Incarceration and human rights: The Oxford Amnesty Lectures

Introduction

Oxford Amnesty Lectures (OAL) has as its first raison d’etre the raising of funds for Amnesty International. It does so through an annual series of lectures which consider human rights in light of a particular theme. In 2007 the theme was incarceration, an apposite topic when one remembers Amnesty International’s founding narrative, that of Peter Benenson reading about two Portuguese students being imprisoned. The result was international mobilisation, political pressure, and the talking out loud about first two, then thousands, of people who could otherwise have remained incarcerated and silenced. This ‘talking out loud’ is OAL’s second remit: to promote debate. In this book we do so through the contributions of twelve thoughtful experts, whose words are informed by personal experience in prisons (and asylums and detention centres), by professional engagement with policy and practice, and by academic knowledge of law, history, sociology, criminology and literature.

In Part I, ‘Behind bars’, Anne Owers, Shami Chakrabarti and Lawrence O. Gostin take us inside places of detainment, looking at the treatment of various groups.

As Her Majesty’s Inspector of Prisons, Owers is responsible for inspecting and reporting on all those held in prisons and some other facilities in England, Wales and Northern Ireland, but, as she says, her work is influential beyond these borders. She describes the work of her Inspectorate, and makes the important point that her reports are based on absolute standards, judging ‘against what is right, rather than what is necessarily immediately achievable’. She raises particular concerns about the treatment of minorities, including women, ethnic minorities, children and asylum seekers; and draws attention to the sad fact that, in prison, those with mental illness and substance abuse problems form, rather, a majority. Underpinning her judgements are the human rights based tests that determine a ‘healthy prison’: safety, dignity, purposeful activity and resettlement.

Gostin, too, sets out four rights – liberty, dignity, equality and entitlement – that he seeks for his particular demographic, those with mental illness, and he details how international law has changed, slowly and incrementally, to provide better support for these rights. Despite this progress, he also traces a grim history of deinstitutionalisation, with asylums closing only for their residents to be cared for, not ‘in the community’, but on the streets and back behind the bars of prisons. With a background in academia and policy advocacy, his main focus is on the USA and the European Community, but he also describes progress in the Americas and at the global scale of the United Nations and the World Health Organization, and he raises the question of the ‘cultural acceptance’ of mental illness, which leads to differing national practices of detainment.

Chakrabarti, Director of British human rights organisation Liberty, considers the case of asylum seekers held in detention in the United Kingdom. She too places this within the international context of rights legislation, particularly the 1951 Convention Relating to the Status of Refugees,¹ and within a history of Britain and ‘fortress Europe’ since the Second World War. She raises the puzzle of the ‘interdependent world’, in which military intervention or aid (or, though she does not mention it, capital) might move freely, but people find it harder to cross borders. And when they do manage to arrive at a potential place of safety, how their treatment breaks faith with previous promises. The movement of people is a theme addressed in earlier Oxford Amnesty Lectures,² but Chakrabarti sets out how it’s still a pressing matter, and how the refugee is ‘at the heart of modern notions of human rights’.

These texts all derive from lectures given by the contributors to a live, and lively, audience in Oxford, who have an opportunity for question and answer after each lecture. OAL gives a flavour of this sense of dialogue by asking a respondent to discuss, dispute or otherwise engage with each lecture text.

Liora Lazarus does so by combining praise of Owers’ practice with a troubled analysis of rights theory in the current climate, looking in particular at the ideas of ‘public protection’ and ‘security’. Honing in on a comment that the prevention of reoffending is a key element in the ‘core human right’ of public protection, Lazarus takes issue with this instrumental view, as she does with a growing ‘culture of control’, which is sceptical of rights and fuelled by political rhetoric. She moots, instead, a ‘right to insecurity’ – an unavoidable adjunct to freedom, and ‘a necessary concomitant of the liberal society’.

Roger Zetter takes Chakrabarti’s account of the detention of refugees and expands from it a dissection of ‘diminishing rights’ in Britain. He identifies a polarisation between ‘insiders’, with their shaky sense of ‘national identity’, and the feared ‘other’ – the migrant, refugee or perceived potential terrorist. But it is not only the rights and treatment of the incomer that are at stake, as restrictions that start out reserved for groups perceived as threatening quickly spread to the population as a whole, infringing everyone’s individual liberties and freedom of speech. Rights and responsibilities are often paired in populist discourse, but Zetter casts them in a different light, when he follows the rights lost in a ‘persecutory’ environment with the moral obligations that we in a liberal democracy are failing to discharge.

Stephen Shute amplifies Gostin’s account of deinstitutionalisation by offering a survey of what the rules are that govern the treatment of prisoners in England and Wales. He shows how case law, legislation and international instruments shape this treatment, his account covering not just the core human rights of life and liberty, but also some ‘secondary rights’ in the economic, cultural and social sphere. He closes with a discussion of the right to vote, over which the UK Government is in conflict with the European Court of Human Rights.

The chapters in Part I might paint a gloomy picture of conditions in prisons, but they also show that improvements can be made, and that there is pressure for both better standards and treatment, and adherence to the absolute standards which exist, underpinned by human rights instruments. The main ones referred to by the contributors include, on the United Nations front, the Geneva or Refugee Convention as mentioned above, which entered into force in 1954; the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Opcat), which came into effect in 2006; the International Covenant on Civil and Political Rights, which entered into force in 1976 and which states as Article 10, ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’; and, of course, the Universal Declaration of Human Rights of 1948, especially Article 3: ‘Everyone has the right to life, liberty and security of person.’ Owers and Chakrabarti also refer to the Convention on the Rights of the Child, which entered into force in 1990.³

At the European level, the most commonly mentioned instrument is the European Convention on Human Rights and Fundamental Freedoms of 1950, known as the European Convention.⁴ Within it, of particular relevance to incarceration are Article 5, the right to liberty and security of person; Article 3, prohibiting torture; and Articles 6, the right to fair trial and 7, the prohibition of punishment without law.

These are the human rights instruments that currently govern incarceration. In ‘Behind bars’, the contributors examine what might be done better within something like existing structures – structures both physical and organisational. As Owers points out, her remit is specifically to inspect and report on what is done in prisons, ‘not to validate the decision to detain’. But neither she nor the other contributors ignore the broader context, of the historical, political and social networks within which prisons function. There seems to be broad alignment in all these texts with Owers’ description of prisons as ‘a microcosm of what is going wrong with the rest of society’, and an agreement with her dictum that better resources are urgently needed outside prisons, as well as inside.

In Part II, ‘Beyond the prison’, the contributors are less immediately concerned with the specifics of what happens behind bars. Building, in particular, on Zetter and Lazarus’s lead, they set out a reconfiguration of how we might theorise, and act, on issues of incarceration and human rights. Loïc Wacquant, a sociologist, Thomas Mathiesen, a professor of sociology of law and an activist, and Jack Mapanje, a poet, are all well-versed in the problems, experiences and practice of prisons, but their essays take a broader standpoint.

Guided by the thinking of his former teacher and colleague Pierre Bourdieu, Wacquant places the prison within an ever-strengthening field of neoliberal social control, in which the insecurity of a deregulated, post-Keynsian economy is used to perpetuate a separate space for the outcast and marginalised. He states that a proper understanding of this ‘punitive turn’ requires combining a materialist analysis of economic relations with an appreciation of the symbolic power that prisons communicate. Looking first at the USA and then at the Western European countries that follow its ‘politics of poverty’, Wacquant describes the penal system and the workfare state (no longer welfare) as intermeshed, both of them working to control and tame populations – women, ethnic minorities, immigrants – that had threatened disruption.

Ian Loader responds to Wacquant by seeing whether, despite the grip of neoliberal penality, there might be routes out of this morass. One grappling hook for dealing with the issue, for Loader, is the clarity with which Wacquant identifies and rejects ideas about prisons that are commonsensical but wrong. Loader’s own suggestion for progress also looks to economics, but does so in the context of the 2009 ‘credit crunch’, hoping that, as there are calls for financial excess to be replaced by the burnt fingers of caution, so too in place of the damage of hyperpenality, we might move to ‘penal moderation’.

Mathiesen brings his characteristically humane mindset to bear on the issues. In his ten-pronged argument for a moratorium on prison-building, he sets out the ostensible rationales for prisons in order to refute them, with examples from his extensive work as an academic and activist. Mathiesen paints a broad landscape in which prisons are just one link in the chain of control that stretches from long before crime to long after; from police surveillance and the prediction of risk, to prison, parole and after, integrated into one diffuse ‘punishment chain’. But he also suggests the possibility for resistance, building on the model of peace movements and protest.

David Downes expands on Mathiesen’s arguments, emphasising an important point (also a concern of Wacquant’s) about the lack of connection between crime and punishment. As well as seconding the prison moratorium in terms of what is wrong with prisons, Downes describes a ‘more constructive and less damaging’ response to crime, that of restorative justice. He sets out its benefits and limitations, offering it as a counterbalance to the narrative, often heard from politicians, that ‘prison works’.

In his essay, Mapanje offers a personal story of beyond the prison: firstly, of the international support network that helped to obtain his freedom, and then of what happened after his release. Strategies for coping behind bars had to mutate into ways of surviving the freedom of unfriendly exile in a world that had moved on despite his absence. Mapanje’s tactic, and his gift, has been to develop a field of study called Literatures of Incarceration, which incorporates work from imprisoned African writers, Latin American exiles and other prisoners, writing from the Holocaust and the gulag, and classic Western works. Perhaps depressing, but imaginative and full of a dark humour, these are artworks that can be enjoyed, can help spread knowledge, and can assist in a reassessing and reimagining of the reader’s place in the world.

Jonny Steinberg picks up on the power of narrative by bringing in two stories of imprisonment from South Africa, one about Nelson Mandela, the other a tale from his research into prison gangs and their oral mythology. Responding to Mapanje, he describes incarceration as ‘a tool’ that Mapanje used, successfully, to carve out a space of survival. Steinberg’s language reshapes Mapanje’s experience into a concrete object. And it is reshapings – of a painful history into a tool for education; of harmful practices into more constructive ones; of certain understandings of prisons into counter-narratives and transformed conceptions – that all these contributors offer.

Each contribution stands alone, but we might extract certain threads that seem to run through the whole.

Firstly, there is concern about the media, and about a discourse on prisons (and the people in them) which is populist, hysterical and self-fuelling. The hope behind this book is that it might offer an arena for a more considered set of voices. Instead of hard words on prisons, we might heed Mathiesen’s call for ‘hard thinking’.

A second recurring theme is that of economics. The constant power struggle between classes is central to Wacquant’s thesis, while Mathiesen agrees that prison-building is ‘an intensification of the war against the poor. Not poverty, but the poor.’ Downes discusses the economic impact of US mass imprisonment, and, though Wacquant decries the ‘prison-industrial complex’ label as oversimplified – ‘the wrapping [not] the package’ – a work such as Christian Parenti’s Lockdown America is a vivid introduction to some of the related ideas.⁵ Also relevant to both Wacquant and Mathiesen, and, for different reasons, to Mapanje, is the figure of the scholar Angela Davis. Her work locates prison as a function of the capitalist mode of economy, as a time-based and deeply racialised institution which also traces roots to slavery, the reservation and the internment camp.⁶

In this book, the main places under discussion are the USA, the UK and Western Europe, with detours to Canada, the Americas and southern Africa. The contributors point to diverse practices in different countries, but a third underlying theme is that of the flow and movement of ideas, influences and people.

Mass imprisonment on the US model spreads to, or is resisted in, other places. People migrate, or are moved, their arrival bringing new social configurations and new uses of the prison. Borders and realms of influence change, with imperialist expansion (and reflux) lurking in many of these texts. Chakrabarti discusses the upheavals and aftermath of the Second World War, and mentions that migration is influenced by ‘family, linguistic and other cultural ties borne of the imperial past’. Mapanje looks back to colonial rule and forwards to consequences of the invasion of Iraq, reminding us with respect to Guantanamo that ‘Although we like to forget the point, for many years such prisons have become an integral part of Western civilisation.’

And in line with these flows, the very idea of prison is by no means fixed; for an account of its variation through time and place, and the fact that it is itself a reaction to other modes of punishment, see, for example, the discussion by Pieter Spierenburg in ‘The body and the state: Early Modern Europe’.⁷

The final area of fluidity must be between the two halves of the title, to look at what might emerge from the yoking together of incarceration and human rights. Certainly prisons are places where, with the fundamental right of liberty suspended, human rights can be observed or ignored, promoted or disregarded. The contributors show us how to judge, and improve, prison through the prism of rights. But the connection, they also suggest, works the other way. We should look at rights through the prison: what are the processes by which it upholds or distorts rights; whose rights are threatened, whose values upheld? The problems that prisons raise – practical, theoretical, moral – are problems that we need to engage with in order to refine our ideas about human rights, in order to exercise and fully enjoy those rights.

Notes

1 See note 3.

2 See Kate E. Tunstall (ed.), Displacement, Asylum, Migration: The Oxford Amnesty Lectures 2004 (Oxford: Oxford University Press, 2006).

3 See www2.ohchr.org/english/law/ for links to the International Bill of Human Rights, and to the core international human rights instruments, both those mentioned above and the Standard Minimum Rules and the Basic Principles for the Treatment of Prisoners (accessed 28 February 2009).

4 Viewable via www.echr.coe.int/echr/ (accessed 28 February 2009).

5 C. Parenti, Lockdown America: Police and Prisons in the Age of Crisis (London: Verso, 1999).

6 Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003).

7 Pieter Spierenburg, ‘The body and the state: Early Modern Europe’, in Norval Morris and David J. Rothman (eds), The Oxford History of the Prison: The Practice of Punishment in Western Society (Oxford: Oxford University Press, 1997).

Part I

Behind bars

1 Anne Owers

Prisons inspection and the protection of human rights

¹

This essay is about why independent inspection of places of custody is a necessary part of human rights protection, and how that independence is manifested and preserved in practice.

In this society, incarceration is the highest penalty that the state can impose – and, increasingly, that is the case in many countries of the world as international pressure to abolish the death penalty grows. The expansion of the Council of Europe and the insistence that all new member states, when they sign up to the European Convention on Human Rights, also accept Protocol 6, which outlaws capital punishment, have hugely extended this area. But it has also thrown into even greater prominence the need to monitor and examine conditions in custody, in states that have limited resources but are now finding themselves holding more prisoners, and for much longer terms.

Within the Council of Europe, the role of the Committee for the Prevention of Torture (CPT) has been crucial. It is independent of states parties and has the power at any time to go into any place of custody in any member state. It reports to the state authorities on the treatment of those detained. Though those reports are not made public, states must make a response – and risk action at the European Court of Human Rights if there are significant breaches of its key articles, particularly the prohibition on torture and inhuman and degrading treatment.

The notion of independent monitoring of places of detention has acquired even more extensive international underpinning. In June 2006, the new Optional Protocol to the UN Convention against Torture (Opcat) came into effect, having acquired a sufficient number of signatories – including the United Kingdom, which was one of the first to sign up.² It approaches monitoring principally from a domestic, rather than an international, perspective. It requires each state party to have in place an independent ‘national preventive mechanism’ which can regularly visit and report on all places of detention. The international mechanisms to ensure compliance are more limited than the European ones: there is no court with overarching jurisdiction, and only a committee of experts with few resources, reliant on information from, and the vigilance of, domestic bodies.

The UK was able to sign up to Opcat very swiftly because we already have in place a robust and independent domestic system for inspecting prisons and most other places of custody. The principal mechanism for this is, of course, the Prisons Inspectorate. Set up in its present form in 1981, it now has statutory responsibility for inspecting prisons and young offender institutions (YOIs) in England and Wales and all places of immigration detention within the UK. It acts under the statutory authority of the Chief Inspector of Criminal Justice in Northern Ireland to inspect prisons and YOIs there too. By invitation, it also inspects the Military Corrective Training Centre (the armed services’ only central detention centre), and prisons in the Channel Islands and Isle of Man. Moreover, we are currently working with colleagues in the Inspectorate of Constabulary to develop a methodology and mechanism for regular inspection of police custody suites (as we are with Courts Inspectorate colleagues in relation to court cells). Other bodies – the Mental Health Act Commission and Ofsted, respectively – are responsible for inspecting secure mental hospitals, and secure training centres for children. Independent monitoring, on a regular basis, is also carried out by local independent monitoring boards (IMBs), which are groups of volunteer citizens with the right of entry into their local prison. Their continuous presence provides a valuable complementary role to inspection.

We hardly need reminding why international and domestic law places such importance on independent and regular inspection of all places of detention. They operate out of sight, and often out of mind, of the public. They are places where power is with the custodian, not the detainee; and where detainees are dependent on the humanity of their custodians for everything, from small dignities (for example, being able to have a pillow