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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

Bans are an ineffective mechanism

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

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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