Prison places,foreign prisoners and the Danish welfare state: Towards a conceptualization of prison space as a welfare resource

Introduction

In the 2006 article that added the term crimmigration to the lexicon of contemporary criminology, Stumpf (2006) opened her theorization of the merger of criminal and immigration law with a fake memo to the President-Elect of the United States. The dystopian future depicted in the memorandum described how ‘the burgeoning population of detainees quickly overwhelmed the available cell space in federal and state jails and prisons’ (Stumpf, 2006: 373). The fake memo also explained that the US military had built new prison camps abroad to contain non-citizen detainees as ‘it was cheaper to ship detainees to these bases and house them there than to build new prisons domestically’ (Stumpf, 2006: 373). Other advantages of these fictional extraterritorial prisons included attracting less public notice and being exempt from judicial review (Stumpf, 2006).

Fifteen years later, that dystopian scenario is becoming true. In December 2021, the government of Denmark agreed to rent 300 prison places in Kosovo to hold foreigners sentenced to imprisonment followed by deportation (Ministry of Justice, 2021a, 2021b). The move came as the Scandinavian country faces ‘historically high occupancy rates’ ¹ (Ministry of Finance, 2021: 1) and is just the latest in a string of anti-immigration measures aimed at succeeding in reaching the ‘zero asylum-seekers’ target (AFP, 2021). The criminal justice system of the second happiest country in the world (BBC, 2021) plays a central role in this xenophobic strategy, and the anti-foreign measures are infiltrating all the elements of the Danish criminal justice system, including the country's prisons.

In 2006, Stumpf's attempt at theorizing the convergence of immigration and criminal law drew from the principles of membership theory to explain the numerous exclusions from rights and benefits to which ex-offenders and non-citizens are subjected. ‘The result of the application of membership theory’, she argued, ‘has been to create a population, often identifiable by race and class, that is excluded physically, politically, and socially from the mainstream community’ (Stumpf, 2006: 413). Denmark's most recent move in foreign prison management could indeed be seen as the first step into the ‘downward spiral of protections for non-members’ that Stumpf (2006: 418) tried to warn us about.

However, membership theory was put forward by Stumpf to explain the exclusionary treatment of both immigrants and ex-offenders: both collectives were considered to suffer the same levels of exclusion and alienation, and they were both equally ‘denied the badges of membership in society’ (Stumpf, 2006: 378). But recent developments in Denmark show us that is not the case anymore: soon the Danish authorities could be deciding which prisoners are sent to the country's extraterritorial prison based solely on their immigration status and regardless of the nature or the seriousness of the offences committed. The levelling of non-citizens and ex-offenders that constituted Stumpf's baseline does not hold up in the face of this reality. The merger of criminal justice and immigration control in Denmark is now entering a new dimension that has surpassed the ability of traditional membership theory to operate as a valid theoretical framework.

This article draws from literature on Nordic welfare states to explore the latest Danish developments in foreign prisoners’ management policy. Building on the theories of penal nationalism (Barker, 2013, 2018) and welfare chauvinism (Franko et al., 2019), and suggesting a novel conceptualization of domestic prison space as a welfare resource, the objective of the article is to produce a new theoretical framework that can account for the particulars of Denmark's deal with Kosovo, where deportable foreign prisoners are excluded from the country's territory before deportation even happens.

The article proceeds as follows: first, it presents the latest developments in Denmark's immigration policy, and it outlines how the criminal justice system has gradually become a tool for immigration control. Such a process, it is argued, has culminated with the prison rental agreement between Denmark and Kosovo. Second, the article briefly discusses welfare and penal nationalism (Barker, 2013, 2018; Franko et al., 2019) and suggests that they can be interpreted as calling for the removal of deportable foreign criminals from Danish soil. The justification of such an argument is presented in the article's third section, which conceptualizes prison space as a scarce resource of the Danish welfare state and demonstrates that foreign prisoners are treated as a threat to the welfare system because they occupy prison space. Finally, the article discusses the theoretical contributions of such an argument and suggests new research avenues.

Denmark's paradigm shift and the instrumentalization of the criminal justice system

Until recently, Denmark was known to be one of the most welcoming countries for foreigners. The country's 1983 Asylum and Immigration Act was described as ‘the most people-friendly law in the world’ (Bakkaer Simonsen, 2020: 609), and thousands of asylum seekers from the Middle East, East Africa and Eastern Europe found refuge within its borders during the 1980s and 1990s.

The tide changed in 2001, when the newly elected liberal government started tightening immigration policies. Cuts and restrictions to immigrants’ rights gradually became the norm (Petersen, 2020), and the tightening culminated in 2015 with the formal introduction by the Danish parliament of an element of temporariness in the protection status for all asylum seekers and refugees. ³ This return turn (Vedsted-Hansen, 2022) taken by the Danish immigration policy was further cemented in 2019, when an amendment to the country's Aliens Act ⁴ gave the Danish Immigration Service the power to regularly reassess and revoke the status of anyone with a temporary residence permit. Denmark has since engaged in what the country's government has labelled a paradigm shift (Ministry of Immigration and Integration, 2022), under which prior ideas of integration of foreigners have been abandoned and replaced by an overarching goal of returning immigrants to their origin countries at the earliest opportunity. As Korsgaard (cited in Bakkaer Simonsen, 2020: 613) notes, ‘the clear goal is that they return home as soon as possible’.

The explanation for such a sharp U-turn in the Danish immigration policy is—at least partially—found in the country's strategy to protect and preserve its welfare state model. The Welfare Commission (2003–2006), which assessed the state of the Danish welfare model, listed increased globalization and rising levels of immigration as some of the main challenges the welfare state faced (Petersen, 2020). More recently, public expenditure on services to immigrant and refugee people was described by the Danish People's Party as ‘a threat to [the] welfare society’ (Sindberg, 2017). Framing immigration as a threat has transformed the fight against immigration into a fight for the survival of the Danish welfare state. In such a context, the Danish criminal justice system has become one of Denmark's preferred weapons to combat the immigrant threat.

In Denmark, criminal justice measures designed to control and restrain immigration include strategies such as the direct criminalization of migration offences or the deportation of criminalized foreign nationals. For example, irregular entry and irregular stay in Danish territory can result in the imposition of fines or imprisonment for up to six months. ⁵ And, under section 24 of the Danish Aliens Act, any non-European Union national ⁶ found guilty of a criminal offence and sentenced to imprisonment may be expelled from Denmark, regardless of the actual length of the sentence of imprisonment imposed. The years spent in Denmark barely afford these foreign nationals any layers of protection: section 23 of the Aliens Act establishes that non-EU nationals having lawfully resided in Denmark for more than five years require a sentence of at least one year of imprisonment to be expelled, and those who have been lawfully residents of Denmark for more than nine years will only be expelled if they receive a sentence of at least three years of imprisonment.

Other strategies are more subtle, only targeting foreign nationals indirectly. In 2017, for instance, the government criminalized the so-called ‘intimidating camps’, under the pretext that a person camping in public areas could cause nuisances to the local environment and endanger the safety of their surroundings. While the prohibition was formulated in neutral terms, the Minister of Justice at the time made it very clear that the legislation's goal was to target homeless migrants and, more specifically, the camps of Roma people living in Copenhagen (Justesen, 2023). The instrumentalization of the criminal justice system as a tool to fight against migrants is also apparent under the Danish Ministry for Economic and Interior Affairs’ No Ghettos in 2030 initiative: under such policy, penalties for crimes committed in zones classified as ‘ghetto areas’ are doubled. Immigrants are indirectly targeted as the main criterion for an area to be labelled as a ghetto is to have more than 50% of its residents coming from non-western countries (Ministry for Economic and Interior Affairs, 2018).

Prisons have equally become a tool to guarantee the success of Denmark's paradigm shift. Early signs of this role can be found in the country's 2012 Agreement on the finances of the Prison Service, where the Danish authorities discreetly mentioned they would like foreign nationals to serve their sentences in their home countries. Under the 2013–2016 Agreement in-prison rehabilitation-oriented measures were explicitly denied to deportable foreign nationals, and it was declared that their time in Danish prisons should be devoted to their preparation for the expulsion. The 2013–2016 Agreement also announced the creation of a task force dedicated to ensuring that a maximum of foreign nationals serve their sentences in their home countries. As a result, the so-called deportation wards—special units holding deportable foreign prisoners only—were created with the specific mandate of ensuring the swift deportation of foreign prisoners after the completion of their prison sentences (Europris, 2017).

While the provisions of the 2013–2016 Agreement were limited to the establishment of all-foreign prison wards dedicated to speeding up deportation proceedings, the 2018–2021 Agreement opened the field to discussions on the establishment of prison places abroad, in places other than the foreigners’ countries of origin, where such foreign criminals would serve their sentences. In 2018–2021 the government of Denmark announced an ‘ongoing study of the legal, economic and administrative framework’ (Ministry of Finance, 2017: 8) for doing so, and such study culminated in the 2022–2025 Agreement, which reads:

The parties to the agreement agree that 300 prison places will be rented in a partner country. The prison places will be used for foreigners from non-EU countries who have been sentenced to deportation. This will increase capacity in the short term and thereby relieve the acute staffing challenges in Danish prisons. It will also send a clear signal that deportees must leave Denmark.

(Ministry of Finance, 2021: 2)

More details were given in a statement and Letter of Intent released jointly by the governments of Denmark and Kosovo on 20 December 2021. The letter of intent announced that the rented correctional facility was located in Gjilan, a city of about 55,000 inhabitants located approximately 50 km south-east of Pristina, the capital of Kosovo. The government of Denmark would pay an annual fee of €15,000,000 for the use of the 300 rented prison cells. The specific rights and duties of each party were stated in the Treaty on the use of the Correctional Facility in Gjilan for the purpose of the execution of Danish sentences, signed respectively by the Ministers of Justice of the Republic of Kosovo and the Kingdom of Denmark on 26 April and 16 May 2022.

The wording and tone of the Letter, the Agreements and the Treaty are crystal clear: Denmark intends to rent 300 prison places in the Republic of Kosovo and wishes to use those newly acquired beds to ensure deportable non-EU foreign nationals sentenced in Denmark serve their prison sentences over 2000 km away from Danish soil. While effective implementation of the agreement is currently on hold, as the Government negotiates a way to fund a significant part of the operation, prisoner transfers could start as soon as the ongoing legal row at the Danish Parliament on the introduction of a new VAT tax on arts and culture (which should indirectly raise the funds to cover the rental price) is resolved (Minke and Vanhouche, 2023; Szumski, 2022).

The rental agreement between Denmark and Kosovo culminates the paradigm shift that Denmark started over 20 years ago. The country has left behind any ideas of reintegration of deportable foreign prisoners and has openly embraced an exclusionary strategy, whereby no effort should be spared to ensure the swift and prompt return of these foreign prisoners to the country of their nationalities. The following section outlines why and how this paradigm shift is linked to Denmark's welfare state and the country's particular take on nationalism.

Penal and welfare nationalism in Denmark

The hardening of Denmark's policies against immigration in general, and against deportable foreign nationals in particular, finds its theoretical explanation in the field of border criminology (Bosworth, 2016). These are all indeed manifestations of what Franko Aas (2014) called bordered penality, the phenomenon by which punishment takes on functions of border control and membership sorting. Under Danish regulations, penal power has turned into a boundary-drawing tool, one that the state uses to separate members and non-members (Franko et al., 2019): immigrants have been turned into crimmigrant others (Franko Aas, 2019), and the mission of the criminal justice apparatus is to ensure they are neutralized and excluded as soon as possible. The way Denmark gets to do so is by developing a two-tiered justice system that subjects crimmigrant others to abnormal laws and practices (Franko Aas, 2014), such as the criminalization strategies that have just been described.

But beyond simple mobility and membership control, bordered penality takes on added significance in the context of Scandinavian countries in general, and in Denmark in particular. The developments presented above confirm what Barker and Scharff Smith (2021) suggested a few years ago: Denmark's is a classic case of a Nordic welfare state trying to protect itself through penal power against those threatening it. In Denmark, the bordered penality sorting techniques not only draw borders, they have also become a tool for the protection and advancement of the country's welfare state.

This claim builds on the work of scholars who, questioning the longstanding Nordic exceptionalism thesis, have pointed out that Nordic penal regimes are not that benevolent to everyone. These authors define them instead as Janus-faced regimes (Barker, 2013) whose power is at the service of nation-building projects. Guided by an agenda of what Barker (2018) calls penal nationalism, Nordic states use coercion and penal powers to uphold national interests, protect the welfare state's solvency and trace a line between those who belong to it and those who do not. The penal regimes of these countries, which used to be seen as universally mild and humane, have been observed to modulate their intensity following the welfare state's interests, resources and needs (Barker, 2018). As noted by Franko et al. (2019: 69), ‘[i]n Northern Europe, the welfare state is a national project for nationals rather than a universalistic project for all (…). It is a form of welfare chauvinism backed by force.’ Nordic penal regimes are characterized by the cohabitation within them of both harsh and mild penal regimes (Barker, 2018; Barker and Scharff Smith, 2021) and, when the welfare state believes that its material and symbolic resources are endangered by those who do not belong to it, the state's apparatus will not hesitate to deploy both its soft and hard powers to protect those resources (Franko et al., 2019).

Nordic welfare states, including Denmark, promise their members the enjoyment of significant levels of material, economic and social well-being. This does not come free of charge, though, for all its members—including those incarcerated—are expected to work to contribute to it (Barker, 2018). And because prisons are also regarded as being an integral part of the Nordic welfare state (Ugelvik, 2013), they also operate under the double mandate of protecting the interests of the incarcerated people who do belong, by ensuring that those who do not do not get any share of its resources. Ugelvik's (2013) description of ‘a prison with a double vision’ accurately reflects the Danish authorities’ strategy of grouping all deportable foreign prisoners in spaces designed to ensure that no rehabilitation effort is wasted on them and that all the resources are dedicated to their deportation.

The establishment of all-foreign prison wards on Danish soil under the provisions of the 2013–2016 Agreement clearly illustrates the reign of the penal and welfare nationalist ideologies in Denmark. Danish prisons contribute to the deployment of abnormal justice agendas as they become, as Kaufman (2013: 170) noted, ‘a site for border control measures’ and ‘a constitutive piece of the government's wider deportation strategy’. Furthermore, the fact that prisoners held in these wards will not receive rehabilitation assistance confirms that the country has no intention of spending welfare state resources on them.

However, as the previous section has shown, Denmark's penal nationalism has gone one step further in its fight against deportable foreign nationals. The state has judged it insufficient to group them all in a separate prison, choosing instead to entirely exclude them from prisons in Denmark by sending them to a rented prison in Kosovo. The versions of the penal and welfare nationalism thesis outlined above fall short of explaining this latest development, for if deportable foreign nationals are not to waste precious welfare state resources, surely it should be enough to group them in all-foreign wards with no access to rehabilitation, education or other resource-consuming measures? Why, then, did the Danish authorities feel the need to not only separate them from other incarcerated people, but also to exclude them from the national territory? Welfare and penal nationalism alone cannot explain why spatial separation and the savings generated by the suppression of the rehabilitation services once offered to foreign prisoners are judged insufficient. They need a complement in order to account for the extraterritorial element of Denmark's newest policy.

That complement, this article argues, is to be found in the shortage of prison space that Denmark is currently going through. Adding a spatial element to the theories on penal and welfare nationalism, the following section suggests that prison space should be conceptualized as a resource of the Danish welfare state. Because of the lack of prison space, deportable foreign nationals taking up significant space in Danish prisons are consequently seen as a danger to the system. Their benefiting from a scarce welfare resource poses an existential risk to the sustainability of Denmark's welfare state and, consequently, they must be extracted from Danish prisons to ensure that the welfare state prevails. As the following section will show, the wording of the Agreements supports this spatial approach.

Conclusion

‘What happens to [a prison] system and its ambitious goals when increasing numbers of foreigners arrive to take their share of its resources?’, asked Ugelvik (2013: 184). Focusing on Denmark, this article provides an answer to the previous question and contributes to advancing our knowledge of the strategies implemented by Nordic welfare states to respond to the challenge of coping with a growing population of non-citizens in the context of scarcity of resources. In doing so, the article simultaneously adds to the growing body of literature that exposes the inherent harsh-but-mild dual nature of the penal regimes of Nordic states (Barker, 2018; Barker and Scharff Smith, 2021; Franko et al., 2019).

The argument developed in this article also expands and nuances both Barker's (2013, 2018) and Franko Aas’ (2014, 2019) observations on the ways bordered penality and welfare nationalism intersect, complement and amplify each other in a post-conviction phase. While these two concepts can provide a theoretical framework for the segregation of deportable foreign prisoners in special wings and the creation of all-foreign prisons, this article has argued that they lack explanatory force in the face of the rental-abroad element. Adding the conceptualization of prison space as a scarce welfare state resource allows them to fully regain their explanatory power.

Based on the contents of the successive Agreements on the finances of the Prison Service of Denmark and that of the Treaty signed by the authorities of both Denmark and Kosovo, this article has suggested a novel approach under which prison space is conceptualized as a scarce welfare state resource in Denmark. Building on the theories of welfare and penal nationalism (Barker, 2013, 2018; Franko et al., 2019), it has been argued that the Danish authorities have constructed prison space as a welfare state resource through the successive Agreements. This has culminated in the Treaty between Denmark and Kosovo. In a context where prison space is increasingly scarce, foreign prisoners taking up space in Danish cells constitute a direct threat to the sustainability of the country's welfare system. And, because the danger to the welfare state unfolds spatially, the solutions to preserve the Danish welfare state's existence must unfold spatially as well. They have consequently decided to exclude deportable foreign prisoners from prison facilities located in Denmark as a means of protecting and ensuring the continuity and stability of the country's welfare system.

This article has focused on the wording of the Agreements to advance a theoretical argument that can explain Denmark's rental agreement with Kosovo. But the rental of prison places abroad raises another whole set of questions related notably to state sovereignty and to the human rights of those subjected to such a measure. For instance, what does it mean, for Danish sovereignty, that Kosovar prison officers use force against individuals sentenced under the Danish Criminal Code? And conversely, what does the fact that only Danish law applies within the walls of Gjilan prison tell us about Kosovo's sovereignty? ⁹ As to the human rights of the individuals transferred to Kosovo, articles 3 and 30 of the Treaty do establish that the execution of sentences in Kosovo will still be governed by Danish rules and regulations, and that Denmark's obligations under international law still apply. However, it remains to be seen if and how these obligations would translate into practice.

While the issues outlined above are well beyond the scope of this article, these are important questions that future literature should recognize and address. The commencement of the execution of the Treaty is still pending, and transfers of prisoners will not start until the blockages related to the funding of the project are lifted in the Danish Parliament. But once they are, transfers could start happening at any moment, and theoretical debates could quickly become real ones. Scholars have explored before the way order is negotiated in a transnational prison rental (Liebling et al., 2021), and they have also studied the experiences of both foreign national prisoners and prison officers in an all-foreign prison (Brouwer, 2020a, 2020b; Ugelvik and Damsa, 2018). However, further research is needed to deepen our knowledge of the ways the two phenomena intersect and the consequences this might have in terms of national sovereignty and respect for the human rights of the transferred individuals.