainings and by assisting detainees as well as the jail staff. There are also not enough personnel, such as probation officers handling the number of applications, Arbitria told TalkingDrugs. Jails are not priority in terms of budget and trials take so long that people in prison end up staying in jail for an elongated period of time, under dire circumstances, sometimes serving their full penalties sans conviction.
Johann Nadela of IDUCARE, an organization of people who inject drugs working as community health workers in Cebu City, had been a victim himself of this systemic failure. He went to jail for three years because of needle marks on his arms. He eventually pleaded guilty and was sentenced to a penalty of two years and six months. He would laugh recalling how the State in the end still owed him six months of his life.
Raymund Narag, professor of Criminology and Criminal Justice at Southern Illinois University Carbondale, pointed out that the primary problem is that there are no alternatives to pre-trial detention. Release on recognisance is only allowed for a limited number offences. Meanwhile, a bail hearing lasts around eight months to one year as if a full blown trial; and even when allowed to post bail, fifty per cent of the detainees would not be able to do so due to financial restraints.
Narag himself was a former detainee. He was proven innocent and later released after spending nearly seven years behind bars. He is currently helping persons deprived of liberty who cannot afford bail by implementing a community bail bond program in the Philippines.
For most detainees, pleading guilty was the alternative to the requirements impossible to comply and the bail impossible to pay. “I admitted the charge against me even if I’m innocent”, shared Nadela. For him, it was the easiest way out. “When you’re hopeless, there is simply no other choice,” he added.
Drug War Prison Implosion
Yet underlying this heap of systemic problems is a gaping black hole: measures to address prison overcrowding in the Philippines do not apply to most drug cases.
In August 2020, the Supreme Court barred the early release of two convicted drug traffickers holding that drug offences are heinous crimes exempted from the application of Good Conduct Time Allowance. In terms of penalty, possession of 500 grams of marijuana or 50 grams of methamphetamine, locally called “shabu”, for instance, is more or less in the same category as rape with homicide, plunder, terrorism, and human trafficking of a minor. This is the reason why most drug offenders are not eligible to post bail, or to have shorter prison time for good conduct, or to even file an application to be released on parole or probation. When the Interim Rules on Parole and Executive Clemency was issued to prioritise release of “high risk” prisoners due to COVID-19, such as those sixty-five years old and above or those who are sick, the rules also explicitly exempted another category of “high risk” prisoners who, despite their health status, are not allowed to be released—those convicted of “heinous crimes”, specifically mentioning drug-related offences. “High risk” in this context implies the assumed “threat” to public safety if these people were released amidst a global health pandemic.
Ever since President Rodrigo Duterte declared drugs as a national enemy, the stigma against people suspected of committing a drug offence has wreaked havoc to an already fractured criminal justice system. Stripping drug offenders of rights supposedly available to all persons accused of a crime became justified politically and even legally.
In 2018, two years into the drug war and seeing how it alarmingly inflated the prison population, the Philippine Supreme Court allowed low level drug offenders to enter into plea bargaining. They were allowed to plead guilty to a lesser offence and were required to attend an involuntary rehabilitation program for at least six months as an alternative penalty.
But the volume thresholds for “low-level” drug offences are too low for the rules to effectively apply to a significant number of detainees. More so, after release, drug offenders remain police targets and are often subjected to rearrests. Being a second time offender, any relief for early release will not be available anymore, no matter how low-level the offence supposedly was.
This happened recently to a client of IDUCARE. Two months after his release, police officers came banging his doors again. Apparently, he was still under surveillance. Community health workers have to take precautions delivering services to their clients outside jails. “Because you’ll never know when they will be arrested again and by mere association, you’ll never know if you will be arrested with them,” explained Nadela.
By 2019, at least 70 percent of people in custodial facilities of the Bureau of Jail Management and Penology were facing drug charges. Most of them were victims of warrantless arrests, but because their cases involved drugs, they were set to languish in jails.
In fact, in the docuseries “Happy Jail”, the most favoured dance leads turned out to be those with drug cases. Because they stay longer in jail, the choreographer wouldn’t have to teach the same dance moves to new people all the time. Staying true to this tragicomedy, even those arrested and those forced to surrender for drug offences felt staying in jail may actually be a better option. They knew, at that time, that they had more chances of ending up dead had they been out in the streets. Dancing like zombies on prison grounds might seemed like a cruel joke, but at least inside they were alive.
Until the virus hit.
Stigma Over Compassion: COVID-19 Decarceration Efforts
In July 2020, an Urgent Petition for the Release of Prisoners on Humanitarian Grounds was filed by political detainees. They cited their health statuses and comorbidities and how their exposure to COVID-19 inside jails will make them vulnerable to worse health conditions, even fatal consequences. This was the first attempt to ask the Philippine Supreme Court to order a mass release decree for people in prison who are sick, elderly, and pregnant, in light of the pandemic.
In the early days, Michelle Bachelet, the United Nations High Commissioner for Human Rights, had already warned governments of potentially catastrophic consequences if they neglected prison populations in their COVID-19 response. Although not enough to slow down the virus, courts in other jurisdictions have began releasing vulnerable detainees and even low-level offenders. Unfortunately, the Philippine Supreme Court was not on the same page. The petitioners were told to go to the lower courts and ask for a bail hearing.
This is not the first time that the highest court in the country has heard of compassionate release. In 1946, they released Francisco Dela Rama who contracted tuberculosis in prison and even held that “the modern trend of court’s decisions permit bail to prisoners, irrespective of the nature and merits of the charge against them, if their continuous confinement during the pendency of their case would be injurious to their health or endanger their life.” In 2015, the Court freed former Senator Juan Ponce Enrile, then 90 years old and charged with plunder, due to his fragile health and advanced age.
Even with these precedents and a potent virus barging inside prison walls, the Philippine Supreme Court still refused to issue a mass decarceration policy. Release of detainees was still conducted via individual petitions; their eligibility is still based primarily on the offence charged. Release was even made harder for lack of adequate COVID-19 testing.
IDUCARE had to facilitate the release of an inmate whose case was already dismissed. He was detained for eight years and when he finally got a release order, he was required to undergo a COVID-19 test which at that time was not available in jails. The whole process became another layer of bureaucratic ordeal and an additional six months of waiting inside his cell staring at his release papers.
A public health crisis such as COVID-19 should have been enough to justify measures to expedite releasing inmates and to explore other prison reforms that are long overdue. HLAF believes that policy makers can start with releasing non-violent offenders under pre-trial detention, though this strategy has been critiqued by prison abolitionists. Professor Narag adds that bail should not be based primarily on the gravity of the offence and proposes the removal of cash bail all together. “There are people who went inside jails for selling drugs so their families could eat. How do we expect them to pay a large amount of money so they could get out?”, he asks.
“There are still more arrests than releases, more people getting in than going out. This is the reason why there is still overcrowding”. Nadela points out the truth, plain and simple: until the drug war ends, any attempt at decongestion will remain tragically futile. Failures to address the reality that measures excluding drug cases will never solve prison overcrowding have worsened over the years. Until authorities apply the same rules to drug offenders in the pandemic response, the catastrophe inside jails will certainly continue to implode.
As the pandemic surges, hopelessness thrives inside these cruel cages. Trapped in a cacophony of hissing coughs and laboured breaths, persons deprived of liberty in the Philippines have begun surrendering their fates to a virus that is yet to be contained and a justice system entirely devoid of care. Either way their chances seem bleak.