Introduction: Human rights,prisons and penal policies

The process of institutional and judicial control over many sectors of society is often described as an influential and growing socio-legal trend, contributing to the development and the reform of modern societies. This seems to be the case particularly for prisons and other penal institutions, as international bodies and the courts have tried to influence prison policies since the 1960s at least. The judicial and inspecting bodies of the United Nations and the European Union (EU), which share the general aims and objectives of what is now commonly referred to as ‘global justice’, have gained increasing prominence in the fields of penal and prison policy and practice in recent years. All these bodies work in their diverse ways to ensure that human rights legislation is observed inside the borders of individual nation states.

Upholding the rule of law, ensuring accountability for decisions taken by administrative bodies and the protection of fundamental rights are crucial aspects of constitutional democracy. These foundational principles of public law take on increased importance in the prison environment, where the potential for abuse has been well documented (Haney, 2008; Lynch, 2009; Rhodes, 2004; Rubin, 2017; Simon, 2007; Western, 2006; Zimring, 2005), where the legitimacy of authority can be poor, and where prisoners may be drawn from marginalized and vulnerable groups. Prisons constitute a very particular context where constitutional and human rights are interpreted and applied by prison staff who are mainly concerned with security issues rather than with the rights of prisoners. This is why international human rights frameworks emphasize the importance of accountability in prison, including inspection, monitoring and complaints mechanisms for protecting human rights and the rule of law in prison.

Although academic attention has recently been paid to the impressive rise of the legal framework of human rights in the realm of penal and prison policies in Europe (Cliquennois and de Suremain, 2018; Cliquennois and Snacken, 2018; Daems, 2017; Daems and Robert, 2017; Van Zyl Smit, 2010; Van Zyl Smit and Snacken, 2009), some significant issues have been neglected. First, the study of human rights conventions, their monitoring and their violations needs to extend beyond documenting legal and policy issues in the European context. Second, this literature has overlooked non-EU countries characterized by high rates of imprisonment, harsh penal policies and human rights violations on a large scale, such as the United States, Russia and, in respect of the indigenous population, Australia. Third, East European countries such as Bulgaria and Romania have also been under-researched, although they are targeted by pilot judgments of the European Court of Human Rights (ECtHR) concerning prison overcrowding, inhumane prison conditions and the lack of effective domestic remedies (Cliquennois and Champetier, 2016; Cliquennois, 2020). Fourth and last, scholars have notably ignored practical issues such as the efficacy and inefficacy of monitoring and judicial bodies charged with exposing human rights violations, the accountability and transparency of penal and prison institutions, the ability of human rights law to limit and soften penal policies and the state’s right to punish, and poor access to justice for prisoners in this context.

This is why this Special Issue fully covers the impacts of human rights law on penal and prison policies in a broader range of countries, including Eastern countries (Romania), the United States and Australia. It also raises punishment and society debates about accountability, operational complexities, transparency, the ability to limit the state’s right to punish, the efficacy of oversight bodies, the limits of human rights ‘law’ in this context, access to justice and legal aid for prisoners, and the persistence of violations in the face of reform. In particular, this Special Issue offers an opportunity to analyse whether or not the ECtHR and national courts are able to challenge penal policies and to soften their impact through applying human rights norms and standards. This Special Issue intends therefore to demonstrate an engagement with existing scholarship in human rights, penal and prison policies, and punishment.

The ability of human rights to soften penal policies in Europe and limit the state’s right to punish in prison has been constrained by overlooking a comparison between the penal and prison policies pursued by the EU, the Council of Europe (CoE) and the European courts. On the one hand, the Strasbourg Court promotes alternatives to imprisonment in its case law on countries (such as Italy and Belgium) facing prison overcrowding and poor prison conditions. Both the Court and the Committee of Ministers recommend to these member states the development of probation, tagging surveillance, shorter prison sentences, decriminalization of certain offences such as drug offences, and also easier sentence implementation with a view to releasing certain prisoners earlier and fighting prison overcrowding. However, in order to reduce prison overcrowding significantly and to improve prison conditions along with prisoners’ rights, systemic and institutional changes to national prison administrations would be required, in contrast to the purely mechanical measures promoted by the Strasbourg Court such as the development of front door and back door community sentences and measures, which unfortunately tend to have a net-widening impact. In the same way, the jurisprudence of the ECtHR and the standards of the Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment (CPT) potentially have some positive effects on the situations in which prisoners can be punished less or even can avoid punishments that existed prior to the enforcement of human rights. In this regard, the case law of the Strasbourg Court has contributed to the reduction of disciplinary sanctions and high security regimes, to the release of prisoners whose very bad health does not allow them to stay in prison, to the transfer of ill prisoners to hospitals and mentally ill prisoners to psychiatric hospitals and so forth. The ECtHR has also reinforced the judicialization of life sentences (Van Zyl Smit et al., 2014), although with some recent ambivalence. Furthermore, the EU in particular influences prison policies through the case law of the Court of Justice of the European Union (CJEU), the provision of funding for programmes of training, legislative reform and prison construction: most of this influence ties into the transfer of standards in a ‘soft’ sense. However, what are the negative effects of the programmes supported by the EU while milder penal policies are promoted by the ECtHR? Is there any tension between the EU penal policy and the one sustained by the Strasbourg Court and the CoE?

In response to these questions, Gaëtan Cliquennois, Sonja Snacken and Dirk van Zyl Smit investigate whether European regional human rights instruments can limit the power of the national state to punish. Although the power to punish is traditionally seen as an essential prerogative of the national state, over the past three decades the judicial and standard-setting bodies of the CoE have sought increasingly, at a regional level, to monitor and control the power of European states to punish. In parallel, the EU has become an increasingly important penal actor, fostering a common approach to transnational forms of criminality, as well as seeking judicial cooperation between EU Member States in order to deal with a wider range of crimes. Little attention has been paid, however, to the interactions, coherence or discrepancies between the CoE’s and the EU’s bodies and policies. Therefore, the authors analyse the inter-relationship of the CoE and EU penal and prison policies. Cliquennois, Snacken and Van Zyl Smit focus on the instruments that can be used to limit European states’ powers to punish, but also, particularly in the case of the EU, on countervailing forces resulting from policies conducted in the field of terrorism and from countries hit by populism. Finally, the authors develop the concept of ‘two Europes’, which encapsulates not only the discrepancies between the approaches adopted by the CoE and the EU towards human rights moderation of European prison and penal policies but also wider penal policy differences between a modern, liberal-democratic, humanistic Europe and a nationalistic Europe conducting harsh penal policies and increasing its margin of appreciation and using its sovereignty in order to avoid implementing such blurred policies. This decline is not inevitable, but reversing it does require some positive interventions. In respect of penal policy, one of the most important interventions is that there must be a coordinated effort by the CoE and the EU, not only to continue to work together but also to make it clear that everything they do reflects the same core values. It is therefore essential that the acquis of the EU is seen at all times as including the full panoply of CoE standards, whether they are developed by the ECtHR, the CPT or the Committee of Ministers of the CoE. This implies, of course, that penal standard-setting bodies under the CoE umbrella work closely together too. Similarly, the EU needs to make sure that its crime and even ‘pre-crime’ control right hand knows what its justice left hand (through the CJEU) is doing.

Starting from the premise that a better understanding of the legal efforts to implement European norms regarding human rights in prisons cannot overlook prisoners’ subjective experiences of rights, Cristina Dâmboeanu, Valentina Pricopie and Alina Thiemann address the issue of prisoners’ complaints in Romania. They apply Mark Frezzo’s (2014) approach of an emerging sociology of human rights in order to provide a framework for analysis of human rights understanding and circulation within the prison community. The Romanian research context is characterized by increasing ECtHR indictments for human rights violations in prisons, despite the so-called ‘European’ prison law reform having started in 2013. The concept of ‘rights bundles’ or packages of intersecting rights lies at the heart of the approach applied by the authors. In essence, they cluster prisoners’ rights into five main packages: (1) the right to a decent life, (2) the right to personal development, (3) the right to social life, (4) the right to civic life, and (5) the right to safety and personal integrity, and examine these on two levels. At the macro (legal) level, the way national prison law and policy reform the system in order to align it with the European Prison Rules is investigated; at this level, the European dimension and the domestic remedies (Frezzo, 2014) are reference points for the approach endorsed by Dâmboeanu, Pricopie and Thiemann. At the micro (individual) level, prisoners’ perception of how their rights are respected in prisons are surveyed; at this level, ‘rights awareness’ and ‘rights circulation’ (Frezzo, 2014) within the prison community become central. The multiple, but unequal intersections of the five packages of rights on these two levels are underlined in an integrated vision of human rights understanding and circulation within the prison. This allows the authors to point out the ‘challenging aspects’ (Van Zyl Smit, 2002) of domestic law implementation and practice in Romania in order to reveal effective solutions. More specifically, in using survey data on a sample of 557 prisoners, the authors first seek to examine how often prisoners lodge formal complaints and on what grounds, and how their complaints are framed. Second, employing models drawn from the legal mobilization literature, Cristina Dâmboeanu, Valentina Pricopie and Alina Thiemann try to identify the individual and institutional determinants of prisoners’ complaints. Third, based on a unique qualitative (content) analysis of the comments prisoners made at the end of the survey, their article examines how prisoners articulate their discourse on rights’ claims. The authors conclude by pointing to the relevance of institutional status variables as determinants of prisoners’ complaints and to the development of prisoners’ discourse embracing legal and procedural languages.

Recent years have also seen considerable scholarly debate about the factors determining the efficacy of international human rights rules and norms (Blau and Moncada, 2007; Savelsberg, 2010, 2015). Little effort has been made, however, to bring this body of research to bear on the study of human rights violations relating to conventional imprisonment and immigration detention. In their earlier work, Cheliotis and Xenakis (2018) explored the pressure exerted by the European human rights regime on Greece, a country with an exceedingly and increasingly poor record of compliance with pertinent legislation, assessing the efficacy of the pressure and identifying the array and relative significance of the forces that have given shape to it over time. Cheliotis and Xenakis’s analysis adopted a long historical perspective to account for the degree to which conditions of incarceration (including, in more recent years, immigration detention) in Greece have been influenced by the European Convention on Human Rights through derivative judicial and monitoring mechanisms: the ECtHR and the Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment (CPT), respectively. Their findings suggested that, in conjunction with select institutional capacity constraints, a range of domestic and international pressures, material as well as social, may combine to offset international pressure for national compliance with international human rights regimes.

In their article in this issue, Cheliotis and Xenakis bring their analysis of the Greek case up to 2018, offering a uniquely detailed account of the period since a coalition government led by the left-wing Syriza party assumed power in 2015, shortly after the collapse of a centrist two-party system that had been in place since the restoration of democracy in the country. In so doing, the authors seek to assess the role played by two politico-economic factors that to date have not been considered sufficiently: first, conditions of economic downturn domestically, in combination with subjugation to powerful economic actors abroad; and, second, the ideological orientation of incumbent politicians, including coalition governments.

The ability to limit the state’s right to punish can be also analysed through the efficacy of oversight bodies, human rights principles, accountability and transparency mechanisms viewed and considered by prisoners. In practice, the power differentials and dynamics involved, the need to balance considerations of security with those of dignity, and the lack of openness to the outside world mean that the implementation of human rights principles takes on a particular importance in these environments. In this regard, international human rights law has increasingly emphasized the importance of external oversight of prisons as a way of preventing torture and ill-treatment and upholding fundamental rights more generally. Although the monitoring of prisons is now quite well established as a principle of European and international human rights provisions, surprisingly little is known about how people in prison experience and understand monitoring bodies. This gap in our understanding is part of a wider lack of research on how prisoners experience the protection of their rights. Sophie van der Valk and Mary Rogan address that gap, reporting on qualitative findings from a study with people in prison in Ireland on their views and perceptions of a monitoring body: the Inspector of Prisons. The authors find evidence of a lack of awareness of, and a deficit of trust in, monitoring. However, this picture is complex, with people in prison also viewing the concept of monitoring as a good way to protect rights, believing that the visibility of monitors, clarity in their role and powers, and ensuring that a variety of voices are heard by monitoring bodies are important elements of a good system of prison oversight.

The role played by oversight bodies also deserves to be scrutinized in other contexts than in the European countries. The case of Australia is interesting in this regard because it has recently ratified the Optional Protocol to the Convention against Torture (OPCAT) in order to improve the oversight of Australia’s prisons and detention centres, following major human rights violations exposed in them in 2016 (including physical control, inappropriate force and restraint, verbal abuse, and the bribing of children to carry out humiliating or degrading acts or to commit violence against one another). Ratification offers an opportunity to appraise the effectiveness of monitoring and oversight in Australia and the limitations of human rights protections in the Australian context. Australia’s prisons and youth detention centres are to be monitored by a network of independent inspecting bodies, which are likely to include existing Ombudsman and human rights bodies. The Office of the Commonwealth Ombudsman has the task of coordinating the new inspection bodies. In her article, Bronwyn Naylor reviews the existing protections of rights in Australia and considers the implications of ratification of OPCAT. The history of this implementation raises questions about the efficacy of these relatively new monitoring and judicial bodies, given the operational complexities and their limited independence from political authorities. This article also sheds light on the accountability and transparency of these bodies, which are charged themselves with improving the accountability and transparency of the Australian penal and prison administrations. The author concludes that successful implementation will require reconsideration of the effectiveness of the current bodies monitoring prisons and youth detention and their capacity to take on the role of preventing human rights violations. This should include querying their independence from government, as the states and territories decide on the establishment of their National Preventive Mechanisms. Implementation will also require an understanding of Australia’s historical ambivalence towards international human rights engagement and the impact of its federated system.

The issue of human rights in prison also remains crucial in the United States, particularly if we bear in mind that a new majority in the Supreme Court may now not be of the view that, no matter what crime prisoners have been convicted of and how long they have been imprisoned for, they retain their essential human dignity, which prison regimes must respect and protect. Thin as the support for a dignity value animating the Eighth Amendment of the US Constitution now is, its relatively recent recognition offered, and still offers, the largest legal opportunity for entrenching a human rights approach to prisons in the United States. It is difficult to imagine the United States Congress and most state legislatures, which were in the hands of the anti-human rights Republican Party, enacting laws or supporting international treaties that would bring US prisons under human rights charters.

In his article in this issue, Jonathan Simon canvasses recent actions in the lower federal courts, where most of the real meaning of the law for prisons will be worked out within broad tolerances of the Supreme Court, to see how much progress constitutional dignity can make towards standards reflected in major human rights conventions. As we approach the decade anniversary of the US Supreme Court decision in Brown v. Plata (2011), it is a good time to take stock of some of the optimism. The author notes that in his own work (Simon, 2014) he expressed the view that this landmark prisoners’ rights decision, with its stark condemnation of the toxic combination of chronic illness, medical neglect and overcrowding so typical of US prison systems in the era of mass incarceration, and its rhetorical invigoration of ‘dignity’ as a constitutional value, could play a role in taming mass incarceration in the United States.

In his new article in this issue, Jonathan Simon undertakes the difficult exercise of critiquing his own earlier work. Part of his inquiry is juridical and jurisprudential. Did the opinion move the court system towards more protection of human rights for prisoners? The second aspect of his inquiry is cultural and political. At a time of unprecedented public interest in reforming the criminal legal system in the United States, the language or rhetoric of ‘human dignity’, along with the problems of illness and overcrowding that the Plata case called national attention to, are playing a role in the foment. The Black Lives Matter movement, a major force in the street protests against policing in the summer of 2020, emerged just two years after Plata and, completely independently, revitalized abolition discourse in the United States, leading to popular calls to ‘defund’ the police. The question that Jonathan Simon poses is to what extent should prison abolition and other goals of the movement for racial justice supplant human dignity, with its liberal legal genealogy, as a meaningful lodestar for legal and political efforts to end mass incarceration? As an essay in normative sociological jurisprudence, Jonathan Simon’s answers are both descriptive and prescriptive. His cautious conclusion is that dignity still has a role to play in the wider context of the new political dynamics. It is a conclusion that has salience also in Europe and elsewhere as political contexts rapidly change.