Why today do militants still need to worry about what is happening in prisons, to inform people and fight to ensure that detainees’ rights are respected? And why do national and European judges need to assess whether fundamental rights are respected? Have prisons not been reformed, rights recognised and the penitentiary authorities inspected?
The answer is plain to see, or more accurately, for most of us who have no current experience of detention, plainly written for us to see by witness statements, enquiries and legal cases filed by those who have taken on the task of letting people know about what goes on behind prison walls, and in the decisions of bodies such as the European Court of Human Rights. There are many reports on human rights breaches, from overcrowding to difficulties in obtaining healthcare, to violence and difficulty in preparing for release.
Let us dream a little: what if the European States addressed the issue and applied the recommendations of the bodies for protecting human rights? Could the militant organisations and inspection bodies go into retirement? In reality, no.
There is a more fundamental reason, a more lasting reason for the calls for public action to take on the most obvious problems with incarceration, which means that penal system must not be left uncontrolled. Observing what happens in prison and requiring the recognition and respect of the rights of people in incarceration is a manner of showing that prisons have been a sentence-problem, since their enthronement as the centre of the penal system in the 19th century.
Saying that does not mean that prisons sentences pose problems that must be resolved. On the contrary, it means that, although the problems in prisons may be reduced, tackled and moved, they cannot be resolved. They can however be kept quiet, covered up and ignored, or inversely pointed out, made visible and disputed.
To understand it, maybe a slightly different question needs to be asked, which is: what problem were prison sentences supposed to solve? Even if his account has since been nuanced by legal historians, we will use the answer given by Michel Foucault[1].
In Discipline and Punish, Foucault explains that a common manner of thinking about the birth of prison as a punishment (this was not the start of incarceration, which was already used to exclude all sorts of populations), is to see it as a replacement for the corporal punishments of the Ancien régime, before the French revolution. The most violent form of these punishments was the spectacle of the scaffold, which subjected the body of the unfortunate condemned man to the blows of the sacred power of the regal authority that he had dared to defy, to break him into pieces and reduce him to dust. Incarceration rather than torture was a sign of moderate repression, made more humane by the reasoning of the philosophers and the legal experts of the Enlightenment. But the idea of humanisation masks part of the transformation of the political economics of sentences. In the penal justice embodied by public torture, the reformers of the 18th century that inspired the penal reform after the revolution, criticised both the excessive nature and the inadequacy of the punishment. The excessive nature was of course the atrocity of the martyred bodies. But there was also an inadequacy of the punishment: the rarity of torture went along with the impunity of many illegal acts. ‘Illegalities’, as Foucault names them, occurred at every level of society, and were poorly handled by the complex mesh of penal institutions under the monarchy.
Whereas, in the transformation of the capitalist economy that was growing in the 18th century, which produced machines, stocks of goods and developed towns, the bourgeoisie — the dominant class under construction — no longer tolerated this generalised illegalism. It intended to reserve justice of compromises and arrangements for circumventing financial, fiscal and commercial rules. But it wanted to fight against popular illegalism, which was contrary to the constitution of private property, such as the most sacred law: theft, the theft of wood from forests, which were previously communal but were now private property, to take a famous example from Marx, or the plundering of places where products of the industrial economy were accumulated, such as the port of London. Penal justice was the tool for “this systematic and armed intolerance of illegalism”[2]. Penal reformers wished to make a clear link between the offence and the sentence, by carefully defining the prohibited behaviours and their severity.
There was however, in the same movement, the notion of removing violence, which was considered to be blind and repugnant, from punishments. Codification must foresee all crimes to limit arbitrary treatment, but also to allocate an appropriate punishment. Penal violence must be measured, and not rampant, to fulfil the plan for systematic and efficient repression. The excessive nature of the violence of torture makes the punishment too uncertain. The spectators may be moved by the suffering of the condemned person. Worse still, it could cause a riot and risk making the demonstration of the king’s sovereignty a failure. The excessive nature of torture also sets a bad example: striking hard and rarely, it cannot, to speak like Beccaria[3], form a systematic appreciable barrier that the potential offender weighs up against the benefit of the offence and that must dissuade them. The penal ideal of the elites of the Enlightenment at the end of the 18th century, was a punishment that fits the crime, which expresses in everybody’s eyes the exercising of controlled and implacable violence.
To achieve this, these reformers founded the legitimacy of legal violence on new bases: from being contempt of the royal sovereign (lese-majesty), the crime became an offence against society as a whole. The modern criminal philosophy appoints criminals as public enemies, whose punishment must protect the social contract[4]. Which gives rise to an extraordinary imbalance of power between a criminal and the public authority, the State, which pursues them in the name of all the people. Criminals are, in this sense, alone against the world.
It is this imbalance that the theoreticians of penal reform attempt to consider. Firstly, by establishing the principle of the smallest possible punishment, or the least suffering during the punishment. Then, and more positively, by wishing to make the punishment something other than suffering with no aim other than retribution. To do this, Foucault demonstrates that the reformers have the ambition of a system of punishment centred on the social visibility of the penalties, and a symbolic correspondence between the condemned actions and the sanctions suffered. A visible penalty is also a penalty that protects against hidden violence that goes beyond a fair penalty. For Bentham[5], the perfect prison, the Panopticon, places convicts, but also those guarding them under constant surveillance, to prevent the “tyranny” of guards. Above all, if, as Beccaria once again explains, the perspective of the punishment is enough to dissuade a person who is tempted to commit a crime, it must be both public and significant. Every act has its punishment, to create a huge correlation table that would ensure the pedagogy of the law in the eyes of all citizens. In this way, the idea of the punishment would be more powerful than the punishment itself.
To fulfil these aims, prison sentences are both a good and a bad candidate. Incarceration as a sole means of punishment does not achieve a symbolic correspondence, which is visible to all, of the link between the act and the punishment, which can only operate “in the factor of publicity”[6]. Then, behind the high walls, the new penalty is at risk of being applied in secrecy, which offers dangerous potential for excess violence that was specifically sought to be avoided. “Whereas these two consequences – secrecy and autonomy in the exercising of the power to punish – are exorbitant for a theory and a policy of penalties that suggested two aims: making the exercising of the power to punish entirely sufficient and transparent with laws that publicly limit them”[7].
Why under these conditions are prison sentences so quickly imposed as the go-to punishment? It is because penal reforms became associated with the great movement for the constitution of disciplinary institutions in the 17th and 18th centuries. Initially, they were not punitive institutions but educational and therapeutic. Foucault traces the history of discipline firstly as tools for the formation of modern armies, the rationalisation of teaching in schools and the operation of hospitals. Discipline is a set of techniques for transforming individuals, based on their visibility, their distribution, their examination, their hierarchy, and supported by specific knowledge: from social sciences that study the reasons why individuals are more or less inclined to adopt the expected behaviours and progressions.
From this emerged the assets of prison that the monotonous idea of confinement did not reveal. It may be said that incarceration is modular in two senses: modular in time for the duration of incarceration that forms a correspondence between the scale of the crimes and the scale of the sentences, and modular over the time of the sentence with the possibility of the progressive reduction of incarceration, which makes it possible to reward good behaviour by less harsh conditions of incarceration.
In this way, incarceration is less defined as an enclosed space than as a dynamic time, a time to transform criminals into honest citizens. The necessity of such a transformation is based on the characterisation of delinquency. In the years following the French revolution, delinquency was muddled with the confused mass of popular illegalisms, and came dangerously close to the political will to bring down social order. Someone who disputes private property could be seen as a convict or a revolutionary! The creation of delinquency as a specific and negative social phenomenon is a procedure of differentiation, which made it possible firstly to impose a “basic legalism” on the population whilst extracting a deviant minority, who were stigmatised and progressively separated from the political organisation of the working class. This minority are those who have not successfully incorporated the notion of discipline at school, in the army or the factory. Delinquency was a pathology of bad poor people, for whom a disciplinary institution was created, for the purpose of reform.
It was to operate by the constant implementation of a system of “gratification-sanction”, which rewards compliance and punishes deviancy: “Through this micro-economy of perpetual penalty a differentiation is created that is not based on actions, but on individuals themselves, on their nature, their potential, their level or their value”[8]. For this reason, “at the heart of all disciplinary systems, a small penal mechanism operates”[9]. This little mechanism does not have the magnitude of the Codes that were written to make the law comply with the philosophy of the Enlightenment. It does not fight against arbitrary treatment by a strict definition of crimes and punishment. Inversely, in prison “the undefinable field of non-compliance is punishable”[10].
In this way, we understand what Foucault means when he says “discipline, in its mechanism, is a ‘counter-law’”[11]. It is a constant reason why the call for law in prison is a subversion of its operating model, even if it is implemented at a time when the State asserts its domination through the law. The noble legal structures only make sense with their disciplinary counterparts, and the legal power to punish depends on the discretionary power to reform. Observing prisons by testing their operation against respect for human rights shines a harsh light on this little secret of modern penal institutions.
But there is more. The problem of the disciplinary penitentiary utopia is that it was immediately confronted with its failure. Here, Foucault’s words turn almost to sarcasm. Since the start of the 19th century, each generation of philanthropic reformers has believed they have discovered that incarceration does not resolve the problems of delinquents but it compounds them, anchors them in criminal circles, plunges their families into poverty, etc., and each generation imagines that they have the key to the enigma. Prisons need to be made more like their initial ideal: separating the detainees, differentiating their conditions of detention, promoting activities that allowed for moral reform and professional adaptation. For Foucault, the penitentiary system can only be understood through this constant play between failure and improvement plans.
This gives rise to two major consequences for the rights of detainees.
The first is that prison discipline is to be understood equally in terms of a practical necessity and the implementation of a programme of amendment. This necessity, as demonstrated by Jacques-Guy Petit[12], has two simple causes: maintaining order in a closed space and preventing people from leaving. Gratifications and sanctions gain a more prosaic meaning, that of dissuading disorder and escape, whilst allowing for a grading of the violence of incarceration. The disciplinary techniques of the 19th century form a museum of horrors, which are often deadly, that are far from the notion of a penalty that no longer punishes the body. The penalties have changed, but the problem remains: the arbitrariness of prison is still based on an ideal of redemption solely for the necessities of management. Which is what has led to the fact that the term recently used, in an important work on prison violence, the qualification of the political regime of detention is the same that Bentham noted as an example of what must not be done: tyranny[13]. The term is not used as a moral judgement on the tyrants or to reduce all possible relations in prison to those of a tyranny, but to designate a form of cohabitation that cannot be based on a regime of shared law and the fruit of collective deliberation. Discretionary power is the corollary of the exercising of constraint. Recognising detainees as political subjects of the place of their incarceration, opens the door to allowing them to meet, their consultation, their organisation, essentially, everything that the authorities, who need to maintain control, wish to avoid.
The second consequence, is that Foucault invites us to cast a suspicious view on projects to reform prisons that are rooted in the disciplinary ideal. On the one hand, they simply rehash a monotonous discourse that took shape in the early decades of the 19th century. On the other, bringing back the utopian notion of reform, gives new power to the systems of differentiation/penalties that legitimise arbitrary treatments for people. It is at this point that Discipline and punishment explicitly refers to current affairs of the time. Published in 1975, and written during the years of revolt in French prisons, the book shows that the reaction to disputes, in part, returned to this old system. Since 1975 we have been quoting Valéry Giscard d’Estaing[14] according to whom detention should only consist of the deprivation of freedom to move, which Foucault mentions as a footnote. But what is less known is that as early as 1831, Decazes[15] said “but with the sparkle of his language”, that “the law must follow the prisoner into the prison where it has sent him”, which has never prevented discipline as a counter-law being the true operating principle of prisons.
In France, a great prison reform movement occurred after the Second World War. Under Paul Amor, a Resistance fighter and judge, who was incarcerated during the German Occupation, the penitentiary authority returned to the aim of creating a progressive prison system, i.e. differentiated, adapted to each person’s level, operating like a path of amendment leading to liberation. When confronted with the revolts in the seventies, Foucault observed the traditional response: the Amor reform was inadequately implemented, we need to start again, and go further.
But in France, in the seventies, this response was met with scepticism. Indeed, beyond prisons, the uprising in France of 1968 put all the disciplinary institutions into crisis. From high schools to barracks, from asylums to families, the mobilised youth not only denounced capitalist economic domination that was embodied in inequality in work and pay, but also the domination between people, by psychiatrists, by teachers, by foremen, by warrant officers, by fathers, etc. The militants wrote their demands, which were torn between the demand to bring an end to the disciplinary institutions, and that of transforming them to respect the rights of the people they host and incarcerate. This is what for example the Comité d’action des prisonniers did when it wrote a list of demands whilst hoping, ultimately, for the abolition of prisons.
It was the time when the current forms of demands for prisoners’ rights were born. The history and sociology of incarceration have shown how these demands have made it into the public space, through slogans scrawled by prisoners on roofs, to expert recommendations, from political projects to laws, resulting in the institution of penitentiary law. This law is embodied in general reforms, such as, in the French case, the Penitentiary law of 2009; but also by the consecration of specific rights, including the most important examples that touched on health in 1994[16], and disciplinary procedures, since the Marie Order by the Conseil d’Etat in 1995[17]. The creation of the Inspector General for Places of Deprivation of Liberty[18] in 2008 also helped to put prisons under a new external view.
And yet. The hundred pages of the ruling handed down by the European Court of Human Rights against France in January 2020[19] show us the scale of the breaches of human rights. If we read from a paragraph chosen at random:
“The applicants all complain about the proximity of the dining table and the toilets that are only separated from the rest of the cell by a curtain. They denounce the insalubrity of the cells, which are infested by pests (rats, cockroaches, mice and ants), the dirtiness of the toilets and the lack of hygiene (no bins, hygiene products, sheets in poor condition) and ventilation. Some complain of a lack of light, say that they suffer from skin conditions and allergies and describe difficulties storing food. Others are afraid of the violent atmosphere. Some complain of a lack of or inadequate healthcare. All claim to be locked up for between fifteen hours and twenty hours per day – sometimes with smokers when they do not smoke”.
These horrors do not occur in a lawless world: the ruling constantly refers to the legislation in force, the possible legal actions and the denunciations of the Inspector General for Places of Deprivation of Liberty. The European Court notes their incapacity to prevent the breaches of the European Convention on Human Rights that provides in its article 3 that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”:
“The Court has concluded that there has been a breach of article 3 of the Convention due to the physical conditions of detention in which the applicants are held, and in particular due to the lack of personal space that they have. (…). The Court also noted that the administrative referrals could not be considered, at this time, as remedies allowing to bring to an end or to improve, in an effective manner the treatments contrary to article 3 of the Convention. It found that the Government did not dispute the overcrowding of the institutions in question which, as indicated by the CGLPL [Inspector General for Places of Deprivation of Liberty], is an aggravating factor in the undignified conditions of detention. There is therefore a direct link between prison overcrowding and the breach of article 13 of the Convention as well. In the cases examined, the Court was able to observe that the performance of the decisions of the administrative judge was confronted by a structural phenomenon, attested to by the demands, statistics and many national and international reports as well as by third party interventions”.
This gives rise to major debates on the scope of legal revolutions, which brings back Foucault’s question on the long history of prison reform: does not reforming in the name of rights just lead to the repetition of the process of failure and transformation of prisons that has been in progress for two centuries?
If the debate cannot be closed, a distinction may perhaps be made between two factors.
The first is that the subversive dimension of claiming rights in prison should not be underestimated, on the condition of accepting that writing them into law is more of a start than an ending. There is no doubt that the institution of penitentiary law can exist alongside continued arbitrary treatment and the return of the hope of amendment inside incarceration, if not through incarceration.
But the law embodies, or should embody a reformism that is doubly sceptical on incarceration. Firstly, sceptical about the transformational power of a disciplinary institution. Demanding the respecting of rights defined in a universal manner does not mean creating the conditions of a good prison, it means transforming a prison against itself and offering detainees the means to defend themselves against the individualisation of their condition. For this very reason, asking for rights means already knowing that they will not be entirely respected, as, whether you believe in the virtues of incarceration or otherwise, it is managed by a discretionary power. Instituting rights for detainees obviously means seeking to improve their conditions by raising the baseline of what nobody can be refused. But it also means instituting a test that reveals the fact that prison cannot be anything but a place with no balance of power, and that this imbalance must always be fought against by the law itself.
We can understand it through a few simple examples. To protect people’s dignity and intimacy, a claim must be made to prohibit strip searches and the possibility to meet family under good conditions. But, in terms of the management of closed institutions, the question is reformulated by the prison authorities and becomes: if we have to limit searches, who must we search? And if we have to offer the right to see family, who can we grant and refuse the right to? This does not at all mean that the initial claims are made in vain, but that they have little chance of being successful and therefore remain a challenge for legal action to have them applied as rights.
The second point, which explains the coexistence of the institution of rights and penitentiary disasters is the return to growth of the population in incarceration since the mid-seventies. This is what is meant by the “structural phenomena” referred to by the ECHR. Prison population inflation has a series of effects on conditions of detention. Overcrowding is the most direct consequence, which can ruin the aim of a protective law: what meaning is there for dignity, intimacy or safety when three people share a cell with two beds? But it is not the only one: investing money to build prisons means taking resources that will then not be used to improve conditions of detention. And the general inflation in the number of prisoners hides more specific trends, such as the increasing length of prison sentences. These enhance demands from prison authorities for security and management tools. The simple old idea of “gratification-sanction” helps us understand it. Obviously, the greatest gratification that justice can offer is freedom. If that is impossible or pushed back to an unimaginable horizon, all that is left are forms of control and sanction, which are contrary to respecting human rights.
These trends have enhanced the conflictual coexistence between the recognition of rights and their modulation according to categories of detainees. The increase in the forms of assessment combined with the differentiation of regimes of detention has given a legitimate basis for this undertaking. This legitimisation sometimes becomes a return to the old correctional dream: what is missing from prison for it to fulfil its role is the appropriate psychological-social programme for each form of criminality, which would make it possible to reduce the level of risk. This is doubtlessly where there are the most difficult rights to be fought for: those that aim to distinguish the perpetuation of arbitrary treatment behind the finery of a new scientific approach, which has moved from a medical examination to the use of statistical data.
So we must not fool ourselves: saying, as we have, that prison is an insurmountable sentencing problem does not mean that there are no ways to make the problem less massive and less violent. This is actually exactly what forms the two political directions followed by militants fighting for the respect of detainees’ rights: either for a protective law covering detention or for less use of detention.
There is however, I believe, another reason to be reported that means that incarceration is a sentencing problem, which is that it is not so simple to go without it completely.
An intuitive version of reducing the use of incarceration can be summed up by saying that people have no place in prison, which is shared by people who visit prisons and see the misery of the world there. It is a powerful idea in that it makes it possible to work on what should absolutely be taken out of the penal system (meaning drugs), or be treated with the briefest possible periods of detention. This is also an idea that makes it possible to think about the fact that people in prison have been failed by the training and care institutions, or more simply the jobs market during times of mass unemployment and the job instability of the working class. We always note that such a person would have a better chance of making things work if they had help for finding a place to live or finding a job than suffering and wasting time in prison, and that another person is in far greater need of care than punishment.
This is a good guideline, on the condition of understanding what it supposes. It is not enough to say that people in detention should be at work, at school or in a hospital. Because they have already been through school, a hospital and a precarious job, whether informal or illegal. Incarceration is all too often the end of a series of failures, from the State social institutions up to the community-based sanctions. Saying that the resolution of the problem consists in not incarcerating people, is therefore just indicating the start of the solution, but just the start: driving the transformations to be made to resolve the reasons for incarceration doubtlessly means making profound social transformations rather than technical improvements to penal law.
We understand it all the more when we approach people for whom it is not easy to say that they have no place being in prison, firstly those who have committed the most serious acts of violence, homicidal violence or femicide, sexual violence, and domestic violence. What complicates understanding the prison issues of recent decades is that the penal transformations are not just the secondary effects of the weakening of the social State and employment. They have also included, at least in part, transformations that have, with the cooperation of militant action, made behaviours intolerable and (a little more) repressed, first and foremost violence towards women and children.
Furthermore, you only need to listen to what is said, sung and shouted in contemporary social movements to hear demands for justice that often go along with demands for punishment. Protesting against penal institutions also means criticising a repression that always affects the same people and denouncing the impunity of illegalisms that are settled by internal arrangements in the field of power: the impunity of the bosses of multinational companies that close production sites after having benefited from subventions from the State, leaving hundreds of people unemployed and hopeless; political leaders who respond violently to all the protests about their reforms; or those responsible for irredeemable damage to the living.
Prison is certainly a “minuscule invention that has been despised since its birth”. But, as the armed wing of an institution that claims to deliver justice, it is crossed by all the tensions that run through societies filled by injustices. If we must hear, as Foucault says, the “growl of battle” behind the birth and perpetuation of prisons, we must also hear the roar of all the battles for which the hopes lie in part, perhaps provisionally, in moving the boundaries of impunity.
[1] Michel Foucault (1926-1984) was a French philosopher. He notably wrote a historical analysis of the prison system, which gave rise in 1975 to one of his major books, Discipline and Punish: the birth of the prison, which aimed to discover what had led to the invention of prisons as the hegemonic form of punishment in contemporary societies. The philosopher was also one of the founders in 1971 of the Groupe d’information sur les prisons (GIP) that aimed to offer a voice to detainees and to involve intellectuals and professionals working in the prison system. The GIP gradually gave way to the Comité d’action des prisonniers, an association for detainees and former detainees.
[2] Michel Foucault, Discipline and punish, Gallimard, 1975, p. 102.
[3] Cesare Beccaria Bonesana (1738-1794) was a layer and scholar of the Enlightenment. His work On crime and punishment (1764) that promotes in particular the principles of the legality of offences and punishments and the strict necessity of punishments had a great influence on modern criminal law.
[4] Christian Debuyst, Françoise Digneffe, Alvaro P. Pires, Histoire des savoirs sur le crime et la peine, tome 2, La rationalité pénale et la naissance de la criminologie, Brussels, De Boeck University, 1998.
[5] Jeremy Bentham (1748 – 1832) was an English philosopher and jurist. In the panopticon, the circular architectural structure allows the guard, in the middle, to constantly observe the actions and gestures of the detainees, without them knowing if they are being observed.
[6] Michel Foucault, Discipline and punish, Gallimard, above, p. 151.
[7] Op.cit., p. 153.
[8] Michel Foucault, Discipline and punish, op. cit., p. 213.
[9] Op.cit., p. 209.
[10] Op.cit., p. 210.
[11] Op.cit., p. 259.
[12] Jacques-Guy Petit, Ces peines obscures, la prison pénale en France, 1780-1875, Paris, Fayard, 1990.
[13] Antoinette Chauvenet, Corinne Rostaing, Françoise Orlic, La violence carcérale en question, Paris, Presses Universitaires de France, 2008.
[14] President of France from 1974 to 1981.
[15] Elie Decazes (1780-1860) was a French politician, who was in particular Minister for Police under Louis XVIII.
[16] In 1994, the provision of healthcare to detainees in France was transferred to the general Healthcare system, and the medical staff working in prison were then part of the hospital service under common law.
[17] In 1995, the Conseil d’Etat (the French Supreme Court) acknowledged that people under punishment placed in disciplinary quarters could dispute this decision before an administrative court.
[18] French national prevention mechanism.
[19] European Court of Human Rights, J.M.B. et al. v. France – 9671/15, 9674/15, 9679/15 et al., 30 January 2020.