Women Prisoners and Health Justice

Perspectives, Issues and Advocacy for an International Hidden Population

Dianne Hatton, Anastasia Fisher

• Publisher: CRC Press
• Year: 2018
• Print ISBN:
  9781138450349
• eBook ISBN:
  9781315346892
• Topic: Medicine
• Subtopic: Medical Theory, Practice & Reference

Incarceration severely affects the health and wellbeing of women both during their incarceration and following release, further complicating the health disparities they already experience as a consequence of gender, race and social class. The scope of this international problem remains largely hidden from health professionals and policy makers. This book brings the issues into the light, with contributions from leading advocates, criminologists, feminists, nurses, physicians, public health professionals, social workers, sociologists and former prisoners.

CHAPTER 1

The Ongoing Struggle for Ethical Ideals: Justice and Human Rights

Anne Davis

Ethics is not an ideal system which is all very noble in theory but no good in practice. The reverse of this is closer to the truth: an ethical judgment that is no good in practice must suffer from a theoretical defect as well, for the whole point of ethical judgments is to guide practice.¹

Introduction

Perhaps the first philosopher to use the term “human rights” was Henry David Thoreau in his influential treatise, Civil Disobedience. This work influenced many, including Tolstoy, Gandhi, and Martin Luther King, Jr.² Thoreau refused to pay his tax because he opposed slavery and the US war against Mexico: as a result the town constable arrested him, and Thoreau spent a night in the city jail for civil disobedience.

Since then many individuals and groups have used this term, human rights, in socio-political debate and action. Today millions of web sites focused on human rights provide insights, including that this ethical and legal ideal is a long-standing, difficult to enforce, humanistic goal not yet fully achieved. However, these sites also tell us that much activity on human rights issues is underway. The sites detail historical facts, recent realities and abuses, and include those run by activist organizations that disclose violations of human rights and advocate for change. Over 23 million web sites focus on rights and prisoners, a vulnerable population with respect to the basic values of liberty, justice, and human rights.

In industrialized countries, some think that human rights violations only occur in other places. However, Amnesty International and similar advocacy groups remind us that this perception is limited and faulty. Believing that human rights violations happen only elsewhere serves as a convenient myth that allows us to dismiss larger socio-ethical issues as not our problem. Additionally, some people think that those deprived of their human rights, whether at home or elsewhere, possibly deserve such treatment given who they are and/or what they have done. This list might include international terrorists and/or citizens who have broken local laws and are now incarcerated. Whatever governments and individuals think about human rights and their violation, these ideals, perceptions and definitions need close and constant examination. The United Nations (UN), numerous national governments, Amnesty International and other groups have made it clear that incarcerated people have human rights and that no person’s freedom should be violated without just cause. How “just cause” is determined can be at issue in the law itself and in how the law is enacted.

Human rights transcend formal and informal boundaries but the world is divided by many factors including geography, religion, ethnicity, political systems, gender, and economics. Sometimes a group that is held together by one of these factors comes to define another group, which differs from it, as The Other. Sometimes this Other becomes defined as sub-human or non-human, making it possible to violate the rights of that group. One does not have to reach far back into history to find this mentality. It continues today. Recent examples include: the Nazis and the Jews; white people and people of color; Protestant and Catholic; Hindu and Muslim; men and women; one tribe and another tribe; people of one country and people of another country.

This chapter has four aims: (1) to explore the philosophical and historical roots of the ethical principle of justice; (2) to define the concept of human rights; (3) to describe briefly the link between health and human rights; and (4) to note selected human rights documents useful in the consideration of justice issues related to the health of incarcerated women.

Models of Justice

Human rights are grounded in the ethical principle of justice, and several models of justice have been developed that include: (1) formal justice; (2) restorative justice; (3) punitive justice; and (4) social justice. In general, justice has to do with fairness, what is deserved, and to what one is entitled. Formal justice refers to minimal requirement and, according to Aristotle, equals must be treated equally, and unequals must be treated unequally.^3,4 This ethical and legal principle states no criteria for how the notions of equal/unequal are to be determined. Under formal justice, treating similar cases in similar ways and dissimilar cases in dissimilar ways is one of the oldest philosophical truisms. Those who are accused of committing serious crimes are all similar in at least that respect and as a consequence they are treated in similar ways – tried, acquitted or convicted, released or punished (usually) by incarceration in a prison.

Yet there are many differences between these persons that might well be the basis for dissimilar treatment. Traditionally Western penal systems, no doubt under the direct influence of Christianity, were designed primarily for the fallen sinner, the moral agent who had succumbed to temptation but was at least potentially capable of remorse. Eventually this prisoner as penitent became prisoner and debtor, a self-interested person who freely assumed the risk, lost, and now must pay the price. The problem for our society is to match the generic mode of treatment to the criminal. It is very likely that punishment in the strict sense is not a suitable means of dealing with many types of criminals, perhaps only the penitents and the risk-takers. For most of the others, it is pointless or self-defeating.

Restorative justice is concerned with healing victims’ wounds, restoring offenders to law-abiding lives, and repairing harm done to interpersonal relationships and the community. This forward-looking, preventive response strives to understand crime in its social context and challenges us to examine root causes of violence and crime.^5,6,7 This alternative philosophical framework for thinking about crime and criminal justice emphasizes how crime harms relationships in the context of community. Restorative justice gives priority to repairing the harm done to victims, communities, and offenders. In this alternative to punitive justice, both the victim and the community become more actively involved in the justice process. By examining the root causes of crimes committed by women and addressing them, a justice system might be developed that avoids the damage done to all parties and eliminates or reduces the revolving door between community and prison. In this model, only violent career criminals would be imprisoned and those convicted of non-violent crimes would be involved in supervised community projects. This model of criminal justice restores or creates equity and is best accomplished through cooperative processes with all stakeholders involved.⁸

Punitive justice focuses on inflicting punishment and on retribution. Using this model, communities can expel an individual or require that money be paid in damages. This has been the major justice model for much of human history and may be one reason there is a need for an active focus on human rights today. One assumption in this model is that if people are punished for wrongdoings, the public is protected from harm. This is a situation in which individual freedom is greatly limited by the state for the public’s safety. Stemming from these notions is the ultimate idea in punitive justice – capital punishment. The evidence, however, does not necessarily support the relationship between the state taking the life of a convicted prisoner and deterring others from committing crimes. For example, in 2004 the Executive Director of the Justice Policy Institute in Washington, DC argued that the drop in crime could not be attributed to tough sentencing laws such as the California “three strikes and you’re out” law. Between 1994 and 2002, California’s prison system grew by 34 724 inmates, while New York’s grew by only 315. If tough laws actually protect people, then California’s violent crime rate should have dropped relative to New York’s. Yet, during this time, New York’s violent crime rate dropped 20% more than California’s. Schiraldi⁹ notes that the problems of crime and the challenges of public safety cannot be solved by draconian laws with catchy names.

Social justice refers to an entire society. It is based on the notion of a just society that gives both individuals and groups fair treatment and a just share of the society’s benefits (distributive justice). This model of justice came to prominence at the end of the nineteenth century after 1861 when Mill wrote his famous book on utilitarianism.¹⁰ He believed that societies could be virtuous in the same way that individuals could be. While critics question whether this virtue can be ascribed to today’s complex societies,¹¹ social justice concerns of equity, burdens, and shared benefits, are used by social scientists to critique prisons and their health policies. Some argue that it is a social injustice when incarceration occurs at high rates and with great disparities.¹²

Human Rights

The complex idea of human rights, based on the fundamental ethical principle of justice, has various definitions. One definition is: human rights are held by all persons equally, universally, and forever. They are inalienable, indivisible and interdependent. Human rights are those basic standards without which people cannot live in dignity. To violate someone’s human rights is to treat that person as though he or she were not a human being. To advocate for human rights is to demand that the human dignity of all people be respected.¹³

The most fundamental legal definition of human rights is: the basic rights and freedoms to which all humans are entitled, often held to include the right to life and liberty, freedom of thought and expression, and equality before the law. This definition addresses the role of the state toward the individual and the role of the individual in the state and includes civil, political, economic, social and cultural rights.¹⁴ This idea, equality before the law, has been criticized by some who raise it as a socio-political issue, especially with regard to sentencing individuals in the courts. If justice is blind, the legal system would not and should not discriminate against a person because he or she has certain personal or social attributes such as gender, ethnicity, or social class. However, we know that in some countries poor people are more likely to be incarcerated than those who are economically better off. Langston Hughes, the poet and social critic, wrote:

That justice is a blind goddess

Is a thing to which we poor are wise:

Her bandage hides two festering sores

That once, perhaps, were eyes.¹⁵

The question is: can we have the possibility of doing justice in an unjust society?

Rousseau (1712–78) writing about the “Social Contract” contends that all rights are essentially social. Furthermore, law, as the voice of the general will, provides security in human rights. The legal system codifies...

Table of contents

• Cover
• Half Title
• Dedication Page
• Title Page
• Copyright Page
• Contents
• Foreword
• Preface
• About the Editors
• List of Contributors
• 1 The Ongoing Struggle for Ethical Ideals: Justice and Human Rights
• 2 Social Capital: A Lens for Examining Health of Incarcerated and Formerly Incarcerated Women
• 3 Challenges Incarcerated Women Face as They Return to Their Communities: Findings From Life History Interviews
• 4 Women, Health and Prisons in Australia
• 5 Incarceration of Women in Britain: A Matter of Madness
• 6 The Importance of Gender in US Prisons
• 7 Prisons Are Sickening: What Do We Do About It?
• 8 Achieving Sustainable Improvement in the Health of Women in Prisons: The Approach of the WHO Health in Prisons Project
• 9 Standards for Prison Health Care: US and British Approaches
• 10 Ethics for Health Care Providers: Codes as Guidance for Practice in Prisons
• 11 Advocacy
• 12 Teaching and Learning for Social Transformation
• 13 Women Prisoners and Health Justice: Challenges and Recommendations
• Index