Abstract
Susan Easton, Prisoners’ Rights: Principles and Practice, Routledge: Abingdon, 2011; 279 pp.: 9781843928089, £44.00 (pbk)
The introduction of this book signifies that the author intends to examine ‘prisoners’ rights in a context where they have moved from a state of social and civil death towards a recognition of their citizenship’ (p. 1). After a historical presentation of the evolution of prisoners’ rights in the introductory chapter, the author then moves on to compare rights versus discretion and to give an overview of relevant international human rights law and standards. The rest of the book is devoted to the study of themes such as prison conditions, procedural justice, contacts with the outside world, the right to equality and the right to vote.
The introduction also announces that ‘reference will be made to the treatment of prisoners in the United-States, the United Kingdom and the Netherlands’ (p. 1). Unfortunately, this is not a comparative book. Not only does the author often forget to mention how a given right or issue is dealt with in Holland, and even the USA, or only does it very briefly, but also, she never truly compares legal systems, but merely presents them one after the other. If one accepts that this is actually for the most part a book which concerns the United Kingdom (and essentially England and Wales) and that there may or may not be added details about the two other jurisdictions (compare with Van Zyl Smit and Snacken, 2009), then this book is indeed a useful introduction into England and Wales’ prison law with hindsight from abroad, which should be recommended to UK students. It should also be very useful to foreign students, academics and practitioners. It will be an easier and more pleasant outline than a classic handbook or treaty as it is not intricate or technical to the point where an overseas’ reader or even a non-lawyer would not understand. However, this simplicity may at times be a hindrance, in particular when the author refers to literature or controversies without offering any specific reference.
Despite the number of pages of this little book and, consequently its predictable limitations, Easton never fails to refer to an abundant European jurisprudence; further mentioning the European Prison Rules whenever relevant.
For a continental lawyer such as the reviewer, a journey into British law is always surprising. For example, the fact that a court of law can rule that a statute pertaining to prison regulation does not create rights is perplexing. The numerous illustrations provided in Prisoners’ Rights also lead the foreign reader to a troubling conclusion: one of the principal obstacles to prisoners’ rights seems to lie in the courts’ discretionary power.
Reading between the lines, Prisoners’ Rights also leads to an obvious yet worrying fact: progress in jurisprudence is not enough to generate improvements in rights and conditions: political and public opinion climate is also essential. This would however have been better illustrated had Easton systematically given an in-depth presentation of the United States’ and the Netherlands’ legal systems.
Prisoners’ Rights could also have better provided the opportunity to uncover best or, conversely, substandard practices. Some cultures are more favourable than others to prisoner’s rights in general; but interestingly, it may also vary depending on the issue at stake. For instance, the United Kingdom does not fare so well with regard to citizen rights such as the right to vote, in comparison, for example, to the Netherlands or France. Furthermore, it does not compare favourably as of children’s rights to be raised by their imprisoned parents or as of conjugal visits; conversely, it is plainly more advanced and has devoted much more thought and effort to gender and diversity policies.
Prisoners’ Rights justly presupposes that improving prisoners’ rights is a positive evolution, something this reviewer can only concur with. In this respect, the first two chapters are particularly convincing and a reader with little time might choose to read them exclusively. Despite the excellent and more pugnacious introductory chapters, the rest of the book is unfortunately essentially descriptive. One would have hoped for a more critical eye. For instance, on page 157, Easton refers to the fact that allocation is based on behaviour but is never critical of the classification system of prisoners itself, even though it allows prison administrations to organize discretionarily a less eligibility system (e.g. for prison leave which the authors does not condemn either: see p. 159), without much risk of being troubled or challenged. This is a very powerful disciplinary tool which has adverse effects on reinsertion and, eventually, on reoffending; it is, in other words, a system whereby internal security works against external security, that is, the security of the community. In the same vein, the author appears undisturbed by the fact that conjugal visits may be allowed on a good behaviour basis (p. 171), despite the fact that it is in contradiction with her own argument against less eligibility logics and affects inmates’ families’ article 8 rights, even though they have committed no offence. Conjugal visits should in our view, be a right, not a privilege.
Particularly interesting is the general emphasis on the idea that prisoners are citizens and should be, as much as possible, treated as such. In France, a law passed in 2000 called ‘citizens’ rights in their relations to administrations’, allowed prisoners to be defended by an attorney during disciplinary hearings. Similarly, a few years back, a public law specialist invented the concept of ‘prisoners as public service users’ (Péchillon, 1999), in other words, prisoners as being in the same position as a person using the services of the mail or national railways: the position of a consumer, albeit captive – but aren’t we also all captives of the mail? – who has substantive and litigation rights. This has had a powerful impact on how administrative courts’ jurisprudence was hereafter shaped. Clearly there is an academic movement in favour of a maximum application of ordinary law and principles to prisoners, and to their families and loved ones (Herzog-Evans, 1998), which is why, for instance the third edition of Steve Foster’s Human Rights and Civil Liberties (2011) now incorporates the study of prisoners’ issues within his analysis of specific rights, rather than in separate sections.
There may be a risk, however, in the development of rights as the French legal system has revealed since a favourable jurisprudence has emerged in the mid-1990s. Take for example confinement: in 1995, French courts decided they would open the gates of judicial review of disciplinary confinement which led to improvements of substantial and procedural rights. Soon enough the prison system started using other measures such as solitary confinement or mandatory transfer in order to sanction inmates despite the fact that prison law stated that they were not to be used as sanctions. It took eight more years until the administrative courts realized they had been duped and allowed judicial review against such measures as well. The prison service reacted by creating prisoners’ classification, and has been using it as a parallel disciplinary and good order tool ever since. In the same vein, a new system has been created whereby minors are diverted to a ‘good order’ sanctioning system, whereby an educator and a guard punish their disciplinary offences, in order to avoid the ‘hassle’ of a disciplinary trial. So far, administrative courts are still duped and have not fully realized that this is yet another way of escaping the substantial and procedural constraints of the law. In other words, nothing is ever set in marble; legal battles never end.
Furthermore, even if rights are promoted, they may not be enough to improve prisoners’ material and human conditions, which may be severely compromised by overcrowding or a prevailing traditional culture among guards.
In conclusion, the best parts of Easton’s book are those devoted to the right to vote, a subject she has already published about (Easton, 2009). A very good case is made against disenfranchisement and we strongly recommend it to the readers of this journal.