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Introduction
This book examines the prison as a political institution in the light of recent developments. The relationship between imprisonment and the political and economic structure of society was considered in the 1930s by Marxist writers, including Rusche and Kirchheimer (1939) and Pashukanis (1978), and also in the 1970s by Althusser (1971), and its disciplinary power by Foucault (1975). Although criminalisation has been analysed within the context of the changing mode of production and class relations, for example, by Hay et al. (1975) and Thompson (1979), the focus was on the way punishment is shaped by the needs of capital accumulation, rather than on prisonersā efforts to assert their citizenship rights.
While the economic role of carceral expansion is still receiving attention from modern writers such as Wacquant (2012), there is in addition a resurgence of interest in issues surrounding prisonersā quest for citizenship and in prisonersā rights and the role of the prison as a source of political ideas and a site of political engagement, and increasing recognition by the courts of prisoners as citizens. The political dimension has become more topical and pressing as the level of disorder inside prison has escalated. There has also been heightened concern over the threat from prisoners radicalised in prison and the site of prison as an incubator of dangerous ideologies. The role of the prison as a source of radicalisation has also become more important in recent years and of greater concern to governments and policy makers in the context of security concerns. Interest in the prison as a political institution has increased.
So this book is intended to contribute to the debate on prisonersā role within democratic society and on the responsibilisation of prisoners and the issues are considered in the context of the need for prison reform. It develops ideas first explored in an earlier book, Prisonersā Rights: Principles and Practice, which examined the elements which have shaped the emergence of the prisonersā rights movement and the experience of imprisonment (Easton 2011).
Over the past few years, we have seen increases in the numbers being imprisoned, making it harder for prisons to fulfil their rehabilitative goals and which have reduced them to warehousing or containment roles. These pressures have been felt in the US as well as the UK, as the excessive use of imprisonment has imposed fiscal burdens and become a more important political issue. There is also currently greater interest in the prison as a site of political activism and in the generation of radical political ideas within the prison context and the formation of political networks within prison, which extend beyond the prison walls. Despite the improvements in prison conditions since the 1990s, there is a danger of those advances being undermined by the loss of staff, the impact of drugs and increasing violence.
Lord Woolf, in an interview on the anniversary of the Strangeways riot, stressed the importance of taking prison out of politics.1 While it is true that treating prison and prisons as a political issue as part of the law and order debate, has impeded prison reform, we should not ignore the political nature of imprisonment. Political meddling and ideologies have impacted on prison conditions and regimes, often to their detriment, for example, in relation to prisonersā voting rights. As we shall see, prisons and prisoners have often proved an embarrassment to politicians as they try to exceed each other in their hostility to prisoners and toughness on law and order issues.
It will be argued, however, that politics is inextricably linked to imprisonment and the political dimension deserves attention for a number of reasons. First, there may still be elements of resistance and confrontation in modern prisons although not collective rebellions on the scale of the Attica or Joliet riots. Moreover, even if prisoners are not actively resisting their confinement, this compliance does not of itself suggest acceptance and may be punctuated by sporadic incidents of violence. Certainly recent manifestations of discontent have illustrated this. Two thousand sixteen was a year of riots in Birmingham, and other prisons. There were also tensions at Hull, when prisoners were transferred there following the Birmingham riot. These incidents were not unexpected, given the increases in the prison population, and cuts in staffing and a rise in prison violence. This disquiet has continued with further incidents in 2017. We also find a political awareness of citizenship in its broadest sense, manifesting itself in campaigns for enfranchisement, but also in active citizenship and peer support, as well as through engagement in education.
The term āpoliticsā originates from politicus, the Greek word for citizen, and politics relates to matters of the state or government. Politics will be construed broadly in the forthcoming discussion. It does not refer to politics in the narrow sense of support for a particular party or to politics as the study of power, but means being part of the polis in the Aristotelian sense of a zoon politikon, a political animal. For Aristotle, citizenship is defined, in his Politics, as participation in judging and ruling and in the polis, private interests are subordinated to the public interest. In the Aristotelian model, the citizen, as a political animal, looked to the good of the community rather than his own narrow interests. Moreover, participation in the political life of the community could itself create virtue in moving beyond self-interest.
Since Aristotle, the notion of citizenship has been subject to debate and arguments over the extension of citizenship to previously excluded groups and whether it should include social rights (Marshall 1950). It has been championed by the Left who have seen citizenship as a means of promoting equality and by the right who have focused on the citizen as a consumer. A Speakerās Commission on Citizenship in 1990 considered the matter and argued for the development of active citizenship and the need for training on citizenship as part of education.2
Political action, in the following discussion, will be understood to include the active citizenship of peer mentoring and participation in prisoner councils, as well as the formal expressions of political ideas or engagement in the democratic process. So, for example, several serving prisoners submitted evidence to the House of Commons Justice Committee (2017) in its review of prison reform.
A range of activities in prison will therefore be examined from this standpoint. While prison life has been subject to numerous ethnographic studies, the focus here will be specifically on what we can learn of the role of politics inside prison, how inmates may engage in political behaviour and assert themselves as citizens, despite the ways in which prison as an institution and the wider society seeks to undermine that status. In exploring these issues, insights from a range of disciplines, including political thought, social psychology, criminology and human rights law will be used.
Prisonersā rights
The discussion of prisoner politics inevitably raises questions about prisonersā rights in general and the specific rights safeguarded by the European Convention on Human Rights. As we shall see, the use of the Convention to further prisonersā rights claims has aroused the ire of successive governments and has become a weapon in the UK governmentās critique of the Strasbourg Court.
But this fails to take account of the extent to which these claims in the past have been unsuccessful in that court, for a variety of reasons, including being out of time, or failing to exhaust available domestic remedies. Claims have also been thwarted because of the weight given to competing demands, including the needs of the administration for security and good order, efficiency, cost-cutting and risk management. There is plenty of scope within the Convention for some of the rights to be legitimately qualified in the interest of the public, including national security, and the prevention of crime. Several of the rights protected by the Convention are qualified, for example, Article 8, which protects the right to private and family life, Article 9, which protects freedom of thought, conscience and religion and Article 10 which protects the right to freedom of expression. So Article 3, the right not to be subjected to torture or inhuman or degrading treatment or punishment, which is not qualified and is non-derogable, even in times of war or public emergency, has proved to be of greater value in protecting prisoners than Article 8. States are also afforded a margin of appreciation in which to devise arrangements which they see as appropriate to the local context. Despite the image purveyed by critics of the Convention, in fact the data shows that the majority of claims do not proceed or succeed and the cases where the UK has been found to be in breach are relatively few, compared to other states such as Russia. In the period 1959ā2016, 23,781 applications concerning the UK were referred for judicial consideration, while 21,599 were declared inadmissible or struck out. For the Russian Federation, the figures were 140,731 for judicial consideration and 129,694 ruled inadmissible (European Court of Human Rights 2017: 5). The number of judgments finding at least one violation were 312 for the UK and 1,834 for the Russian Federation. However, the highest number of findings of violations were against Turkey with 2,889 judgments and Italy with 1,791 judgments (ibid: 6).
The domestic courts have also given considerable leeway to the prison authorities in dealing with prisoners detained under the Terrorism Act, as well as ordinary prisoners where the courts tend to defer to the prisonās judgments where risk assessments are in question.
But even where rights are recognised by the courts ā here and in other jurisdictions ā a major barrier to implementation will be resources. There have been cases where prisoners have succeeded with their rights claims, and the courts have ordered reforms, but these have not been implemented, because there are insufficient funds. This has been a recurring theme in riots in the US where the courts have demanded change in a number of areas, as we shall see in Chapter 2, but the prison administration has failed to introduce those improvements, because they are too burdensome in imposing economic and administrative costs. This has contributed, in some cases, to the development of disorder as prisonersā expectations have been raised and then dashed.
Many of the Strasbourg Courtās judgments on penal matters are against poorer, less economically developed states. While European penal law ā including the Convention and the European Prison Rules ā is widely seen as setting the highest standard for penal systems, their effectiveness in achieving improvements in practice is limited in less wealthy states or states where the government is unwilling to invest sufficient resources in penal reform.
For example, in modern Russia, where the state is a signatory to the European Convention as well as the European Convention on the Prevention of Torture, there have been insufficient resources and a lack of political will to effect substantial change and human rights violations persist in Russian prisons. Since the 1990s they have been measured against western standards.3 Piacentini (2004) interviewed Russian prison officers on their views of human rights and found some prison officers welcomed human rights as a way of making prisons more humane, some equated them with more paperwork, while some resented them as shaming Russia, and were nostalgic for the past. Others were critical of European bodies for finding fault with Russian prisons, whilst giving no financial support to address the problems, while some officers saw human rights discourse as mere window-dressing. However, as van Zyl Smit and Snacken (2009) have pointed out, the European Union has provided support for a programme to train prison officers in human rights ideals in areas of South Russia marked by conflict (van Zyl Smit and Snacken 2009: 382). But clearly the challenges remain of under-resourced prisons and a system where prisoners are, in many cases, held far from home. However, in some respects, the Russian penal system goes further in recognizing prisonersā right to family life, for example, by allowing conjugal visits and extended family visits. The positive impact of European penal standards has also been felt in the establishment of a prison ombudsman in Russia.
Closer to home, Dickson (2010) argues that the Convention was of limited value in the Northern Ireland conflict. As well as the margin of appreciation and qualifications, the deference of the Commission and the Court to governments limited its effectiveness. While the Commission was not overtly hostile to prisoners, human rights jurisprudence was not then as developed as it is now. However, given the evolution of Convention jurisprudence since the late 1990s, it is likely many of those earlier cases would be decided more favourably towards prisoners now.
But this is not to downplay the contribution of Irish political prisoners who brought successful challenges which benefited other prisoners. For example, Campbell and Fell were involved in a protest at Albany prison in 1976, over the treatment of another prisoner and charged with disciplinary offences under Prison Rule 47, including prison mutiny. Father Patrick Fell was a Catholic priest convicted for his involvement in IRA activities in Coventry in the early seventies. Campbell and Fell were denied legal representation at their disciplinary hearing, although they lost over 500 days remission and were not allowed to consult lawyers privately. The Court upheld most of their complaints under Article 6(1), as the decision of the Board of Visitors was not made public, and under Article 6(3), because of the denial of legal assistance.4 The case contributed to helping other prisoners receive legal advice when accused of breaching prison rules. However, there were also cases in the 1970s and 1980s when prisoners were complaining of harsh conditions and the Commission and the Court rejected them, especially if it was thought that the cases were simply propaganda for political groups, such as the case involving members of the Baader-Meinhof group or the Red Army Faction.5 Moreover, it is clear that the Commission and the Court have been more comfortable dealing with procedural rather than substantive issues. The Court, in recent years, has resulted in a number of decisions which address key issues facing prisoners and implications for the length of detention, for example, in demanding reviews for prisoners given whole life sentences in Vinter and others v UK App Nos. 66069/09, 130/10 and 3896/10 (9 July 2013) and Hutchinson v UK App No. 5792/08 (3 February 2015).
Moore and Scraton (2014) are also critical of rights discourse because it assumes it is possible to improve prison conditions and to give prisoners dignity without challenging prison as an institution, or analysing the structural conditions which lie behind the routes into prison. Focusing just on reform means we do not move beyond the prison, or understand its role or structural determinants. This raises the problem of abolitionism versus reformism which has preoccupied critics of imprisonment, but as Moore and Scraton acknowledge, concentrating just on abolition ignores the plight of those there now. So a humane environment for prisoners needs to be pursued without reinforcing prisonsā permanence.
Notwithstanding, the criticisms of European human rights law from prison reformers, it offers a way of critiquing prison systems from an external standpoint. Moreover, in the current political climate, abolition is very unlikely, the best we can hope for is a reduction through creative policies, such as justice reinvestment, making prisons more effective and bolstering struggles for citizenship. At the same time, we need to protect the role of human rights in raising and upholding standards of imprisonment.
Key themes: seeking citizenship and denying citizenship
A range of issues are explored in this text to illustrate the ways in which the prison and the prisoner can be viewed through a political lens and the ways in which the prisoner may develop towards a zoon politikon. Chapter 2 considers the prison as a site of political protest, with reference to a range of responses, including prisonersā unions, prison strikes and prison riots, including Attica and Joliet in the US and Strangeways and Birmingham in the UK, where the prisons were taken over by prisoners for a temporary period. As we shall see, prisoners may respond to...
