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39 Alternative L.J. 99 (2014)
Stubbing out Smoking in Prisons: Bans Are an Ineffective Mechanism

handle is hein.journals/alterlj39 and id is 103 raw text is: ART CLES STUBBING OUT SMOKING IN PRISONS Bans are an ineffective mechanism ANITA MACKAY 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 symptoms' 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. 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 percent upon entry and 83 per cent upon discharge.' 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 percent);3 and * Indigenous people in prison are twice as likely to be smokers as Indigenous people in the community.4 AItLJ Vol 39:2 2014 - 99 REFERENCES I. 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 ('Al HW'), 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.

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