The Janus face of imprisonment: Contrasting judicial conceptions of imprisonment purposes in the European Court of Human Rights and the Supreme Court of the United States

Introduction

The ultimate questions that need to be faced in penal policy, as Garland (1986) argued, ‘are not about power or no power but instead about the precise way in which power should be exercised and the precise objectives to be pursued’ (p. 880). This article seeks to contribute to the understanding of the way in which the purposes of imprisonment are exercised, framed and interpreted by the European Court of Human Rights (ECtHR) and the Supreme Court (SC) of the United States, while discussing the constitutionality of prison conditions. As Foucault (1977) famously observed, modes of penal power are also always modes of power-knowledge. How the SC and the ECtHR rationalise their actions, conceptualise the challenges they face, problematise the objects of their actions and define the proper ends and means of penal practice, are all ideational aspects of penal power that ought to be taken into consideration when analysing penal policy (Garland, 2006). In addition, judicial decision-making may be a symbolic indicator of the system approach to the purposes, the ideologies and the values of prison (Rogan, 2018; Whitman, 2003).

Sentencing scholarship has dedicated considerable attention to the purposes of imprisonment throughout the sentencing stage, but has dedicated far less attention to the purposes of imprisonment throughout the implementation of the punishment (e.g. Duff, 2001; Kerr, 2019; Tonry, 2018). Also, despite the fact that in many countries courts hold power to administrate prisons, their decision-making, their conceptions of imprisonment purposes and their relevance to understanding penal culture has received relatively little criminological attention so far (Calavita and Jenness, 2015; Kerr, 2019; Rogan, 2018). On the one hand, as Kerr (2019) noted, sentencing scholarship emphasises the quantitative dimension of imprisonment without giving much attention to the subjective ‘pains of imprisonment’ (Hayes, 2018; Kolber, 2009). On the other hand, prison scholarship perceives the sentencing court as the forum in which ‘justice’ is served, while prison is perceived as relevant mainly to the matters of institutional security, rehabilitation and risk management (Genders and Player, 2014; Liebling, 2004). Prison problems are framed in a pragmatic ‘what works’ way, which deflects attention from its normative aspects (Murphy and Whitty, 2007). Prison officials themselves do not perceive their task as one of delivering moral messages, but rather, adopt managerial and risk-oriented approaches (Liebling, 2004). It might be that prison is largely seen as being located in a different temporal, institutional and legal sphere than sentencing. As a result, the intersections between the two stages are often neglected.

The gap between sentencing scholarship and prison scholarship seems especially true for retribution – a leading sentencing theory in many Western systems (Kerr, 2019; Lacey and Pickard, 2015; Von Hirsch, 2017). Research explores retributive sentencing and its impact on the discretion of courts from legal (Hayes, 2018; Kolber, 2009; Lacey and Pickard, 2015; Von Hirsch, 2017), criminological (Schinkel, 2014; Van Ginneken and Hayes, 2017) and philosophical (Duff, 2001) perspectives. Regardless, the concept of retributivism ‘as it is, rather than as we might wish it to be’ (Hayes, 2016: 745; emphasis added), has received little scholarly attention. ¹ For example, as Kerr (2019) noted, retributive theorists, seldom elaborate on the place of fundamental concepts such as ‘penal censure’ (Von Hirsch, 2017), ‘penal dialog’ (Duff, 2001) or even proportionality itself (Kolber, 2009) inside a prison, nor on the relevance of these concepts, if any, to the practice of prison law.

This article aims to respond to Rogan’s (2018) call for criminologists to apply greater scrutiny to the interpretation and application of judicial decision-makers. It will do so, by adopting a comparative perspective, aimed at answering the following questions: How do the ECtHR and the SC conceptualise the purposes of imprisonment, and how do they view the relevance of these purposes to prison conditions case law. ²

Comparative penological research broadened its scope in recent years from comparing quantitative imprisonment rates to the more general concept of ‘punitivity’ or ‘punitiveness’, including more qualitative approaches to prison conditions (Pratt, 2008; Snacken, 2015). Comparative penological perspective towards judicial decision-making can tell us a lot about penal ‘culture’, ‘sensibilities’ and ‘constitutional imagination’ (Garland, 2006; Lazarus, 2006; Rogan, 2018) beyond the historical (Howard, 2017; Kleinfeld, 2016; Whitman, 2003), sociological-cultural (Cavadino and Dignan, 2012; Garland, 2006), political (Simon, 2007), religious (Kleinfeld, 2016), class, ethnic (Garland, 2006) and human rights frameworks (Ploch, 2011; Van Zyl Smit, 2015).

Prison law is relentlessly apparent in prisons and may, among other factors, affect ‘institutional’ thinking and acting, and the way in which human rights principles are being viewed and applied by administrative and legal officials (Calavita and Jenness, 2015; Rogan, 2018). For example, exploring how judges visualise imprisonment purposes is important in order to draw an explicit line between what is entailed in imprisonment as a criminal sentence and what is entailed in the administration of the imprisonment (‘personal’ vs. ‘residual’ liberty) (Lazarus, 2006). Furthermore, the way in which prisoners experience justice shapes their perceptions of the law and their behaviour in prison. Prisoners can hardly be expected to take the state’s moral authority seriously unless they perceive it as just and legitimate (Tyler, 2010).

This article argues that despite the fact that the ECtHR and the SC adopt similar abstract purposes of imprisonment, such purposes are interpreted and framed differently by them, what may result in different conceptions of prison policies. This phenomenon can be referred to as the ‘Janus face’ of imprisonment purposes. Such an analysis supports Murphy’s (2012: 85) argument regarding ‘two faces of retribution’, as well as Garland’s (2006: 434) claim, according to which the same penal symbols may be interpreted differently and get associated with new interests as old values come to lose their grip over individual attitude and social action. ³

The article will contrast the case law of the ECtHR and the SC regarding prison conditions, as an indicator for the penal culture, the policy and the values of the two jurisdictions (Rogan, 2018; Van Zyl Smit, 2015; Whitman, 2003). The article offers three themes that represent three interpretative judicial distinctions between the ECtHR and the SC:

The first theme focuses on the general relationship between the abstract purposes of sentencing and imprisonment along the penal continuum: should sentencing purposes be relatively static during the implementation of the punishment, which would mean that retribution is essential to a prison regime (SC), or should they progress dynamically, with time, from retribution to resocialisation (ECtHR). The other two themes explore two specific imprisonment purposes as interpreted by the courts – retribution and rehabilitation. The second theme analyses the meaning of retributivism in regard to prison conditions: should prisoners pay their debt to society by suffering in restrictive prison conditions (SC), or is retributivism achieved through atonement and by finding more communicative ways to compensate or repair harms caused by crime (ECtHR). The third theme examines the way in which prison rehabilitation is framed and understood as a risk management tool (SC), or rather as a morally grounded concept based on a prisoner’s ability to positively change his life and on a belief in personal responsibility for one’s actions (ECtHR).

Theme 1 – The general relationship between sentencing and imprisonment purposes

In the early 1970s, every American jurisdiction, as well as the Federal system, operated with an indeterminate-rehabilitative sentencing structure, in which judges had broad discretion to select sentences, constrained only by maximum statuary punishments. In prison cases, parole boards held broad discretion to determine the actual time served between the minimum and maximum terms, while relying heavily on prison rehabilitation (Petersilia and Reitz, 2012).

Because of the indeterminate system’s failure to achieve rehabilitation and the fact that it produced serious unjustified sentencing disparities, starting from the 1970s, the American framework changed primarily to determinate sentencing: A clearly identified sentence length replaced the broad minimum and maximum. Parole release was eliminated in the federal law as well as in many states, and sentence lengths were determined by guidelines based on the seriousness of the offence and on criminal history (Cullen and Lero-Jonson, 2016; Von Hirsch, 2017). However, the degree of indeterminacy in American systems is still greater than that in most or all other countries. In states where parole is still possible, parole authorities control a greater share of the maximum prison term than in all other countries in the world (Petersilia and Reitz, 2012: 13–14).

Setting aside indeterminate and preventive sentencing (e.g. ‘three strikes’ laws, prior convictions enhancements), generally, the American sentencing model has treated sentencing in the last years as a determine-unitary act, the validity of which can be judged at the moment of sentencing (Bierschbach, 2012). The American model theorises sentencing and prison relations as different stages of one all-encompassing process, starting from sentencing, continuing with imprisonment and on to early release from prison, if possible. The American concept assumes that

A judicial sentence is a mere abstraction until given effect in the correctional context . . . sentencing judges have reason to hope, if not expect, that the theories and policies behind their sentencing decisions will be pursued during the corrections phase. (Petersilia and Reitz, 2012: 3–4)

The American model generally assumes a close and relatively static relationship between the sentencing itself and its actual implementation. All sentencing purposes come into play in the implementation of the punishment. There is not necessarily a progression from one sentencing purpose to another over the passage of time. Prison authorities, according to the law, ‘shall designate the place of the prisoner’s imprisonment . . . concerning the purposes for which the sentence to imprisonment was determined . . .’ (18 U.S.C. § 3621(b)(4)(a) (2006)). The parole stage, wherever it still exists, is accordingly perceived as ‘a natural extension of the sentencing system’ in which all parties involved may significantly contribute to making sentencing decisions (Fisher, 1996: 272).

According to the SC case law, it is clear that even when a prison regulation impinges on inmates’ rights, the regulation will still be valid as long as it is reasonably related to legitimate penological objectives (Turner v. Safley (1987)). The fact that the regulation bears ‘a rational relation to legitimate penological interests’, the Court held, is a sufficient reason to sustain it, regardless of whether prisoners have a constitutional right that has survived incarceration (Overton v. Bazzetta (2003)). The curtailment of prisoner rights may be necessary to serve ‘. . . as a reminder that . . . deterrence and retribution are factors in addition to correction’ (Hudson v. Palmer (1983): 524).

The SC has also ruled that rehabilitation is not necessarily the sole, or even the most important, aim of imprisonment, and that the Constitution does not ‘require that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects . . .’ (Powell v. Texas (1968): 530). The SC has not affirmed the existence of a prisoner’s constitutional right to rehabilitation. Rehabilitation is only one goal of incarceration, among many, to which the law gives credence (Ploch, 2011; Rotman, 1986; Van Zyl Smit, 2015). Having said that, pessimism about the efficacy of prison programmes has in recent years given way to evidence-based programming that can in many, though not in all cases, assist in effective rehabilitation (Cullen and Lero-Jonson, 2016). Some policy-makers, such as the American Bar Association (2018: s. 23), have recognised that correctional facilities should provide prison conditions that exceed the constitutional floor, such as opportunities to participate in constructive activity, vocational and job readiness training, rehabilitative programmes and re-entry planning. Also, the Model penal code drafters suggest a provision, according to which prisoners ‘shall be provided reasonable medical care, mental-health care, and opportunities to rehabilitate themselves and prepare for reintegration into the law-abiding community following their release’ (American Law Institute, 2017: s. 6.06(4)).

In contrast, the European law understands the relationship between sentencing and the implementation of the punishment as an ongoing and dynamic process. Time may, and should, change the balance between sentencing purposes throughout the implementation of the punishment. European theorists argue that there should be a ‘relative autonomy’ between the sentencing stage and the ‘execution of the sentence’ stage: Each stage has its own purpose, largely independent from aims directing the other component (Lazarus, 2006; Van Zyl Smit, 2015; Van Zyl Smit and Sancken, 2009). Retribution is the reason for imprisonment, while the time in prison should be used to rehabilitate the inmate (O’Donnell, 2016; Van Zyl Smit and Sancken, 2009).

Similarly to the SC, the ECtHR, while discussing prison conditions, also sees the purposes of punishment as including ‘retribution, prevention, protection of the public and rehabilitation’ (Dickson v. UK (2007): par. 28) or ‘punishment, deterrence, public protection and rehabilitation’ (Vinter v. UK (2007): par. 111). However, in Vinter, the ECtHR held that the balance between imprisonment purposes ‘is not necessarily static and may shift in the course of the sentence’ (par. 111). The execution of the sentence will not necessarily be a single event validated in court, and may take many years. At the end of the trial, the retributive element of the sentence may be finally determined, but it is impossible for the trial judge to foresee the evolution of the desired improvement in the prisoner’s rehabilitation (Ezeh and Connors v. UK (1998)). The passage of time, as the ECtHR noted, is ‘a poor guarantee of just and proportionate punishment’, but rather, it allows us to gain more information regarding the offender’s rehabilitation and his future level of risk before his release back to society (Vinter v. UK (2007): par. 112).

The ECtHR conceptualises the dynamic nature of the implementation of the imprisonment, by developing the ‘progression principle’ in Dickson with respect to the government’s failure to give sufficient weight to the prisoner’s right to have his rehabilitative needs answered:

[I]n the course of serving a sentence, a prisoner should move progressively through the prison system thereby moving from the early days of a sentence, when the emphasis may be on punishment and retribution, to the latter stages, when the emphasis should be on preparation for release. (Dickson v. UK (2007): par. 28)

This temporal conceptualisation of imprisonment means that resocialisation is a primary, although not the only, purpose of imprisonment, especially for lengthy sentences (Khoroshenko v. Russia (2015) Lazarus, 2006), and even a ‘mandatory factor that the member States need to take into account in designing their penal policies’ (Khoroshenko v. Russia (2015): par. 121). In a case concerning indeterminate imprisonment for the protection of the public, The ECtHR also held that ‘a real opportunity for rehabilitation is a necessary element of any part of the detention which is to be justified solely by reference to public protection’, and that ‘any review of dangerousness which took place in the absence of the completion of relevant treatment courses was likely to be an empty exercise’ (James, Wells & Lee v. UK (2012): par. 209–212). The ECtHR also required a state to provide opportunities for ‘individualised and intensive’ therapy in a case of preventive detention, when the standard therapies are not offered or are not appropriate (Rangelov v. Germany (2012): par. 97).

To sum up, the ECtHR and the SC tend to conceptualise differently the relations between the penal stages, and therefore tend to assign different roles to rehabilitation during the implementation of the punishment. The ECtHR depicts a dynamic penal process that permits a ‘relative autonomy’ between the purposes of each stage. Therefore, regardless of the purposes of sentencing, rehabilitation can, and should, play a central role in a prison regime. In contrast, the SC depicts a relatively static penal process, in which implantation of punishment is viewed as a ‘natural extension’ of sentencing, and therefore, rehabilitation may not necessarily have an essential role in a prison regime.

Theme 2 – The meaning of retributivism in regard to prison conditions

American prison law has accepted unhesitatingly that prison authorities have the power to punish prisoners using the prison regime, subject only to a constitutional prohibition against cruel and unusual punishment (Van Zyl Smit, 2015). American prison litigation has generated only a minimal set of constitutional limits on prison abuse, discrimination and extreme neglect (Whitman, 2003). The Eighth Amendment prohibition against ‘cruel and unusual punishment’ prohibits only ‘wanton and unnecessary’ infliction of pain, prison conditions which are grossly disproportionate to the severity of the crime, warranting imprisonment and deprivation of the minimal civilised measures of life’s necessities (Dolovich, 2017). Prisoners’ claims of inadequate medical and health care, absence of protection from assault, harsh prison conditions or severe disciplinary measures require showing ‘deliberate indifference’ to inmates’ health or safety on the part of prison officials, and must be, objectively, ‘sufficiently serious’ (Farmer v. Brennan (1994): 825).

In addition, The SC traditionally holds a ‘hands off’ approach towards poor prison conditions (Van Zyl Smit, 2015; Whitman, 2003). As a result, American prisons are usually exempt from constitutional analysis of issues of central importance to prisoners, such as education, work and custody levels. To obtain a hearing on the merits, prisoners must navigate through a veritable procedural thicket that can include onerous time limits, strict exhaustion requirements and complex rules concerning when, how and in what form claims must be filed (Dolovich, 2017; Kleinfeld, 2016).

As for the purposes of imprisonment, the SC noted that respect for prisoners’ dignity can still be maintained when retributive aims are sought in the prison system (Gregg v. Georgia (1976)). Unlike European countries’ legal systems that take human dignity in relation to punishment seriously (e.g. Germany) (Whitman, 2003), the SC approach traditionally addresses human dignity far less concretely in relation to punishment (Tonry, 2018).

The SC concept of retribution aims ‘to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense’ (Graham v. Florida (2010): 20). As a result, imprisonment is not limited to the mere deprivation of liberty, and the prisoner’s physical liberty ‘is not the sole permissible consequence of a criminal conviction’ (Johnson v. Rockefeller (1973): 380). Over the past 30 years, retributive justifications have been used specifically in American case law to limit certain aspects of prisoner’s rights, such as the right to privacy (Willis v. Artuz (2002)), contact visitations (Toussaint v. McCarthy (1986)) or breastfeeding rights for female prisoners (Southerland v. Thigpen (1986)).

The same is true regarding parole. The American Federal parole guidelines require the parole board to ‘weigh the concepts of general and special deterrence, retribution and punishment . . .’ while making sure they do not ‘depreciate the seriousness of his offence or promote disrespect for the law’ (US Parole Commission, 2010: s. 2.18).

For example, regarding prison conditions, in Rhodes, the SC held that housing two inmates in one cell may constitute an infliction of pain, but reasoned that in the said case, the pain was neither inflicted in an unnecessary or wanton fashion, nor grossly disproportionate. The Court found that the Constitution does not mandate ‘comfortable prisons’ and explained that

. . . [C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society (emphasis added). (Rhodes v. Chapman (1981): 347)

The use of the metaphor of ‘paying a debt’, as a measure for prison conditions is curious. The Latin root of retribution (‘re’ plus ‘tribuo’) means ‘I pay back’. The idea of a debt owed is deeply connected to the retributive concept, according to which criminals have taken unfair advantage of the law-abiding citizens (Cottingham, 1979; Morris, 1968). By depriving a prisoner of his rights, society signals its denunciation of criminal activity and its determination to rectify the imbalance that was created when the offender took advantage of others, by inflicting pain on him in return (Cottingham, 1979; Duff and Hoskins, 2018; Morris, 1968). The punishment is delivered to the prisoner, who should passively experience it throughout the imprisonment period. Every temporal unit, such as a month or a year, is considered to be a reflection of a certain amount of wrongdoing, until it is fully served by the prisoner (Armstrong, 2014; Hayes, 2018; Kolber, 2009; Schinkel, 2014; Van Ginneken and Hayes, 2017).

Such a retributive conception may give way, if constitutionally permissible, to a strict prison regime: an overcrowded prison, which relies heavily on intensive and long-term solitary confinement, without meaningful social activity (e.g. supermax prisons) (Travis et al., 2014), and may reinforce ideas of popular punishment (Howard, 2017; Pratt, 2008).

In contrast, European law does not allow any additional suffering beyond deprivation of liberty. European Prison Rules (Council of Europe, 2006) determine that ‘[i]mprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment’ (s. 102.2). The Human Rights Committee (1992) also states that ‘No penitentiary system should be only retributory . . .’.

The ECtHR held that the State must ensure ‘. . . that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention’ (Kafkaris v. Cyprus (2008): par. 97; Ezeh and Connors v. UK (1998). In another case, involving a long prison sentence, the ECtHR held that the prison regime should be designed in a manner that reduces the hardships experienced by the prisoner, while ‘compensating for the desocialising effects of imprisonment in a positive and proactive way’ (Khoroshenko v. Russia (2015): par. 144).

The ECtHR has specifically rejected the conceptualisation of retribution as revenge, by explaining that such an approach is the

worst possible form of retribution . . . The offender will have to “rot in jail” as long as the victims or their relatives deem their thirst for revenge unquenched, even though he or she may be ready to live a law-abiding life in society. (Murray v. Netherlands (2016): par. 19)

The ECtHR has also opposed populist justifications as legitimate grounds for a punitive prison regime, thus rejecting ‘disenfranchisement based purely on what might offend public opinion’ (Hirst v. UK (No. 2) (2005): par. 70). It also criticised imprisonment that ‘declines any interest in human life other than the prisoner’s strict bodily survival . . .’, by which the prisoner suffers ‘civil death’, thus reducing the prisoner to a mere object of the executive’s power’ (Khoroshenko v. Russia (2015): par. 5).

In addition, over the last years, the ECtHR has strengthened its protection of prisoners against violations of their fundamental human rights. The State must ensure that a person is detained in conditions that are compatible with his human dignity, that the manner and method of the execution of the punitive measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in imprisonment and that, given the practical demands of imprisonment, his health and well-being are adequately secured (Dougoz v. Greece (2001)). When assessing conditions of imprisonment, account has to be taken of the cumulative effects of these conditions, as well as of specific allegations made by the prisoner, including the length of the punishment under those particular conditions (Alver v. Estonia (2005)).

The same is true regarding the parole stage. The ECtHR has held that ‘the Convention guarantees a right to parole, including for those convicted of the most serious crime’ (Öcalan v. Turkey (2012): par. 11). For example, the ECtHR required the authorities in one case to give life prisoners ‘a chance, however remote, to someday regain their freedom. For that chance to be genuine and tangible, the authorities must also give life prisoners a “proper opportunity” to rehabilitate themselves’ (Harakchiev v. Bulgaria (2014): par. 264).

A closer look reveals that under the European model retributivism may have a role in the prison regime. However, the European model understands retributivism in the prison context as atonement rather than as an ‘unfair advantage’ harsh form of retributivism. ECtHR case law has tied retribution to atonement in delineating the purposes of punishment: ‘retribution, i.e. atonement for the offender’s guilty act’ (Khoroshenko v. Russia (2015): par. 3). It has held that whole-life prison terms amounted to ‘inhuman and degrading’ treatment and has criticised that the denial of a review entails a risk that the prisoner: ‘can never atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable’ (Vinter v. UK (2007): par. 112), and further that ‘. . . Those who commit the most abhorrent and egregious of acts . . . retain the right to hope that, someday, they may have atoned for the wrongs which they have committed . . .’. ⁴

The concept of atonement reflects a more flexible and softer form of retributivism (Duff, 2001). It extends the relevant time-frame for considering positive change beyond the moment of sentencing, and it is integrated well with moral reform and resocialisation as aims of imprisonment (McNeill, 2012). In addition, the aim of atonement and moral reform puts constraints on the harshness of conditions: they cannot be so harsh that they signal to prisoners that they are beyond moral reform (Lippke, 2007).

Furthermore, while the American concept of ‘paying back’ is achieved mainly through suffering in a restrictive prison regime, the European idea of ‘paying back’ is achieved mainly by regarding the prisoner’s moral positive change achieved as a prerequisite for him to be able to trade up to a restored social position as a citizen of good character (McNeill, 2012). The prisoner is paying back his debt to society ‘through the fostering of personal responsibility . . .’ (Dickson v. UK (2007): par. 28). As the Scottish Prisons Commission (2008) explained, for example,

[P]ayback means finding constructive ways to compensate or repair harms caused by crime. It involves making good to the victim and/or the community . . . Ultimately, one of the best ways for offenders to pay back is by turning their lives around. (p. 27)

Such an approach is integrated with communitive theories of punishment that encourage a rational, reciprocal and responsive penal dialog between the state and the offender (Duff, 2001; Maslen, 2015), as well as with penal theories that recognise the offender as a rational moral agent, capable of moral deliberation and not merely, in G.F. Hegel’s words, ‘a stick raised to a dog’ – an instrumental deterrent punishment (cited in Duff, 2001; Lippke, 2007; Von Hirsch, 2017: 63).

The different interpretations of what retributivism means for prison life by the SC and ECtHR may teach us a lesson about the nature of retributive justice ‘in action’. The differences between the European approach and the American approach reflect what Murphy (2012) calls the ‘two faces of retribution’: one oriented to justice and respect for responsible agency; the other oriented to vengeance and to moral emotions such as resentment, anger and other hostile, negative attitudes, typical of affective blame, which can easily rationalise severe and ‘othering’ penalties (p. 85). It may be that because the concepts of ‘justice’, ‘censure’, ‘proportionality’, ‘paying back’ and even ‘retribution’ itself are vague and open to interpretation, they do not generate concrete limits to severity of prison conditions; hence the question of how much – and indeed how – to punish remains wide open to the sway of convention, legal and political decision or expediency and interpretations (Lacey and Pickard, 2015).

Still, this is not to say that European law does not resort to expressive or punitive measures aimed at retribution or incapacitation, and in fact the increased use of preventive laws in several European countries testifies to this trend (Snacken, 2015). Two notable recent examples for deliberately flouting the doctrine regarding the centrality of rehabilitation in 2019 are the examples of Serbia and Poland, which both introduced life sentences without the possibility of parole for serious offences (Council of Europe, 2019; Vasovic, 2019). Namely, the Serbian legislator adopted a retributive rhetoric, arguing that it ‘has a symbolic meaning as it can better express gravity of certain crimes’ (in Vasovic, 2019). However, such an approach, as criticised by the Commissioner of Human Rights, ‘would be incompatible with the humanitarian approach to prisoners’ rehabilitation’ (Council of Europe, 2019: 2).

Theme 3 – Prison rehabilitation: Utilitarian rehabilitation or moral reform?

The SC’s concept of prison rehabilitation seems to fit the theories of ‘utilitarian rehabilitation’ and ‘managerial rehabilitation’ (Robinson, 2008; Simon, 2007). Such an approach examines prison rehabilitation mainly through empirical lenses. It is no longer offenders themselves who are seen as the main beneficiaries of rehabilitative interventions, but rather communities and potential victims (McNeill, 2012; Robinson, 2008).

The SC’s approach raises empirical doubt regarding the possibility of prison rehabilitation, and it has noted that ‘the concept of rehabilitation is imprecise; and its utility and proper implementation are the subject of a substantial dynamic field of inquiry and dialogue’, referring to scholarly debates over the last few decades regarding the effectiveness of rehabilitation and rehabilitative techniques (Graham v. Florida (2010): 23). In one case, the SC noted that ‘almost everyone involved in the criminal justice system now doubts that rehabilitation can be induced reliably in a prison setting, and it is now quite certain that no one can really detect whether or when a prisoner is rehabilitated’ (Miller v. Alabama (2012)) In another case, the Court simply declared that ‘the system’s attempt to achieve rehabilitation of offenders had failed’ (Tapia v. United States (2011): 4). ⁵

The ECtHR, on the other hand, visualises rehabilitation more as a ‘positive right’ obligation, based primarily on respect for human dignity and the recognition of the prisoner’s status as a citizen (Rotman, 1986; Snacken, 2015). The ECtHR has noted that while rehabilitation has been recognised as a means for preventing recidivism, more recently it constitutes rather ‘the idea of re-socialisation’ (Dickson v. UK (2007): par. 28). The European Prison Rules (Council of Europe, 2006: s. 5–6) determine that ‘(a)ll detention shall be managed so as to facilitate the reintegration into free society . . .’ and that ‘(l)ife in prison shall approximate as closely as possible the positive aspects of life in the community’. Furthermore, the section headed ‘Objective of the regime for sentenced prisoners’ provides that ‘. . . the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life’ (s. 102.1). Some European countries (e.g. Germany, Spain, Belgium and Italy) recognise the importance of prison rehabilitation in their constitutions, and all European countries enable the possibility of conditional early release from prison (Van Zyl Smit and Sancken, 2009). Some Western European systems – especially in Scandinavian countries – allow rehabilitative ‘open’ prisons, which are liberal, with a generous approach towards visits and home leave, promoting resocialisation, normalisation and counteracting the deleterious effects of confinement (Cavadino and Dignan, 2012; Pratt, 2008).

At least in some cases, the ECtHR goes beyond ‘utilitarian rehabilitation’ to a more moral-communicative-expressive form of rehabilitation or reform (Duff, 2001; McNeill, 2012; Robinson, 2008). For example, the ECtHR has held that early release from prison requires ‘individualised conditions’ such as ‘the payment of compensation or the making of reparation to victims; entering into treatment for drug or alcohol misuse or any other treatable condition manifestly associated with the commission of crime . . . participation in personal development programmes . . .’ (Dickson v. UK (2007): par. 35). In one case, an ECtHR judge criticised the reasoning that ‘makes personal self-improvement, in essence a moral phenomenon, virtually a matter of a legal trade-off, devoid of the element of sincere repentance’ (T.P. & A.T. v. Hungary (2016): par. 11). Also, one European jurisdiction has recommended rehabilitative approaches that promote the idea of the prisoner facing what he has done, apologising, compensating the victim, doing unpaid work for the community or working hard at tackling the problems behind his offending, including participation in restorative justice practices (Scottish prisons commission, 2008). Many restorative justice programmes in prison, such as in Belgium, share the goal of raising prisoner awareness to harm caused to the victim, and encouraging prisoners to make amends for their crime (Van Ness, 2007).

Such a model, arguably, reflects a more expansive concept of rehabilitation than the American model (Ploch, 2011). The state should not merely seek to bring prisoners’ conduct into conformity with the law’s demands, but also to make them better citizens morally. Prison, as a result, should include elements such as moral reform, atonement and reconciliation with the community. Rehabilitation is more than a technical enterprise; it also has an important moral and expressive dimension. It does not necessarily aim only to reduce crime or render offenders as better people. Rather, it seeks to communicate to the offender and to society at large, the moral wrong inherent in the offender’s actions. Personal responsibility, choice and recognition of the moral implications of that choice are important aims that should be encouraged by the prison regime (Duff, 2001; McNeill, 2012; Robinson, 2008). By taking responsibility and by making things right with victims, offenders can change both their image in the eyes of the community and their perceptions of themselves (Burnett and Maruna, 2006; McNeill, 2012). Rehabilitative interventions should seek to engage offenders not as passive subjects, nor even as merely active subjects, but, also, as moral actors with the capacity both to re-evaluate past choices and to make moral pro-social choices in the future. They proceed by encouraging offenders to think ethically and in particular, to develop a capacity for victim empathy which, it is hoped, will help reduce future offending (Duff, 2001; Robinson, 2008). ⁶

Conclusion

This article has considered how the SC and the ECtHR apply, interpret and frame abstract imprisonment purposes, and how they view their relevance to prison conditions. The article has argued that the ECtHR and the SC view, conceptualise and interpret the purposes of imprisonment differently. Regarding the purposes of retribution and rehabilitation specifically, the analysis exposed a ‘Janus face’, meaning that each purpose can, and is, interpreted in two different, and almost contrasting ways.

The article has offered three themes regarding judicial conceptions of imprisonment purposes and conditions: First, the relationship between the purposes of sentencing and imprisonment along the penal continuum, and the role of rehabilitation in a prison regime: should sentencing purposes be relatively static during their implementation in prison, meaning that retributive-oriented sentencing purposes should be pursued (SC), or should they conversely progress with the passage of time, from retribution to resocialisation as the primary purpose of imprisonment (ECtHR). Second, the meaning of retributivism in regard to prison conditions: should a prisoner pay his debt to society by suffering in restrictive prison conditions (SC), or is retributivism achieved by atonement and by finding ways to compensate or repair harms caused by crime (ECtHR). Third, the way in which prison rehabilitation is framed and understood: should prison rehabilitation be seen as a risk management tool aimed purely at lowering recidivism (SC), or as a moral concept grounded in prisoners’ ability to change their life, and in belief in personal responsibility for one’s actions (ECtHR). The proposed analysis demonstrates that exploring how the ECtHR and the SC ‘read’ imprisonment purposes, promotes a more nuanced approach to the way in which penal power is perceived and rationalised in different legal systems.

The article holds additional theoretical implications and general policy implications. First, the article exposes the complexities of the ‘legal life of punishment’ (Rogan, 2018: 335) regarding implementation of the punishment stage. As we saw, the craft of imprisonment purposes is a process, not an event. Prison purposes may be interpreted and shaped along the penal continuum by different authorities. Such an analysis may help achieve a fuller picture of both penal values and the judicial policy-making process (Armstrong, 2018; Rogan, 2018).

Second, the above analysis sheds light on a possible interrelation between sentencing and imprisonment. A common view is that retributivism is only a ‘general theory of punishment’, while its ‘only correctional implication . . . is determinate sentencing’ (Feeley and Rubin, 2000: 270). However, the ECtHR and the SC conceptions of prison purposes reveal that retributivism is viewed as relevant to the prison regime itself as well, since courts determine what kind of retributive ‘hard treatment’ is permitted (‘deprivation of liberty’ or ‘restrictive and even harsh’ conditions) and for what purpose (‘paying a debt’ or ‘atonement’).

Furthermore, when the ECtHR and the SC deal with prison condition cases, and decide which kinds of ‘pains of imprisonment’ are inherent to a ‘normal’ prison regime, this decision may also, indirectly, influence the discretion of the sentencing judge. In order to calibrate a proportionate sentence, a sentencing judge may take into account an excessive suffering in prison, beyond what is conceived as the ‘normal’ prison regime (e.g. an especially overcrowded prison; protective solitary confinement for a transgender prisoner) (Hayes, 2018; Kolber, 2009)). Similarly, the way in which the ECtHR and the SC conceive rehabilitation in prison conditions may also influence the discretion of the sentencing judges. Further empirical research may provide us with more information on these possible interrelations.

Finally, the purposed analysis in this article raises, among others, further questions regarding the implications of the ECtHR and SC conceptions of imprisonment purposes to the particularities of prison life and sentencing courts. These questions may be answered through further theoretical, normative and empirical research.