In an article published in Legal Studies, I set out how English smoking and non-smoking prisoners’ rights are currently protected, explore what the legal implications are of a complete ban on smoking in prisons, and whether such a ban is desirable. I argue that prohibiting smoking indoors but permitting smoking in designated outdoor areas might strike a better balance between competing prisoners’ rights.
Smoking and non-smoking prisoners’ conflicting rights and interests can be briefly summarised as follows. On the one hand, non-smoking prisoners who are exposed to second-hand smoke in prison are in a vulnerable position because of their confinement. Unlike in the community, a non-smoking prisoner cannot simply leave their cell to avoid the harmful effects of exposure to another inmate’s smoking. On the other hand, imprisonment inevitably entails a grave restriction of autonomy that is inherent in the deprivation of liberty. It may thus become all the more important to preserve and protect whatever little autonomy prisoners retain. Autonomy includes the opportunity to do things that may harm oneself, such as smoking. Unlike individuals in the community whose right to smoke is restricted in public enclosed spaces, prisoners cannot just ‘pop out for a quick smoke’ or hold off the urge for a number of hours. Many are locked in their cells for 23 hours a day with little to do.
A complete smoking ban, whereby smoking is prohibited everywhere on prison premises, tilts the balance completely in favour of protection of non-smoking prisoners’ health and restricts smoking prisoners’ autonomy. A partial ban, where smoking is prohibited inside prison buildings but prisoners can smoke in designated areas outside, strikes a better balance between the competing rights of the smoking and non-smoking prisoners.
There are, however, certain complexities in making such a partial ban effective and manageable. Implementing an indoor smoking ban would require a sufficiently high number of prison guards who can oversee the process of letting prisoners go outside in a safe manner, giving the smoking prisoners controlled access to cigarettes and fire, and ensuring that non-smoking prisoners are sufficiently far removed from smoking prisoners to ensure effective health protection. Additionally, prison staff would need to be trained so that they enforce the ban inside and know what to do in terms of disciplinary action when they spot smoking in violation of the ban. The prison regime would also have to be organised in such a way that prisoners are allowed sufficient time outside in order to be able to exercise their right to smoke in a meaningful way. One hour a day, which is the standard in many prisons, might be sufficient, so in that regard no real changes need to be made to the existing regime.
However, it is questionable whether the UK government would be willing to implement an indoor smoking ban. The government’s current plan to impose total smoking bans in prisons nationwide is in step with a general trend in common law countries. Moreover, the government’s choice for a total ban is not surprising from a political viewpoint. In a country where citizens forfeit their fundamental right to vote upon incarceration, it would almost be cause for disbelief if extensive provisions were made to let prisoners continue to enjoy a noxious indulgence such as smoking. Additionally, the investment in prison staff and infrastructure necessary to make an indoor smoking ban practically feasible, is likely to be one of the lowest budgetary priorities for the government. Nevertheless, it is worth trialling indoor smoking bans in order to secure better human rights protection for the prison population as a whole, and only resorting to complete bans once it has been conclusively proven in each individual case that the desired aims of health protection cannot be achieved.
Maes E (2019), Legal implications of smoking (bans) in English prisons, Legal Studies, available online first here
Elise Maes is a DPhil candidate in Law, and a Stipendiary Lecturer in Criminal Law at St. Peter’s College.