Prisoners' Rights

Principles and Practice

Susan Easton

• Publisher: Willan
• Year: 2011
• Print ISBN: 9781843928089
• eBook ISBN: 9781136817045
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Prisoners' Rights: Principles and Practice considers prisoners' rights from socio-legal and philosophical perspectives, and assesses the advantages and problems of a rights-based approach to imprisonment. At a time of record levels of imprisonment and projected future expansion of the prison population, this work is timely.

The discussion in this book is not confined to a formal legal analysis, although it does include discussion of the developing jurisprudence on prisoners' rights. It offers a socio-legal rather than a purely black letter approach, and focuses on the experience of imprisonment. It draws on perspectives from a range of disciplines to illuminate how prisoners' rights operate in practice. The text also contributes to debates on imprisonment and citizenship, the treatment of women prisoners, and social exclusion.

This book will be of interest to both undergraduate and postgraduate students of penology and criminal justice, as well as professionals working within the penal system.

1	Prisoners’ rights
	From social death to citizenship

Introduction

This book examines the role of prisoners’ rights in moving convicted prisoners from a state of social and civil death towards a recognition of their citizenship grounded in social inclusion.¹ It argues that the notion of citizenship can be reconstructed to include prisoners and that a rights-based approach is crucial in moving the prisoner from the status of a non-person, who is socially dead, towards citizenship. Only such a reconstruction will lead to substantial improvements in the treatment of prisoners and to the raising of standards in prison while alternative methods, including new managerialist strategies, have been less effective in achieving significant improvements.

Reference will be made to the treatment of prisoners in the United States, the United Kingdom and the Netherlands as these states, despite their differing histories, cultures and social contexts, face similar political problems in maintaining integration and stability in the face of social fragmentation. While there are similarities between political processes in both the USA and the UK, we also find a ‘time lag’, as some of the problems they have experienced of prison expansion and increased punitiveness and prison disorder, occurred here later. The development of the courts’ treatment of rights claims will be considered in Chapter 2. The United States is also of interest because it is more extreme than the UK in the level of incarceration and the austerity of its regimes. In the USA there has been a substantial increase in the prison population so that it is eight times higher than in 1970. By December 2008 the prison population exceeded 2.3 million compared to 1.2 million in 1990, but it fell slightly to just over 2.2 million by June 2009 (ICPS 2010). This situation has been described as ‘mass imprisonment’ and there are also large numbers are on parole and probation. This expansion reflects changes in public attitudes, the importance of crime and punishment as a political issue and an increasingly vociferous media which plays on fears of crime. While the prison population has increased in most western countries since the early 1990s, the increase in the United States has been more dramatic.

The experience of other jurisdictions can also provide insights into the negotiation of prisoners’ rights claims. Clearly, there are many other societies whose experience would be of interest but the USA and the Netherlands have been selected as they appear to lie at opposite ends of the spectrum.² There are significant differences between the USA and Europe, principally the commitment to the death penalty, rejected in Western Europe decades ago, and greater use of mandatory minimum sentences.

However, the differences between the European and American experiences should not be overstated. In recent years penological debates have tended to focus on what has been described as American ‘exceptionalism’, exemplified by the fact that the USA retains a commitment to the death penalty and has high levels of incarceration and punitiveness. Certainly this debate raised important issues about political and cultural differences, but perhaps underplays the similarities between the European and American penologies, theories and practices. Whitman (2003), for example, compares the USA unfavourably with France and Germany and attributes this to deep-rooted cultural differences, including the tradition of respect for the dignity of the individual in France and Germany, missing in the USA, which reflects historical pressures including the reaction against fascism. Zimring focuses on the tradition of vigilantism missing from Europe, while van Zyl Smit and Snacken see respect for human rights as part of the European cultural heritage, so European prison regimes at a formal level recognize prisoners have rights which follow them into prison and any rights infringements will be assessed on the principle of proportionality (Zimring 2003, van Zyl Smit and Snacken 2009).

This focus on American exceptionalism fails to take account of the fact that increased punitiveness and expansion of imprisonment are trends found worldwide in the past twenty years, including Western Europe. Prison expansion seems to be a global phenomenon. For example in Australia we find a similar expansion in the population since the 1990s, with an increase in retributivism and scepticism regarding the rehabilitation and reform of offenders, increased punitiveness of the public and sentencers, as well as the development of managerialist approaches and privatization of prisons.³ In the UK, well over half the population do wish to restore the penalty but motions to do so have repeatedly failed in Parliament, so attitudes between the UK and the USA on capital punishment may not be so far apart. We also find increased punitiveness across Europe. Moreover, in both the USA and the UK fear of crime has persisted despite falling crime rates.

But there is considerable variation within the United States and within Europe on penal policy and practice. In the USA, of course, many states have abolished the death penalty or rarely use it and there is a strong and well-established abolitionist movement. There are also differences between states in levels of imprisonment and in some states the imprisonment rate fell in 2008. There have also been periods when the penalty has been suspended, for example, following the decision in Furman v Georgia 405 US 238 (1972). As Garland (2005) notes, even when the death penalty is administered in the USA the aim is to minimize pain by using lethal injections, and to accord the individual as much dignity as possible, for example by carrying out executions in private, compared to states such as Saudi Arabia where beheadings are administered in public or states where the individual is stoned to death, such as Iran and Somalia. Article 104 of the Iranian Penal Code prescribes that when executing for adultery the stones should not be large enough to kill the person by one or two strikes, nor so small that they could not be defined as a stones. So it is clear that the aim is to cause pain and that the death should be slow to maximize the pain and suffering. Furthermore in the USA the use of the death penalty is limited to first degree murder in contrast to states where it may be used for much lesser offences and for acts which many would not see as criminal at all, such as adultery and homosexuality, in Somalia and Iran.

In contrast, the use of the penalty has narrowed considerably in the USA and there have been repeated constitutional challenges to outlaw it under the Eighth Amendment prohibition on cruel and unusual punishment. Its use is now prohibited on those who are under 18 following Roper v Simmons 543 US 55 (2005) and on those who are mentally retarded following Atkins v Virginia 536 US 304 (2002). It is also conceivable that the Courts could go further in the future and reject the penalty itself.

Moreover, some states have more progressive penal policies than others and there is a long a tradition of prison reform, partly influenced by the Quaker movement and the prisoners’ rights movement flourished in the USA in the 1970s. Moreover, as we shall see in Chapter 2, constitutional challenges in the courts have secured many advances in the treatment of prisoners and the Supreme Court has played a key role in the protection of prisoners. There is also a variety of imaginative programmes, for example in Denver, Colorado there is an inmate canine training programme in women’s prisons where offenders follow a training programme using rescued and donated dogs and learn skills they can use outside but also benefit from the relationship with the animals inside the facility. So the punitiveness highlighted by commentators is a relatively recent feature rather than an intrinsic feature of American culture.

There is also considerable variation within Europe. While European prison conditions and prison law are seen as a model which respects human rights and human dignity, this does not apply throughout Europe. Eastern European prisons have poor conditions and few resources, Belarus retains the death penalty and the Russian Federation has high incarceration rates, poor conditions in many of its prisons and has been slow in implementing change in response to reports from the Committee for the Prevention of Torture (CPT) although of course within the Federation itself, which covers a large geographical area, there is considerable variation (see Piacentini 2004). Within Turkey the death penalty was only recently relinquished and human rights abuses of detainees as well as poor physical conditions in prison persist. Many of the Article 3 cases on torture and inhuman and degrading treatment in detention heard by the European Court of Human Rights relate to Turkey.

Nonetheless, it is fair to say the commitment to prisoners’ rights in Europe is at present stronger than in the USA. The formal protection of prisoners’ rights is more developed in Europe and this has had an impact on penal practice in Western Europe. But in the past the protection of rights in the USA exceeded what was available in Europe and the prisoners’ rights movement was much stronger there and achieved more in the 1970s. In fact Garland (2005) sees the recent punitiveness in the USA as a reaction against the advances achieved by civil libertarians in the past and against the permissiveness of the 1960s and 1970s. But some governments in Western Europe, notably the Dutch government, have been able to insulate themselves more easily from public pressures and from the media.

Attention will therefore be given to the Netherlands which is usually seen as lying at the opposite end of the spectrum to the United States, as one of the most progressive and humane penal systems in the world and in Western Europe, in terms of physical conditions, regime quality, prisoners’ rights and access to visits. This progressive approach has a long history and the Netherlands abolished the death penalty in 1870, nearly a century before the UK. However conditions in the Dutch external territories of Aruba and the Netherlands Antilles have been criticized by the CPT. The Netherlands has been seen as the ‘exception’ within Europe, avoiding the extremes of US expansion or harsh regimes and has retained this status notwithstanding the pressures of penal expansion.

What is also unusual about the Netherlands is the absence until recently of widespread public punitiveness or moral panics over crime, or a sensationalist tabloid press demanding tougher penalties, which contrasts sharply with the UK, as Pakes has argued (Pakes 2007). The system of proportional representation in the Netherlands to some extent means that political parties may distance themselves from punitive demands from the press or the public. Moreover, the elite of judges and prosecutors have shared the view that prison has limited value in solving the problem of crime and harsh punishment may exacerbate the problem and prevent the reintegration of the offender into society. At the same time, we do find in the Netherlands similar changes to the UK, an increase in punitiveness over the last twenty years and a greater role for new managerialist approaches, increases in crime rates and the expansion of the prison population which has impacted on the quality of the regime. Since the mid-1980s the prison population in the Netherlands has tripled, and compared to other Western European countries, including Germany, it now has a higher incarceration rate. In 2008 it reached 100, exceeding France and Germany. In 2010 the Netherlands incarceration rate fell to 94 compared to 87 for Germany and 96 for France (ICPS 2010). While the Dutch rate is substantially lower than the USA, Dutch judges, politicians and the public are now more punitive and the courts show a greater willingness to impose custodial sentences, longer sentences, as well as preventive sentences and to punish persistent offenders, similar trends to those found in the UK (Piper and Easton 2006/7). Sentences have become longer, the custody rate has increased and there has been an increase in drugs crime which attracts longer sentences, although the proportion of prisoners serving longer sentences is lower than in the UK. However, this has meant an increase in cell sharing and a decline in resources available to prisons. But despite these changes, conditions within Dutch prisons still remain superior to those in other European societies. At the same time, there is still a strong commitment to welfarism in the wider society and a range of community options are available to sentencers and prison numbers are now falling to the extent that cells are being rented to Belgium to use spare capacity and avoid closing prisons. Dutch prisons are usually cited as an example of humane containment as prisoners until recently had their own cells, and the regime is less intrusive. There is a recognition of the damage resulting from imprisonment and more scepticism over the value of prison in reforming, rehabilitating or deterring prisoners and a commitment to normalization, that is, that prison life should approximate as closely as possible to life in the community.

Although all three jurisdictions, the USA, the UK and the Netherlands have their own unique histories and cultures, what is of interest is the fact that they have faced common problems in relation to crime, social change, changing public attitudes, and prison expansion, which has increased pressures on prisons to cut costs as well as public anxieties over dangerousness and a stronger focus on risk management, and increased scepticism over prison’s potential for rehabilitation. So it is interesting to see whether these pressures have resulted in similar strategies or whether pressures towards increased punitiveness have been resisted.

The significance of prisoners’ rights

Recognition of prisoners’ rights is most strongly associated with retributivist theory. The concern with due process rights in the 1970s was associated with the revival of retributivism, for example, von Hirsch’s Doing Justice (von Hirsch 1976). Moreover the focus on recognition of the autonomy and agency of individuals within retributivism and the concern with equality and proportionality underpin a rights-based approach to imprisonment.

The history of prison reform in England is associated with an approach largely unsympathetic to rights jurisprudence and rights talk, namely utilitarian pragmatism which sees the primary aims of punishment as deterrence, rehabilitation and public protection and places most weight on the interest of the public. Its founder Bentham (1789) had little confidence in the value of entrenched rights as beneficial for the individual or society as a whole, and dismissed rights as mere nonsense (Bentham 1843). Furthermore when rights conflict, choices will be made on the criterion of what is best for the greatest number of people. Moreover, since Bentham wrote, the basic premise of utilitarian penology, the less eligibility principle, has been a major stumbling block to penal reform. But this is not to say that Bentham accepted poor conditions. On the contrary, he argued that we should not impose unnecessary pain, rather the pains of punishment should be linked to a positive outcome, on a rational theory of punishment (Bentham 1789). This also should not imply that a system based on utilitarian principles would inevitably find it difficult to accommodate prisoners’ rights as we can find progressive regimes such as Finland where prisoners’ rights are respected while the aim of punishment is primarily consequentialist.

However, the utilitarian focus on the principle of less eligibility clearly has implications for the quality of conditions of prison life, as rights may protect prisoners from the full rigour of the less eligibility principle. But while deterrence may be difficult to combine with a rights-based model, a rehabilitative regime can also be predicated on rights and conversely respect for rights can promote rehabilitation by promoting a sense of civic responsibility. Moreover, within an incapacitative regime where the prisoner is detained for public protection reasons, a rights model could still govern treatment within the prison regime. Moreover, some recent defenders of utilitarianism, such as Bagaric have argued that utilitarianism is compatible with respect for rights, and that rights protection may promote utility insofar as it meets with public approval and enhances respect for the penal system (Bagaric 2001). But rights are subsumed within the overarching framework of utilitarianism and once they are weighed in the balance they may be sacrificed instead of trumping competing claims. So as we shall see in the next chapter, the institutional needs of the prison have often defeated rights claims in practice. The rights of the victim have been given prominence in restorative justice, but it has also emphasized the right of the offender to discuss his crimes with the victim. The aim is to reintegrate the offender into society, and like desert theory, restorative justice recognizes the agency of the offender.

These theories when applied to punishment will have implications for the mode of punishment, the quantum of punishment and the nature of the prison regime itself. For desert theorists, separation from the community and loss of liberty should be sufficient to satisfy the retributivist rationale and no further losses should be imposed. Respect must be accorded to the individual on retributivist theory and degrading and stigmatizing punishments are precluded which for some desert theorists may include a prohibition on the death penalty (von Hirsch 1993). On a utilitarian model, the level of security imposed should be no more than is necessary to meet the goal of public protection and regimes should be constructed in ways which allow prisoners to contribute to the community within prison and to the wider society when they return and these social goals usually will take precedence over individual interests and rights.

Although there is considerable debate in jurisprudence on the meaning of rights, and the scope of rights, it is clear that a notion of the individual’s autonomy and agency is a precondition of holding rights. Rights protect individuals from the state and protect the weakest individuals in society from the majority by according individuals the right to be treated with equal concern and respect. In the context of imprisonment rights offers a means of assessing prison regimes and have an important role in protecting individuals from harsh and degrading punishments and from populist punitiveness.

Rights are also valuable in giving legitimacy to systems of punishment. As Dostoevsky observed in the House of the Dead, the degree of civilization of a society can be judged by the way it treats its prisoners. We have well-established principles for the humane treatment of prisoners of war, whether conscripts or volunteers, under the Geneva Convention, with, for example, access to mail and medical care, even if enforcement of those rights may be problematic in practice. We also recognize the rights of those accused of war crimes. This is clear from the conduct of the tribunals at Nuremberg in the past and currently at The Hague where those accused of crimes against humanity have been accorded due process procedural rights to ensure a fair trial. If they are convicted and given a custodial sentence by the International Criminal Court it is accepted that they should be confined in humane conditions.

The essential feature of rights is precisely that they are available to all, even those who appear to be less ‘deserving’ than others and therefore rights should not be linked to virtue. Because of their universal nature, rights protect those accused of the most heinous crimes, so it would seem inconsistent and unjustifiable to deny the benefits to those accused or convicted of lesser offences.

Clearly, respect for rights will make a significant contribution to prisoners’ sense of justice which may ...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Table of cases
• Abbreviations
• 1. Prisoners’ rights: from social death to citizenship
• 2. The historical development of prisoners’ rights: rights versus discretion
• 3. The increasing importance of international human rights law and standards
• 4. Prison conditions
• 5. Procedural justice
• 6. Contact with the outside world
• 7. The right to equality
• 8. The prisoner as citizen
• 9. Conclusion: making room for prisoners’ rights
• Notes
• Bibliography
• Prison Service Orders
• Index