The rule of law,security-development and penal aid: The case of detention in Haiti

Abstract

The combination of flawed penality, crushing poverty and a natural disaster that devastated Haiti’s already fragile criminal justice infrastructure made the country a fitting candidate for a new kind of international aid effort, which we call penal aid. This international aid effort uses rule of law theories and practices to develop credible criminal justice institutions and reform penal practice throughout the world. According to rule of law measures, detention indicates flawed justice and a weak state, whereas trial and transformative punishment promotes global security and poverty reduction. The rule of law is a method for punishing better, a mechanism of international aid, a measure of global security and a means for the recognition of law-abiding states. Rule of law reconstruction is about international state-crafting and remaking Haiti in the image of a global penal state.

Keywords

aid policy detention Haiti rule of law security United Nations

Introduction

Detention is a form of penal practice. It is typically understood as a limited governmental measure where an accused is confined in advance of a trial or judicial determination of guilt or innocence. ‘Pre-trial detention’, as it is commonly called, is deployed for various ‘non-punitive’ reasons, such as ensuring the presence of the accused at trial, protecting witnesses or preventing the resumption of criminal activity by the accused before trial. However, within the Haitian justice system, detention is often deployed to serve a punitive function. As such, Haitian detention blurs the distinction between pre-trial detention and punitive confinement. In addition, and in so far as it serves a punitive function, Haitian detention is problematized for not being accompanied by socially redeeming objectives and techniques, such as the transformative-rehabilitative programmes that correlate with the birth of modern western ‘prisons’. The use of detention in its punitive function, that is, beyond its pre-trial utility and independent of due judicial process (i.e. trials), has long been problematized for failing to limit governmental authority and for failing to cultivate (through rehabilitative measures) the self-governance necessary for a life of freedom. As a result, detention is dissociated from proper penal practice and has become a significant indicator of an ineffective and flawed system of justice.

This detention problematic has made Haiti a target of international governing efforts aimed at transforming flawed justice systems around the world. This international effort is directed by the United Nations. The earthquake that rocked Haiti in 2010 destroyed much of the country’s criminal justice infrastructure and created an opportunity for international aid efforts to assist in the reconstruction of Haitian justice. In 2011, the UN introduced Rule of Law Indicators as a way to measure the performance and determine the credibility of criminal justice institutions relative to an international standard. The Indicators would also enable intervention efforts to identify and target the most pressing justice problems. Haiti also happens to be the poorest country in the Americas according to other UN indicators (United Nations Development Programme’s Human Development Index). The combination of flawed penality, crushing poverty and a natural disaster that devastated its fragile infrastructure has made Haiti a fitting candidate for a new kind of international aid effort, which we call penal aid. Penal aid connects flawed penality with global security and attempts to solve these problems through the deployment of a particular kind of security-development penology.

Genealogy of the international rule of law

The rule of law is a dispositif. It is a heterogeneous assemblage of rationalities and technologies of governance that organize and shape possibilities within fields of social practice (Ilcan et al., 2003; Slater, 2008: 248). While the particular constellation of elements that form a dispositif might prove to be relatively stable, it is the regularity of their effects that registers as stability. Dispositifs are also adaptable to various problems and settings across time and space (see Walters, 2012: 77). Dispositifs are not, therefore, equal to institutions, that is, as arborescent structures that are seen to develop through processes of differentiation or dedifferentiation. As adaptable formations, dispositifs migrate through capillary action (Fraser, 2003) across domains, jurisdictions and even scales (see Valverde, 2010) infusing and transforming social institutions, organizations and other forms of multiplicity (Foucault, 2007), colonizing domains, spaces or institutions, to shape them according to their own requisites (Dean, 1996: 61). Dispositifs are assembled to meet an ‘urgent need’ to manage, govern, control and orient the conduct of the multiplicity (its behaviours, gestures, thoughts, customs, habits, productive practices, etc.) and to decode and recode relations within the multiplicity in a way that purports to be useful (Agamben, 2009: 12,14; Hardt and Negri, 2000: 23) through the composition of diverse legal, architectural, professional, administrative, financial, judgemental forces (Miller and Rose, 2008: 63) with multiple and varying dimensions (Dean, 1996: 55). As a result, dispositifs are ‘multiform instrumentations’ (Dean, 1996: 61) that spread to form networks of heterogeneous, locally constituted governance formations, comprising a unique ensemble of procedures, rules, subjectivities and normative expectations (O’Connor, 2002: 37–38).

In order for governance functions, such as deterrence, surveillance, control, precaution and so on (Aradau and Van Munster, 2007; Foucault, 2009) to be actualized, they have to be rendered operable (Miller and Rose, 2008: 33, 63), which is to say that they have to become technical. Technologies of government seek to translate governing aims ‘into the domain of reality, and to establish “in the world of persons and things” spaces and devices for acting upon those entities of which they dream and scheme’ (Miller and Rose, 1990: 8). In this sense, technologies of governance include not only diagrams, models, formulas and procedures, but also architectures, routines and rituals, as well as certain intellectual technologies that serve to render existence actionable, calculable and amenable to intervention.

While certain governance functions have affinities with particular techniques, the logic and rationalities of governance do not absolutely determine which techniques will be used. As such, techniques ‘need to be studied separately rather than being relegated to the extra-theoretical realm of implementation’ (Miller and Rose, 2008: 33; Valverde, 2010: 8). Central to this technological imperative is the problematization and transformation of previous attempts at governing.

Governing is a congenitally failing operation (Miller and Rose, 2008: 183). This means that new governing dispositifs emerge through the work of problematization. Problematization works to render prevailing forms of governance as failed operations and, at the same time, as problems to be solved through the development of new objectives and mechanisms (see Osborne, 2003: 11). It is on the basis of failures/problems that new governing dispositifs are formed, since governing efforts are understood as ways of thinking and acting on problems. For example, should the objective of punishment be to impede the reiteration of criminal values or should it be to normalize conduct? Stopping the proliferation of criminal values might require the reduction of all power and authority to law and all law to a discourse of prohibition, where banned activities and corresponding punishments would circulate among the multiplicity as ready-made lists (legal/penal codes). The perceived failure of law to render social order is associated with the birth of normalizing strategies where new governmental objectives required transformative strategies coupling penal confinement with repetitive activities – especially work – and virtual surveillance to enforce the continuous self-assessment of conduct (discipline). The perceived failures of disciplinary confinement (‘prison’ properly called) in western societies is associated with the birth of biopolitical penal strategies where governmental objectives shifted from the normalization of individual offenders to the management of ‘indices of risk’ (O’Connor and De Lint, 2009: 58) through practices of ‘variable detention’ (Feeley and Simon, 1992: 453–454). Under the biopolitical regime, prisons are recycled and transformed into technologies of variable detention, where they function ‘as a kind of reservation, a quarantine zone in which purportedly dangerous groups are [variably] segregated in the name of public safety’ (O’Sullivan and O’Donnell, 2007: 27–28). What may seem as a technological innovation is a solution born of a perceived governing failure. It is essential, therefore, to not only examine how government becomes technical, but also how previous governance practices and technologies are problematized and transformed. What is at stake here is the capacity to understand the internationalization of the rule of law as a governance event, one that is born out of the problematization of existing governing rationalities and technologies.

Penal codes: Limiting government and disorder

Sovereign justice equated law with the decision-making capacity of authorities, granting those with authority the absolute power to determine violations and punishments. Problematized as arbitrary, inconsistent and poorly distributed among competing authorities, the birth and development of penal codes in the later part of the 18th century were seen as central for constituting a new governing dispositif where rule would be subordinated to law and law would be made into a consistent system of prohibition and punitive responses. Penal codes were posed as multiform solutions to address not only the problem of sovereign rule, but also the contagion of crime (O’Connor, 2002: 50).

Where sovereignty is said to be founded upon personal strength or a general will capable of creating order out of chaos (Hobbes) or catastrophe (Rousseau), the rule of law is said to be found in those techniques that limit government and constrain political action (see Peerenboom, 2004). As a domain of limited government, the state, in its external relations, would abandon the logic and techniques of empire.¹ It would come to be seen as an autonomous entity, existing in a domain occupied by other, competing, more or less equally autonomous and equally limited states (Dean, 2010: 104–107; Walters, 2012: 26). Under the model of Westphalian sovereignty, each state would claim this limited sovereign equality (Chesterman, 2009: 69) and the right to manage the disposability of its enclave as a sort of private property free of the interventions of external agents in domestic affairs (see Palombella, 2009). As a domain of limited government, each state would, through these limits, found a domain of autonomy and liberty within the state but beyond the formal domain of government and politics. State authorities would still intervene in domestic affairs to manage the liberties of this autonomous domain, but would do so in a limited way. Interventions that sought to limit the liberty of persons, through practices of detention or confinement, either for reasons of state or to ensure the continued functioning of the autonomous domain, would themselves have to be limited. Detention would prove particularly problematic for those seeking to govern on behalf of autonomy or in its name. The coupling of detention with limited governmental authority has shaped the development of very different governing dispositifs.

Challenging political authorities to ‘see like a state’ rather than sovereigns (Scott, 1998; Walters, 2012: 26) and to establish the limits of political authority in relation to the rule of law, Rousseau (2004: 40–41, 44) wrote:

there is undoubtedly a universal justice which springs from Reason alone… we can no longer ask who is to make laws because laws are acts of the general will, no longer ask if the prince is above the law, because he is part of the state… the lawgiver is the engineer who invents the machine; the prince is merely the mechanic who sets it up and operates it.

In 1790, Jean-Paul Marat published his Plan de Législation Criminelle, which would limit political authority in matters of crime and punishment. He wrote:

To derive the offence from the punishment is the best means of proportioning punishment to crime. If this is the triumph of justice, it is also the triumph of liberty, for the penalties no longer proceed from the will of the legislator, but from the very nature of things; one no longer sees man committing violence on man. (Marat, 1790: 33)

Governing for reasons of state required not only limiting political authority, it required ‘projects of legibility’ (Scott, 1998: 80) to produce order and to enable authorities to see and shape the arrangement of the multiplicity within that order, in addition to mechanisms to circulate and make legible to the multiplicity the work of reason and the rule of law.² To intervene in life and shape the conduct of the multiplicity, governmental authorities would have to discover or develop ways to ‘act on events, places, and people that are unfamiliar and a long way away’ (Miller and Rose, 2008: 33–34). For penal reformers this meant seeing and acting on disorder differently. For them, crime was reasonable, that is, it was motivated by the same rationality that guided (most) human conduct: ‘Pleasure and pain are the only springs of actions in beings endowed with sensibility’ (Beccaria, 1819: 31). Crime was particularly problematic however, because it was a vector of social disorder, capable of spreading through the multiplicity by example and thus weakening the internal security of the state. As a result, punishment technologies needed to be reworked to combat the contagion and prevent mass illegalities; ‘political society should only punish with an intention that no hopes of impunity should induce others to commit the same’ (Beccaria, 1819: 60). This aim was realized by enfolding a pedagogical/deterrence function into the rule of law dispositif by means of penal codes. With the primary aim to recode popular consciousness, penal codes focused on maximizing the ideational, rather than bodily, effects of punishment. As Beccaria (1819: 60) would argue, there is ‘no remedy to the crime already committed’; rituals of retributive annulment and execution were political technologies associated with sovereignty and with the government of bodies rather than rational minds. To limit sovereign authority and the spread of disorder, an ideational link between crime and punishment would be standardized in advance and publicly propagated through penal codes. The link between crime and reason would be disseminated through techniques of ‘public report’ (trials) and the link between crime and punishment established by means of a swift and certain punitive response. The result of this recoding would be to make punishment less arbitrary and bodily and more the inevitable result of the rule of law, its reason and the ideational controls of the ‘public code’ (O’Connor, 2002: 46–55). Standardized penal codes would serve to limit the disorder of crime, the ‘privileges that made the implementation of law inconsistent’, and the ‘innumerable authorities that cancelled each other out’ (Foucault, 1979: 78–79). They would remake punishment into an ideational device to manage illegalities within the state.

Variously crafted penal codes were enacted by several states near the close of the 18th century including; Russia 1769, Prussia 1780, Pennsylvania and Tuscany 1786, Austria 1788 and in France in 1791. These state-specific codes where tailored to the social cartography of each region, following, as Rousseau (2004: 59) argued, the general objective that legal institutions ‘be modified in each country to meet local conditions and suit the character of the people concerned’. While these laws ushered in a new age of penal justice with a distinctly ‘modern’ approach to coding conduct, the idea of a homogeneous rule of law was limited by the Westphalian division of penal authority, where each limited state had its own coding scheme and margin of tolerated illegalities.

Internationalization of the rule of law

In the early part of the 20th century, international governance efforts increasingly claimed the authority to regulate matters once considered the exclusive jurisdiction of Westphalian-inspired states, including the state’s treatment of citizens within its own territory and long-standing practices regarding punishment (Buchanan and Powell, 2008). In the 1930s, the League of Nations identified transnational criminal enterprises (passport forgery, counterfeiting currencies and financial instruments and the trafficking in women, infants, pornography and narcotic drugs) (ICPC, 1933b, 1933c, 1933d, 1933e) as problems linked to the existing distribution of penal authority. League proposals to limit transnational crime included the international exchange of fingerprints, photographs and lists of the previously convicted (ICPC, 1933a, 1933f; ICPC, 1937) in addition to the standardization of passports (ICPC, 1933e). But the most contentious plan to counter transnational crime involved translating penal code technologies on an international scale. On 10 May 1932, the League adopted a resolution to develop and implement transnational penal codes involving standardized definitions of offences and penal legislation (ICPC, 1933g). While this effort was supported by many states, detractors warned of the complexities of attempting to unify penal law on such a scale: ‘[I]t is sufficient to recall how long and difficult were the negotiations with regard to even so simple a subject as the Convention for the Suppression of Counterfeit Currency’ (German Ministry of Foreign Affairs, 1933). Similarly, the UK government argued that the objective ‘to reduce criminal law in all countries to a uniform system’ was ‘misconceived and impracticable’, and that penal codes ‘must remain a matter for the determination by the domestic law of each state’ (UK, 1933). A scaled-up version of the rule of law had to contend with the problem of the heterogeneity of rules denoting what was prescribed, permitted and banned (Ebbesson, 2010) as well as various political theories of justice, the good life and the kind of rule of law necessary to achieve these ends (Peerenboom, 2004). As a technology associated with limited government, recycling the technique on a transnational scale proved problematic.

After 1930, League of Nations penal reform efforts shifted from universal codes to the development of technologies to measure and institutionalize minimum standards for penal practice. Here, the focus of League efforts shifted to the state’s ability to care for its (incarcerated) subjects, whatever penal law held sway, through accountability measures and procedural norms based on the Rules for the Treatment of Prisoners (IPPC, 1933). The new Rules aimed to measure the treatment of prisoners from ‘the humanitarian and social point of view’ (IPPC, 1933: 1). Problematizing penal practice rather than penal codes, the emphasis shifted to limiting penal practices that were bodily, badly distributed and non-uniform in their application, and in limiting detention and confinement practices that were excessive or that failed to combine socially redeeming strategies and goals. A subsequent report by the League’s Secretary-General on Penal and Penitentiary Questions (League of Nations, 1939) recommended that detention should not exceed ‘legal reasons’ for its application (danger of collusion, flight or danger to society), nor exceed one half of the minimum term of the penalty involving the loss of liberty prescribed by the law for the offence. Where previous attempts to govern transnational crime through standardized penal laws failed, limiting the concept of an international rule of law to standardized procedural norms and assessments of the ‘architecture’ of state justice systems avoided some of the concerns about governing too much and encroaching on ‘domestic affairs’ (Chesterman, 2008; Tamanaha, 2007).

Modern United Nations’ efforts to transform penal practice continue to focus on procedural characteristics of the rule of law in order to build credible criminal justice institutions. Credible criminal justice arrangements are now seen as essential for transnational security, for sustainable development, for economic growth³ and for allocating global aid (see Duffield, 2010; Ilcan and Lacey, 2011). In this sense, credible criminal justice institutions serve as indices of a ‘common rationality’ (see Hudson, 2006), one that is purportedly shared by law-abiding states and is ‘recognizable’ by the international community. Conversely, the label ‘weak state’ is accorded those with a ‘thin allegiance to the rule of law’, with institutional practices that are indicative of such a limited allegiance, such as distorted forms of legality, non-functioning state institutions, incompetent or corrupt administrative officials and judges and excessive delays and limitations in access to justice (McEvoy, 2007; Peerenboom, 2004). As both means and end, the rule of law serves to measure the difference between problematic states and those deemed to have realized the rule of law by achieving a degree of legal empowerment, access to justice, judicial independence and institutional transformation (Peerenboom, 2009). These renewed international efforts also recycle founding myths of state sovereignty by according state institutions alone the power to make order out of chaos and calamity (Brodie, 2009; McEvoy, 2007: 422).⁴

In 2011, the UN introduced Rule of Law Indicators in the most recent effort to measure and transform the criminal justice institutions of weak states. As a technology of government, the Indicators enable the identification of potential sources of international threat and instability and serve as a way to discipline and normalize those states that appear weakly allied to the rule of law (Zanotti, 2006). In addition to identifying failures of state-craft, the Indicators also serve as a project of legibility that aims to render conduct calculable. They employ qualitative and quantitative measures of performance which can then be compared with the conduct of others, in other settings and over time. Complicity in rendering performance calculable means making one’s conduct visible and knowable in terms of a defined standard of performance. The Indicators therefore function not only to measure performance, but to order and organize conduct so as to make it amenable to measure and receptive to calculation (see Dean, 1996: 61).

The 135 UN Rule of Law Indicators measure the basic machinery of justice along four general dimensions including: performance; transparency and accountability; the treatment of members of vulnerable groups; capacity. But they also entail precise measures to ‘identify specific problems’ and ‘refine interventions to address the most pressing problems’ (United Nations, 2011: vi). In this regard, the Indicators employ detention measures to gauge the extent to which state criminal justice institutions are engaged in limited government. The detention measures include the following expert opinion and public perception measures: ‘To what extent do you agree that the police generally use their powers (e.g., arrest, search, confiscation, seizure, detention) in strict accordance with the law?’ (Indicator 13); ‘How would you rate the ability of the judicial system to hear and conclude criminal cases without undue delays?’ (Indicator 52); ‘How common is it for people to be held in prison without a valid judicial order (or warrant), or beyond the expiration of such an order?’ (Indicator 107); and ‘Would you agree that detention is used only as a measure of last resort and for the shortest possible period of time in all cases involving children as defendants?’ (Indicator 73). The Indicators also seek administrative data to measure: the ‘percentage of prison detainees on a given date who have been held in detention for more than 12 months while awaiting sentencing or another final disposition of their case’ (Indicator 54); and the ‘number of children in pre-sentence detention per 100,000 child population’ (Indicator 55). These rule of law measures, problematize detention as a lack of control, that is, as indicative of a failure of security-governance and so recursively constitute the need for urgent security-development reforms.

The international rule of law, once couched in efforts to reduce the margin of tolerated illegalities and smooth distinctions between states to prevent transnational crime, is now linked to international security-development and state-crafting efforts. The argument for building credible criminal justice infrastructures now rests on the notion that global security requires the development of ‘an enlarged and diligent penal state armed to intervene with force to maintain public order’ (Wacquant, 2008: 71). With state-based security foregrounded as a central concern, transnational security-development makes state sovereignty conditional on the willingness of states to be open to metropolitan monitoring, intervention and regulation (Duffield, 2001: 312). In an effort to end ‘the mismeasure of human progress by economic growth alone’ (Duffield, 2010: 55), international aid also focuses on transforming, among other things, state-based punishment practices in order to align them with rule of law standards. The resulting dispositif involves a shift in discourse and aims, and the deployment of new techniques for thinking and acting on problems (as it has in other ‘new penological’ dispositifs; see Feeley and Simon, 1992: 450). In this case, the problem involves ‘urgent (punishment) needs’ and the attempts to shape these needs by means of newly minted governing technologies like the Rule of Law Indicators.

Detention practice and the Haitian rule of law

Of the 4101 prisoners in Haitian jails in 2001, almost 80 per cent were held in pre-trial detention (Fuller et al., 2002: 38). The proportion of pre-trial detainees is largely consistent with Haiti’s Code of Criminal Investigation, which derives from the inquisitorial method of the French civil code (Code Napoléon). The Haitian Code, established in 1835, gives an investigating judge three months to establish the truth of the crime during which time the accused is typically held in detention (mandat de dépôt). Detention is automatic in criminal matters and optional for misdemeanours. The Haitian Code includes vagrancy and begging as criminal offences, in addition to unlawful conspiracy (association des malfaiteurs); the latter is typically used against gang members and is frequently cited as the sole grounds for detaining individuals (Fuller et al., 2002: 21–22). Haitian law prohibits arbitrary arrest and detention as the constitution stipulates that a person can be arrested and detained only if apprehended during the commission of an offence (en flagrant délit) or by means of a written summons by a justice of the peace (see US Department of State, 2007). However, many arrests described as made en flagrant délit are actually based on clameur publique (public outcry), which is also acknowledged in Haitian law as a legitimate basis for arrest. Clameur publique can be based on nothing more than unsubstantiated rumour but the practice enjoys broad public support (Fuller et al., 2002: 23). Justices of the peace frequently order arrests based on such complaints, even in the absence of substantiating evidence, and usually order detention in such cases (Fuller et al., 2002: 22–23). In Haitian justice, ‘prison’ and the associated technologies of trial and transformative punishment play a limited role, while detention (or arrest as punishment (Yi, 2008)), plays a dominant role in the governance of crime. In Haiti, few criminal trials take place and most detainees are eventually freed ‘after they have served the equivalent of the sentence they would have received had they been proven guilty’ (Fuller et al., 2002: 9).

Haitian justice is formed by an assemblage of rationalities, technologies and authorities. Techniques, such as clameur publique, work to distribute governmental authority by responsiblizing local community members to do more of the governing of certain types of unacceptable behaviour (see also Das and Verma, 1998; Müller, 2005). Clameur publique can thus be regarded as democratization technology in so far as it reduces ‘governing divisions’ (of state vs public governance) by organizing ‘trust networks’ (networks that would otherwise remain clandestine) and enfolding them into public politics (see Tilly, 2001: 35–36). We know that ‘state-centric’ approaches to justice often fail because they do not take sufficient account of such local community knowledge and practice (McEvoy, 2007: 424) and tend to displace more efficacious informal methods of social control. As Garland argues, the ‘success’ of western state-centric crime control policies were largely vicarious because they were buttressed by an array of informal controls enacted by non-state actors; these policies would eventually drive non-state actors out of the crime control business and thus undermine the credibility and efficacy of state-centric approaches (Garland, 2001: 33–34, 53).

The urgent need for penal aid

On 12 January 2010, the earthquake that rocked Haiti’s capital, Port-au-Prince, left more than 222,000 dead, injured 300,572 and displaced almost one-quarter of the country’s population (MINUSTAH, 2010). The earthquake was responsible for the loss of thousands of civil servants and destroyed or compromised 80 per cent of the county’s justice and security infrastructure (Government of the Republic of Haiti, 2010: 46). Eight of the country’s 17 prisons were totally or partially damaged, and 60 per cent of the prison population had escaped including 4215 prisoners from the Pénitencier Nationale in Port-au-Prince, of which it is estimated 75 to 85 per cent were in detention (United Nations Development Programme, 2010: 1). The earthquake triggered the international community to develop plans to aid the Haitian reconstruction effort, but it also served as a leverage point to engage state-transformation efforts and to press for fundamental reforms in the management of Haiti’s justice institutions (Carment and Yiagadeesen, 2010: 56; Dobbins, 2010: 4,7; Klitgaard, 2010: 5).

While many ‘weak’ states have been targeted for international security-development initiatives,⁵ Haiti is the first state to be subject to restructuring under the new UN Rule of Law Indicators. In this international effort, the UN Security and Stabilization Mission in Haiti (MINUSTAH) is given primary responsibility ‘to build the capacity of rule of law institutions at the national and local levels’ (United Nations Security Council, 2010a: 3) and ‘to address issues of prolonged pre-trial detention and prison overcrowding’ (United Nations Security Council, 2010b: 2). MINUSTAH and the United Nations Development Programme (UNDP) promote several programmes to aid the reformation of Haiti’s penal infrastructure and ‘prevent the abuse of pre-trial detention’ (United Nations Development Programme, 2010: 2). Not only indicative of the rule of law, reducing detention is also foundational to state-building efforts: ‘[I]n the absence of any significant progress in the Rule of Law field in Haiti, all ongoing and future efforts in Haiti’s recovery, economic and social development, humanitarian aid, security, and political stability, might turn out to be unproductive’ (United Nations, 2010: 5).

In Haiti, where economic inequality and extreme poverty are a way of life, the rule of law is also endorsed by the UN and UNDP as a strategy for poverty reduction (United Nations, 2011: 1). Accordingly, and under western mentorship, prisoner work placements and prisoner labour are being considered to address Haiti’s transformative punishment needs and need for ‘sustainable economic development’. MINUSTAH has taken the lead in promoting security-development efforts in the face of opposition by the Haitian citizenry for whom such efforts are seen to support perpetrators of violence rather than its victims (DCAF, 2006: 9). The current Haitian penal dispositif is largely victim-centred and victim-driven rather than centring on the social redemption of offenders. Civil society networks are strongly integrated in Haitian justice through mechanisms such as clameur publique and support for detention as a mechanism for delivering victim-centred justice is high. Efforts to transform Haitian justice without equivalent victim-centred programmes make the chances of failure ‘very high : … creating jobs and educational opportunities for members of criminal groups without parallel processes of economic development, job creation, and educational opportunity for the average Haitian can lead to further conflict in the country’ (DCAF, 2006: 9). There is a good chance that transformative punishments will garner negative reactions from Haitian civil society if prisoners are perceived to have better access to work and training opportunities than the average citizen. Replacing detention with social redemption techniques to meet UN normative goals and procedural standards would be a significant change in the trajectory of Haitian justice. Unfortunately, Haiti has a limited capacity to challenge security-development efforts as it is in need of all the aid on offer, even if this means trading one problematic penal dispositif for another.

The question of penal objectives

The birth of the prison was coextensive with social redemption (see Bosworth, 2000; Chantraine, 2010; Foucault, 1979). Early attempts by the League of Nations to develop international standards for prisons would make social redemption objectives, through technologies of penal labour, central to the penological enterprise: ‘The principal aim of the treatment of prisoners should be to accustom them to order and work and to strengthen their moral character’ (IPPC 1933: 2). The League also developed models for the organization of penal labour in addition to establishing minimum working conditions. Programmes of penal labour were seen as crucial in reducing reoffending in addition to serving the positive economic functions of fostering a ‘taste for work’ (Foucault, 1979), developing the ‘habits of industry’ and buttressing the ‘economic advantage of the community’ (Votaw, 1920: 7, 11).

Over the past two decades, penal labour programmes in many western states have been decommissioned or dramatically reduced. Penal labour is now considered far less cost-effective at achieving new penological objectives than institutional violence prevention, anger management and substance abuse programmes (Correctional Service of Canada, 2009: 1; Piacentini, 2004: 144). This is because, beginning in the 1970s, western penal objectives have shifted away from transformative goals. As Feeley and Simon (1992: 453–454) argue, the new penological dispositif is no longer centred on the objectives of redeeming offenders, eliminating crime or even addressing its causes, but consists in maintaining tolerable levels of illegality through practices of variable detention based on risk calculations.

International governing efforts seem to support the development of transformative goals in a restructured Haitian penal system, given the link between penality, poverty reduction and development goals, as well as the goal of creating a recognizable system of penal justice. However, and unlike earlier efforts to shape international penal practice, the UN Rule of Law Indicators do not include any measures of traditional transformative goals (e.g. assessments of work, educational or training opportunities available to inmates).⁶ The fact that the UN Rule of Law Indicators are silent on the issue of penal objectives ensures, on one hand, the legality of western-style variable dentition regimes. On the other, it leaves open the question of whether the restructuring of the ‘failed’ Haitian detention regime will follow a retro-style social redemption design or the security-centred, variable detention design of contemporary western-style justice. The other, more likely, alternative is that a reconstituted Haitian penal system will form part of an international rule of law dispositif comprising a heterogeneous network of penal governance mechanisms that are loosely assembled from both international standards and locally constituted and recycled objectives and techniques.

Conclusion

The rule of law is an attempt at governing that is founded upon the problematization and redress of previous attempts at governing. It is a multiform solution to the problematic of too much governing by political power, not enough governing to prevent mass illegalities, tolerated illegalities and transnational crime, and the need to govern differently to remedy global insecurity. The rule of law is coupled with various technologies, such as penal codes, scaled-up international codes and standardized indicators of penal performance. In its current formation, the rule of law is rendered as a metric to aid ‘weak’ states to restructure their ‘failed’ penal justice institutions and to make additional aid contingent on ‘successful’ reconstruction. As we have argued, governance failure, in the Haitian case, is linked to a penal justice dispositif that is largely victim-centred and victim-driven, one that does not amass penal power in state-centric justice institutions nor deploy detention in a ‘standard’ and ‘recognizable’ manner, that is, in relation to speedy trials and socially redeeming penalties. As a result, Haitian justice fails to win international credibility and recognition and international efforts have been mobilized under UN rule of law auspices to aid in the reconstruction of the Haitian penal system after an earthquake destroyed much of the country’s penal justice infrastructure.

Whether this international effort will result in crafting a socially redeeming penal dispositif to replace the perceived failure of the Haitian detention dispositif remains an open question. It seems unlikely given local support for victim-centred penal justice, the crushing poverty of even the most average of Haitian citizens and the well-documented ‘failure’ of ‘home-grown’ socially redeeming penal practices among western states. Instead, what we see is the birth of an international rule of law dispositif that has as its aim not the transformation of offenders, but the transformation of weak states into law-abiding states without challenging the credibility of penal objectives in those states claiming allegiance to an international rule of law.

Footnotes

Acknowledgements

The collection and analysis of historical documents used in this article received financial support from Daniel O’Connor’s grant from the Social Science and Humanities Research Council of Canada to conduct research at the League of Nations Archive in Geneva.

Notes

Kara Brisson-Boivin is a Sociology PhD Candidate in the Department of Sociology and Anthropology at Carleton University, Ottawa, Ontario, Canada.

Daniel O’Connor is Associate Professor and Associate Chair of Legal Studies in the Department of Sociology and Legal Studies at the University of Waterloo, Waterloo, Ontario, Canada.

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