Abstract
Juridical and carceral scholarship seldom interact. As a result, the visible and less visible intersections and gaps between the two penal logics and discourses are often overlooked. The paper argues for better understanding of juridical power, and how it may cut through the boundaries of juridical/carceral separation. As a case study, the paper problematises the disciplinary punishment of imposing ‘additional days’ of prison time (AD) for prison rules violations, through the lenses of communicative sentencing theory. The paper argues that AD may undermine the juridical communicative ideal as it may cause penal censure to lose credibility, trivialise the value of prison time, and harm the feasibility of penal communication by disconnecting imprisonment from the offence of conviction. Conclusions for socio-legal and penal theory and policy are discussed.
Introduction
Should the juridical care about the carceral regime? Kerr (2019: 85) recently argued that ‘fields of punishment and sentencing theory largely avoid the prison’, calling for more serious engagement of the juridical phase with the ‘black box’ of prison. The paper aims to answer Kerr’s (2019) call by exploring what happens when juridical logic looks beyond the boundaries of the sentencing stage. 1 More specifically, the paper seeks to explore the feasibility of the juridical logic, discourses and conceptions within the legal life of the carceral. We hope to bring to the core of the inquiry a more detailed understanding of the mechanics of penal power: how it is fragmented, diffused, negotiated, transmitted and ‘translated’ along the penal continuum (Foucault, 1977; Tadros, 1998; Young, 2020).
The paper will do so by analysing how the censuring message of sentencing – a main purpose of Western sentencing, and probably that most identified with judicial authority (Ashworth, 2015; Duff, 2001; von Hirsch, 2017) – acts within the carceral disciplinary framework. As a case study, the paper will problematise one of the most severe prison disciplinary punishments: that of imposing ‘additional days’ (AD) on the prisoner for prison disciplinary offences. In doing so, the paper will apply the logic of a prominent and influential retributive sentencing theory – the communicative theory (Duff, 2001). As the paper will argue, in the case of AD, the carceral logic may overshadow the juridical, and the assumed superiority of the juridical over the carceral may be challenged. Such challenge is due to the fact that the censuring message of AD may undermine the credibility, value and feasibility of penal communication that sentencing seeks.
The practice of imposing prison days, up to the final date of the sentence, as a prison disciplinary punishment, 2 is recognised in different forms in several Western jurisdictions, such as: England and Wales (‘additional days’) (Owen and MacDonald, 2015), Ireland (‘forfeiture of remission’) (Griffin, 2007), US (‘good time’ credits forfeiting) (Demleitner, 2017) 3 and Canada (‘loss of earned remission’) ( R v. Shubley,1990).
Currently, the disciplinary punishment of AD means that a prisoner found guilty of a prison rules violation (‘offence against discipline’) 4 may be subject to ‘…in the case of a short-term prisoner or long-term prisoner, an award of additional days not exceeding 42 days’ per offence (Prison Rules, 1999 (as amended), r. 55(A)(1)(b)). Before inquiring into a disciplinary charge, the prison governor shall determine whether the charge is so serious that AD should be awarded, if the prisoner is found guilty (r. 53A(1)). In such case, the prison governor should refer the disciplinary charge to an ‘independent adjudicator’, a district judge (not a sentencing court), hearing the case within prison walls. For him to inquire into it, and if proved, determine what disciplinary punishment is appropriate (PSI 05/2018, ss. 2.76–2.8). In such case, the ‘independent adjudicator’ should impose a proportionate discipline, including AD, taking into account the seriousness of the disciplinary offence (whether the violation poses a serious risk to prison order or safety), the prisoner’s disciplinary history, the likely effect of the discipline on the prisoner, and any mitigation the prisoner may offer (PSI 05/2018, ss. 2.29–2.37).
Practically, AD delays the normal release date for prisoners eligible for parole or automatic conditional release (Easton, 2011; Owen and MacDonald, 2015). However, it cannot extend the original sentencing expiry date, and therefore may be perceived only as reinstatement of the original sentence. Nevertheless, both legal scholarship (Coyle, 2005; van Zyl Smit and Snacken, 2009) and prison jurisprudence (Owen and MacDonald, 2015), consistently recognise that AD constitute a loss of something to which the prisoner is entitled, being ‘a penalty of considerably severity’, and reject arguments to the contrary (Owen and MacDonald, 2015; van Zyl Smit and Snacken, 2009: 302). Easton (2011: 125), for example, noted that ‘it is difficult not to see the loss of days as punishment on any definition of punishment’. 5 Further, as Douglas and Jones (1986: 627) argued in the eyes of prisoners, imposing such disciplinary punishment ‘amounts to an additional deprivation of liberty’.
The European Court of the Human Rights (ECtHR) recognised that approach, holding that the ‘awards of additional days…constitute fresh deprivations of liberty…’ ( Campbell and Fell v. United Kingdom, 1984: para. 72; Ezeh and Connors v. United Kingdom, 2003: para. 124). In a similar vein, English case law held that prisoners who have reached their parole date ‘have a statutory right to be free, a conditional right, but nonetheless a right…’ (R v. Smith, 2005: para. 30). It was also held that while AD ‘is not precisely the same as a sentence imposed by a court after conviction of the original offence…it is…of a sufficiently similar nature’ ( R v. Brooks, 2016: para. 27). 6
For the paper’s argument, it is important to note that AD may belong both to the juridical and carceral logics – it aims to improve the quality of prison discipline but also affects the quantity of prison time served. The paper will argue that AD’s dual character cuts through the boundaries of juridical/carceral separation, and therefore challenges the hierarchy, separation, discourses and logics of both phases.
Overview of the Paper
The paper consists of four main parts. The first part discusses the dearth of scholarship that has examined the disciplinary imposition of AD as an example of the cost of strict separation between the juridical and the carceral. The second part sketches the dual face of AD that cuts through the boundaries of juridical/carceral separation and uses this unusual characteristic to explain AD’s persistence despite its questionable utility. The third part is the heart of the paper. The third part highlights the complexities of penal communication within the carceral and highlights the possible ways the juridical penal censure may cut through the carceral logic. Furthermore, this part explores how in the case of AD, the carceral may undermine the juridical. More specifically, AD creates three interrelated obstacles to the juridical penal communication, as it may undermine the credibility, value and feasibility of penal communication of sentencing. In other words, in the case of AD, the medium fails as a message (or messages less effectively than it should). The fourth part of the paper sketches some possibilities and guidance for minimising the harm of AD to penal communication. The paper’s conclusions apply to both socio-legal and penal theory and policy.
Part I: Prison-Based ‘Sentencing’: Falling Between the Juridical/Carceral Cracks?
Punishment scholarship seems to adhere to relatively strict boundaries of the juridical and carceral (Foucault, 1977; Kerr, 2019; Minkkinen, 1997; Simon, 2017; Tadros, 1998). As a result, the possible visible and less visible gaps and interrelations between the two spheres have been largely ignored by punishment scholarship (socio-legal, sentencing, penal theory, sociology and criminology).
Socio-legal theorists, aiming to study the legal ideologies, technologies and institutions of penal power in their social, cultural or historical contexts, often ‘overlook the deep interpenetrations between juridical power and disciplinary power’ (Santos, in Minkkinen, 1997: 426). Socio-legal scholarship largely assumes two opposing views regarding juridical/carceral relations: The first view consists of ‘…fusing penal law and the prison into a single practice of social control’ (Minkkinen, 1997: 428; emphasis added). Cover (1986: 619), for example, captured the relationship between the juridical ‘word’ and the carceral ‘violence’ through machinery-like metaphors that minimise the distinction between the two: The judge in imposing a sentence normally takes for granted the role structure which might be analogized to the ‘transmission’ of the engine of justice…That system guarantees the judge massive amounts of force – the conditions of effective domination – if necessary. It guarantees – or is supposed to – a relatively faithful adherence to the word of the judge in the deeds carried out against the prisoner.
Similarly, penal theorists, usually exploring punishment as a political-philosophical problem, focus on the question of ‘what justifies the state in punishing people at all’ (Kerr, 2019: 93). Thus, they neglect the question of how the practice of prison regime is relevant to the justifications and aims of imprisonment (Kerr, 2019).
Further, sentencing scholarship focuses largely on judicial, rather than on post-sentencing ‘players’, who are in the less visible spaces of the carceral state (e.g., prison and parole officials) (Garland, 1990; Kerr, 2019; Simon, 2017). That is especially true for retributive theorists who are court focused, retrospectively oriented, and largely offence, rather than offender, focused (Van Ginneken and Hayes, 2017; von Hirsch, 2017). These retributive theorists often discuss punishment as an abstract ‘objective’ exercise, which usually either ignores or openly rejects the relevance of ‘corrections’ to sentencing (Kerr, 2019; Lacey and Pickard, 2015; von Hirsch, 2017). Such theorists often argue that ‘[d]esert theory addresses sentencing, not the criminal justice system in general’ (von Hirsch and Ashworth, 1992: 84) or insisting that retributivism’s ‘only correctional implication…is determinate sentencing’ (Feeley and Rubin, 2000: 270; emphasis added). Retributive concepts, such as censure or desert, are rarely discussed with reference to their actual meaning for prison life (Kerr, 2019; Kolber, 2009).
These notions are not only present in the academic discourse. Empirical research suggests that sentencing judges may distance and deny their responsibility for their decisions to imprison in various ways (e.g., ‘techniques of neutralisation’ or ‘states of denial’ mechanisms) (Tombs and Jagger, 2006). Also, future subjective prison suffering does not easily lend itself to being part of sentencing’s mitigating factors (Ashworth, 2015; von Hirsch, 2017; c.f. Kolber, 2009).
In addition, prison legal scholarship usually neglects the moral purposes of sentencing while engaging with prison regime. Such theorists often argue for a ‘relative autonomy’ of the purposes of sentencing from the aims of prison administration (van Zyl Smit and Snacken, 2009: 80). According to this view, the purpose of retribution is fully fulfilled by the deprivation of liberty per se (van Zyl Smit and Snacken, 2009).
Further, as Kerr (2019) noted, sociologists have dedicated considerable attention to prison order and discipline, especially in terms of relations between power and knowledge (Calavita and Jenness, 2015; Foucault, 1977). However, such scholarship often divides between the views of prison as the place ‘justice is done’ versus the place ‘technical apparatus’ operates (Garland, 1990).
Finally, criminologists (more specifically penologists), while exploring extensively the dynamics of prison life, prison order and prison’s ‘pains’, tend to do so through order, security and risk discourses (Crewe, 2011). Such scholarship rarely deals with normative questions of ‘rights’ and ‘justice’, perceived as abstract and purely legal areas (Murphy and Whitty, 2007; c.f., Ievins, 2018).
Indeed, a possible explanation for the relatively scarce scholarly interest in AD derives from its perplexing penal nature as it belongs to both the juridical and carceral logics. Thus, the line is blurred between the juridical and the carceral; between punishing the ‘offender’ and the ‘delinquent’; the ‘law violator’ and the ‘dangerous’; and between the criminal target of retributive censure and the prisoner’s ‘soul’ to be disciplined and normalised (Rose and Valverde, 1998; Simon, 2017). As a result, AD may fall between the disciplinary ‘cracks’ of the juridical and the carceral. AD have received relatively little academic attention, specifically by means of normative analysis (O’Hear, 2012 and Bülow, 2018, are notable exceptions). For example, Ashworth (2015) and Duff (2001) do not discuss AD at all in their works. Also, von Hirsch (1976: 101) referring to the American ‘good time’ days for good prison conduct, states that it raises a ‘difficult question’, without fully elaborating on how such practice is integrated with censure-based sentencing. 7 In a more recent book, von Hirsch (2017) does not discuss AD or similar mechanisms.
Prison legal scholarship usually presupposes AD as a given, and focuses on its administrative and procedural sides, without considering its theoretical and normative aspects (Coyle, 2005; Easton, 2011; van Zyl Smit and Snacken, 2009). Criminological literature focuses on the empirical utility of prison-based sanction without paying much attention to its possible significance for sentencing theory (e.g., Steiner and Cain, 2019).
The shortage of scholarly engagement with AD is quite surprising and unfortunate for several reasons. First, AD is hardly a new practice. The historical roots of prison-based ‘sentencing’ can be traced back to 19th century’s transportation period (Coyle, 2005). Second, prison discipline holds importance for the prisoner’s perception of the prison order and procedural legitimacy (e.g., Butler and Maruna, 2016; Sparks et al., 1996). Third, AD is regarded as the ‘heaviest’ disciplinary punishment by prisoners, prison officials (Owen and MacDonald, 2015) and the case law, alike (Ezeh and Connors v. United Kingdom, ECHR 485 (9 October 2003): para. 13). AD is also one of the most frequently utilised prison sanctions. In England and Wales, for example, the use of AD more than doubled between 2015 and 2018 (Howard League, 2018). While staying within the term of the original sentence, some prisoners are punished with hundreds of AD (Owen and MacDonald, 2015). In 2017, a total of around 360,000 AD were awarded in male prisons across England and Wales (Howard League, 2018). During the first quarter of 2019, a total of 93,015 AD were imposed (Ministry of Justice, 2019).
Part II: Exploring the Dual Face of AD: Juridical in the Disguise of Carceral?
The imposition of AD, as noted, is traditionally justified as an instrumental tool for maintaining order and discipline and aims to act as a deterrent for the disobedient prisoner and other prisoners (Coyle, 2005; Easton, 2011; Owen and MacDonald, 2015; van zyl smit and Snacken, 2009). Some prison officials see prison-based sentencing as necessary for efficient prison order (Jacobs, 1982). Few empirical US studies support that (Bales and Miller, 2012). Some even argue that this punishing with prison days is a just retributive response for violating prison rules (O’Hear, 2012; c.f. Bülow, 2018).
However, the utility of AD is questionable. Empirical studies, while few, have found little to no deterrence effect for using prison days as a disciplinary tool (Steiner and Cain, 2019). In addition to its doubtful utility, AD was criticised for lacking sufficient procedural safeguards (Owen and MacDonald, 2015); being overly costly; exacerbating prison overcrowding; producing an unfair punishment disparity, based on race and ethnicity; and, often ignoring the prisoner’s vulnerabilities (e.g., young and mentally-ill prisoners) (Howard League, 2018, 2018; Steiner and Cain, 2019). Indeed, some European countries, like Belgium, exclude the possibility of AD (Snacken, 2015). Scotland, another example, abandoned this practice more than a decade ago, finding it ineffective and unfair (Coyle, 2005).
The persistence of AD, despite its questionable empirical and legal status, may be explained by its unusual dual penal character.
First, AD, historically rooted in the 19th-century individualised and indeterminate reformatory model, were rewards to be ‘earned’ by the prisoner for good behaviour, as a ‘ticket of leave’ (‘mark system’) (Coyle, 2005). The persistence of AD may reflect the intrinsic nature of the carceral logic as ‘hybrid’ in that it would ‘assist the judges in their decision’ (Foucault, 1977: 21) and, therefore, ‘does not describe spaces into which it cannot enter’ (Tadros, 1998: 89). In contrast to the neo-classic retributive sentencing – bound by legality, proportionality and determinacy – the carceral logic was traditionally, and in many ways still is today, inherently indeterminate, administrative and discretionary, in order to normalise and discipline the prisoner’s ‘soul’ (Foucault, 1977; Simon, 2017). 8 That seems even more true for ‘late modernity’ and ‘new penology’ punishment, which shifts the power from the ability of sentencing judges towards techno-rational managers of the carceral (Simon, 2017; Tata, 2007).
Second, unlike the public moment of sentencing, AD is decided behind prison walls and possibly served years after the violation occurred. Therefore, AD may be perceived by policy makers, mistakenly, as merely a ‘kind of paper punishment’ that doesn’t constitute a ‘real’ punishment, in comparison to more material prison disciplinary punishments, such as solitary confinement (see Jacobs, 1982: 258).
Finally, the persistence of AD may be explained by its hybrid penal character. It helps to fill space between the criminal and the disciplinary spheres, acting as a criminal sentence wearing the ‘disguise’ of carceral logic (Jacobs, 1982: 258). For example, AD may be seen in this way when it is imposed to punish disciplinary offences that are also criminal offences (e.g., illegal drug possession), which only because the criminal law’s high bar for evidence admissibility, cannot be prosecuted through regular criminal process (see Jacobs, 1982). 9 In these cases, the process of AD may be seen as a way to punish severely the disobedient prisoner with prison time without a need to undergo a full criminal-adversarial process.
As noted, AD’s dual-hybrid penal character effects both the juridical (quantity of the punishment served) and the carceral (quality of prison discipline). Due to its duality, it seems important for the juridical that AD does not undermine the penal communication of sentencing. However, that essential outcome is placed in doubt for the three reasons described below as the carceral logic may weaken the juridical sentencing message.
Part III: Carceral Shadows Over the Juridical Logic: Problematising Additional Days Through Penal Communication Logic
The Possibility of Penal Communication Within the Carceral
The idea that the carceral logic should be subjected to the juridical logic stands at the heart of human rights law (van Zyl Smit and Snacken, 2009). However, as the paper will argue, the retributive theory, often perceived by a populist view as justifying an extremely punitive prison regime (Garland, 1990), may serve as another important tool for analysing, criticising, and reforming prison regime.
For many theorists and policy-makers retributive sentencing theory represents criminal law values and discourses that ‘evoke[] a contemporary model of juridical power’ (Young, 2020: 4; c.f., Rose and Valverde, 1998). The idea that retributive sentencing theory may be relevant to prison life is based on the notion that sentencing and implementation of the punishment stages are inherently related and interconnected in complex ways (see Lippke, 2007). Reitz and Petersilia (2012: 3–4) noted that: ‘A judicial sentence is a mere abstraction until given effect in the correctional context…sentencing judges have reason to hope, if not expect, that the theories and policies behind their sentencing decisions will be pursued during the corrections phase’.
From the retributive-communicative perspective, delivering communication doesn’t necessarily end after the sentencing. In a sense, prison regime, with its inherent censuring power, is the stage that gives communicative sentencing its significance. The ‘material forms’ of punishment may make a difference to the potential and actual penal communication (Duff, 2001: 222). As Canton (2019: 257–258) further argued: ‘…the way in which the sentence is put into effect can support, or as it may be, undermine or subvert the original communication, or at least so far as the offender is concerned’. In a similar way, as Van Ginneken and Hayes (2017) noted, the quality of retributive justice is derived from how the punishment is implemented in action rather than seeing it as purely aspirational exercise (see Lacey and Pickard, 2015: 219).
In recent years, there is growing interest in bringing the juridical logic to prison life by penal theorists (Lippke, 2007), socio-legal (Simon, 2017), sentencing scholars (Kerr, 2019; Kolber, 2009), and by criminologists (Schinkel, 2014; Van Ginneken and Hayes, 2017). 10 More specifically, a few scholarly attempts have been made to connect retributivism (and communicative theory particularly) to prison regime: Duff (2001) himself criticises briefly the practice of solitary confinement. More recently, communicative cases were made for (O’Hear, 2012) and against (Bülow, 2018) a prison conduct-based indeterminate sentencing model. However, most of the daily aspects of prison life – including discipline – remain, so far, largely unexplored by retributive theory.
The communicative theory does not discuss prison discipline specifically. However, it may provide us with a useful theoretical framework to analyse AD (and similar mechanisms) for two reasons: first, it is both a backward and forward-looking theory; second, it offers a rich and sensitive concept of penal censure as a dialogic and communicative moral process (Duff, 2001). The communicative analysis seems especially important for prison regime – a stage that normally treats the prisoner as ‘something whose experience and feelings (if any) need not be taken into account’ (‘denial of subjectivity’) (Carvalho and Chamberlen, 2016; Nussbaum, 1995: 260). All that serves as strong motivation to explore the relation between prison practices and the idea of penal communication.
The (relatively little) research regarding the possibility of prison-based penal communication ‘in action’ shows, however, a complex picture. There is indication that the carceral logic is resistant to penal communication. There are reasons to believe that the complex ‘pains of imprisonment’ (Crewe, 2011) will drown out the juridical message as prisoners will focus on their pain rather than focus upon their moral wrongdoing (Cochrane, 2017: 305–306). Further, the process of prisonisation may lead to adopting the culture, norms and values of the prison as opposed to internalising of moral wrongdoing and engaging with the moral consequences of their crime (Cochrane, 2017). Indeed, one study found that little explicit moral communication has been perceived by prisoners (Schinkel, 2014). That is because the inevitable pressures of imprisonment lead them to adopt a strategy of ‘getting your head down’ – limiting their thoughts only to events within the prison and the general absence of a meaningful dialogue about crime and punishment between prisoners and prison staff (Schinkel, 2014). Other research doubts the feasibility of penal communication since ‘there is not even an agreed language for communication: punishment means very different things to different people’ (Van Ginneken and Hayes, 2017: 74).
All that, however, should not necessarily lead to despair of the possibility of penal communication within the carceral. There is evidence suggesting not only that the juridical penal censure may cut through the carceral logic, but that the carceral regime may even promote penal communication. One study shows that over the passage of time, long term prisoners reproached themselves morally, and engaged in forms of existential reflection about the seriousness of their crime (Crewe et al., 2017). One important method found to lead to enhanced penal communication for such long-term prisoners are in-prison cognitive behavioural courses, where offenders are encouraged to reflect morally on their offence (Schinkel, 2014: 590). Another example is in-prison victim-offender mediation programmes that aim to bring offenders to make amends and to understand the moral nature and implications of their crimes (Duff, 2001). More recently, Ievins (2018: 182), while exploring sex offenders’ daily prison life, suggested that ‘courts do not have a monopoly on moral communication’. Ievins (2018) found that how prisoners adapt to imprisonment, ‘do their time’, relate to other prisoners, and respond to penal power are shaped by the moral censure communication, since ‘the moral censure communicated by the state echoes through the interior world of the prison, where it helps shape how prisoners ‘do their time’. Such findings can be integrated with previous research showing that sentences served in different moral climates can have very different impact on prisoners’ perception of penal legitimacy and fairness (Liebling, 2004). Finally, he possibility of penal communication within the carceral seems even more possible for less exclusionary prison regimes, for instance, open prisons or those in liberal contact with the wider community. Such prisons minimise prisonisation, reduce some of the ‘pains of imprisonment’, are less likely to ‘drown out’ the moral message of censure, more easily incorporate communicative-related practices, and allow for much more engagement with the wider community (c.f., Cochrane, 2017).
Problematising Additional Days Through Penal Communication Logic
If penal communication may cut through the carceral, as noted, it seems important that the carceral will not undermine the communicative dialogue. However, as we shall see below through the case of the disciplinary punishment of AD, the carceral logic may problematise the juridical logic. Before doing so, the paper will review the basic elements of the communicative theory.
Duff (2001) understands punishment as a form of ‘secular penance’ which aims at repentance, moral reform and reconciliation of the offender with their victims and the general community. These aims are to be pursued by a communicative process of censure involving the imposition of ‘hard treatment’. The punitive dimension of censure should be proportionate to the seriousness of the offence (measured by harm and culpability at the time of the offence) (Duff, 2001). To punish with disproportionate severity, or leniency, is to communicate to the prisoner, more or less censure than the offender deserves (Duff, 2001; Kleining, 2019; von Hirsch, 2017).
Retributive theorists, including communicative scholars, usually view conveying censure as the main function of a criminal sanction, as part of a morality that holds people accountable for their actions (Duff, 2001; von Hirsch, 2017). Duff (2001) argues that the primary function of criminal punishment, as a societal response for public wrongs, is to communicate to offenders the censure they deserve for their crimes and should aim, through that communicative process, to persuade them to accept and understand the censure as justified. Punishment’s ideal aim is to bring offenders to repent their crimes, to try to morally reform themselves, and thus, to reconcile themselves with those whom they have wronged and undergo secular penance.
Duff (2001) further defines penal communication as a rational, reciprocal and dialogic act, that appeals to the other’s reason and understanding and aims to engage with him or her ‘as an active participant in the process who will receive and respond to the communication…’ (Duff, 2001: 79–80). For Duff (2001), criminal punishment is not merely imposed on the offender but seeks to engage offenders, and respect them as autonomous moral agents and as members of the community. The communicative punishment aims to persuade offenders in a way that leaves them with free will: the freedom to remain unpersuaded. Thus, while ‘offenders are forced to hear the message that punishment aims to communicate and to undergo a penal process intended to persuade them to accept it, they are not forced to listen to that message or to be persuaded by it’ (Duff, 2001: 126).
The importance of the offender’s response to the penal censure was expanded further by Maslen (2015: 99–100), who argues that a true dialogic punishment should be responsive: ‘it necessarily involves attention to one’s interlocutor – one is not involved in dialogue if one ignores the other participant’s input’. For her, engaging with the offender enhances also the quality of the censure and best serves the aim of addressing the offender as a rational moral agent who is expected to respond (Maslen, 2015).
The key principles of retributive-communicative theory offer valuable normative tools for problematising AD. They show that the carceral may undermine the juridical moral message and logic. The problems with AD for penal communication can be described in three dimensions. While all three arguments are interrelated in that they see penal censure as an appeal to the moral wrongness of the offence, each of them problematises a different aspect of AD. The first, questions the credibility of the censuring message delivered, as AD misrepresent the moral value of prison rules violations. The second, questions the value of the censuring message, as AD instrumentalise penal censure for disciplinary purposes. The third, takes issue with the feasibility of the censuring message, as AD disconnect imprisonment from the offence of conviction.
Censure credibility: Misrepresenting the moral value of prison rules violations
The first problem with AD punishments is that they misrepresent the ‘true’ moral wrongness of prison rule violations (that are not criminal offences). Thus, AD place in doubt the credibility of the censuring message of imprisonment as criminal punishment.
The penal message is part of the deserved punishment and an appropriate response to certain types of offences (Duff, 2001). Imprisonment clearly conveys a powerful penal censure towards the offender, crime victim and society at large (Ashworth, 2017). Penal censure is a performative act that has symbolic and social consequences of hard treatment (Kleining, 2019). The material and symbolic message of imprisonment is mainly of exclusion: The offender’s crime ‘was so destructive of those moral and social bonds on which the community depends as to cast in doubt his membership of the community’ (Duff, 2001: 149). The ‘hard treatment’ of imprisonment includes, among other ‘pains of imprisonment’, deprivation of liberties, restrictions on freedom of movement, isolation from family and friends, loss of privacy, exposure to the risk of harm (Crewe, 2011).
Considering the penal ‘weight’ of prison time, imposing AD for prison rules violations may reflect a false message of the true moral wrongness of prison misconduct in the eyes of the prisoner, crime victim and society at large. That is problematic for three reasons.
First, imprisonment represents the greatest condemnation of acts which are taken to violate the basic values of the moral community (Duff, 2001; von Hirsch, 2017). However, to punish an act that doesn’t cause much harm in a way which has significant impact on the prisoner’s life ‘it is to convey the message that the interests of the punished are of little importance’ (Ryberg, 2004: 143). As Bülow (2018) noted, many of prison rules infractions (that are not criminal offences), even if committed purposely, are hardly comparable with the severity of crimes that we intuitively consider as deserving imprisonment, such as serious sex or violent crimes. In other words, such prison misconducts are not ‘public wrongs’ that properly concern the whole community and, therefore, warrant the protection of criminal law (Duff, 2001). Rather, they often reflect more ‘idiosyncratic institutional needs and preferences’ (O’Hear, 2012: 219) that serve to maintain order and discipline in prison, such as: prohibition on possessions, smoking, talking, working, sex practices, and inmate-staff/inmate-inmate relations (Bülow, 2018; Jacobs, 1982). Indeed, in practice, many of the acts that are punished with AD probably would not result in prison time had they been committed outside prison (Howard League, 2015). For instance, during the first quarter of 2019, around a third (32%) of proven adjudications were for disciplinary offences of unauthorised transactions, followed closely by disciplinary offences of disobedience and disrespect (31%) (Ministry of Justice, 2019).
Second, the criminogenic reasons for breaking prison rules may differ not only according to the criminal law violations, but also depending on the uniqueness of the prison disciplinary regime. As Crewe (2007: 258) noted, the ‘disciplinary net’ of prison ‘is wide and all-encompassing’; it produces the ‘pains of self-government’ as prisoners should be responsible for their own penal management and should be required to manage and monitor a broad range of behaviours (see Crewe, 2011: 519–520). Prison misconduct is often the result of an overcrowded, understaffed and unsafe prison environment with little access to activity, exercise or human company; conditions that do not exist (at least to the same degree) outside the prison walls (Howard League, 2015). In addition, the prisoners’ ‘micro-resistance’, such as a forbidden social interaction in solitary confinement, offers a source of avoiding some ‘pains of imprisonment’ and may have functional benefits to the prison officials themselves (prevent the more risky and overt misconduct of prison rebellion by alleviating the prisoners’ tension) (Rubin, 2017).
Third, the socio-legal nature of prison discipline and its application is very different from criminal law. The range of disciplinary offences is much broader than that of criminal law offences. Prison rules preside over a wide and uncertain range of prisoners’ conduct, all of which may fall within the scope of disciplinary offences, thus creating ‘almost limitless scope for the punishment of undesirable behaviour’ (Hall, 2017: 148). Indeed, prison regime has been described as ‘an extensively rulebound institution where the prison authorities can almost always point to a rule at some level of the hierarchy as the basis for any action that they take’ (Livingstone and Owen, 1999: 16.07). Further, prison discipline is applied in a different manner than criminal law; its operational realties that relate to security ‘trump even the most established policies and procedures’ and are applied to keep things ‘running smoothly’ (Calavita and Jenness, 2015: 116–117).
In sum, this means that AD misrepresent the ‘true’ moral wrongness of prison rule violations (that are not criminal offences) and therefore place in doubt the credibility of the censuring message of imprisonment.
Censure value: Devaluing the penal censure for disciplinary purposes
The second (and interrelated) problem with AD (and similar mechanisms) is that they may devalue the meaning of prison time for solving disciplinary problems. While the first objection is that AD falsely elevate the value of the prison rules, this argument suggests that AD devalue the censuring message of sentencing.
The hard treatment and penal censure do not represent separate elements ‘but stand…simply as distinguishable foci in a single practice that has a condemnatory as well as a sanctioning or hard treatment function’ (Kleining, 2019: 11). Considering its material gravity, as well as inherent symbolic censure, retributivists often argue for restrained use of imprisonment (Ashworth, 2017; von Hirsch, 2017). For instance, Duff (2001: 151) argues that imprisonment should play only a minor role in a proper criminal justice system, reserved for cases in which the offender ‘has not just damaged or threatened, but has broken, the normative bonds of community’ (emphasis originally). 11 In this regard, AD seem to conflict with the desired penal communication in two ways.
First, in the case of AD, the valuable censuring ‘currency’ of prison time may become ‘cheapened’ as it is instrumentalised for serving institutional purposes, rather than protecting against criminal law offences – ‘public wrongs’ that ‘break’ the boundaries of community. Sentencing theorists warn that the moral appeal of imprisonment may be ‘drown out’ if it used excessively or improperly (Ashworth, 2017; von Hirsch, 2017). For penal censure to be successful, they argue, it must be appreciated as such by the offender, the victim and the community (Duff, 2001).
This insight is supported by sociological research, suggesting that excessive penal policy may conflict with societal values and sensibilities, erode its legitimacy, and increase ‘legal cynicism’ towards the importance of the state’s penal censure (Wright and Gifford, 2017). Further, as Wacquant (2009: 280) explained, high-frequency use of prison time induces a process (which Durkheim calls ‘penal inoculation’), among the populations it strikes with regularity, making them less and less susceptible to its preventive or retributive effects: ‘By making the imprisonment commonplace, the state dulls the aura that enshrouds it and blunts the stigma associated with it….’. The extensive use of AD sanctions in United Kingdom and Wales – around 360,000 prison days annually in 2017 – seems to do exactly that (Howard League, 2018).
Another possible reason for erosion of the value of imprisonment (and its inherent censure and legitimacy) is that AD lack the full formalities that precede imposing a custodial sentence in court and which provide its ritualistic-symbolic power. That seems the case if the decision-makers are from the executive branch, such as prison officials (e.g., the department of corrections), as in some US jurisdictions (Demleitner, 2017) and not, as in England and Wales, where the ‘independent adjudicator’ is a district judge (PSI, 05/2018, s. 28). We shall return to this point later.
Censure feasibility: Disconnecting imprisonment from the offence of conviction
The third (and also interrelated) problem with AD derives from splitting the imprisonment period from the offender’s original crime of conviction. As the ECtHR put it: The reality of awards of additional days was that prisoners were detained in prison beyond the date on which they would otherwise have been released, as a consequence of separate disciplinary proceedings which were legally unconnected to the original conviction and sentence. (
Ezeh and Connors v. United Kingdom, 2003: para. 123; emphasis added)
The communicative ‘hard treatment’ normally should be directly linked to helping offenders understand the nature and implications of their own specific crimes (Duff, 2001). During the AD period, the offender may be ‘in prison and under the same prison regime’ as with his ‘ordinary’ sentence period ( Ezeh and Connors v. United Kingdom, 2003: para. 128). However, the justification for AD prison time is not fully related to the offender’s crime but rather, aims primarily to bring prisoners to ‘understand the consequences of their [prison] behaviour’ (PSI, 2018: s. 1.9). As a result, during an AD period – which sometimes last weeks, months and even years – the reason for the prisoner’s cell-time is largely disconnected from his or her past criminal offence of conviction.
This shift isn’t just technical; rather, it is of a nature different than that of the censuring process. Punishment aims towards communication from both sides of the penal dialogue as ‘a two-way process of communication from polity to offender and from offender to polity’ (Duff and Marshall, 2016: 48; Maslen, 2015). That may be relevant for both the censuring authority’s and the offender’s parts in the penal dialogue.
From the censuring authority’s side, the deflection of the penal process from the juridical to the carceral sphere represents a change in the nature of the penal dialogue itself. Prison time no longer serves exclusively to appeal to the offenders’ moral attention, reason and understanding, or to seek their acknowledgement of their own fault for the crime and to persuade them to undergo moral reform, reparation and reconciliation.
From the offender’s side, he or she must actively, rather than passively, make reparation, penance and apology; ideally, serving a sentence ‘requires the offender’s active participation’ (Duff and Marshall, 2016: 47). A proper communicative process is imbued with emotion that may (but does not have to) induce the offender’s expression of remorse, regret, shame and reflection upon the offence (Duff, 2001). However, since AD prison time is associated with the prison’s institutional needs (Douglas and Jones, 1986), it may no longer (or not exclusively) ‘mirror’ the prisoners’ expression of guilt and apology and penance for their own crime. Hence, the prisoner would no longer feel (or feel less) emotionally committed to the penal dialogue as AD prison time is rather distant from him or the personal penal experience. When the prisoner’s personal ‘attachment’ to the penal process, as part of his or her own narrative, becomes weak and self-reproach is minimised, the penal process does not have the same effect of moral reform and repair, thus undermining the feasibility of penal communication (Garland, 1990).
A possible counter-argument is that sentencing may be conceptualised as consisting of two parts – ‘actual’ imprisonment and ‘conditional’ prison time (AD time). The latter would not be served unless the prisoner commits a future prison rules violation. Arguably, under such approach, the whole sentence may reflect communicative values delivered at sentencing. However, even if the sentence were delivered in court in such way, fragmentising the same sentence for ‘actual’ and ‘conditional’ censuring messages may still undermine its censuring quality in the eyes of the offender, community and crime victim. It is difficult to see how a proportionate-retributive sentence – neither ‘actual’ nor ‘conditional’ – will be perceived by the prisoner as a censure for past offence if its application is related to future prison conduct. Even under such conceptualisation, it seems that AD’s prison time is rather distant from the prisoner’s own crime.
Part IV: Enhancing the Feasibility of Penal Communication Within the Carceral – The Case of AD
The penal communication is normative and aspirational rather than descriptive and does not depend on reality, which may be very different (Duff, 2001). However, even if normative theories only justify an ideal system, they do need to be potentially applicable to the actual penal world (Schinkel, 2014). Duff (2001: 201) himself noted that ‘the task of justifying criminal punishment…is the task of so transforming the content and context of criminal punishment that it can become what it ought to be’. In other words, the actuality of punishment must be changed to fit its ideal.
We are not aware of any empirical research that explores the communicative aspects of prison discipline. The empirical research regarding the experience of prison-based ‘sentencing’, while scant, indicates that AD indeed may weaken penal communication delivered at sentencing. Franklin and Henry (2018), for example, found that ‘when offenders are denied access to good time credit, the nature of their prison experience is fundamentally changed’ and the removal of ‘good time’ credits from prisoners may undermine their personal control and autonomy – valuable, but rare resources for prisoners (Franklin and Henry, 2018: 118). One study found that the prisoners’ general experience during the disciplinary processes may conflict with penal dialogue as the prisoners are ‘interrupted, talked down to, silenced, intimidated, and manipulated’ during the disciplinary process (Butler and Maruna, 2016: 138).
The logic of penal communication can lead to a total withdrawal of AD from the prison discipline menu for preserving the juridical censuring power. Prison rules violations may warrant disciplinary response. However, the valuable resource of prison time may hold too excessive censuring weight for disciplinary purposes.
Even if AD is preserved, though, as serving the carceral logic and purposes, the communicative logic may be useful: It may offer guidance in how to minimise AD’s potential harm to penal communication. While we can’t offer here full guidelines, we can offer some suggestions.
First, as noted above, most of the AD are imposed for misconduct that barely should be considered as ‘breaking’ the boundaries of community (Howard League, 2018; Ministry of Justice, 2019). Such imposition is quite far from treating prison time as a valuable penal resource (see Duff, 2001). As a result, the value of prison time may be trivialised and devalued in the eyes of the offenders and society at large. For example, disobedience of prison officials – a popular ground for imposing AD (Ministry of Justice, 2019) – should normally be punished with disciplinary punishments other than AD. Similarly, punishing with AD for (vague) disciplinary offences such as ‘using insulting words or behaviour’ (PSI, 2018, s. 2.32) seems also to conflict with proper respect for prison time. Therefore, it seems reasonable to assume that saving AD for only serious disciplinary offences, and for as short a period as possible, may serve to preserve (at least some) of the normative value of prison time.
Second, the process of imposing AD should reflect the seriousness of using prison days as a disciplinary punishment. Therefore, the process of imposing AD should be carried out in a proper hearing room, with formality sufficient to emphasise that imposing AD is a very serious step and is very different from forfeiture of earned privileges (see PSO 05/2018, s. 2.1). Ideally, imposing AD should be decided in an open formal court (c.f., R (Bannatyne) v. Home Department, 2004). 12 Adopting these formalities, and probably more, would help secure prison time as a powerful and valuable societal response.
Finally, the communicative perspective may encourage a more restricted use of AD with young and mentally-ill prisoners (and possibly others) – who are often perceived as high risk, but also have diminished culpability. The use of AD with such especially vulnerable prisoners, often resistant to prison discipline and who experience especially severe pains of imprisonment, is not an exception. In 2017, around 3,400 AD were imposed on 15-years old prisoners, some punished with more than 150 AD (Howard League, 2018). Further, often the symptoms of mental illness are treated by prison officials as a disciplinary rather than a medical matter (Edgar & Rickford, 2009).
However, there is reason to believe that these prisoners will find it hard to distinguish clearly between the censuring message of sentencing for their original past criminal offence and the disciplinary time of AD for breaking prison rules. Instead, they may mistakenly see AD time as part of the original censure of sentencing. Therefore, a careful and flexible inquiry should be made by the decision-maker whether such prisoners (and possibly others) are fully capable of understanding the meaning of AD as a disciplinary punishment as distinct from their criminal sentence period and message.
Conclusion
The paper strived to uncover what happens when the juridical logic looks beyond the boundaries of sentencing and to illuminate how the juridical logic acts within the carceral. As we saw, the carceral should not be perceived as irrelevant to the juridical logic, or, at best, as merely a technical-passive machine of the juridical power. Rather, when analysing the juridical, one should take interest in the functions of the carceral and its visible and less visible logics. Such interest requires a more careful examination of the legal life of prison, not only through the lenses of risk and rehabilitation or security, or even human rights, but also from a retributive sentencing perspective. That may also serve as a tool for reforming (at least some) prison practices.
As the case of AD exposes, not only may the juridical and carceral logics interact, but also the assumed superiority of the juridical over the carceral may be challenged. In some cases, the carceral bureaucratised disciplinary logic may even undermine the feasibility of the juridical ideal as it may cause penal censure to lose credibility, trivialise the value of prison time and harm the feasibility of penal communication. In other words, in the case of AD prison time, the penal medium of imprisonment no longer conveys its message of sentencing (or does so less effectively than it should). Short periods of AD maybe not be so harmful for the communicative dialogue. However, the longer the AD period lasts, the more difficult it becomes to claim that penal communication is still connected to the crime or that it preserves the value of penal censure. Therefore, even assuming it is well intentioned, fair, efficient and swift (something that empirical evidence is far from supporting), AD punishment seems to conflict with the desired communicative sentencing.
The policy conclusion is that the use of AD should be seriously reconsidered, and possibly removed from the disciplinary ‘menu’. Prison rules violations may warrant disciplinary response. However, the valuable resource of prison time holds too excessive censuring weight for the purpose of enforcing discipline. In this regard, other disciplinary measures such as forfeiture of privileges should be used instead.
Furthermore, if AD is preserved for the benefit of the carceral, the communicative logic may be useful for offering guidance for AD’s application, in a way that minimises its harm to the censuring message. First, it seems reasonable to assume that saving AD for only serious disciplinary offences, and imposing them for as short a period as possible, may serve to preserve at least some of the value of the censuring power of prison time. Second, the process of imposing AD should be as formal as possible in order to preserve the symbolic power of prison time. Third, a closer examination of imposition of AD on young and mentally-ill prisoners, a common target of AD, should be made, while ensuring that they are capable of distinguishing rationally between the different juridical and carceral periods and messages.
In conclusion, more theoretical and empirical socio-legal and penological research is needed to better understand the complex, visible and less visible, gaps and interrelations between the juridical and the carceral powers, logics and practices. Making the ‘black box’ of the carceral more transparent would benefit both the juridical and the carceral.
Footnotes
Acknowledgements
The author wishes to thank greatly to Miri Gur-Arye, Yotam Kaplan, Ruth Kannai and Adiel Zimran for their valuable comments on earlier versions of this paper. The author also wishes to thank two anonymous reviewers for this journal for their highly constructive comments.
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.
