European Penology?

Tom Daems, Dirk van Zyl Smit, Sonja Snacken, Tom Daems, Dirk van Zyl Smit, Sonja Snacken

• Publisher: Hart Publishing
• Year: 2013
• ISBN:
  9781782251309
• Edition: 1
• Topic: Droit
• Subtopic: Condamnation

Is there something distinctive about penology in Europe? Do Europeans think about punishment and penal policy in a different way to people in other parts of the globe? If so, why is this the case and how does it work in practice? This book addresses some major and pressing issues that have been emerging in recent years in the interdisciplinary field of 'European penology', that is, a space where legal scholarship, criminology, sociology and political science meet - or should meet - in order to make sense of punishment in Europe. The chapters in European Penology? have been written by leading scholars in the field and focus in particular on the interaction of European academic penology and national practice with European policies as developed by the Council of Europe and, increasingly, by the European Union.

Part One

Concepts and Institutions

1

Distinctive Features of European Penology and Penal Policy-Making

SONJA SNACKEN AND DIRK VAN ZYL SMIT

In Dutch: ‘Penologie is de wetenschap die zich bezighoudt met het onderzoeken van de effectiviteit van formele straffen’¹

In German: ‘Die Pönologie ist die Wissenschaft von den Strafen und Sanktionen. Den Kern der Pönologie bildet die Erforschung von Freiheitsstrafen und freiheitsentziehenden Maßregeln. Pönologie im engeren Sinne kann also mit der Gefängnisforschung gleichgesetzt werden’²

In French: ‘La pénologie est la science sociale qui rend compte sociologiquement des pratiques pénales et qui inclut tous les travaux qui conçoivent la pénalité comme un phénomène social et qui tentent d’identifier les fonctions sociales de l’institution pénale’³

I. EUROPEAN PENOLOGY AND PENAL POLICY-MAKING

A RELATIVELY NEUTRAL view of ‘penology’ is that it refers to the scientific study of punishment and is therefore an academic discipline. However, many different definitions of, and orientations towards, penology can be distinguished, reflecting varying aims and emphases.

The Wikipedia definitions of ‘penology’ quoted above vary quite considerably in the different language versions of this online encyclopedia: the Dutch definition reduces penology to a kind of administrative or governmental criminology, where penologists-technicians assist the administration of sanctions by evaluating policies and practices and by proposing or developing instruments and techniques in order to make the practice more ‘effective’ (for example, risk assessment instruments). The German definition reduces penology even further to prison studies. The French definition emphasises a wider sociological approach, which is of course very important, but which, in our view, is not the only source of penological knowledge.

Academic literature has a similar range of definitions of penology, although the definitions do not necessarily follow the same national or linguistic patterns as those quoted above.⁴ Perhaps the most jaundiced definition of penology is that implicit in the work of the moral philosopher CS Lewis, who wrote sarcastically:

Only the expert ‘penologist’ (let barbarous things have barbarous names) can tell us what is likely to deter; only the psychotherapist can tell what is likely to cure.

(Lewis 1953: 226)

A close reading of Lewis’s polemic reveals that his conception of penology was extremely narrow. He saw penology as a deterministic social science that was concerned solely with the prediction of behaviour, to the exclusion of all concerns about justice or ethics.

It is true, historically, that many scholars have adopted a narrow view of penology that has largely limited it to a study of the reduction of recidivism. However, more sophisticated penologists, such as Nigel Walker (1987), made only modest claims for this form of penology, and recognised that there were larger ethical questions about the implementation of punishment, which traditional penology did not purport to answer but which, nevertheless, were of considerable importance (Moerings 2003).

In the early 1980s there was an argument that penology should be replaced by something different, the study of ‘penality’, which, like the French definition quoted above, referred mostly to the social analysis of the complex phenomenon of punishment (Garland and Young 1983). To some extent this dispute was merely terminological. It does not matter so much what one calls the subject, but what one does with it. This was recognised by David Garland, one of the initial protagonists of the idea of penality, for in his inaugural lecture in 1995 as Professor of Penology at the University of Edinburgh, he made the case for penology to encompass a much wider field, ‘the study of the social processes of punishment and penal control, which is to say of the whole complex of laws, ideas and institutions which regulate criminal conduct’ (Garland 1997: 181; Daems 2008).

Like Garland, we do not think that the concept of penology should be abandoned, but would rather argue that it should be given much wider interpretation. We would describe penology as a field where law, sociology, political, economic and philosophical analyses, as well as history, ethics, psychology, psychiatry, anthropology and perhaps even medicine meet. Penology therefore reflects the same variations as criminology: etiological penology or penology of social reactions to deviance, administrative or critical penology: probably even a ‘penology of the other’ versus a ‘penology of the self’.

When we called the seminar on which this volume is based ‘European penology?’, the question mark referred to the issue of whether there is something specific about penology as it is exercised or applied in Europe compared to other places. In our 2009 book Principles of European Prison Law and Policy—Penology and Human Rights (van Zyl Smit and Snacken 2009), we integrated penological evidence about the many aspects of imprisonment with a human rights approach that recognises prisoners as ‘rechtsburgers’, or ‘citizens with legal rights’ (Kelk 2000). Prisoners continue to enjoy the protection of their fundamental human rights against state authorities, which, in the wake of increased public insecurity about crime, may feel pressured to resort to ‘penal populism’. Our penological approach would probably fit Barbara Hudson’s (2004) definition of ‘critical penology’ as a penology that tries to understand the present in order to strive for a better and more just future, by studying factors of liberation or domination, by analysing political choices and describing their detrimental consequences, and by indicating alternative possibilities.

Critical penology, which, of course, encompasses all forms of punishment and not only imprisonment, considers the links between its objects of study and inequalities of all sorts: social, economic, political, structural, or at the level of micro power relations. It is this critical penology that has offered evidence of the detrimental psychosocial consequences of deprivation of liberty, of the interaction between criminal justice and social justice, or between punishment and the selectivity of the criminal justice system (see also Snacken 2011).

This penological approach is obviously not uniquely European: it has also been strongly influenced by American scholars. However, what may be typically European is its continued legitimacy, not only within academia but also with penal policy-makers—although arguably to varying degrees in different European countries and different European institutions.

Our book on European prisons focused mainly on the human rights standards for the treatment of prisoners developed through the instruments of the Council of Europe—the judgments of the European Court of Human Rights (ECtHR), the reports of the Committee for the Prevention of Torture (CPT), the recommendations of the Committee of Ministers—and their interaction with penological evidence. In this volume we want to explore further broader issues of penal policies in different European countries, and also at the level of the European Union, which is becoming increasingly active in fields that were traditionally covered by the Council of Europe. In this chapter we set the scene by considering, first, the interactions between penological evidence and human rights in penal policy-making by the European institutions and, subsequently, the place of a specifically European approach to penology in the relationship between Europe as a whole and the rest of the world.

II. COMBINING HUMAN RIGHTS AND PENOLOGICAL EVIDENCE: A DISTINCTIVE FEATURE OF EUROPEAN PENOLOGY?

A. Punishment, Penology and Human Rights

Traditionally, human rights have been perceived as a bulwark against criminalisation and over-penalisation. Criminal law and its sanctions make deep inroads into the rights and freedom of citizens. Criminal law in liberal or constitutional democracies should therefore be minimal and marginal, and must meet a number of strict constitutional and human rights related conditions and standards. National constitutional courts and international human rights courts, such as the ECtHR, play an essential role in setting these conditions and standards.

However, criminal law and punishment are also viewed as instruments of crime control and enhanced security. For example, it is no accident that the international human rights community supported the establishment of the International Criminal Tribunal for the former Yugoslavia and subsequently the permanent International Criminal Court, while arguing strongly at the same time that they should not be able to impose the death penalty or irreducible life sentences.

The balance between crime control and due process is an important factor in understanding different punishment levels and trends (Tonry 2001: 519). Several authors have argued (Tonry 2001; Kurki 2001; Morgan 2001) that, while American courts and legislators from the 1950s through to the 1970s emphasized due process values more than was the case in the inquisitorially oriented criminal justice processes in Western Europe, at the beginning of the twenty-first century that is no longer true. The American balance is now clearly in favour of crime control values, while European emphasis on due process and human rights has increased greatly under the influence of the ECHR and its interpretation by the ECtHR.

There is, however, also a more recent tendency, even within the ECtHR, in which criminalisation is seen as a necessary instrument for the protection of the human rights of victims of crime, by their fellow citizens or by the state. Human rights are therefore related to different aspects of punitiveness. Human rights of offenders relate to the acceptability of different forms of punishment (death penalty, corporal punishment), to the qualitative treatment of offenders and prisoners, and to the severity of sentences. Human rights of victims raise the question of the desirability of using criminal law and punishment as a necessary means of showing respect for their victimisation.

B. European Institutions: ‘Human Rights, Democracy and the Rule of Law’

European institutions stand for the promotion and defence of the basic principles of human rights, democracy and the rule of law. The interaction of these principles with penal policies in the Council of Europe and the European Union, however, differs.

i. Council of Europe

The main instruments in the area of penology and penal policies are the ECtHR, CPT and the recommendations of the Committee of Ministers. Although the influence of human rights principles and penological evidence varies between these instruments, there is an obvious and increasing element of mutual reinforcement between them.

Human rights have by definition always been at the centre of the case law of the ECtHR. However, a clear evolution can be ascertained with regard to the Court’s attitude towards penal issues and the increasing influence of penological evidence. We will briefly discuss four issues: the death penalty, the treatment of offenders and prisoners, the level of punitiveness in penal policies, and victims’ rights.

The abolition of the death penalty in Europe has been described as both the result of a shared set of European values, and an instrument in creating a distinct European consciousness, a ‘European community of sentiment’ (Girling 2006). Both the Council of Europe and the European Union have over recent years elaborated a clear abolitionist policy, based primarily on defining the death penalty as a fundamental human rights violation (Council of Europe 2001: 12–13). This is a clear departure from the ECHR itself, which came into force in 1950 and which permitted the death penalty in its Article 2 as an exception to the right to life. The gradual abolition of capital punishment was fostered by Protocol 6 (1980) to the ECHR, which proposed abolition in peacetime, and Protocol 13 (2002), which imposed total abolition, including in wartime. The political pressure to abolish the death penalty was most obvious when central and eastern European countries wanted to join the Council of Europe (and eventually the European Union) in the 1990s. Conditions for joining were ratification of the ECHR and acceptance of the individual complaint procedure before the ECtHR, ratification of the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (ECPT), an immediate moratorium on executions, and the obligation to abolish the death penalty within two years. This indicates that at the political level, allegiance to human rights protection and abolition of the death penalty were seen as essential values in a ‘European identity’ and preconditions for acquiring ‘European’ membership (Snacken 2006). This is also illustrated by the EU Charter of Fundamental Rights (2000), where prohibition of the death penalty is found under Title 1 Dignity, Article II-2: Right to life: ‘No one shall be condemned to the death penalty, or executed.’ The death penalty is contrary to human dignity and therefore unacceptable, full stop. This shift in the overall European approach has allowed the Grand Chamber of the ECtHR to declare in the case of Öcalan v Turkey (2005) that, in view of the general abolition of the death penalty in Europe, this form of punishment is now regarded as unacceptable and as inhuman and degrading treatment contrary to Article 3 of the ECHR. It is significant that the ECtHR did not find it necessary to balance this conclusion with a discussion of the effectiveness of the penalty or the support of public opinion. This can be contrasted with the prominent role that these issues continue to play in the US, even in case such as in Roper v Simmons (2005) where the US Supreme Court held that the death penalty was unconstitutional if imposed on a child under the age of 18 years at the time of the commission of the offence (Hood and Hoyle 2008).

As far as the qualitative treatment of offenders and prisoners is concerned, the ECtHR has strengthened its protection of offenders and prisoners against violations of their fundamental human rights over the last 30 years, and more specifically in the last 10 years (for a more extensive analysis, see van Zyl Smit and Snacken 2009). With regard to the absolute prohibition of torture and inhuman and degrading treatment (Article 3 of the ECHR), its case law used to be fairly restricted, due largely to the fact that the Court would only consider violation of Article 3 arising from deliberate acts, thus excluding prison conditions such as overcrowding. Moreover, the Court accepts that ‘all punis...