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  This module is a resource for lecturers  

 

Topic one: Introducing the aims of punishment, imprisonment and the concept of prison reform

 

This part of the Module first explores briefly the theoretical justifications that underpin the aims of punishment, and then examines the main purposes of imprisonment. The focus then shifts to introduce students to the importance and development of prison reform.

 

What justifies punishment?

If an individual commits a crime, it is often assumed that the State is justified in imposing punishment. Some forms of punishment cause harm. It is important therefore to establish what justifies and underpins the imposition of particular forms of punishment.

There are five main underlying theoretical justifications of criminal punishment which form the basis of sentencing decisions across jurisdictions: retribution; incapacitation; deterrence; rehabilitation; and, reparation. These are defined above in the Key Terms section of this Module. Students should note that the differing rationales underlying the imposition of punishment are considered more fully in Module 7 on Alternatives to Imprisonment of the E4J University Module Series on Crime Prevention and Criminal Justice.

 

What justifies imprisonment?

Imprisonment is used as a form of punishment in every country in the world (for statistics on the prison populations of 223 independent countries and dependent territories see the World Prison Brief). In most countries, it is the most severe form of punishment that courts can impose. Levels of imprisonment around the world have risen dramatically since the Second World War, though more rapidly in some regions than others (Coyle et al., 2016). Proponents of imprisonment often argue that the sanction of incarceration can be justified by incorporating many of the differing aims of punishment highlighted above, namely through its incapacitative and deterrent effect, as well as through its ability to change and rehabilitate, and the notion that a prison sentence is a justly deserved and proportionate response to crime (Scott, 2007). While there is often disagreement regarding the relative weight that should be given to these differing aims and the way in which prisons should operate, international law strongly emphasizes the importance of rehabilitation and reintegration in order to meet the primary purpose of imprisonment.

Article 10.3 of the International Covenant on Civil and Political Rights (ICCPR) (GA Resolution 2200A (XXI)) states that: "The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation". Of significance, the ICCPR is a legally binding multilateral treaty that represents an international consensus that prisoners be treated humanely, consistent with their inherent human dignity, and that prisons be focused on rehabilitation and reformation rather than punishment. Similarly, Rule 4 of the Nelson Mandela Rules (2015) also emphasize the significance of preparing offenders for their social reintegration in justifying imprisonment:

1. The purposes of a sentence of imprisonment or similar measures deprivative of a person's liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.

2. To this end, prison administrations and other competent authorities should offer education, vocational training and work, as well as other forms of assistance that are appropriate and available, including those of a remedial, moral, spiritual, social and health- and sports-based nature. All such programmes, activities and services should be delivered in line with the individual treatment needs of prisoners.

Yet there is little evidence to suggest that the use of imprisonment as a punishment worldwide has been effective in achieving this aim (Coyle et al., 2016). Conversely, the overuse and overreliance on imprisonment worldwide has led to a growing recognition that overcrowding and poor regimes in penal institutions around the world have led to significant human rights violations, with prisoners enduring inhuman and degrading prison conditions without adequate access to basic services or rehabilitation programmes  delivered in line with their individual needs (UNODC, 2013a). Many prisoners are subject to appalling treatment and conditions that inherently undermine their human dignity and value as human beings (see for example: Coyle et al, 2016; Penal Reform International, 2018; see also Module 1 in this University Module Series). The aim of this Module is to assess key prison reform and public safety strategies that can challenge the inhumane treatment of prisoners and provide a strong basis for improving prison conditions around the world in order to ensure that prisoners' fundamental rights and basic human needs are met, as well as to challenge the overuse of detention.

 

The significance of prison reform

Since imprisonment has been imposed as a punishment, significant attempts have been made to improve the conditions of prisons. Across different jurisdictions, concern over the treatment of prisoners is at the core of the development of prison reform. As Vivien Stern noted, prison reform is "a cause that has touched the imaginations of many through the centuries, and continues to do so" (Stern, 1998, p. 248). Key questions to be addressed in this section include: What is the history of prison reform? Which actors have shaped prison reform? Why are prisoners' rights important?

A brief history of prison reform

Most prison historians of the Western world date "the birth of the prison", to use Foucault's phrase, to the late eighteenth century, the era of Enlightenment and European/American revolutions (see Foucault, 1977; Ignatieff, 1978; Radzinowicz and Hood, 1986; Morris and Rothman, 1995; Gibson, 2011). Prior to the late eighteenth and early nineteenth centuries, the use of imprisonment was limited, and prisons were mainly used to hold debtors, the accused awaiting trial and convicted persons awaiting their sentence - usually whipping, the stocks or hanging (see Barnes, 1921; Blomberg and Lucken, 2010). As severe criminal codes and barbarous public rituals of corporal punishment were abolished, imprisonment was increasingly used by the courts as a method of punishment, eventually becoming the most dominant means of punishing offenders. The use of imprisonment subsequently spread around the world, often introduced by colonial governments to countries with no indigenous concept of prisons, or by indigenous rulers under pressure from Western imperialistic powers (see Coyle, 2002; Zinoman, 2001; Bernault, 2003; Dikötter, 2002; Botsman, 2005; Gibson, 2011).

As long ago as the 1600s, during the colonial period of American history, Quaker groups and others campaigned against capital or corporal punishment, and urged for the use of imprisonment as a more humane alternative. William Penn (1644-1718), for example, founder and governor of the Pennsylvania colony, abolished capital punishment for all crimes except murder and treason. Penn declared that "all prisons shall be workhouses" and that "all prisoners shall have liberty to provide themselves, bedding, food, and other necessaries" (Barnes, 1922, p. 70). Prisoners would learn a trade as part of their reformation, and to help prepare them for life after release. While Penn's proposals were not systematically implemented, his belief that prison could serve as an instrument of reformation continued to influence prison reformers.

In 1787, a group of reform minded Quakers and other prominent citizens, including Benjamin Franklin (1706-1790) and Benjamin Rush (1745-1813), established the Philadelphia Society for Alleviating the Miseries of Public Prisons (now known as the ' Pennsylvania Prison Society'). Reformers were shocked by the sordid conditions, lack of discipline, and treatment of prisoners. All types of prisoners (men, women and children) were living together, and were expected to pay fees to the jailors for basic provisions such as food, clothing and heat. Liquor was sold to prisoners at a profit by jailors, and prison buildings were not fit for purpose, with no clean water or sewage disposal. As part of their reform strategy, the Society proposed the creation of larger penitentiaries, and recommended that prisoners should be separately incarcerated in a system of solitary confinement. Living conditions were improved, but prisoners were confined perpetually to their cells. Isolation and silence were expected to encourage individual reflection, reform and rehabilitation - a system that became known as 'the Pennsylvania System' or 'Separate System' which influenced significant change in many prison systems across around the world (see Teeters, 1927; Sellin, 1970; Roberts, 1985; see also Pennsylvania Prison Society).

A competing approach that became known as the 'congregate system' or 'Auburn system' (named after Auburn State Prison in New York State) emerged around the same time. The model was championed by social reformers and clergymen such as Louis Dwight (1793-1854) who founded the 'Boston Prison Discipline Society' in 1824 (Barnes, 1921). It called for prisoner isolation at night and congregate working in the day, but with no verbal communication allowed between prisoners - a rule that was enforced with "military-like discipline and liberal use of a whip" (Quen, 1975, p. 132). While the two systems differed, they both strove to maintain discipline by enforcing stringent rules and by upholding the premise that contact between prisoners should be prohibited in order to minimize the negative influence prisoners might have on one another. Competition between supporters of the two systems continued until the late nineteenth century, by which time most states had adopted the congregate system, with the in-built advantage of producing income via industry (see Roberts, 1985; Rotman, 1990).

Some commentators maintain that early prison reformers in America were influenced by the writings and activities of philosophers and social reformers in Europe (for an alternative perspective, see Rothman, 1995), including the Italian philosopher Cesare Beccaria (1738-1794), the British philosopher Jeremy Bentham (1748-1832) and social reformer John Howard (1726-1790), among others (see, for example, Barnes, 1921). Cesare Beccaria, for example, in his most famous work, Dei delitti e delle pene - On Crimes and Punishments, first published in 1764, argued powerfully for the abolition of capital or corporal punishment, a larger use of imprisonment as punishment, and improvement in the administration of prisons. One of Jeremy Bentham's most famous ideas was his design of the 'panopticon' prison in 1791. The panopticon facilitated for the total separation of prisoners while allowing guards in a central location to observe all prisoners but to remain invisible themselves. The separation, isolation and overall design of the panopticon were considered integral for the purposes of reflection and rehabilitation. Although the panopticon was never built, a number of early prisons in Britain and the United States reflected Bentham's ideas of segregation and isolation (for critical reflection, see Foucault, 1977; Semple, 1993; Steadman, 2007). Prison reformer John Howard published The State of the Prisons in England and Wales in 1777 and An Account of the Principal Lazarettos in Europe in 1789, based on an extensive tour and study of prisons across many European jurisdictions. Howard was appalled by the inhumane conditions and poor treatment of prisoners, and with jailers living off fees paid by prisoners. His reform efforts led to substantial change, including the abolition of jailers' fees, and improving hygiene and health care in prisons (Howard, 1777; 1789; Morris and Rothman, 1995; Wilson, 2014; see also The Howard League of Penal Reform).

Elizabeth Fry (1780-1845), who in 1816 began to visit female prisoners in a London prison, petitioned for better prison conditions to improve their circumstances and to raise awareness about women in prison, and their imprisoned children. In 1827, she published an influential book, Observations of the Visiting, Superintendence and Government of Female Prisoners, addressing the unpopular topic of female imprisonment and providing details for improving penal institutions (Fry, 1827). She wanted prisoners to be educated and for them to live in sanitary conditions. Her work inspired many organizations, including the Canadian Association of Elizabeth Fry Societies (see also Zedner, 1995). Another prominent reformer was Dorothea Dix from the United States who criticized neglectful practices towards the mentally ill in prisons, challenged the idea that people with mental illness could not be helped, and played a key role in creating new institutions for the treatment of the mentally ill across the United States and Europe (see Muckenhoupt, 2004).

Many great and influential writers have also highlighted inhumane treatment of prisoners, and the importance and necessity of prison reform. In 1842, Charles Dickens visited the Philadelphia model of solitary confinement (the separate system), and was horrified by the inhumanity of this treatment. After visiting several prisoners, whom he called men "buried alive" and cut off from "the living world", he concluded:

I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers; and in guessing at it myself, and in reasoning from what I have seen written upon their faces, and what to my certain knowledge they feel within, I am only the more convinced that there is a depth of terrible endurance which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow creature (Dickens, 2000, p. 111, originally published in 1842).

Another example is the author Fyodor Dostoevsky who devoted his semi-autobiographical novel, The House of the Dead, to describing life of prisoners in Siberian prison camps. His main character, Aleksandr Petrovich, who is sentenced to ten years in prison for murder, says of the effects of "the belauded system of solitary confinement" that it:

Attains only false, deceptive, external results. It drains the man's vital sap, enervates his soul, cows and enfeebles it, and then holds up the morally withered mummy, half imbecile, as a model of penitence and reformation (Dostoevsky, 1979, p. 13-14, originally published in 1861).

While brutal and public forms of corporal punishment had been replaced by private and apparently more humane systems of carceral discipline, they were "no less repressive than the corporal punishment of the old regime, and even more insidious in its aim to use the body as an instrument to regiment the soul and reshape the mind" (Foucault, 1977, cited by Gibson, 2011, p. 1042; for further critical reflection of the development of the modern prison, see also Rothman, 1971; Ignatieff, 1978).

The history of prison reform in Africa, Asia and Latin America has come to the fore among scholars in recent years (see for example: Dikötter and Brown, 2007; Sherman, 2009; Gibson, 2011). In these regions, many countries faced significant challenges implementing prison reforms that symbolized colonial domination. The difficulties involved in reformulating existing punishment systems meant that many countries struggled to implement humane forms of punishment (see Coyle, 2002). In Africa, for example, colonial prisons differed from European prisons in that they "sought to reinforce white authority" and "constituted not a replacement for but an addition to corporal punishment" (Gibson, 2011, p. 1053; for insight on the treatment of female prisoners in colonial Senegal, see Konaté, 2003 and 2013). Colonial prison reform in countries in Asia has been described as a story of a "largely alien institution" that was seen to be "not only a site of colonial oppression but also of systematic attempts to break caste and impose Christianity" (Arnold, 2007, p. 147-149; see also Yang, 1987; Anderson, 2003; 2007). In Latin America, prison reform became "part of a process of state and nation formation in which a rhetoric about modernization and innovation was generally contradicted by the continual - and usually violent - exclusion of the majorities from the exercise of democratic rights and citizenship" (Salvatore and Aguirre, 1996, p. 12; see also Salvatore et al., 2001). Importantly, many colonial governments were faced with strong opposition from anticolonial and political prisoners who, through their memoirs, contact with newspapers, riots and resistance, ensured that "the abysmal conditions in colonial prisons became a global issue that could not be ignored" (Gibson, 2011, p. 1062). Colonial legacy, however, continues to shape prison populations and prison administration around the world (Scott and Flynn, 2014).

During the twentieth century, prison reform groups focused on prisoners' rights as a means of improving prison conditions and alleviating the deprivations of imprisonment. Organizations such as the 'Preservation of the Rights of Prisoners', formed by prisoners and ex-prisoners in the United Kingdom, and the American Civil Liberties Union (ACLU) in the United States petitioned for formal due process rights and humane conditions (Easton, 2011). The ACLU National Prison Project, set up in 1972, works "to ensure that conditions of confinement are consistent with health, safety, and human dignity, and that prisoners retain all rights of free persons that are not inconsistent with incarceration." Since the 1970s, the project has instigated a large number of class actions, petitioning the United States government on a wide range of issues including better medical provision for prisoners with HIV, TB and cancer, the protection of prisoners from sexual assaults, challenging prison overcrowding and inhumane prison conditions (Easton, 2011, p. 39-40).

Prisoners' human rights have also been addressed across different jurisdictions through judicial intervention and independent oversight. In India, for example, a number of cases since the mid-1970s have developed human rights jurisprudence on the administration of prisons and the human rights of prisoners (see for example: Charles Sobraj v. Superintendent Central Jail, Tihar, AIR 1978 SC 1514; Sunil Batra v. Delhi Administration, AIR 1980 SC 1579). In an important judgment in 1996, the Supreme Court of India identified key problems in the prison system. It called for action to be taken to address the following issues: "overcrowding, delay in trial, torture and ill-treatment, neglect of health and hygiene, insubstantial food and inadequate clothing, prison vices, deficiency in communication, streamlining of jail visits and management of open-air prisons" (Harigovind, 2013, p. 27; Ramamurthy v. State of Karnataka, 1996, SCC (Cri) 386). In terms of independent oversight in India, prison reformer Kiran Bedi earned recognition for the work she carried out as Inspector General of Prisons in 1994 for addressing corruption and human rights abuses, and reforming the Tihar prison of Dehli (one of the largest prisons in the world) along therapeutic and community lines (see Bedi, 2007), though many of her reforms have since been abolished (Codd, 2013).

Over recent decades, various national and international organizations have campaigned and worked to promote the importance of prisoners' rights in different regions of the world, often collaborating closely with relevant government departments and local prison officials to reform the conditions in prisons, and implement international standards (see UNODC, 2013a). Across Africa, for example, the African Prisons Project (APP) work to reform prison conditions by "promoting the health and physical wellbeing of prison communities through increased access to essential health services" and by introducing "basic skills, creative and vocational training to encourage prisoners to use their time to prepare for release". The APP's initiative ' Justice Changemaker Training' also works to build senior prison and criminal justice personnel's professional and leadership skills by equipping them with "formal education, legal training and exposure to global best practice to ensure that prisoners' rights are upheld" (see also 'Capacity Development Projects' and 'Human Rights Advocacy Projects' of the Faraja Foundation). In Asia, the International Committee of the Red Cross has worked to support prisoners' rights and improve prison conditions for many decades. For example, the project Call for Action in the Philippines, launched in 2007, aims to address "the legal and procedural issues leading to overcrowding in prisons, deficient living conditions for detainees, and poor detainee health conditions, notably the spread of tuberculosis". Similarly, in the Kyrgyz Republic in Central Asia, the European Union and UNODC launched the project, ' Support to Prison Reform in the Kyrgyz Republic' in 2009, which aims to contribute to strengthening the rule of law through reform of the prison system.

In most societies in the world, at least one national or international non-governmental organization can be found, working towards improving prisoners' conditions and bringing prisoners' rights to the attention of the public (see for example: Amnesty International, the International Committee of the Red Cross and Penal Reform International). The central premise that unifies the work of prison reformers is a human rights one, that prisoners are human beings and should be treated at all times with "humanity and with respect for the inherent dignity of the human person" (Article 10.1 of the ICCPR (GA Resolution 2200A (XXI)), despite any crime that they may have committed. In other words, there are certain rights and freedoms which are fundamental to human existence, and which cannot be denied or forfeited, including the basic right to safety or to adequate standard of living, such as adequate food, water, accommodation, sanitation, ventilation, clothing, bedding, and opportunities for exercise (see Coyle, 2002; United Nations, 2005; Coyle et al., 2016).

Imprisonment is therefore increasingly recognized as a serious and severe punishment that should constitute only a loss of the right to liberty, not the restriction of other human rights or the imposition of additional punishment. As Coyle (2002, p. 42) noted, imprisonment cannot include, "risk of physical or emotional abuse by staff or by other prisoners" or "risk of serious illness or even death because of the physical conditions or the lack of proper care" (Coyle, 2002, p. 42). Similarly, Alexander Paterson, who was appointed as a Commissioner of Prisons in Britain in 1922 famously stated, individuals "are sent to prison as punishment, not for punishment" (cited in Ruck, 1951, p. 13, emphasis added; see also Robinson and Crow, 2009). As stated earlier, the primary purpose of imprisonment should be "reformation and social rehabilitation" so that prisoners can be released from prison as law-abiding and self-supporting citizens, crucial to the reduction of reoffending and protection of the public (Article 10.3 of the ICCPR (GA Resolution 2200A (XXI)). The international community has affirmed this purpose of imprisonment, more recently, in the the Nelson Mandela Rules, 2015, Rule 4; and the Doha Declaration, 2014).

While many prison reformers have demonstrably improved conditions for prisoners over the years (see especially Morris and Rothman, 1995), they continue to face significant challenges in the twenty first century. In many countries, outdated legislation, "tough on crime" policies, a lack of political will and social pressures, as well as limited resources and weak monitoring systems, threaten the impact of prison reform work, and challenge the human rights argument underpinning the importance of prison reform. In all regions of the world, the use of imprisonment continues to raise questions about the extent to which it is an effective, fair and humane punishment. The next part of this Module examines contemporary prison trends and challenges, as well as the development of international human rights standards. 

 
Next: Topic two: Current trends, key challenges and human rights
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