Comments and Recommendations on Q4 2020 External Inspection Reports for Correctional Institutions

External Inspection Reports Should Be Written and Submitted by the Panel Members Themselves

Article 7, Paragraph 1 of the Prison Act and Article 5, Paragraph 1 of the Detention Act require each correctional institution to establish an "independent" "external" inspection panel in order to implement transparency and protect inmates' rights. Each panel has three to seven members, who serve two-year terms without compensation and are appointed after the supervisory authority reports the nominations to the Ministry of Justice for approval.

Under Article 7, Paragraph 3 of the Prison Act and Article 5, Paragraph 3 of the Detention Act, the panel must inspect institutional operations and matters affecting inmates' rights and issue a quarterly report. The institution submits the report through the supervisory authority to the Ministry of Justice for record, the report is made public in an appropriate manner, and the responsible authorities then respond to and address the matters raised.

The statutory emphasis on an "independent" "external" panel shows that inspection is to be conducted from a position independent of and outside the institution itself. Although Article 18 of the Regulations Governing External Inspection Panels of Prisons and Detention Centers requires an institution to provide necessary personnel, material, administrative, and other assistance when requested by a panel, that assistance should concern non-core administrative support-such as providing meeting or interview rooms, transportation, or photocopying. The report is a core product of external inspection and should be written by the panel members themselves so that their independence is real and the public can evaluate their work.

Some Q4 2020 reports, however, appear to have been drafted by the correctional institutions themselves. One report stated that the panel held its first meeting to elect a convener, discuss meeting rules, and decide how the panel would operate, but that "the members were not yet familiar with the prison"and therefore proposed no inspection items. The phrasing reads like a third party recording what the members did rather than the panel speaking in its own report.

The law requires the inspection panel itself to submit a report for public review; the institution is not responsible for the report's contents. We therefore expect future reports to eliminate the practice of institutions drafting reports on behalf of panel members.

Inspection Reports Should Be Presented Separately from the Responsible Authority's Response

Article 7, Paragraph 3 of the Prison Act and Article 5, Paragraph 3 of the Detention Act contemplate a sequence: the panel inspects and issues a quarterly report; the report is submitted and made public; and the responsible authorities then respond to and address the matters raised. The report format prescribed by the Agency of Corrections nevertheless includes a column for the "Institution's Response."

Putting the institution's response inside the inspection report itself is inconsistent with that statutory structure. The responsible authorities-including the correctional institution-should respond only after the panel has issued and published its report. Because responses need time to be prepared and compiled, it is entirely normal for them to appear later. They could be published in a separate table or attached by the panel to the following quarter's report.

The Agency of Corrections' requirement that every report use its prescribed format is also unsupported by the governing regulations. Article 17, Paragraph 1 of the Regulations Governing External Inspection Panels of Prisons and Detention Centers requires a quarterly report to be approved at a panel meeting, submitted by the institution through the supervisory authority to the Ministry of Justice for record, and made public on the supervisory authority's website or by other appropriate means. It does not require use of any particular reporting format.

The Agency's format appears to draw on Japanese practice, but Japan's penal-institution inspection committees do not themselves have a statutory duty to issue inspection reports. Article 10 of Japan's Act on Penal Detention Facilities and the Treatment of Inmates and Detainees instead requires the Minister of Justice each year to compile the committees' opinions and the measures taken by heads of penal institutions and publish a summary. The Japanese Ministry of Justice therefore uses a table summarizing committee views and institutional responses; the committees themselves are not responsible for compiling that summary. Taiwan's system is different: the external inspection panel is responsible for its own public report, while the competent authorities-including the institution-are responsible only for responding with respect to matters within their authority.

The Law Allows Inmates to Petition the External Inspection Panel; the Petition-Handling Procedure Should Be Clearer

Article 92, Paragraph 1 of the Prison Act and Article 84, Paragraph 1 of the Detention Act allow inmates to submit petitions to an external inspection panel orally or in writing. Article 16 of the Regulations Governing External Inspection Panels of Prisons and Detention Centers further provides that, after receiving such a petition, the panel may consider whether the allegations are specific, whether the matter is within its authority, its relationship to inspection priorities, and the panel's workload, and then decide either to handle the matter through the external-inspection process or refer it to the institution. The decision therefore belongs to the external inspection panel.

The published reports nevertheless show cases in which an inmate petitioned the external inspection panel but the institution handled the matter first and only later reported what it had done. In one example, an inmate complained in writing that the sound of staff closing doors in the central corridor interfered with study, reading, writing, and other activities. The institution characterized this as the inmate's "personal perception" and said it would nevertheless maintain anti-collision foam, post reminders to close doors gently, and remind staff during training. The panel itself was never given an opportunity to decide how the petition should be handled. That procedure is inconsistent with the regulations and intrudes on the panel's authority.

We also found the opposite problem: institutions referred matters to the panel even when the inmate had petitioned a different authority. For example, an inmate complained to the Agency of Corrections about poor food quality and failure to convene food-service meetings, but the external inspection report later stated that the panel retrospectively approved the institution's handling of the matter. If a petition was submitted to another authority rather than the external inspection panel, whether the panel has authority to process it at all is open to question.

The Q4 reports suggest that inmates who want to communicate with an external inspection panel generally must use suggestion boxes inside the institution. The boxes are opened by the institution's secretary together with ethics personnel; a submission addressed to the external inspection panel is then forwarded to the panel. Written opinions thus pass through the institution. Where institutions themselves first handle petitions intended for the panel, they necessarily read the contents. That is a serious problem because of the power imbalance between correctional institutions and inmates: people in custody may hesitate to describe their real experiences or views if they fear being labeled or suffering consequences. One panel noticed the problem and asked whether written comments could be delivered directly to panel members. The institution responded that comments ordinarily go through the suggestion box and are not given directly to members, although it could assist if members wished to obtain them.

Article 12, Paragraph 1, Subparagraph 3 of the Regulations allows an external inspection panel to request written opinions directly from inmates. Article 13, Paragraph 4 further provides that institutional personnel may not read the contents of written opinions collected in that way. The law therefore permits panels to establish channels other than the institution's suggestion box and to receive written opinions without institutional review. We hope external inspection panels will make direct receipt possible in practice.

Taken together, these reports show that procedures for handling inmate petitions remain unclear. Inmates have a statutory right to petition an external inspection panel, and the panel has responsibility for receiving those petitions. Petitions addressed to the panel should reach it directly; the institution should wait for the panel's decision before responding rather than intervening at the outset.

Reports Should Clearly Tell the Public What the Panel Saw

The purpose of requiring public inspection reports is to help people outside the institution understand prison and detention conditions and thereby protect human rights through greater transparency. Many of the first reports do not perform that function. They read more like meeting minutes written for people who were already present. One report, for example, records a member asking the institution to explain what assistive devices were available to inmates with disabilities and to provide photographs and data. The institutional response says that handrails, seated toilets, other assistive devices, photographs, and data were provided to the members. But none of the photographs or data is available to a member of the public reading the report. At the time this commentary was completed, no institutional report posted by the Agency of Corrections had been downloaded more than 200 times. Given the number of experts mobilized for the new inspection system, its public impact was plainly limited.

External inspection reports should clearly present the matters that concerned the panel and what the members actually saw and learned. Unless disclosure would reveal personal data or information that could compromise custodial security, important photographs and data should be included in the report, while important documents can be appended as attachments.

Some of the first reports already include useful information such as annual inspection priorities, meeting dates, inspection activities, and the number of petitions received. Future reports should provide more of this information so that the external-inspection mechanism can fulfill the transparency goals of the statutory reforms.

Because the Q4 2020 reporting period was unusually short, we recognize the practical constraints. At a minimum, however, future reports should include the following information so the public can understand conditions in the institution:

1. Panel Information: number of members, names, and professional backgrounds.
2. Inspection Activity Information: annual inspection priorities and plan; dates and frequency of site visits; persons interviewed and sampling methods; methods used to collect written opinions and the number received; documents requested; other inspection steps taken to understand institutional operations and inmates' rights; and the number of petitions received.
3. Basic Institutional Information: number and categories of inmates, staffing, and other contextual information helpful to understanding the report, such as a brief history of the institution.