ARTICLES
STUBBING OUT SMOKING IN PRISONS Bans are an ineffective mechanism ANITA MACKAY
I
f you are a smoker, or imagine yourself to be one for a moment, how do you think you would feel if you were not allowed to smoke in your own home? Then add to this scenario that you have to spend the majority of your time in your home so you cannot distract yourself from the nicotine withdrawal symptoms1 by keeping busy at work, or going out to exercise; nor are you able to easily access a smoking cessation program or nicotine replacement therapies. This would put you in a similar position to the one in which imprisoned people find themselves when smoking is banned in a prison, except that the particular stress, anxiety and boredom associated with imprisonment make smoking an important coping mechanism. In Australia, as in many other countries, people are used to being prohibited from smoking in bars, restaurants, schools and numerous other public places where they may expose other people to the risks of second-hand smoke. However, people in the community are left with alternative places where they can smoke if they so choose, such as in their own home or car. The prison, by contrast, is where imprisoned people conduct every aspect of their life for the duration of their sentence or period of remand. This is what makes banning smoking in prisons more comparable to banning smoking in private homes than to banning smoking in public places. No government in the world has taken the step of banning smoking in homes, despite the evidence that second-hand smoke inhalation in homes poses health risks to non-smokers, particularly children. There are, however, other relevant differences between prisons and homes. Prisons are also work places for large numbers of people employed by corrective services, and the home of non-smokers who are also imprisoned. They should not be exposed to the undisputed dangers represented by passive smoking. There is clear justification for the regulation of smoking in the prison environment to reduce the potential harm resulting to those who are forced to work or live in the same environment as people who choose to smoke. However, this regulation needs to take into account that people in prison do not have the option of going elsewhere to smoke. This is the central dilemma posed by the regulation of smoking in this particular environment. This article begins by providing an overview of the prevalence of smoking among imprisoned people, and suggesting some of the reasons for the greater
prevalence of smoking in prisons. The problems caused by second-hand smoke are well known, and litigation has been brought as a result of the harm resulting from exposure to second-hand smoke. This is the main problem which smoking bans seek to address. The article then analyses smoking bans as a policy response adopted by numerous jurisdictions internationally. Several Australian states have announced their intention to introduce such bans in the near future. The bans have led to some limited improvement in the air quality within prisons, but the research findings clearly demonstrate that they have not led to the cessation of smoking in prisons. They have instead led to consequences that are contrary to their intention. An example of an unintended effect would be non-smokers unable to complain when their cell-mate is smoking, because staff will not concede that smoking is taking place. Having established that smoking bans are a flawed response to smoking in prisons, an alternative response is put forward, which takes into account medical evidence about the methods that assist people to address their addiction, as well as ways to limit exposure to second-hand smoke for the protection of the health of non-smokers.
REFERENCES 1. Symptoms can include ‘irritability and anxiety, difficulty concentrating, restlessness, problems falling asleep, craving tobacco, dizziness, coughing and appetite changes’: Australian Institute of Health and Welfare (‘AIHW’), Smoking and Quitting Smoking Among Prisoners in Australia, Bulletin 119 (2013) 6. 2. AIHW, The Health of Australia’s Prisoners 2012 (2013) 84–86. 3. Ibid 88. 4. These figures are not available at the national level, so NSW used as example: Devon Indig et al, 2009 NSW Inmate Health Survey: Aboriginal Health Report ( Justice Health/NSW Health, 2010) 34.
Smoking in prisons The proportion of people in prison who smoke is much higher than in the general community. This is true of both imprisoned people and staff.
Smoking prevalence: imprisoned people The Australian Institute of Health and Welfare has found that 84 per cent of people entering prison identify as smokers and that 80 per cent of people do so upon discharge. The trends vary when they are broken down into different sub-groups of the prison population. For females the statistics are 79 per cent upon entry and 84 per cent upon discharge, and for Indigenous people the statistics are 80 per cent upon entry and 83 per cent upon discharge.2 This compares with rates in the community as follows: • Non-Indigenous people entering prisons are four times as likely to be smokers compared to non-Indigenous people in the community (84 per cent compared to 21 per cent); 3 and • Indigenous people in prison are twice as likely to be smokers as Indigenous people in the community.4 AltLJ Vol 39:2 2014 — 99
ARTICLES
It is also worth noting that marginalised groups within the general population are more likely to smoke. The average proportion of smokers across the Australian population is 17 per cent, whereas: • 62 per cent of people with mental illness smoke; • 71 per cent of illicit drug users smoke; and • 51 per cent of Indigenous people smoke.5 This is relevant because these groups are overrepresented in the prison population. This helps to explain why more people in prisons smoke. Specifically:
5. Josephine Belcher et al, ‘Smoking and its Correlates in an Australian Prisoner Population’ (2006) 25(4) Drug and Alcohol Review 343, 343. 6. Tony Butler et al, ‘Mental Disorders in Australian Prisoners’ (2006) 40 ANZ Journal of Psychiatry 272. 7. AIHW, above n 2, 74. 8. Australian Bureau of Statistics (‘ABS’), Corrective Services, Australia, March 2013 (13 June 2013), 6. 9. ABS, Year Book Australia 2012 (24 May 2012). 10. Catherine Ritter et al, ‘Smoking in Prisons (2011) 32(1) Journal of Public Health Policy 32, 38; Robyn Richmond et al, ‘Tobacco in Prisons’ (2009) 18 Tobacco Control 176, 176. 11. AIHW, above n 2, 20. 12. Laura Narkauskaite et al, ‘Prevalence of Psychoactive Substances Use in a Lithuanian Women’s Prison Revisited After 5 Years’ (2010) 16(11) Medical Science Monitor 91 cited in Ritter et al, above n 10, 38. 13. Richmond et al, above n 10, 177–78; AIHW, above n 1, 5. Smoking has been found to relieve the symptoms of anxiety and depression: David Lawrence et al, ‘Smoking, Mental Illness and Socioeconomic Disadvantage’ (2013) 13 BMC Public Health 462, 473. 14. Richmond et al, above n 10, 177. 15. Office of the Inspector of Custodial Services, Issues Paper. Smoking in Prison (WA, 2008) 3; AIHW, above n 1, 4. 16. Richmond et al, above n 10, 177. 17. Ibid 177–8. 18. Belcher et al, above n 5, 345. 19. AIHW, above n 2, 91. 20. Belcher et al, above n 5, 345–7. 21. Richmond et al, above n 10, 178–9. 22. AIHW, above n 1, 2. 23. Ritter, above n 10, 35. 24. Matthew Carpenter et al, ‘Smoking in Correctional Facilities: A Survey of Employees’ (2001) 10 Tobacco Control 38. 25. Belcher et al, above n 5, 345; Butler et al, ‘Should Smoking be Banned in Prisons?’ (2007) 16 Tobacco Control 291, 291.
100 — AltLJ Vol 39:2 2014
• one study found that 80 per cent of the prison population sampled had a psychiatric illness over a 12-month period;6 • 70 per cent of people entering prison report that they have used illicit drugs in the previous 12 months;7 and • 28 per cent of the prison population is Indigenous,8 whereas 2.5 per cent of the general population is Indigenous.9 There is a range of explanations for this high prevalence of smoking in the imprisoned population. The first is that, in general, people with less education are more likely to smoke than those with more education.10 The prison population as a whole tends to have a relatively low educational level — for example, 34 per cent of prison entrants have not completed Year 10 at high school.11 It has been argued that people in prison with less education are more likely to smoke because ‘[m]ore educated inmates can cope better and in a more rational way with the stress of imprisonment’.12 Secondly, there are aspects of the prison environment itself that make people more likely to smoke. This has been demonstrated clearly by focus group research in New South Wales (‘NSW’) where imprisoned people and those who had been recently released from prison, were interviewed about the role of tobacco within the prison environment. This research revealed that: 1. Smoking is an aid for managing the stress and tension associated with being imprisoned, such as, being transferred between prisons, making court appearances and being separated from family and friends. As one person commented ‘[i]f you’re a non-smoker, “it” (the prison environment) can cause you to smoke’;13 2. Smoking is a way to manage boredom and inactivity. As one person commented, ‘[b]eing locked up 15 hours a day — the only thing to do is smoke’;14 3. Smoking is an initiator of social contact, forming ‘one of the few social pleasures not denied to prisoners’;15 4. Tobacco is used as a currency (in the absence of cash). As one person commented ‘[t]obacco is used for protection in prison in the sense that if you pay your debts then trouble won’t come your way’;16 and 5. Staff may use tobacco as a control mechanism, eg the interviewees reported that people were denied the ability to buy cigarettes due to ‘backchat’ and one female observed that ‘[t]he girls that were in
the psych units were screaming and bashing their heads against the walls. The prison officers said they would give them a smoke if they would shut up’.17 Additionally, the prison environment imposes barriers to successful cessation of smoking. First, there is a lack of cessation programs, despite the fact that the statistics suggest that a large proportion of smokers in prison want to quit (one study found that 75 per cent expressed a ‘desire to quit’, while 58 per cent have ‘an actual plan to give up’ 18). The Australian Institute of Health and Welfare (‘AIHW’) reports that only 14 per cent of people in prison undertake such programs.19 The cost of nicotine patches has been found to be ‘beyond the financial means of most prisoners’ such that one study found that only 13 per cent had used them.20 Also, people may use exercise as a means to manage nicotine withdrawal symptoms, but when a prison goes into ‘lock-down’ and everyone is confined to their cell, people are unable to exercise and this has been found to trigger smoking. There is limited access to telephone counselling services from within prison and people do not have the daily support of family members and friends from whom they are separated. Lastly, the high proportion of people who smoke makes it difficult to quit because people cannot escape the smell of smoke. As one participant in the NSW study commented ‘[t]he biggest barrier is how many people in prison smoke among both prisoners as well as officers’.21 This may help to explain why 5 per cent of people who were non-smokers upon entry commenced smoking while in prison, and only 8 per cent of people successfully ceased smoking while there.22
Smoking prevalence: Prison staff Smoking within prisons is not confined to smoking by imprisoned people. A significant proportion of Australian prison staff (40 per cent) also smoke.23 Survey data overseas suggests that staff favour restrictions on smoking by imprisoned people, but not on their own ability to smoke.24 This resistance presents a significant barrier to the reduction of smoking in prisons.
Exposure to second-hand smoke in prison There are both non-smoking imprisoned people and non-smoking prison staff affected by second-hand smoke. The dangers of exposure to second-hand smoke are not disputed. This is a significant problem. For example, in NSW it has been found that 30 per cent of non-smokers are sharing cells with a smoker and 53 per cent of non-smokers feel they are adversely affected by other people smoking.25 The European Court of Human Rights has separately considered the cases of two imprisoned people in Romania who had to share cells with smokers (in one case between 110–120 people, 90 per cent of whom were smokers). One of the applicants had a chronic pulmonary disease and doctors had specifically advised that he be kept away from smoke. In both instances the Court held that Romania had violated Article 3 of
ARTICLES
Regulation of smoking in the prison environment … needs to take into account that people in prison do not have the option of going elsewhere to smoke.
the European Convention (‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’).26
The UK has announced its intention to introduce bans from Spring 2015.35
In the US, a ‘right’ to a smoke-free environment in prisons has been established since the 1993 decision by the Supreme Court (in an action brought by a non-smoker sharing a cell with a heavy smoker) that exposure to environmental tobacco smoke violates the eighth amendment of the US Constitution (prohibition of ‘cruel and unusual punishment’). This argument was also applied in a case where imprisoned people were smoking in areas where it is banned; endangering the health of an asthmatic person.27
There is a view held by some members of the community that people in prison do not ‘deserve’ the pleasure they may derive from smoking, and that banning smoking in prisons may deter people from committing crimes.36 This does not accord with the legal position of imprisoned people in Australia. Both at common law and under international human rights law, people retain all rights other than those necessarily lost due to imprisonment (eg, freedom of movement is limited). This is known as the ‘residuum principle’.37 Smoking bans impact on the human rights that imprisoned people retain in Australia. There have not been any Australian cases challenging bans from a human rights perspective but, internationally, smokers seeking to challenge bans have argued that the ability to smoke is part of the right to privacy and home life.38
Smoking bans Smoking in prisons is an insidious problem that has led to people who work and reside in prisons suffering harm from exposure to second-hand smoke.28 The growing popularity of smoking bans in prisons in Australia and internationally is therefore not surprising.
Growth in popularity of banning smoking in prisons The Northern Territory was the first jurisdiction in Australia to ban smoking in prisons. This ban has been in operation since 1 July 2013. They were recently joined by Queensland, which introduced a ban from 5 May 2014. NSW has trialled smoking bans in two prisons (Lithgow and Cessnock) and announced its intention to apply the ban state-wide from March 2015.29 There are also moves underway to ban smoking in prisons in South Australia (by March 2015), Victoria (by July 2015) and Tasmania (initially in Risdon prison) (by 2015).30 The popularity of bans has followed the lead set by other countries, some of which apply complete bans and others partial ones. For example, smoking has been banned in: • New Zealand prisons since 1 July 2011 (a ban that applies indoors and outdoors, and to staff, imprisoned people and visitors);31 • Federal prisons in Canada since January 2006, and in all Canadian provincial prisons except Quebec (which has announced its intention to extend the indoor smoking ban to outdoor areas from Spring 2014);32 and • Federal prisons in the US since 2004.33 Additionally, 60 per cent of US state prisons have total bans, while a further 27 per cent have indoor smoking bans.34
Objectives of banning smoking
Human rights legislation often provides for ‘reasonable limits’ to be placed on human rights.39 In the prison context, limitations are commonly justified on the basis that ‘security and good order’ need to be maintained.40 However, the banning of smoking is more likely to challenge security and good order, rather than maintain it. For example, there were riots in the Woodford prison in Queensland when smoking was banned temporarily in 1997.41 While an argument cannot be sustained that banning smoking is necessary to maintain security and good order, it is worth considering whether corrections’ authorities can stop people from smoking because it is harmful to those persons’ health. The response to this argument by one judge in Scotland, for example, is that people cannot be forced to stop a legal activity merely because it is harmful to their own health. The judge commented that protection from harm ‘is not a warrant for lifestyle fascism’.42 As one person in the NSW focus group study observed, ‘you are in there for a crime, not to be punished for your smoking’.43 There is, however, justification for limiting people’s ability to smoke for the protection of the health of non-smokers (in the same way that this justification has been used for banning smoking in public places in the community). This is the stated objective of a number of the jurisdictions that apply bans. In addition, the other main justification provided is to reduce the risk of fires. In New Zealand, for example, the policy has been reported as aiming ‘to make prisons both healthier and
26. Florea v Romania [2010] ECHR 37186/03; Elefteriadis v Romania [2011] ECHR 38427/05. 27. Helling v McKinney 113 S Ct 2475, 2480–82 (1993) and Alvarado v Litscher 267 F.3d 648 (2001). 28. Butler et al, above n 25, 291. 29. Lauren Fitzgerald, ‘No More Excuses: Smoking Ban Enforced in NT Prisons’, ABC News (Australia) 1 July 2013; Nick Ralston, ‘NSW Prisoners to be Banned from Smoking’, The Sydney Morning Herald (Sydney) 30 September 2013. 30. Greg Kelton, ‘Smoking to be Banned in South Australian Jails’, The Advertiser (Adelaide) 31 May 2011; Denis Napthine, ‘Victorian Prisons to go Smoke Free’ (Media Release, 14 November 2013); Nick McKim, ‘Prison to be Smoke-Free by 2015’ (Media Release, 3 June 2013). 31. Collinson et al, ‘New Zealand’s Smokefree Prison Policy Appears to be Working Well: One Year On’ (2012) 125(1357) The New Zealand Medical Journal 164, 164. 32. ‘Quebec to Implement Full Smoking Ban in Prisons Next Year’, CBC News (Montreal) 20 April 2013. 33. Martin et al, ‘Health Effects of the Federal Bureau of Prisons Tobacco Ban’ (2012) 12 BMC Pulmonary Medicine 64, 65. 34. Kauffman et al, ‘Tobacco Policy in American Prisons, 2007’ (2008) 17 Tobacco Control 357, 357 (based on a survey of correctional departments). 35. ‘Move to Ban Smoking in Prisons’, The Guardian (UK) 20 September 2013. 36. Kathy Barnsley, ‘Prison Smoking Bans Deter Crime’, Tasmanian Times (Tasmania) 30 August 2010. 37. International law position found in Principle 5 of the United Nations, Basic Principles for the Treatment of Prisoners (1990). Australian legal position, see Bronwyn Naylor, ‘Protecting the Human Rights of Prisoners in Australia’ in Paula Gerber & Melissa Castan (eds), Contemporary Perspectives on Human Rights Law in Australia (Lawbook, 2013) 395–6.
AltLJ Vol 39:2 2014 — 101
ARTICLES
safer, primarily to reduce second-hand smoke exposure and risk of fires’.44 In the US, the justification has been described as follows: A growing awareness of the harmful effects of secondhand smoke has raised concerns about prisoner health and led to successful legal challenges by non-smoking prisoners. Additional benefits of smoke-free policies included reduced risk of fires, lower maintenance costs and lower insurance rates.45
Do bans achieve the objective? The key question, of course, is: are bans the most effective mechanism for achieving the objective of protecting the health of non-smokers in prisons? To answer this question it is worth considering the implications of bans in jurisdictions that have the most experience with them.
38. See the Scottish case of CM, Re Judicial Review [2013] ScotCS CSOH_143 (27 August 2013) and the NZ case of CIV2013-404-000351 [2013] NZHC 1702 (8 July 2013). These cases were brought in relation to bans in mental health institutions. 39. For example, section 7(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). 40. Pursuant to corrections legislation, see Naylor, above n 37, 398. 41. Ritter et al, above n 10, 38. 42. CM, Re Judicial Review [2013] ScotCS CSOH_143 (27 August 2013) [52]. 43. Richmond et al, above n 10, 179. 44. Collinson et al, above n 31, 165. 45. Kauffman et al, above n 34, 357. 46. Belcher et al, above n 5, 347 and AIHW, above n 1, 19. 47. Karen Cropsey & Jean Kristeller ‘The Effects of a Smoking Ban on Smoking Behavior and Withdrawal Symptoms’ (2005) 30 Addictive Behaviors 589. 48. Benoit Lasnier et al, ‘Implementing an Indoor Smoking Ban in Prison’ (2011) Canadian Journal of Public Health 249, 250–1. 49. Stephen Lankenau, ‘Smoke ’Em if you Got ’Em: Cigarette Black Markets in US Prisons and Jails’ (2001) 81(2) The Prison Journal 142, 158. 50. Collinson et al, above n 31, 166. 51. Richmond et al, above n 10, 177; Belcher et al, above n 5, 345. 52. Lankenau, above n 49, 159; Kauffman et al, above n 34, 357. 53. Jeny Gautam et al, ‘Smoke-free Prisons in New Zealand’ (2011) 124(1338) The New Zealand Medical Journal 100, 104; Collison et al, above n 1, 165. 54. Collinson et al, above n 31, 166. 55. Simon Thornley et al, ‘Indoor Air Pollution Levels Were Halved as a Result of a National Tobacco Ban in a New Zealand Prison’ (2013) 15(2) Nicotine & Tobacco Research 343. 56. Judith Collins (Corrections Minister), ‘Corrections Hailed for Smoking Ban Success’ (Media Release, 17 August 2011).
102 — AltLJ Vol 39:2 2014
The first thing to note is that bans have not succeeded in preventing people from smoking in prisons. This has been the consistent message of studies conducted in a range of jurisdictions. Australian examples include: • Smoking is banned in NSW juvenile correctional facilities, yet 58 per cent continue to smoke, ‘twothirds on a daily basis’; and • Smoking is banned in cells in the ACT’s prison, but people continue to smoke in their cells.46 International examples include: • 76 per cent of people in a US prison continued to smoke following a ban;47 and • 93 per cent of smokers continued to smoke in Quebec prisons where an indoor ban applied. Most of them also smoked inside as they were only allowed outside into the courtyard for one hour per day. One staff member surveyed commented that ‘[t]he regulation looks good on paper but here we deal with inmates, and the boys don’t respect the rules outside so they won’t respect them here either’.48 Because people continue to smoke, but there is limited access to cigarettes and tobacco, there is a strong likelihood of the development of a black market in cigarettes, and the associated use of violence and intimidation. An ethnographic study across 16 US prisons with bans found that black markets existed to varying degrees depending on the security classification of the prison. The study’s author observed that: Inmates involved in the cigarette black markets were frequently individuals who had been incarcerated for drug crimes. These inmates were already skilled at financing and obtaining illegal substances; managing lieutenants, adversaries and turf; and eluding social control agents.49
An increase in violence was reported in one New Zealand prison following implementation of the ban.50 As one person in the NSW focus group commented ‘I’ve seen someone nearly get killed over a cigarette’ and it has also been found to lead to people trading sex for tobacco.51 The bans also mean that there are no attempts to separate smokers from non-smokers in cells. Non-smokers sharing with people who are smoking are unable to complain because this would subject their cell
mate to disciplinary proceedings. This runs counter to prison culture which requires that you do not ‘dob in’ your fellow inmates. Furthermore, smoking cessation programs often reduce when bans are implemented. This is most evident in the US where one study found that cessation programs and nicotine replacement therapies were ‘virtually nonexistent’ in 16 prisons with bans, and another found that only 39 per cent of prisons with total bans offer cessation programs.52 There were concerns expressed after the New Zealand bans were introduced about the lack of availability of smoking cessation support. However, it has since been suggested that extra support is being provided.53 An article published in 2012 suggests that the NZ smoking ban is working well one year after its introduction.54 However, the only empirical evidence cited to support this claim is a study that shows indoor air pollution has halved in one Auckland prison55 (which is an important achievement) and a Corrections media release about reduced incidence of fire.56 The authors of that article concede that an in-depth evaluation is required. This would need to include qualitative research about the experience of imprisoned people and an assessment of whether the problems experienced in other jurisdictions are also occurring in NZ prisons. In summary, although smoking bans have led to a slight reduction in smoking, they have failed to stop people from smoking. Non-smokers who continue to be exposed to second-hand smoke cannot report this without exposing the smoker to disciplinary proceedings. The imposition of bans often means that fewer smoking cessation programs are offered. Black markets develop, leading to violence and intimidation being used to gain access to cigarettes. In other words, not only do bans fail to achieve the objective of protecting non-smokers from second-hand smoke, they lead to other consequences that counteract the benefits of the reduction of smoking in prisons.
An alternative approach Given that bans do not work, alternative approaches need to be considered. Such initiatives should be premised on how to impose the least restrictions on the human rights of imprisoned people, as well as taking into account the particular stresses imposed by the prison environment that make it more desirable to some people to smoke, and harder for those who want to cease smoking. It is also necessary to take into account the reality that people are confined to their cells for the majority of the time. The national average of time spent out of cells is 11.1 hours per day, and in some states it is as little as 9.2 hours.57 Numerous medical researchers have noted that prison would be an ideal time to provide assistance to people to give up smoking and capitalise on the intention of many to do so.58 It represents an opportunity to assist a disadvantaged group to improve their health, but the opportunity is missed because there is insufficient access to the support necessary.
ARTICLES
The proportion of people in prison who smoke is much higher than in the general community. This is true of both imprisoned people and staff.
Giving up smoking should be encouraged, but remain voluntary, in the same way that it is voluntary in the broader community. The most obvious way to encourage this is by increasing the availability of smoking cessation programs and tools, such as nicotine replacement therapies, to assist the 75 per cent of smokers who express a desire to quit smoking while in prison. Providing low cost or free ‘subsidised nicotine replacement therapies, other pharmacotherapies, counselling and ongoing support for those who quit’ would encourage people to use them.59 It would also be useful to encourage staff who may smoke to access cessation programs and other tools in the community.60 Smoking cessation programs could usefully be tailored to the population groups most prevalent in prisons — Indigenous people, those with mental illness and those with multiple drug addictions.61 This would give the programs a greater chance of success. Of equal importance is the need to separate smokers from non-smokers. This can be done by having nonsmoking cells and, ideally, entire non-smoking wings. It is not realistic to ban smoking indoors completely while imprisoned people are being confined to their cells for more than half of each day. However, it may also be appropriate to have designated outdoor smoking areas that non-smokers can avoid. Staff will also need to respect these designations. Given that boredom is one of the main reasons people in prison smoke, it is important to ensure that more education and work opportunities are provided to people while they are in prison.62 This would mean people spend less time in their cells. This approach is a commonsense one, and should not prove overly expensive. However, it seems that attention is being diverted away from commonsense initiatives in Australian prisons as the race to implement bans gathers momentum.
Conclusion In Australia, where smoking is a legal activity that is only regulated in the community to the extent necessary to prevent harm caused to others, complete bans on smoking in prisons are difficult to justify. They become even more difficult to justify once the adverse consequences of the imposition of bans overseas is taken into consideration. A better alternative is to recognise smokers as having health needs that can be addressed while they are imprisoned if they voluntarily decide to give up, or
reduce their smoking. People need support to do this, including access to free cessation programs and nicotine replacement therapies. It is unrealistic to think that every smoker will stop smoking while in prison. For those who choose to continue to smoke while in prison, or who are unable to give up in the prison environment, there needs to be some control over where smoking is allowed. For example, smoking must only occur in cells that are not shared with non-smokers, or in designated outdoor areas where staff do not need to be exposed to the second-hand smoke. Smoking bans do not achieve the objective of protecting non-smokers from second-hand smoking. A more nuanced response that takes into account the reality and complexity of the prison environment is required. ANITA MACKAY is a PhD Candidate at the faculty of Law, Monash University.
57. SA and Tasmania. Steering Committee for the Review of Government Service Provision, Report on Government Services 2013 (2013) Volume 1, Table C9. 58. Belcher et al, above n 5, 347; Kauffman et al, above n 34, 360; Richmond et al, above n 10, 181. 59. Belcher et al, above n 5, 347. 60. Richmond et al, above n 10, 181. 61. Richmond et al, above n 10, 176; Lawrence et al, above n 13, 15. 62. Ritter et al, above n 10, 38.
This article was written in the author’s capacity as a research assistant on the Australian Research Council Linkage project, Applying Human Rights in Closed Environments: A Strategic Framework for Compliance. © 2014 Anita Mackay email:
[email protected]
Important notice for past contributors to the Alternative Law Journal The Alternative Law Journal/Legal Service Bulletin Co-Operative is changing the way it deals with the payment of royalties to authors. We need to introduce new copyright royalty arrangements to apply to all old articles published in the Journal. We would like you to agree to these arrangements in respect of any future royalty income payable by Copyright Agency Limited (CAL) for your articles previously published in the Alternative Law Journal. Under these arrangements, any income received through the Journal’s registration with CAL will be retained by the Co-Operative and used to continue publication of the Journal, in line with our current Author Licence Agreement. Whether or not you currently receive royalty payments directly from CAL in relation to articles published in the Journal, we would appreciate your agreement that all future royalty payments in respect of your articles previously published in the Journal are to be retained by the Co-Operative. Wherever possible we will try to contact you to confirm this arrangement. However, if you don’t hear from us, or you have moved, or you do not consent to this, please contact us by emailing . AltLJ Vol 39:2 2014 — 103
