Op-Ed | Bringing Sunlight into Correctional Facilities: Expectations for the Selection of External Prison Visitors

On July 15, 2020, the newly enacted Prison Act and Detention Act took effect. One of the highlights of this reform was the requirement for correctional facilities to establish independent external visiting committees to uphold the principle of transparency and protect the rights of inmates. As the new laws approach their second year of implementation, the term of the first-generation committee members is coming to an end, and the second-generation members are about to be selected. At this juncture, how external prison visitors are selected deserves close scrutiny.

Regulations on the Selection of External Visitors

Pursuant to Article 7, Paragraph 1 of the Prison Act and Article 5, Paragraph 1 of the Detention Act, external visitors for correctional facilities are appointed by the Ministry of Justice upon recommendation by the Agency of Corrections. In practice, however, individual correctional facilities exert a decisive influence on the selection of their committee members.

Under the Regulations for the Implementation of External Visiting Committees in Prisons and Detention Centers, the Agency of Corrections does not independently compile and submit a list of external visitors to the Ministry of Justice; rather, individual correctional facilities submit their proposed lists to the Agency of Corrections, which then forwards them to the Ministry. Although the Agency is not strictly bound by the original lists submitted by the facilities when reporting to the Ministry, correctional facilities maintain substantial influence over the final appointment of members.

Since the Prison Act and Detention Act stipulate that external visitors must be selected from experts and scholars in the fields of law, medicine, public health, psychology, crime prevention, or human rights, the implementation regulations further require the Agency of Corrections to maintain a talent pool of experts and scholars. Relevant agencies, institutions, schools, and professional organizations are invited to recommend suitable experts and scholars, and self-nominations are also accepted. However, this talent pool is purely reference-based; correctional facilities may choose not to use it and instead independently source suitable experts and scholars for their proposed lists.

During the drafting process of the authorization regulations for external visitors, civil society organizations expressed concern over the design allowing individual facilities to propose the list of nominated members. By law, external visiting committees must be independent of correctional facilities. This independence must exist not only during the exercise of their official duties but also at the stage of member selection. Allowing facilities to propose candidate lists not only enables them to select individuals with whom they are already familiar, but also makes it difficult for the public to ascertain whether potential members have conflicts of interest with the facilities they oversee, severely eroding the independence of the visiting committees. Unfortunately, these concerns raised by civil society groups were ignored by the Ministry of Justice and the Agency of Corrections.

Who Exactly Becomes an External Prison Visitor?

While the selection mechanism for external visitors is one issue, it cannot replace an examination of the selection outcomes themselves. After compiling the publicly available talent pool of external visitation experts and scholars alongside the list of first-generation committee members, regarding the question of "who becomes an external prison visitor," we found that external recommendations matter very little, and the vast majority of members are handpicked by the correctional facilities themselves.

There are a total of 252 external visitors (with individuals serving on multiple committees being counted multiple times). Among them, 230 members—accounting for a staggering 91%—were directly included in the proposed lists by correctional facilities without any external recommendations. Of these 230 members independently included by the facilities, 184 consented to having their information publicly listed in the talent pool while serving as committee members, which is designated as "agency-recommended" in the talent pool, while 46 members withheld consent to be listed (see Appendix). In contrast, only 22 external visitors entered the talent pool through external recommendations before being selected by facilities for their proposed lists. Furthermore, among these externally recommended members, professors from the Department of Crime Prevention and Corrections at Central Police University accounted for 9. In other words, even among externally recommended candidates, individuals familiar to the correctional facilities accounted for roughly 40%.

The author will proceed to examine which experts and scholars in the fields of human rights and law within the talent pool were selected as committee members. These two fields were chosen because the author is more familiar with them. The selection outcomes for experts and scholars in medicine, public health, psychology, and crime prevention are left for professionals in those respective fields to explore.

Which Human Rights Experts and Scholars in the Talent Pool Were Appointed as Committee Members?

Members specializing in human rights hold particular importance in the composition of external visiting committees. Article 7, Paragraph 1 of the Prison Act and Article 5, Paragraph 1 of the Detention Act explicitly state that the purpose of establishing external visiting committees is to "uphold the principle of transparency and protect the rights of inmates." If the visiting committees include individuals familiar with human rights conventions and documents concerning inmate rights—especially the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules)—it greatly facilitates the establishment of appropriate visitation priorities and the formulation of recommendations.

Within the talent pool, a total of 67 individuals listed "human rights" as their field of expertise (individuals could list multiple fields), of whom 28 were selected as committee members. Among these 28, 22 were agency-recommended, and the academic and professional backgrounds of these experts and scholars are fully recorded in the talent pool.

We found that upon reviewing the talent pool and searching public information online, it was difficult to discern why certain agency-recommended human rights experts and scholars were classified as such. For instance, one committee member is a current police officer whose specialized fields are listed as "law and human rights," yet their academic and professional background bears little discernible relation to the protection of inmates' rights, with their expertise at best arguably lying in the protection of crime victims' rights. Similarly, another member is a school principal whose specialized field is listed as "human rights," but whose academic and professional background merely records educational credentials and past teaching positions, offering no clear rationale for why human rights is considered their area of expertise.

In contrast, several frontline human rights workers—whose work directly involves inmate rights and who were recommended by external entities, such as staff members from the Taiwan Association for Human Rights and the Taiwan Alliance to End the Death Penalty—were not selected as external visitors. Placing these two groups side by side makes the selection criteria for committee members utterly incomprehensible.

Which Legal Experts and Scholars in the Talent Pool Were Appointed as Committee Members?

Within the talent pool, a total of 105 individuals listed "law" as their field of expertise, of whom 45 were selected as committee members. Out of these 45, 41 were agency-recommended, and the majority of those who served through agency recommendations were practicing attorneys. Notably, all practicing attorneys who entered the talent pool via external recommendations rather than agency recommendations failed to secure appointments as external visitors.

Among the legal experts and scholars recommended by agencies, 5 were university professors (including associate and assistant professors) holding the following current positions: a professor at the Department and Graduate Institute of Crime Prevention and Corrections of National Chung Cheng University, an associate professor at the same department, a professor of financial and economic law at CTBC Financial Management College, an assistant professor in the Department of Psychology at Hsuan Chuang University, and an associate professor in the Department of Land Management at Feng Chia University.

By contrast, only 2 university professors who were recommended by external entities and teach in university law departments were selected as committee members: a professor from the Department of Law at National Chung Cheng University and an assistant professor from the Department of Law at Fu Jen Catholic University. Professors teaching in law-related departments at other universities—such as National Central University, Chinese Culture University, National Taipei University, National Taiwan University, Tunghai University, and National University of Kaohsiung—were entirely unselected. While some of these professors specialize in legal fields more remote from inmate rights, others are explicitly scholars of criminal law, yet they were similarly excluded from serving as external visitors.

Conclusion: Expectations for the Selection of External Prison Visitors

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As the selection process for the second-generation external prison visitors is about to commence, the author puts forward the following expectations regarding the selection of members:

1. The selection of external prison visitors should be primarily managed by the Agency of Corrections, rather than delegated to individual correctional facilities to propose candidate lists. Civil society organizations strongly opposed letting correctional facilities propose candidate lists for external visitors during the drafting of the authorization regulations. In hindsight, correctional facilities have indeed leveraged their authority to propose lists to substantially influence the selection of external visitors. The author maintains that Article 7, Paragraph 1 of the Prison Act and Article 5, Paragraph 1 of the Detention Act clearly stipulate that external committees must be independent, and that external visitors are appointed by the Ministry of Justice upon recommendation by the Agency of Corrections. The statutes do not authorize individual correctional facilities to propose candidate lists, and such delegation gravely undermines the independence of the visiting committees. The selection of external visitors must return to the framework of the parent statutes and should no longer be entrusted to individual facilities.
   If the Agency of Corrections finds it challenging to compile lists of candidates across various specialized fields, it can establish a selection committee composed of prominent experts and scholars from each field to select external visitors for their respective domains, thereby avoiding controversy.
   
2. The Agency of Corrections should categorize the types of conflicts of interest between first-generation external visitors and the facilities they oversaw, and strengthen regulations regarding conflicts of interest. Currently, regulations concerning conflicts of interest between visiting visitors and supervised facilities are limited to Article 8 of the Regulations for the Implementation of External Visiting Committees in Prisons and Detention Centers:
   Civil servants currently employed by the supervisory authority and its subordinate agencies shall not serve as members of the external visiting committee.
   Spouses and blood relatives within the second degree of kinship of facility employees and inmates shall not serve as members of the external visiting committee for that facility.
   Individuals serving as members of a facility's grievance review committee or parole board shall not serve as external visiting committee members for the same facility.
   
   Ideally, first-generation external visitors should have been free from the conflicts of interest listed in this article. However, other undisclosed or unregulated types of conflicts of interest between committee members and facility leadership—such as personal familiarity with prison higher-ups or ongoing business dealings with the facilities—may still severely undermine the independence of the visiting committees.
   If the Ministry of Justice and the Agency of Corrections insist that correctional facilities must remain responsible for proposing candidate lists, the Agency must promptly clarify and categorize the types of conflicts of interest that existed between first-generation visitors and facilities beyond those covered under Article 8 of the implementation regulations, and review which conflict-of-interest categories should be incorporated into the authorization regulations or how they ought to be regulated.
   
3. External visitation can only be effective through the active participation of experts and scholars from all sectors who care about prison transparency and inmate rights. While organizing the talent pool data, the author discovered a high degree of concentration among recommending organizations. Aside from agency recommendations, the majority of experts and scholars in the talent pool were recommended by the Prison Watch (43 individuals) and the National Union of Certified Psychologists (21 individuals). Meanwhile, the Taiwan Bar Association (formerly the "National Bar Association of the Republic of China"), despite having been formally requested to assist in recommending experts and scholars to the talent pool, failed to recommend a single attorney. Similarly, although multiple colleges and universities were requested to assist in recommendations, those that actually submitted recommendations were limited to National Central University (3), Central Police University (13), National Taipei University (1), National University of Kaohsiung (3), Tunghai University (1), and Fu Jen Catholic University (3).
   The duties of an external prison visitor are by no means light; under current law, they are required to submit visitation reports every quarter, yet their role is vital for realizing prison transparency and safeguarding inmate rights. It is our sincere hope that experts and scholars from all fields will be willing to accept recommendations from relevant agencies, institutions, schools, and professional organizations when the Agency of Corrections updates its talent pool, or proactively self-nominate themselves for inclusion in the talent pool.
   

Appendix

Statistics on External Visiting Committee Members Joining the Talent Pool (Compiled on May 31, 2022)

Correctional Facility External Visiting Committee	Number of Members	Members Not in Talent Pool	Members in Talent Pool	Agency-Recommended	Externally Recommended
Taipei Prison	7	1	6	4	2
Taoyuan Prison	4	0	4	4	0
Bade Minimum Security Prison	3	2	1	1	0
Taoyuan Women's Prison	5	2	3	2	1
Hsinchu Prison	3	0	3	3	0
Taichung Prison	5	0	5	4	1
Taichung Women's Prison	5	1	4	4	0
Changhua Prison	5	0	5	5	0
Yunlin Prison	6	1	5	3	2
Yunlin Second Prison	5	0	5	5	0
Chiayi Prison	6	1	5	5	0
Tainan Prison	5	1	4	4	0
Tainan Second Prison	3	2	1	1	0
Mingde Minimum Security Prison	5	0	5	5	0
Kaohsiung Prison	7	0	7	7	0
Kaohsiung Second Prison	6	0	6	6	0
Kaohsiung Women's Prison	5	0	5	5	0
Pingtung Prison	5	2	3	3	0
Taitung Prison	5	1	4	4	0
Hualien Prison	5	0	5	4	1
Chih-chiang Minimum Security Prison	5	0	5	5	0
Yilan Prison	6	3	3	3	0
Keelung Prison	6	0	6	5	1
Penghu Prison	4	0	4	4	0
Green Island Prison	5	0	5	5	0
Kinmen Prison	5	5	0	0	0
Taipei Detention Center	5	1	4	2	2
Taipei Women's Detention Center	6	1	5	4	1
Hsinchu Detention Center	3	2	1	1	0
Miaoli Detention Center	7	0	7	7	0
Taichung Detention Center	5	0	5	5	0
Changhua Detention Center	3	1	2	2	0
Nantou Detention Center	6	3	3	2	1
Chiayi Detention Center	5	0	5	3	2
Tainan Detention Center	5	0	5	5	0
Pingtung Detention Center	3	1	2	2	0
Hualien Detention Center	5	0	5	4	1
Keelung Detention Center	5	1	4	2	2
Xindian Drug Abuser Treatment Center	7	2	5	4	1
Taichung Drug Abuser Treatment Center	5	1	4	4	0
Kaohsiung Drug Abuser Treatment Center	5	0	5	5	0
Taitung Drug Abuser Treatment Center	3	1	2	2	0
Taiyuan Skill Training Institute	6	0	6	5	1
Dongcheng Skill Training Institute	5	3	2	2	0
Yanwan Skill Training Institute	4	2	2	2	0
Taipei Juvenile Detention Center	5	2	3	2	1
Tainan Juvenile Detention Center	7	0	7	6	1
Cheng-Cheng High School	3	2	1	1	0
Ming-Yang High School	3	1	2	2	0
Dunpin High School	5	0	5	4	1
Lih-Jih High School	5	0	5	5	0
Total	252	46	206	184	22

※ This article was published in Up Media on June 3, 2022.