The Intersection of Penology, Society, and Human Rights: Exploring the Evolution of Prison Systems and Their Impact on Societ

Introduction

Fyodor Dostoevsky’s statement that prisons can tell us about the degree of civilisation in the society emphasises on the link between the state of prisons and its prisoners and the nature of the society. This essay discusses the development of penological practices for punishment of criminals and for protection of the society, the latter of which was done through the prison system. Because prisons were developed within certain societal contexts, prison systems were also affected by cultural factors. In this essay, two penological theories of restoration and rehabilitation are discussed to analyse how prison system operates in the society. Also relevant to this essay is the discussion on human rights and its relationship with penological theories for explaining how the human rights discourse related to the prison system is influenced by two opposing penological theories. Evidence suggests that there is a deterrence in the application of a holistic approach to human rights especially as it concerns prisoners which shows the controversy between prisoner’s rights and HR. There is a constant separation of prisoner rights as human beings and as citizens which leads to further violations. This essay argues that humane approaches are more appropriate for engendering a prison system that is more protective of human rights of the prisoners. Such approaches can be developed within restorative and rehabilitative systems.

Approaches to penology and prison systems

Prison systems are part of the society and are impacted by the social and historical contexts of the given society. It is against these contexts, that we can understand the manner in which prison systems are organised and how rights of prisoners are defined and protected within the prisons. It can be noted at the outset that prisoners in a unique and exceptional position because their incarceration places them in the control of the prison authorities acting as the agents of the state and their liberty is compromised or restricted unlike other people who are not incarcerated. There are different aspects of their liberty that are related to this discussion including gender equality for female prisoners, education, freedom of religion, and even political rights of the prisoners, such as the right to vote. In this part of the essay, a critical analysis is undertaken of how rights of prisoners are regulated by a state and how law and policy differentiate between human rights of citizens and the prisoners.

Foucault (1977) writes about the changes that happened in the processes of punishment by the end of the 18th century and beginning of the 19th century and which led to penal reform. Two changes that took place in this time were related to public spectacle of torture and to physical pain (Foucault, 1977). Punishment at this time was usually given in public but with the changes in penal policy, punishment became a secretive process and the public spectacle of the tortured, dismembered, amputated human body was stopped at this time (Foucault, 1977). This shift from the externalising of punishment to its internalising led to the development of prisons (Foucault, 1977). This shift in conceptualisation of imprisonment for crime and social control led to the first development of modern prisons.

In England, the push for reformation of the penal system was led by the works of John Howard, Cessare Beccaria and Jeremy Bentham, which emphasised on adversarial trials, rights of the accused persons, and prisons (Hitchcock, 2012). John Howard’s seminal work on the state of prisons in England and Wales led to the drafting of the Penitentiary Act 1779 (Howard, 1777 ). This led to the establishment of penitentiary houses, with an emphasis on humane living conditions, inclusion of religious instruction, and regulated labour based on the critique of the “loathsome cells, of pestilential fevers, and the confluent small-pox: victims, I must not say to the cruelty, but I will say to the inattention, of sheriffs, and gentlemen in the commission of the peace” of the prisons of that time (Howard, 1777 , p. 7). Another aspect of prison conditions related to the issue of prisoners’ health including their mental health (Reed, 2003). Howard’s research on prisons in England and Wales had found that many prisoners were afflicted with mental illnesses and other medical conditions, and he lobbied for appointment of surgeon or apothecary in all prisons (Reed, 2003).

Prison architecture has been another area of reform, since 18th century and the Penitentiary Act 1779 did drive some focus on the need to combine correction with reformation as reflected in the design of the prison architecture (Jewkes & Johnston, 2012, p. 180). Howard and William Blackburn were concerned with prison design reform, which included the need to improve hygiene and ventilation of the prison cells (Jewkes & Johnston, 2012, p. 181). These reforms led to prison cells being structured on elevated arcades, as well as the use of bars, and circular iron gratings (Jewkes & Johnston, 2012, p. 181).

All the above changes took place as part of a social context and reform movement. This suggests that from the very beginning, the structuring of modern prisons have been related to social and cultural ideas about prisoners’ rights. The question for critical analysis is how far this idea translates into the structuring of prisons today as well as for developing a discourse on the rights and the application of human rights of the prisoners holistically. Are there important differences between human rights as opposed to citizenship rights approach and what is the effect of such a distinction on the rights of the prisoners? These questions are dealt with next in this essay with reference to prison system in the UK, USA and Germany today.

Before exploring how different criminal justice systems may practice penology, it would be useful to note that differences in penal practices may be seen in different systems even though they use the same words, like police and prison; such differences are seen because of local customs, histories and a range of other influences (Pakes, 2019). Thus, practices of penology may vary across countries and differences may be seen not only in practices but also in the philosophies that underline these practices (Pakes, 2019). Thus, criminal justice system practices may either involve use of the Inquisitorial Tradition or the Adversarial Tradition or even the Popular Justice Tradition (Vogler, 2017 ). Such differences in approaches are based on cultural reasons, history and even philosophies that guide the criminal justice systems in different countries, and as such, have an impact on the adoption of different penological practices and prison practices. Vogler (2017) demonstrates how prison practices varied under different criminal justice systems and how some countries’ systems at different periods of time demonstrated significant violation of prisoners’ rights through torture and inhumane conditions. For instance, in prison camps run by the Gestapo, prisoners were brutally flogged by the authorities and torture was a common occurrence (Vogler, 2017 ). In this context, it can be said that Dostoevsky’s statement that the degree of civilisation can be judged by entering prisons of the society is relevant because when Gestapo run prisons are compared with the prisons of England and Wales, there is a stark difference in how prisoners were treated around the same period of time.

To some extent, UN General Assembly resolutions as well as the European Prison Rules, seek to encourage some consensus in regard to human rights of prisoners. In its Resolution 45/111 of 1990, the UN General Assembly adopted some ‘Basic Principles for the Treatment of Prisoners’, which included human rights of prisoners. More recently, in 2015, the UN General Assembly adopted Resolution 70/175, which is the ‘United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)’. This Resolution recognises the right of all prisoners to be treated with the respect due to their inherent dignity and value as human beings and the right against torture and other cruel, inhuman or degrading treatment or punishment. The Resolution goes on to speak about the safety and security of prisoners, staff, service providers and visitors and importantly prohibits practices involving indefinite solitary confinement; prolonged solitary confinement; placement of a prisoner in a dark or constantly lit cell; corporal punishment; and collective punishment (Pakes, 2019). The European Prison Rules were adopted by the Council of Europe in 1973, and include similar protections of human rights as were adopted in the UN General

Assembly resolutions (Pakes, 2019). The question is whether these steps have led to states adopting measures of human rights protections for its prison population and have states taken steps towards recognition of a more socially inclusive citizenship for prisoners.

Easton (2008) writes about the shift in prisoners' status in Anglo-American contexts, from a state of social and civil death to a state of recognition of their citizenship. Using the examples of prison systems in the UK and the USA, Easton (2008) argues that the concept of citizenship needs to be reconstructed so that it also includes prisoners and for doing so states must adopt a rights‐based approach for the prisoners. Easton (2008) writes about need for raising standards in prison and even using alternative methods to imprisonment. However, Easton (2018) also writes about how prisoners pose a problem for governments and politicians with there being different pressures from the media and the general public, which may modulate the government responses to the issues of prisoner rights and citizenship.

An example can be seen in how governments have responded to the prisoners’ participation in political processes in their countries. In the UK, despite the European Court of Human Rights taking a position in favour of right of prisoners to vote, there has been little effort to legislate on prisoners’ right to vote and participate in the polity (Harris, 2009). The UK government has taken a stance that appears to not align with the European Court of Human Rights and in doing so, it has ignored a sequence of verdicts by the Strasbourg Court (Van Zyl Smit & Snacken, 2009). In the UK, criminal disenfranchisement or a bar on voting by convicts is implemented through Section 3 of the Representation of the People Act 1983. Similarly, USA too allows criminal disenfranchisement. It can be argued that disenfranchisement is a separation of an individual from his citizenship and a treatment of a prisoner as someone who is dead it the civil sense (Ewald, 2002). Governments in the UK and the USA may be hesitant to do away with criminal disenfranchisement due to public discourse and media pressures against right of voting by prisoners. However, the denial of voting rights to prisoners is also a violation of their human rights (Marshall, 2016). This argument is based on the premise that criminal disenfranchisement relegates offenders to the status of second-class citizens and prevents them from exercising their political opinions (Marshall, 2016). Germany allows prisoners to vote unless the loss of voting right is specifically suspended in the judgment of the court; this happens only in case of conviction under political crimes and is not applicable generally. The Canadian Supreme Court on the other hand, have taken a step towards restoring voting rights to prisoners on the ground that there is no link between denying right to vote and the objective of promoting civic responsibility (Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, 2002). It can be said that compared to Canada and Germany, the Anglo-American approach to political human rights of prisoners is more restrictive.

Two penological practices

This section engages with rehabilitation and restorative theories and practices and focus on the effectiveness these two penological systems which will include explanation of the systems and the criticism. With the growth of human rights jurisprudence and the growing significance of restorative justice, approaches to penology have shifted from justice to restorative justice and this has led to the emphasis on recognising mitigating factors in a crime and the potential of reforming convicts. More importantly, there is a recognition of the principle that prisoners are not sub humans and are not divested all of their rights simply by being incarcerated (Easton,, 2018).

Rehabilitation theory emphasises on the possibility of reformation and rehabilitation of the wrongdoer, which is an approach different to deterrence theory. The deterrence theory emphasises on the use of punishment and imprisonment for the purpose deterring future crime. Early proponents of rehabilitation theory include Jeremy Bentham and Beccaria. Bentham argued that utilitarian actions can be determined on the basis of their tendency to maximise pleasure and minimise pain (Bentham,, 1982). Based on this, Bentham argued that based on utility principles, punishment could serve both as deterrence and reformation of offenders. This led to Bentham arguing for the devising of prisons that as per a construction design that he called prison as per his design of the Panopticon (Bentham, 1791). The Panopticon prison design was premised on the concept of reformation, correction, and rehabilitation through surveillance methods (Bentham, 1791). It was a form of social control within the prison facilities. Bentham argued that the only justification for punishment and imprisonment was if it led to the greater good of the society, and that it could lead to reformation of the prisoners (Bentham, 1791).

Restorative practices are not commonly adopted in all prisons, but there has been some increase in the adoption of restorative practices in prisons. Some of the practices that are based on theory of restorative justice and can be seen in prisons include victim awareness programmes, community service work, and victim‐offender mediation (Dhami, Mantle, & Fox, 2009). However, these methods are limited to a relatively small number of prisons (Dhami, Mantle, & Fox, 2009). The purpose of restorative justice approaches is based on the extent to which harms can be repaired and future harms prevented (Alcox, 2019).

Sevdiren (2011) offers a comparative analysis between England and Germany and demonstrates that German apply restorative systems; there is more opportunity for reducing custodial sentences in Germany as compared to England. Germany also incorporates alternatives to incarceration and although England has also created some non-custodial sentences, Germany has a broader scope of such sentences. Indeed, German experience shows that they have tried to reduce custody sentences and even used fine for shorter custody offences since 1920s (Sevdiren, 2011). This suggests a greater and early effort to evolve the prison system and the penological approaches and also provides a contrast with England, where the move to include more non-custodial offences happened much later. Germany as well as the Netherlands and Sweden have adopted a restorative justice model, in which inmates are encouraged to reflect on their actions whereas, the English prisons as well as the prisons in the United States may adopt a more restributive system, which sees prisons designed to punish the inmates (Alcox, 2019). Nordic prison systems are “open” so as to create space for reflection and remorse for the prisoners (Alcox, 2019).

Alternatives to incarceration: Identifying methods for improving relations between prisoners and society

Based on the premise that punishment may not always the best solution for dealing with offending, this section of the essay discusses what other methods can provide an alternative approach to incarceration.

With regard to female incarceration, feminist theory provides an argument against a strict approach in the criminal justice system, and demands attention to developing an anti-oppressive orientation to women, especially because female incarceration is also associated with peculiar problems (Willison & O’Brien, 2017). Due to spill-over effects, which relate to children or female prisoners, there has been increase in the demand to provide alternative criminal justice responses to criminalised women other than incarceration (Hagan & Foste, (2012)). Arguments are made that instead of punitive approach, restorative justice approach must be adopted for identifying alternatives to female incarceration (Hagan & Foste, (2012)). In the UK, the Corston Report, identified spill-over effects as including loss of home, loss of custody of children, increased depression, alcoholism and recidivism (Corston, 2007). In Australia, a 2017 report identified loss of rental property, loss of custody of children and recidivism as some of the spill over effects of female incarceration ( Human Rights Law Centre and Change the Record Coalition, 2017).

Alternatives to incarceration may include suspended sentences as part of restorative justice (Lulham, Weatherburn, & Bartels, 2009). This was applied in the USA through the House of Healing programme, which is a court ordered and community-based programme as an alternative to female incarceration where mothers were allowed to serve out their sentences without separation from their children (Litchtenwalter, Garase, & Barker, 2010). In the context of youth offenders, revival of restorative justice approaches in the 1970s with a focus on restoring relations between offenders and community led to inclusion of alternatives to imprisonment (Graham & Bowling, 1995). It can be argued that similar alternatives can be adopted for male adult offenders for certain kinds of crimes with a focus on restoring the relationship between the offender and the society.

Conclusion

German penological approaches and prison systems involve restorative processes and these are reflected in the way Germany applies more non custodial offences, or uses fines for short-custody offences. Use of open prisons where prisoners can reflect on their actions makes German prisons more focused on restorative justice as compared to British or American prisons. This reflects on differences in philosophies and even cultural approaches with regard to prisoners and their rights. It also reflects on the potential of restorative justice to improve relations between prisoners and the community as well as ensure citizenship rights of prisoners. In societies that are more evolved, like Germany, prisoners are not deprived of their citizenship. Germany even recognises right to vote for prisoners while there is criminal disenfranchisement in the UK and the USA. It can be said that the way a society treats its prisoners also reflects on the society itself. Argument can be made for involving more restorative justice practices for improving the conditions of prisons and increasing the potential for prisoners to become part of the society.

Continue your journey with our comprehensive guide to Human Rights Act 1998 Balancing ECHR Rights.

Bibliography

Alcox, A. (2019). Prisons in the United States: A need for reform and educational rehabilitation. Retrieved from https://scholarworks.merrimack.edu/cgi/viewcontent.cgi?article=1000&context=sj_studentpub

Bentham, J. (1791). Panopticon or the Inspection House . London: T Payne.

Bentham, J. (1982). An Introduction to the Principles of Morals and Legislation. London: Methuan.

Corston, J. (2007). The Corston Report: a review of women with particular vulnerabilities in the criminal justice system . London: Home Office.

Dhami, M. K., Mantle, G., & Fox, D. (2009). Restorative justice in prisons. Contemporary justice review, 12(4), 433-448.

Easton, S. (2008). Constructing Citizenship: Making Room for Prisoners' Rights. Journal of social welfare & family law, 30(2), 127-146.

Easton, S. (2018). The politics of the prison and the prisoner: Zoon politikon. Routledge. Ewald, A. C. (2002). Civil death: The ideological paradox of criminal disenfranchisement law in the United States. Wis. L. Rev. , 1045.

Foucault, M. (1977). Discipline and punish. New York, NY: Pantheon.

Hagan, J., & Foste, H. ((2012)). Children of the American prison generation: Student and school spillover effects of incarcerating mothers. Law & Society Review, 46, 37. Harris, D. (2009). Law of the European Convention on Human Rights. Oxford University Press.

Hitchcock, T. (2012). Renegotiating the bloody code: the Gordon riots and the transformation of popular attitudes to the criminal justice system. In I. Haywood, & J. Seed (Eds.), The Gordon riots: politics, culture and insurrection in late eighteenth-century Britain (pp. 185-204). Cambridge: Cambridge University Press.

Howard, J. (1777 ). The State of the Prisons in England and Wales: With Preliminary Observations, and an Account of Some Foreign Prisons . London: Cadell.

Human Rights Law Centre and Change the Record Coalition. (2017). Over-Represented and Overlooked: The Crisis of Aboriginal and Torres Strait Islander Women’s Growing Over-Imprisonment. Melbourne: Human Rights Law Centre.

Jewkes, Y., & Johnston, H. (2012). The evolution of prison architecture. In Y. Jewkes (Ed.), Handbook on prisons (pp. 174-198). Oxon: Routledge

Litchtenwalter, S., Garase, M. L., & Barker, D. B. (2010). Evaluation of the house of healing: An alternative to female incarceration. J. Soc. & Soc. Welfare, 37, 75.

Lulham, R., Weatherburn, D., & Bartels, L. (2009). The Recidivism of Offenders Given Suspended Sentences: A Comparison with Full-time Imprisonment. Crime and Justice Bulletin no 136, NSW Bureau of Crime Statistics and Research.

Marshall, P. (2016). Disenfranchisement and political capacity. In A. M.-P.-L. Anne Griffiths, & S. Mustasaari, Subjectivity, Citizenship and Belonging in Law (pp. 65-83). Routledge.

Pakes, F. (2019). Comparative Criminal Justice. Routledge.

Reed, J. (2003). Mental health care in prisons . The British Journal of Psychiatry, 182(4), 287-288.

Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68 (2002). Sevdiren, Ö. (2011). Alternatives to imprisonment in England and Wales, Germany and Turkey: A comparative study. Springer Science & Business Media.

Van Zyl Smit, D., & Snacken, S. (2009). Principles of European Prison Law and Policy : Penology and Human Rights. Oxford University Press

Vogler, R. (2017 ). A world view of criminal justice. Routledge.

Willison, J. S., & O’Brien, P. (2017). A feminist call for transforming the criminal justice system. Affilia , 32(1), 37-49.