A Matter of Balance: About the Abstract Goals of Imprisonment and Ambiguous Tasks of Dutch Prisons

Abstract

According to national and international inspectorates, considerable differences are found in the implementation of prison sentences within countries. This is not only problematic for the legal security of society and inmates, prison organizations themselves do not know exactly for what they are deemed responsible. Although key goals of imprisonment may be clear, complex ambiguities seem to be at work. We scrutinize the specific situation of the Dutch prison system to show how implementation differences can arise within a seemingly detailed regulatory framework. Furthermore, some international comparisons are provided as well as some directions to solve the ambiguities.

Keywords

ambiguous sentencing goals prison performance duty of reintegration

Introduction

In many European countries, prisons strive for the safety of society, inmates, and staff, as well as humane conditions for and rehabilitation of inmates. Other than the fact that these topics are established in mission of the prison services, national and international laws give guidance for the implementation of prison sentences, such as the European Prison Rules 2006 (Council of Europe, 2006) and, in the case of the Netherlands, the Dutch Prison Act of 1998. Furthermore, international minimum standards are supervised by the European Court of Human Rights (ECHR), the Committee of Prevention of Torture (CPT) and national inspectorates. Despite the mission statements, laws, and inspectorates, it seems not to be totally clear how prisons should deliver their services.

The literature frequently refers to the goals of a judge when he or she penalizes a criminal suspect. However, the elaboration of these goals into concrete tasks for correctional facilities is much less of a common subject of study. The absence of this elaboration is illustrated by the Dutch Inspectorate for the Implementation of Sanctions in 2009. The inspection found large differences in the applied procedures, making the “quality of the implementation of sentences subject to local interpretation, arbitrariness and intuition” (Dutch Inspectorate for the Implementation of Sanctions, 2009, p. 35). The legal security of society, victims, and inmates will benefit from a clear elaboration of tasks and operating procedures of detention and that may lead to a reduction of differences in the implementation of prison facilities. The facilities themselves can benefit from this exercise as well; putting the key objectives into practical tasks contributes to clarity on what exactly is demanded to be accomplished.

In the Netherlands, 35,000 citizens face a prison sentence for varying periods of time every year (Molleman & Van den Hurk, 2012). These citizens are held in the penitentiaries of the Dutch Custodial Institutions Agency, hereafter called “the prison system.” The prison system is associated with a wide range of goals, expectations, and requirements concerning the implementation of the deprivation of liberty. Citizens (including victims) assume that inmates cannot escape from the facility and serve their time in not too spacious circumstances. Obviously, inmates and their families have different interests in how the detention is implemented; examples are the possibility of visiting and the availability of amenities. The prison staff forms a group of stakeholders as well. They want to work within safe conditions, find a challenge in their profession, and be proud of their employment in the prison system. Finally, politicians have had a varying vision over the years on what the result of penal institutions should be. Sometimes the aspect of retaliation prevails; sometimes the aspect of social rehabilitation of inmates or reducing reoffending is the main objective. Clearly, the implementation of detention is a concern of various stakeholders who have partly conflicting interests and varying objectives.

To date, there is no analysis that bridges the gap between the legal basis of the deprivation of liberty and the concrete tasks of the workplace in prison. This article seeks to explain how a transformation of penal goals to concrete implementation tasks can make that bridge. It will be shown that transformation is partly problematic because of uncertainty about the interpretation of the so-called principles of minimal restrictions and rehabilitation. On one hand, the Dutch Prison Act stipulates that only a minimum of constraints should be imposed on inmates and a maximum effort be made to promote rehabilitation. On the other hand, there are rules in everyday practice such as restrictions on visits and the ban on computers. We recommend that the restrictions that can be imposed on inmates are made explicit in such a way that clarity, certainty, and legal security are promoted for all stakeholders. Moreover, we suggest making the rehabilitation objective more binding by qualifying it not only as a right, but also as a civic duty of inmates. Throughout the article, we will also consider the broader international validity of our analysis.

The elaboration of the goals of penalties into concrete implementation tasks of prisons starts with an analysis of the history of the goals of the deprivation of liberty. Whether the themes of the goals have been consistent in recent history are examined. Then, a suggestion is presented of how to transform goals into implementation tasks by using the Dutch Prison Act and related regulations. This leads to a conceptual framework that shows where tasks and requirements of the implementation of the deprivation of liberty are ambiguous. The contribution concludes with some solutions to the aforementioned conflicting tasks in the deprivation of liberty to reduce vagueness about their interpretation.

A Brief History of Incarceration in the Netherlands

Early Thoughts

From the beginning of the 19th century, imprisonment became a topic of interest for Dutch governors and scientists. The enlightenment convinced society that corporal and capital punishment were too cruel and ineffective. From that moment on, punishment focused on the psyche of the criminal. Besides the penalty of physical punishment, criminals had hitherto also been locked in disciplinary homes with overcrowded work halls and dormitories. Because of the disorderly situation in these accommodations and the fear of criminal contagion between inmates, the opportunities for social contact were restricted. However, additional suffering was no longer the main purpose of punishment; the use of solitary confinement was thought to bring about moral improvement (Scharff Smith, 2009). Silence and strict supervision were expected to suppress immoral behavior (Bentham, 1995). Moreover, solitary confinement was thought to have a deterrent effect on inmates. By incarcerating criminals, it was further intended to promote the security of society (the so-called incapacitation function).

Franke (1995) qualified the prevailing view of human beings as the homo clausus. This means that criminals are intrinsically bad and have a congenital talent to pursue evil; social and economic factors would only have a limited impact on crime. Years of solitary confinement would lead to religious awakening of his or her conscience and the decrease of immorality. This so-called Philadelphia system was maintained in the Netherlands until the end of the 19th century when they took account of the serious psychological effects of total isolation (such as the syndrome of Ganser or “prison psychosis”). In the system, the health of inmates deteriorated and reoffending was not reduced.

The New Direction

The belief that incarceration should have a goal—and should not focus on the inmate’s history—was born with The New Direction in criminal law, initiated by the German criminologist and legal expert Franz von Liszt. Certain groups of inmates were thought to have the potential to improve and should be entrusted to institutions for humane treatment (“Besserungsanstalten”) that provided therapeutics such as labor and elementary education (Kempe, 1973). Crime was no longer seen as an exercise of one’s free will and a trend was set to employ detention for the behavioral improvement of inmates (the “pedagogical approach”). Because social factors were increasingly thought to be important, more social interaction was allowed in detention. This paradigm shift meant that the mechanism of behavioral change no longer relied on external coercion (deterrent conditions), but on internal coercion (Franke, 1995). At the start of the 20th century, internal compulsion was reflected in the introduction of suspended sentences and conditional release in many Western countries. Behavioral improvement was “enforced” by the possibility of inmates earning personal benefits.

They left the cellular system with solitary confinement although total isolation lasted relatively long in the Netherlands in comparison with other Western countries. The prison regime gradually allowed for more contact between inmates, with solitary confinement at night, which is still more or less the situation for most inmates in the Netherlands and beyond today. The risk of criminal contamination was considered less harmful than the damage that solitary confinement entails (insanity, self-mutilation, suicide, and the loss of social ties, work, and home). Retribution and deterrence were no longer targets that required the efforts of the prison system, but rather the principles of legitimacy of the detention. The belief in enforced promises for the future of inmates gave way to educating inmates, providing a daily structure, and practicing with freedoms within the prison walls. The humanization of prison conditions expanded step by step: differentiation and individualization became core concepts of the treatment and conditions of inmates. Amenities and privileges grew in size (such as receiving visitors and mail, opportunities for sports, and exercise of religion) in which the interaction with staff was seen as crucial. A “healthy” relationship with another human being would encourage personality change (Franke, 1995). Zwezerijnen (1972) noted that within the prison walls the “command household” was slowly replaced by a “negotiating household.” That change was also observed in the United States under the motto “not coerce, but coax” (DiIulio, 1987, p. 19).

Rise, Fall, and Rise of the Rehabilitation Goal

The “healthy relationship” was and is shaped in different ways. In the United States, some states relied primarily on informal contact with inmates. In other states, the prison regime was relatively formal and the management strongly relied on discipline and rules (DiIulio, 1987). Although the contacts between inmates and staff have become more personal, the ways in which rehabilitation is implemented differs largely (Roth, 1985; Tewksbury & Mustaine, 2008). A similar state of affairs was also found in the Netherlands: “the relationship between staff and inmates varies. In one prison, the relationship has the character of a ‘game’ that is sometimes playful and then grim again. In another prison, there is hardly any relationship, because the contacts are minimal” (Grapendaal, 1987, p. 57).

The goals of rehabilitation and human dignity had a prominent place in the new Dutch penal legislation in the year 1953. In the Netherlands and the further Western world, the practice of punishment was driven by the ideal of rehabilitation until the 1970s (Garland, 2001). Prison penalties were to rehabilitate and explicitly not to pursue any retributive goal. As a consequence, good prison conditions, treatment, and no additional suffering were key elements of the prison regime (sometimes contained in the term penal welfarism). In the 1980s, however, there came a change in these principles.

The disappointing results (in terms of reoffending) and budget cutbacks led to retrenchment of the prison system in the last 20 years of the 20th century. A government committee (on the “psychiatric/therapeutic services of the prison system”) reported in 1983 on the new vision of detention: “former beliefs that undergoing the punishment would bring about rehabilitation through self-reflection and proper processing of feelings of guilt, cannot persist any longer facing the reality of hospitalization, increase of aggression, apathy, regression, moral decline, and alienation from family” (Franke, 1995, p. 752). In the policy document “Role and Future” of 1982, the rehabilitation goal was still listed, but the possibility of influencing reoffending during detention were put into perspective (Hoekendijk & Kommer, 2011). In the detention plan of 1994 (named “Efficient Detention”), preventing harm to inmates was almost all that remained of the goals of improvement. In the new century, the prison system again faced further cutbacks and austerity; certain policies were canceled or curtailed, such as differentiation (with the introduction of the standard regimen) and detention phasing (decrease of open and semiopen detention capacity). The rehabilitation goal became less important and security was the main guideline for the implementation of detention. More and more categories of inmates were excluded from rehabilitation activities (Boone, 2007). As evidence was lacking on reintegration programs and the What Works/Nothing Works debate became dominant, many countries reduced the amount of rehabilitative activities (Cullen & Gendreau, 2000).

Recently, the trend of impoverishment has been somewhat reversed in some Western countries. In the Netherlands, the implementation of the “Prison Modernization” program pays attention to rehabilitation programs, treatment, aftercare, vocational training, and labor. The evening program for inmates also made its reentry. The treatment of inmates is sought in a combination of values such as support and respect on the one side, and values like structure and unambiguous rule enforcement on the other (based on A. Liebling & Arnold, 2004). The belief in the beneficial effect of humane treatment and rehabilitation activities seems to be back, although the tenor is that the expensive services and efforts of the prison should only be offered to motivated inmates who want to change their behavior.

Lasting Goals of Imprisonment

The dynamics and experiences found in prisons, as well as political and public opinion, have led to changes in the prevailing view of human beings. These changes each brought a different approach to crime, which had an impact on the implementation of detention. Since the 19th century, more and more expectations, tasks, and goals were attributed to prison sentences. Despite the fact that the goals of imprisonment will always be subject to political shifts of emphasis, the same goals have been more or less present for over a century in the Netherlands. The goal of rehabilitation has won and lost popularity in previous decades, but seems to be inextricably connected with the implementation of detention. The same goes for the goals of safety (of inmates, staff, and society) and human dignity (amenities, privileges, and treatment) that may be alternately brought to the foreground and background in prison policy. The themes of safety, human dignity, and rehabilitation are also included in the mission of the Dutch prison system, which reads, “We ensure a safe and humane detention and work with our adjacent organizations and the inmate, towards reintegration. As a result, we contribute to a safe society” (DJI, 2009, p. 2). These mission themes are not at all specific for the Netherlands but apply to many prisons systems around the world (e.g., Gaes, Camp, Nelson, & Saylor, 2004; Kifer, Hemmens, & Stohr, 2003).

Whether it is possible to categorize and concretize the purposes of detention and the tasks of Dutch prisons in laws and regulations (starting with the goals of the judge) will be analyzed in the next section. Wherever possible, this analysis is supported by empirical evidence from the literature.

Conceptual Framework: From Goals of Imprisonment to Implementation Tasks

According to Kelk (2010), a judge seeks three main goals when imprisonment is imposed, namely, the restoration of the legal order (added suffering and recovery of the caused sorrow), individual prevention (aimed at the offender), and general prevention (aimed at society). These arise from combined criminal law theories in which both utilitarian and retributive perspectives have a place. This is called the “unification theory” and has been the leading theory in the Netherlands as well as in many other Western countries for decades (De Keijser, 2004; Hoekendijk & Kommer, 2011). In this theory, retribution is the reason for imprisonment (retributivism) while the time in prison should be used to rehabilitate the inmate (utilitarianism).

The three main goals include the following. By reciprocating, the act of crime it is intended to restore the legal order (the offender is made to suffer by imprisonment). By doing so, the sense of justice of victims and society can be restored (Jonkers, 1975). Besides repentance of the offender and legal certainty of victims and society, another penal goal is at work here. The goal of retribution ascertains the legal security of suspects as the law sets a maximum on the sentencing per category of crime. Therefore, the judge has a guideline for the setting of criminal penalties in which the interests of multiple parties are guaranteed. When the boundaries of the penalty have been established—given the maximum sentence, the personality, and the circumstances of the suspect—a weighing up of the two other main goals of imprisonment results in the judgment (Kelk, 2010).

Individual prevention focuses on the offender (and his or her offense) and has at least three functions, namely, rendering someone inoffensive (one cannot repeat the offense: incapacitation), deterrence (one does not dare to repeat), and rehabilitation (one does not want to repeat). During confinement, it is not possible for inmates to reoffend outside the prison. For the period of the sentence, society is safeguarded against a recurrence of the offense because inmates cannot leave the institution. Furthermore, the detention should contribute to the prevention or reduction of future reoffending because it is assumed that there is a deterrent effect in incarceration. The renouncement of reoffending is encouraged because the inmate is not willing to risk the same punishment again. Third, a rehabilitative effect of detention is envisaged: The imprisoned person is prompted not to “want” to reoffend.

With general prevention, both deterrence and a moral standardization of society is pursued. The judge is sending a signal to society that a standard has been exceeded and that the excess leads to punishment. This punishment must impose a deterrent effect, so people are less inclined to consider a similar act of crime. Because the possibilities for escape are kept to a minimum, the deprivation of liberty has a general preventive effect as well.

The question that arises is “What can or should a penal institution concretely do with these somewhat abstract goals?” Despite many studies on prison conditions and legal philosophical analyses regarding the importance and effect of the deprivation of liberty, little is published on this topic. Successively, we discuss what the three penalty goals mean for the implementation of prison sentences.

Main Objective 1: Restoration of Legal Order

Does the retributive goal of a judge imply that the prison system must add extra hardships to its inmates? One of the few attempts to bring implementation tasks in connection to the goal of retaliation is undertaken by Lippke (2007). He argues that retaliation gives the most clues on how to implement a prison sentence. The extent (and way) of punishment, according to the retaliation theory, should be in proportion to the damage that the offender has done to the victim and society. According to Lippke, imprisonment is not justified in case of minor offenses. When deprivation of liberty is indeed appropriate, then the simple fact that one is incarcerated is sufficient to reach the goal of retaliation. The conditions of detention would, therefore, not have to add more deprivations than are strictly necessary for the proper detention of persons. Aiming at minimal restrictions for inmates is preferred because the suffering of the detention is in itself heavy enough. This is also reflected in the ideas of the “Utrechtse School” (see also Boone, 2000), the Dutch Prison Act, and the mission of the Dutch prison system. These ideas encourage very restricted additional constraints by prioritizing human dignity. Indeed, the Dutch Prison Act states that inmates should not be subjected to any restrictions other than those necessary for the purpose of maintaining order and security in the facility (Article 2, para. 4), also called the “principle of minimal restrictions.”

Besides retaliation, legal order may also be restored by giving inmates an active role in repairing the damage they inflicted on victims and society. Restorative detention can be implemented by making inmates aware of the impact of the offense. Also, they can be committed to restoring the damage to victims and society, such as raising money for a fund for victims (by inmate labor) and conducting so-called recovery meetings with victims (Blad, 2003). However, the Netherlands has little tradition with a restorative interpretation of detention although the subject seems to be gaining popularity in the current public debate and is also the subject of policy development.

Main Objective 2: Can, Dare, and Want Not to Reoffend—Specific Prevention

The penal goal of specific prevention is threefold. The first element, incapacitation (the “can not” reoffend), needs no detailed explanation. Detention must be implemented so that inmates cannot leave the prison (except for furloughs) during the time of their sentence. The security of society is ensured in such a way that inmates cannot commit an offense for the time they are in the prison. Obviously, inmates may commit offenses in the prison during their time within the walls and this is why the prison makes efforts concerning security and control. In terms of concrete implementation tasks, this means that the fences and gates should be protected adequately and the import and export of goods and people are thoroughly controlled. These measures decrease the chances of escapes and violent disturbances within the walls.

The second element relates to the deterrence of offenders. Inmates should be deterred by the confinement and, therefore, refrain in the future from criminal behavior (the “not dare” to reoffend). In line with the arguments concerning retaliation, the detention is deterrent enough in itself and prisons should not add extra penalties. Actually, the deprivation of liberty means, among other things, that an inmate is (a) restricted in his or her freedom of movement, (b) limited in the contacts with his or her social network outside the prison, and (c) hampered by disruption of the continuity of employment or education. Apparently, no concrete and proactive prison tasks seem to arise from the deterrent purpose. The scarce empirical work on the topic suggests that the “screwing up” of deterrent elements (in regime and security level) is counterproductive in terms of reoffending (Camp & Gaes, 2005; Gaes & Camp, 2009). Later on in this article, we will discuss whether or not these issues are reflected in the current practice of the daily prison process.

The third element of individual prevention is the rehabilitation of inmates that should contribute to the “do not want” to repeat offenses. The rehabilitation principle is established in the Dutch Prison Act and can be elaborated by an active “approach” of inmates. Research has shown that the treatment style or approach of staff toward inmates can contribute to the realization of goals concerning prison conditions and inmate behavior (e.g., S. Liebling, Durie, Stiles, & Tait, 2005; Molleman & Leeuw, 2012; Reisig & Mesko, 2009; Vuolo & Kruttschnitt, 2008). For instance, prison staff may encourage inmates to take responsibility and work on their rehabilitation. Also, prison time can be used for education, acquiring relevant skills, and gaining work experience. All this may contribute to a successful reentry into society.

In addition, it is assumed that the pursuit of minimal restrictions and limiting the negative side effects of detention can promote the rehabilitation of inmates and may reduce the chance of reoffending. In practice, this is about mitigating or preventing the loss of income, jobs, and housing, and disruption of social life. The principle of minimal restrictions (as addressed above) is enshrined in law and implies that the prison provides somewhat similar living conditions as those outside the walls. This can be expressed in amenities such as adequate care, leisure, sports, exercise of religion, and freedom of information (the Dutch Prison Act describes minimal standards for these amenities). Because humane conditions are provided, detention causes less damage, which may promote a crime-free future. With regard to much of the above amenities, research has indicated their contribution to a successful rehabilitation; however, a complete enumeration of the evidence would be beyond the scope of this article.

Main Objective 3: General Prevention

The third and final objective of a judge in imposing a prison sentence is general prevention. The question is how the prison system can contribute to sending “a message to society that a legal standard has been exceeded.” The means to achieve the general objective of prevention is general deterrence (De Keijser, 2004). Because evading a prison sentence (the opportunity to escape) is restricted to a minimum, the deprivation of liberty has a general deterrent effect. The impossibility of escaping not only contributes to the achievement of the goal of incapacitation (as part of specific prevention), but it gives a strong signal to society as well; in the case where a person is sentenced to prison, there is no way out. The resulting deterrent should dissuade citizens from committing crimes. The general preventive penal goal has no further “operational” function in the daily practice of a prison. In the Netherlands, the principle of minimal restrictions is in force as mentioned above. This means that (the length of) the incarceration should be the deterrent, not the conditions of the incarceration. A prison is not expected to actively send out signals to the wider community. The implementation of prison sentences does not focus primarily on society, but on the inmates: “General preventive function is emphasized in the stage of threatening [by the legislature], the specific preventive function is emphasized in the stages of implementation (. . .) by officials of the executive authority” (Pompe, 1950, p. 274). Later on in this article, we will discuss how to put these notions into practice and whether there is really no active signal given to the wider community.

Besides the daily supervision and treatment of inmates, the prison may inform society about what detention means, which may contribute to the goal of general prevention. Examples are the provision of information, guided tours (e.g., open-door days) and prison museums, enabling filmmakers and writers, and the involvement of citizens in supervisory committees.

Prison Staff

In addition to tasks that arise from the main goals of punishment, prison acts and regulations set specific requirements for the execution of imprisonment. Regulations in the daily operations that play a prominent role are embodied in the Occupational Health and Safety Act (OHSA), which states that every employer must create a safe workplace for its employees. Organizations and prisons in particular have, therefore, important tasks in minimizing safety risks and supporting their employees in their daily work. Prison staff must frequently deal with rebellious and obstructive behavior of inmates because the latter group is, among other reasons, limited in its self-determination and autonomy (Goffman, 1961). Moreover, Goffman argues that working with these people can be complex and burdensome because of the emotional engagement and empathy of the professional. The employer must make arrangements to enable staff to do their tasks in a safe manner. The safety can be enhanced by adequate staff training and regular prison cell searches for weapons and other illegal goods. The safety of staff is largely dependent on the extent to which he or she can count on colleagues when he or she is threatened or faces risky situations.

The OHSA requires explicit attention to the psychosocial workload and absenteeism. Causes of stress among staff are workload, ambiguous tasks, uncertainty about the future, and lack of support from the management (Kommer, 2009). A prison has, therefore, the explicit task to give attention to these aspects of working conditions. Dutch research has found empirical evidence on the connection between the aforementioned causes and the prevalence of absenteeism and the psychosocial workload (Bogaerts & Den Hartogh, 2008; Kunst, Schweizer, Bogaerts, & Van der Knaap, 2008; Molleman, 2011a, 2011b).

We restrict ourselves to the working conditions of the staff as they play a crucial role in the process of the prison that revolves around working with people. Other themes also give rise to other tasks of the prisons, but are general features of operational management, such as the maintenance of the building (e.g., fire safety), a proper complaint system, and financial health. The latter tasks apply to almost every organization and are not further specified here for the prison system.

The above-presented analysis can be summarized as follows (Table 1).

Table 1.

From Goals of Punishment to Concrete Tasks of Prisons.

Objectives of criminal justice	Goals of detention	Prison system tasks	Concrete subtasks
Restoration of legal order: Adding hardships/retaliation Recovery of harm to victims	Confinement Restoring sense of justice of victims and society	See “defusing of offenders” (incapacitation) Restorative detention	Making inmates aware of the impact of their crime, letting inmates work to pay compensation, bringing inmates in contact with victims (restorative conversations)
Individual prevention Make individual prevention harmless (incapacitation)	Defusing of offenders (incapacitation) Deterrence Rehabilitation	Security and control Unclear Strive for minimal restrictions and prevent harm to inmates due to detention	Protection of fences and gates, surveillance of imports and exports of goods and people Preventing loss of income, jobs, housing, and social contacts, doing training, acquiring relevant skills and gaining work experience, adequate care, leisure, sports, exercise of religion, and freedom of information Encourage inmates to act responsibly in staff–inmate contacts and work on rehabilitation
General prevention	Setting standards Deterrence to society	Unclear Informing society	For example, open-door day for citizens, involving citizens with operation of the prison
	Other goals	Staff safetyAcceptable psychosocial stress for staff	Staff training and searches for weapons, drugs, and so forthCollegial supportPrevention of high workload, job ambiguity, uncertainty about the future, and lack of support from the management

A large number of tasks in the table are described in laws and regulations and are standardized, countable, and sometimes even expressed in terms of the availability and quality desired. However, this does not apply for some topics and it is unclear (see Table 1) how objectives of criminal justice should be transformed into concrete implementation tasks. These topics include the principles of rehabilitation and minimal restrictions that deliver dilemmas that may lead to differences (between prisons and prison units) in the quality of the detention. We describe the dilemmas and provide possible solutions.

The Principles of Minimal Restrictions and Rehabilitation: Gray Areas

Minimal Restrictions

Restrictions are only allowed if they are necessary for “the purpose of the deprivation of liberty or in the interest of maintaining order and security in the prison” (Article 2, paragraph 4 of the Dutch Prison Act, also empowered by international laws and treaties like the European Prison Rules and the United Nations Standard Minimum Rules for the Treatment of Prisoners). That is, only when the goals of imprisonment (which the law does not make explicit), or when order and security in the prison are called into question, may restrictions be imposed. The question then is why inmates are limited in their availability to control their own money, luxury food, privacy, and freedom of movement within the prison and are held in the simple design of a prison cell. Such restrictions seem largely to have a different origin than the reasons that the law sees as a reason for restrictions. The limitations seem to be mostly related to defuse inmates, retribution, deterrence, cost efficiency, or even a (political) signal to society (the detention should not be too luxurious). Van Veen (in Boone, 2000) concludes that punishment indeed should contain an element of suffering. According to Van Veen, it follows from the Dutch Prison Act (Article 2, para. 2) that inmates should be rehabilitated. However, the character of the punishment should be maintained. The sparse case law does not show that a prison should pursue such a “character” (some degree of retribution and deterrence). Between the turn of the century and 2012, the Dutch Council for Criminal Justice and Protection of Juveniles treated 16 unique cases in which the statement of the Council often used the argument of “order and security of the facility.” The “character” of the punishment is not mentioned in the statements. The scientific discussion and case law to date do not provide clarification on the precise operation of the principle.

The existence of restrictions, such as privacy and the disposal of certain personal belongings, in fact undermines the principle of minimal restrictions. If the legislator aims for a punitive character and a general preventive effect of the prison sentence, this is in breach of the principle. When one still wants to impose such restrictions on inmates, it is better to concretize and establish these in laws and regulations. The specific and general deterrence goal would then provide concrete tasks for the prison system, and, in turn, it is then clear what the “character” of the punishment means. In that case, however, the definition of minimal restrictions needs adaptation. The content of what is minimal then gets a different interpretation. If the principle is maintained in the law as it is now, some of the current imposed restrictions should be repealed.

Rehabilitation

In many mission statements of correctional organizations around the world, the effort is pronounced that should be made to rehabilitate inmates. In our example, the Dutch Prison Act stipulates that the deprivation of liberty should be made subservient to the return of the inmate to society as much as possible (Part 2, para. 2). Here, there is ambiguity in the phrase “as much as possible.” The expression suggests that the possibilities are limited, but it is not mentioned by what. However, these limits are surely appointed in the public debate. In this debate, the discussion is regularly about how the prison system may put energy (money, time, personnel, and other scarce resources) into activities and amenities for inmates. In this discussion, the penalty goals conflict: On one hand, society wants a prison sentence to deter; on the other hand, society benefits from the potential that the “criminal propensity” of inmates does not increase in prison. The responsibility of the inmate is at the heart of the debate. More and more politicians and citizens argue that only those inmates who want to change and want to actively invest in self-improvement should benefit from the costly services of the prison system, such as cognitive skills training, debt relief trajectories, vocational training, and guidance for work, home, and care after detention. Against the background of the principle of minimal restrictions, a basic level of services that should be provided to inmates might be established. A limited group of motivated offenders may be provided with additional facilities and activities.

However, it is not certain at all that things like personal responsibility and self-reliance can be achieved through the concept of an economic exchange theory; such (social psychological) skills are not suddenly present or absent when a reward or penalty is set in return. Logically, a motivated attitude and responsibility only comes to fruition when an inmate is convinced of the benefits. Also, one should be able to practice taking responsibility; after all, it is a learning process. Consequently, it is not obvious that one should take the restraining of amenities and services from inmates as a starting point. Therefore, Lippke argues that the amenities are a condition for taking responsibility by stating that “the rhetoric of ‘taking responsibility’ must be backed up by the establishment of prison conditions that make it possible for offenders to act responsibly” (Lippke, 2007, p. 174). The realization of the “do not want to reoffend” adage should, therefore, be seen as a process that an inmate can go through. In that process, he or she is encouraged by prison staff and supported by a regime that stimulates responsible behavior (e.g., through rehabilitation activities). The success of this process is not known at the start of the detention. Even when inmates initially do not cooperate, society may benefit from starting such a process.

Following the above reasoning, there are important tasks for prisons to let inmates “want” to rehabilitate and prevent reoffending. It is evident that this process is completed by inmates with varying success and speed. The incentive for an inmate to engage in that process should not be the access to certain amenities, but in the (personal) benefits of that process. The reward for proactive participation in rehabilitation and showing responsibility consists of the benefits that one will encounter after detention, such as better opportunities for social and economic prosperity (of course within the boundaries of the law). When this stimulus is the reason to cooperate, we may really speak of intrinsic motivation. The task of the prison system should then be to convince inmates to cooperate. In the Netherlands, the staff training program “motivational interviewing” is in line with this reasoning. Empirical research provides evidence for the effectiveness of respectful treatment and a motivational style of prison staff (Molleman & Leeuw, 2012). We discuss all kind of inmate rights, but don’t they have any duties?

The Duty to Rehabilitate

The motivational treatment style of staff encourages inmates to take responsibility for changes in their lives. Inmates are urged to take personal responsibility, which can be seen as a civic duty, like paying taxes, defending the country in times of war, compulsory education, and protecting public property. Among these civic duties are taking personal responsibility and pursuing a life without crime, which belong to the domain of behavioral and physical civic duties toward the government and society. However, such duties are often abstract, not clearly elaborated in laws and regulations and subject to public debate about the extent to which the duties are enforceable by the government.

Ten Berge (2006) states that every citizen who is part of a community has both rights and duties. The postulation and enforcement of these civic duties require a precise description of its contents. The degree of coercion and the activities that the government is allowed to apply should be described so that the boundaries are clear. Moreover, Ten Berge notes that “if there is an expectation that some citizens will not have the necessary skills and know-how to fulfill a particular duty, the government authorities have the responsibility to providence adequate information and assistance, without additional costs for the citizen” (p. 226). It follows that, regardless of the willingness for compliance with the duties of citizenship, the government needs to help the (imprisoned) citizen in accomplishing these civic obligations. As the possibilities of inmates are restricted in a closed institution, a prison should support inmates in organizing their own rehabilitation. It can be expected that a significant proportion of the inmates are limited in knowledge and skills to organize a life without crime.

The training of taking responsibility in a prison goes along with risks to safety and security. For example, inmates will have to deal with freedoms and learn their own personal pitfalls. A static approach to change then does not seem to be obvious; it is a learning process that has a different dynamic for everyone. Therefore, we identified important concrete implementation tasks for a prison. However, the law still offers no guidance on how to make the aforementioned learning process enforceable.

Lack of Orientation in Daily Practice

In the daily work of prison staff, the ambiguities in the Dutch Prison Act lead to the following type of contradictions. Should staff focus on the quality of life or the controllability of the prison? Should staff focus on security or treatment? Should they help inmates practice dealing with freedoms in a responsible way or should staff distrust them and be concerned with body searches and cell inspections? These contradictories are internationally well-known (e.g., in the United Kingdom) and addressed in the literature; contradictions are placed in two conflicting value systems, namely, that of livability and controllability (harmony and security values). The value system of livability refers to values such as respect, trust, support, constructive relations between inmates and staff, the importance of personal development of inmates, and contact with loved ones (also called harmony values: see A. Liebling & Arnold, 2004). Controllability refers to enforcement of rules and regulations, the use of authority and coercion, risk management, control, routine, and predictability (also called security values: see A. Liebling & Arnold, 2004).

When strong emphasis is laid on order and safety, quality of life may come under pressure. In a highly regulated facility, for example, there is only limited space for practicing freedoms (that are rarely given in a strict regime). A balance should be sought where security is guaranteed, but the regime provides ample space for inmates to show that they can handle responsibilities and thereby a contribution is made to sustainable behavioral change. Research by Sparks, Hay, and Bottoms (1996) shows that inmates accept a strict regimen when they are treated by staff in an honest and respectful way. This does have its limits, as a solely tolerant attitude by staff leads to deviant inmate behavior (A. Liebling & Arnold, 2004). The value systems are not mutually exclusive, but finding an effective balance between them is considered complex in the literature and is a recurring topic of conversation in the workplace. However, this balance is crucial if the prison system wants to contribute to safety as well as human dignity and social rehabilitation. In staff training, as well as in the daily practice of prison staff, this delicate balance must constantly get attention. By making this balance more explicit, potentially large differences in practice between prisons may be prevented. Instead, the quality of the implementation that currently depends on “local interpretation, arbitrariness and intuition” (Dutch Inspectorate for the Implementation of Sanctions, 2009) may be improved in the Netherlands.

Conclusion

We believe that the presented overview of tasks can be of importance for many countries; however, the priority given to the different elements will differ. At the same time, the analysis may help to get better focus on and balance in the sometimes ambiguous tasks for which prison are established. Sometimes, somewhat forgotten subjects in prison performance management and prison quality assessment may get back the priority they deserve according to the mission system of the specific country.

The themes of the mission of the prison system (safety, humanity, and rehabilitation) are more than 100 years old and do not seem greatly susceptible to changes although the emphasis laid on the goals fluctuates in policy and implementation over time. The fluctuations are not only motivated by changes in the prevailing image of humanity or the current policy. Ambiguities in laws and regulations are partly responsible for differences between Dutch prisons in the implementation of the deprivation of liberty. At many points, laws, rules, and operating procedures give clarity about how the prison system should live up to the goals of the judge. On some points, however, this is not the case. Adaptation or clarification of laws and regulations, as is argued in this article, need to provide more guidance in finding the delicate balance between the emphasis on livability or controllability (harmony and security values).

When laws and regulations provide more clarity about the amount of effort a prison needs to deliver concerning rehabilitation and the extent to which restrictions may be imposed, we have a better understanding of what is expected of the prison system. The enforceability of activities for rehabilitation could be hung on a civic duty, so an appeal is sent to the inmates to stop criminal activity. Furthermore, it should be made explicit whether or not the application of restrictions must have a deterrent effect. As a consequence, it should be explained why restrictions are imposed, otherwise the restrictions should be stopped.

Such adjustments contribute to a better understanding of what inmates, society, and politics may expect from the prison system. The conflict between the penal goals will not be solved, but it will be appointed and reduced. Legal certainty and security for inmates, victims, and society (including the judge) regarding the implementation of the deprivation of liberty can be increased. Gray areas in the laws and regulations become smaller and the job ambiguity for staff may decrease. However, finding a balance between security and treatment will remain a matter of balance for the prison system and its staff.

Footnotes

Authors’ Note

The views articulated in this article are purely those of the authors and not necessarily similar to those of the Ministry of Security and Justice, the Netherlands.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Author Biographies

T. Molleman, PhD, is strategic management advisor for the Dutch Custodial Institutions Agency, The Netherlands Ministry of Security and Justice. He has recently published on prison conditions, prison performance, double bunking, immigrant detention, and prison staff issues.

A. A. van den Hurk, PhD, is advisor for scientific research at the Dutch Custodial Institutions Agency, The Netherlands Ministry of Security and Justice. His research focuses on imprisonment, addiction, and rehabilitation.

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