Introduction
We live in a carceral age. In Anglophone societies, many groupsâoffenders, ânon-citizensâ, people with disabilities, those with mental health problems, children âin careâ, and othersâare locked up. At the same time, carceral responses can only be regarded as demonstrating âthe power of the imaginary to create acquiescence in the absurdâ (Carlen 2008: 10). Incarceration never alleviates the harms that it purports to deal with or prevent. Prisons, for example, have no substantive bearing on crime rates, while immigration detention does not stem the conflicts or pressures from which migrants flow. The use of carceral institutions also makes social problems worse. The list is long but, among other outcomes, incarceration: routinises cultures of offending, violence and substance use; developmentally-damages children and young people; preserves racialised power relations and bias; sustains gendered forms of regulation and violence; and leads to stigma, discrimination and poverty. These impacts are not individualised. They reach across generations, so much so that incarceration and its effects are normalised in some communities. In short, carceral sites indicate and perpetuate violations of human rights for vast numbers of people.
In many respects, human rights could be regarded as a âfailed projectâ for those incarcerated in neo-liberal states. As this chapter shows, their human rights are continually eroded by state power relations, criminalisation practices, legal processing and administrative agendas. In response, we might ask: are rights still worth prioritising in relation to incarceration? And, if so, how might we envision or strengthen them? These questions are the foundation for this book.
This introduction considers some of the legal frameworks through which human rights are established, debated and monitored. It sets out the landscape of protective âcarrotsâ and âsticksâ that may encourage or shame states into human rights conscious activity. And, it reflects upon the necessity of reaching beyond legal and institutional responses, towards new forms of justice. After all, the values of human rights deepen the chance of better lives. They herald opportunities for freedom, dignity, respect, peace, equity, compassion and shared humanity. And, in doing so, they present vital tools to the social problems of âcrimeâ, harms and incarceration.
Human Rights Frameworks
Human rights have long guided the operation of prisons, justice residences, and other places of detention. Some detention-related rightsâsuch as habeas corpusâare centuries old, and have formed the basis of our liberal democracies. However, from the mid-twentieth century in particular, the United Nations has progressed laws, rules and principles to underpin the fair treatment and dignity of all detainees, and they have established a parallel network of mechanisms for oversight and accountability. In some parts of the world, states are now bound by regional laws and bodies (such as the European Convention on Human Rights and its corresponding Court). The Council of Europe, for example, has established that prison conditions should resemble those in the community with greater efforts being made to decriminalise and develop alternative responses to crime (Scharff-Smith 2016). Many states retain domestic human rights laws that codify civil and political rights. Protections for incarcerated people are promised across the world.
It is not within the scope of this introduction to chart the array of relevant laws or norms. However, UN instrumentsâlike the International Covenant on Civil and Political Rights or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishmentâset the ground for rights relating to incarceration. They establish that all those deprived of liberty shall be humanely treated, with respect for their inherent dignity. They spell out rights to privacy, family life, freedom of expression, liberty and security of the person, among other rights, that all incarcerated people should enjoy. They prohibit all torture, establishing that states should never return or extradite someone (non-refoulement) when there are grounds to believe they will be tortured on arrival. The Basic Principles for the Treatment of Prisoners assert that all prisoners should retain âthe human rights and fundamental freedomsâ set out in all UN Covenants and Protocols, âexcept for the limitations that are demonstrably necessitated by the fact of incarcerationâ (Principle 5).
Further directions are found in the UNâs Standard Minimum Rules for the Treatment of Prisoners. The most recent 2015 Rules (aka the Nelson Mandela Rules ) attend to the sharp end of imprisonmentâsuch as prohibiting solitary confinement (defined as lock downs of 22 hours or more a day without meaningful human contact), painful restraints, or excessive âdiscipline and orderâ. They provide practical guidelines on food, accommodation, clothing, and so on. However they also emphasise the need for authorities to be attentive to how imprisonment, in and of itself, produces violations. For example, Rules establish the need for prisoners to receive equitable health care, including care related to mental health problems that can be âbrought on by the fact of imprisonmentâ (Rule 30(c)). Prisons should not âaggravate the suffering inherent inâ situations of liberty deprivation (Rule 3).
Alongside these instruments lie a raft of UN Conventions and Declarations that prohibit harmful practices towards groups including Indigenous people, women, children, and persons with disabilities. As detailed in subsequent chapters, many provide explicit instructions to prevent discrimination, criminalisation and incarceration. They dovetail with the UNâs guiding International Covenant on Economic, Social and Cultural Rights (ICESCR) that asserts âthe ideal of free human beings enjoying freedom from fear and wantâ (Preamble). This instrument establishes numerous rights for all, including: to self-determination, to education, to work, to join a union and to strike, to receive fair wages for a decent living, to enjoy safe and healthy working conditions, and to receive social security. Everyone has rights to âadequate food, clothing and housing, and to the continuous improvement of living conditionsâ (Article 11) and to enjoy âthe highest attainable standard of physical and mental healthâ (Article 12).
Signatory states to these international laws participate in regular oversight reporting on their rights progress. Alongside Universal Periodic Reviews from the UN Human Rights Council (UNHRC), all conventions are overseen by specific UN Committees that monitor, ensure compliance and promote preventative actions. On a cyclical basis, UN Committees visit states, engage with civil society groups, hear complaints, receive and produce reports on progress, and make recommendations for remedies and prevention. The UN has also established âNational Preventive Mechanismsâ (NPMs) as part of the Optional Protocol to the Convention Against Torture . This means that independent NPMs now have a complementary mandate to make regular visits to places of detention, including unannounced visits. NPMs subsequently recommend improvements and measures to prevent ill-treatment, publish reports, and exchange information with their international counterparts. All of these Committees have a role in exposing the gaps between stated laws or policies and actual practice, and they regularly provide a litany of abusive treatments and harmful conditions across carceral sites.
Reporting mechanisms reflect ritualism but, in bringing increased scrutiny to rights-eroding practices, they shame states and mobilise communities by educating and agitating on human rights concerns. They lead civil society groups and activists to take an increased interest in monitoring standards and to create ânew lines of accountabilityâ that âpromote the bottom-up development of a human rights cultureâ (Weber et al. 2014: 46). Committees may also be empowered to undertake inquiries of systemic violations of human rights, and to demand changes on those terms. And, it is clear that changes in one country create ripple effects across other jurisdictions (Barbaret 2014).
The judiciary may also act as a protective force of accountability (Naylor 2016) and, at certain junctures, has substantive impacts. For example, mass-imprisonment in the USA has been directly challenged by court decisions. In Brown v Plata [2011], judges found that state prisons were so overcrowded that they constituted âcruel and inhumanâ conditions. And, in the face of extreme mental health and medical problems for prisoners, they upheld a âsystemwide population-r...
