Prison and the brain: Neuropsychological research in the light of the European Convention on Human Rights

Introduction

Prison is a deliberately impoverished environment. Regardless of the imposed regime or security level, it entails physical, mental and social inactiveness of detainees. Various studies have depicted the negative effects that an impoverished environment has on both animal and human brain functions, especially the latter within the context of nursing homes. ¹ A recent study in a Dutch remand prison that housed pretrial inmates investigated the potential negative effects of the impoverished prison environment on a detainee’s neurocognitive functioning. In line with these studies and earlier hypotheses, this study showed that brain functions for self-regulation (self-control and planning) declined after 3 months of imprisonment. ² Most detainees will re-enter society, but when this occurs, they face challenges such as finding housing, employment and not relapsing back into old habits such as drug use, theft or aggression. In overcoming these challenges and successfully reintegrating into society, the former detainee clearly has to rely on neuropsychological functions such as impulse control and planning. ³ Reduced self-regulation appears to be a risk factor for recidivism. ⁴ Notably, since the general prison population seems already to have problems with self-regulation, prison could further deteriorate brain functions, which could hamper resocialization and increase the risk of recidivism. ⁵ In contrast, studies have shown that enriching an environment – with more physical, mental and social activities – could positively influence self-regulation. ⁶ Several questions come to the fore. For instance, can these neuropsychological findings have consequences for the way (prison) authorities should deal with detainees? Which legal principles are relevant in this respect, and could these neuropsychological insights influence the way in which the European Court of Human Rights (‘the Court’/ECtHR) interprets and explains these principles? These questions are examined in this article within the European legal context. ⁷

To that end, we use a legal dogmatic research method. In applying this method, we use recent neuropsychological insights in order to substantiate our (legal) arguments in two ways. First, we approach recent neuropsychological research findings from a legal perspective and argue that, in the light of both the obligation to rehabilitate convicted offenders and the prohibition of ill-treatment, neuropsychological insights (could) give reason to further facilitate rehabilitation by preventing unwanted harmful side effects of detention. Secondly, we explore how these neuro-psychological insights could further shape the meaning and scope of the legal principles of rehabilitation and the prohibition of ill-treatment.

The outline of the article is as follows. In the second section, we discuss the impoverished environment in European prisons on the basis of general prison standards with reference to the findings of the European Prison Observatory and reports of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). In the third section, we consider the neuropsychological effects of impoverished environments in more detail and explain why this broader research domain is relevant to prison environments. In the fourth section, we briefly describe the content and scope of the principle of rehabilitation and the prohibition of ill-treatment and the way in which the Court explains both legal principles. In the fifth section, we consider the legal implications of (potential) neuropsychological effects of imprisonment in the light of the principle of rehabilitation and the prohibition of ill-treatment. We conclude with a summary and some recommendations in the sixth section.

Ultimately, we argue that European states, in shaping prison environments, are positively obliged to take into account neuropsychological insights that show that impoverished prison environments (could) hamper rehabilitation. Furthermore, we argue that these neuropsychological findings give good reasons for the Court to refine its threshold according to particular prison conditions that are ‘(un)acceptable’.

Detention environments in Europe: A generic overview

The essence of a custodial sentence lies in the deprivation of freedom. Translated to prison standards, this means a custodial sentence should be minimally invasive. This idea is embodied in legislation produced by national legislatures. This is illustrated in Dutch penitentiary law, which states that a detainee will not be subjected to any restrictions other than those necessary with regard to the purpose of the deprivation of liberty or in the interests of order or safety within the institution (Article 2 para 4 of the Dutch Penitentiary Principles Act). ⁸ The standard prescribing that prison sentences should be minimally invasive can also be traced back to international legislation and regulations, such as the International Covenant on Civil and Political Rights (see in particular Articles 7 and 10). In conjunction with the principle of resocialization, the principle of minimal restrictions implies ‘normalization:’ life in prison must, as much as possible, resemble life in a free civil society, as described in Article 5 of the European Prison Rules (EPR): ‘life in prison shall approximate as closely as possible the positive aspects of life in the community’. Similarly, rule 5 para 1 of the Mandela Rules (MR) states that ‘the prison regime should seek to minimize any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings’. Although the EPR and MR are both ‘soft-law’ and therefore are not legally binding, they still play an important role for the CPT and international courts like the ECtHR, as a way of interpreting binding norms in international law, such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights (ECHR). ⁹

How does the principle of minimal restrictions reflect the internal regulations and living conditions in European detention centres, especially with regard to physical, mental and social activi-ties, which are all relevant in the context of an enriched environment? How prison environments could or should be enriched is relevant, because if neuropsychological findings show that an impoverished environment hampers rehabilitation, there might be legal reasons to enrich prison environments (see the fourth and fifth sections). Rule 4 of the MR states that in the prospect of resocialization, prison administrators should offer detainees a range of differentiated activities. The EPR uses the term ‘balanced programme of activities’ and explains in detail what it should consist of, with an emphasis on work, education, exercise and recreation. ¹⁰ However, because of the ‘soft-law’ character of the EPR and MR, the way in which physical, mental and social activities are implemented in national penitentiary systems depends heavily on legislation and regulations that are produced at a national level, as well as the interpretation of these rules in daily practice by detention centres.

According to the information provided by the European Prison Observatory, an Italian NGO that investigates the conditions of national prison systems, the amount of time detainees spend outside their cells varies throughout Europe. ¹¹ In general, prison conditions depend to a large extent on the detention regime that applies within a certain institution, or more specifically to a particular individual. ¹² In some countries, rules regarding out-of-cell-activities are nationally regulated, while in others it depends to a large extent on the internal rules of a specific institution. ¹³ Notable is the difference reported in various countries between national or internal regulations and the actual implementation of these rules within institutions. ¹⁴

The same is true for the amount of activities available for detainees. As Koulouris and Aloskofis describe in their report on Greek prison conditions, ‘[d]espite the legal provisions stipulating the entitlement of all prisoners to education, vocational training, organized physical exercise and recreational activities, in reality, only a small number of prisoners have the opportunity to engage in organized meaningful activities of this kind’. ¹⁵ This is also repeatedly pointed out by the European CPT. ¹⁶ From an Italian perspective, Marietti describes how the quality and quantity of the offered activities depend on various factors, such as ‘the good will of the warden, the dedication of the operators, the attitude of the local institutions, the presence of volunteers and cooperatives’, which results in a situation where some institutions have many well organized activities, while detainees residing in other institutions have nothing to do and mainly watch television in their cells. ¹⁷

Another important factor that influences the prison regime is whether one is detained in the context of an imposed prison sentence or in the context of pretrial detention. In several European countries, pretrial detainees have less activities and spend more hours in their cells, because they have no access to the same privileges associated with serving a sentence. ¹⁸ In a recent report, the CPT stated that remand prisoners are

frequently subjected to an impoverished regime […and] various types of restrictions (in particular as regards contacts with the outside world), and in a number of countries, certain remand prisoners are held in solitary confinement by court order (sometimes for prolonged periods). ¹⁹

Impoverished environments: Neuropsychological research

Self-regulation entails the capacity to show autonomous goal-directed behaviour: making a plan, working towards a goal, selecting relevant pieces of information while suppressing irrelevant information and distractions, switching to a different plan when needed, all the while regulating emotional impulses. ²⁵ In neuropsychology, the functions that are at the base of self-regulation are called executive functions, such as working memory, sustained attention, impulse control, planning and cognitive flexibility. The prefrontal cortex of the brain is crucial for self-regulation and executive functions. In the prefrontal cortex of people that display antisocial behaviour, structural and functional differences have been found. In a meta-analysis, a large number of brain imaging studies show that specific areas of the prefrontal cortex are less developed or less active in people displaying antisocial behaviour compared to healthy controls. ²⁶ A similar large meta-analysis found that antisocial groups perform worse on neuropsychological tasks measuring specific executive functions, such as attention, working memory and impulse control, with the largest effect size in the criminal subgroup. ²⁷

The prefrontal cortex and, thus, self-regulation and executive functions are sensitive to environmental influences. ²⁸ An enriched environment, consisting of physical activity, cognitive challenges and social interaction, positively influences the prefrontal cortex and self-regulation, especially impulse control. ²⁹ According to a large body of animal studies, an impoverished environment with (nearly) no physical, social and mental challenges negatively influences this brain area and self-regulation, which appears also true for people in impoverished environments, as was suggested by the findings in nursing homes. ³⁰ Even more than nursing homes, prison inherently leads to reduced autonomy and meaningful social interactions, a sedentary lifestyle and few cognitive challenges (see the second section). A recent study in a remand prison in the Netherlands that housed pretrial inmates that spent 16–20 h per day in their cells found a decline in executive functions after only 3 months of imprisonment. ³¹ More specifically, the participants, tested within 1 week after arrival, and retested after 3 months of imprisonment, performed worse on neuropsychological tasks measuring attention and impulse control. It is hypothesized that this decline in executive functions is due to the impoverished prison environment.

Self-regulation and executive functions are crucial for a successful return to society. ³² For example, ex-prisoners need to be able to make a plan to find a house and an income (attention, planning), adjust their plan when needed (cognitive flexibility, working memory) and resist temptations and control their emotions (impulse control). An enriched environment may improve these functions ³³ and, subsequently, enhances the odds for ex-prisoners to return successfully to society. However, most prisons can currently be characterized as impoverished environments, thereby further reducing self-regulation. How successful reintegration into society should be facilitated from a legal perspective is discussed in the following section.

A legal framework: The obligation to rehabilitation and the prohibition of ill-treatment

Discussion

In the previous sections, we described the impoverished character of prison environments and the way in which such an environment could negatively influence the brain functions that are connected with self-regulation. We also explained that self-regulation is crucial for a successful reintegration into society, and that the (further) reduction of self-regulation contains a risk factor for recidivism and therefore (could) hamper rehabilitation. In this section, we discuss these findings, alongside taking a view on the principle of rehabilitation of the ECtHR.

Member states have a positive obligation to secure prison regimes with the aim of rehabilitation and enable inmates to make progress towards their rehabilitation. However, the effects of an impoverished detention regime, coupled with unsatisfactory material conditions, according to the Court can seriously damage a prisoner’s reforming potential. ⁵⁶ Current impoverished prison environments could hamper a prisoner’s progress towards rehabilitation, because crucial brain functions for self-regulation deteriorate during the period of detention. ⁵⁷ In such a situation, where the prison regime or the conditions of detention hamper rehabilitation, the existence of a positive obligation that facilitates rehabilitation is crystal clear. ⁵⁸ Meijer suggests that ‘[t]his requires positive state action to promote rehabilitation, which means a state effort to prevent and neutralize the unwanted harmful side effects of incarceration’. ⁵⁹ While impoverished detention environments could potentially reduce self-regulation and hamper rehabilitation, enriched environments may improve self-regulation and therefore facilitate resocialization. ⁶⁰ Therefore, by enriching prison environments, member states could meet their positive obligation, which flows from the principle of rehabilitation. ⁶¹ According to Meijer, it follows from the Court’s case law that the principle of rehabilitation remains vague and that states should determine on a case-by-case basis, what a proper opportunity of rehabilitation as a minimum level of protection implies for a specific detainee. ⁶² The outcomes of the study of Meijers and others with the potential of follow-up research on the implications of detention environments for self-regulation ⁶³ could change this view and give more substance to the minimum level of protection in this regard. This empirical research suggests that an impoverished detention environment may hamper rehabilitation. And if specific forms of enrichment improve self-regulation and facilitate resocialization, it is reasonable to require state effort to prevent the obstruction of rehabilitation by implementing enrichment strategies.

However, perhaps not all states are willing to change their penitentiary policies in this respect, which raises the question of what legal consequences could follow for states who neglect enrichment or even further impoverish prison environments. More specifically, could such negligence or state action raise an issue under Article 3 ECHR? As we outlined in ‘The principle of rehabilitation: A positive obligation’ section, the positive obligation to facilitate rehabilitation through certain prison conditions and regimes seems to be based on the principle of respect for human dignity. ⁶⁴ In the case of Murray v. The Netherlands, which concerned a complaint about life imprisonment in the context of Article 3 ECHR, the Grand Chamber considered that, as a relevant principle,

it would be incompatible with human dignity – which lay at the very essence of the Convention system – forcefully to deprive a person of his freedom without striving towards his rehabilitation and providing him with the chance to regain that freedom at some future date. ⁶⁵

Eventually, impoverished prison environments could raise issues under Article 3 ECHR. For instance, in the case of Harakchiev and Tolumov v. Bulgaria, the applicants (both life prisoners) complained, among other things, about the prison regime. According to this regime, the applicants had to remain in their cells for 21–22 h a day, while not being able to interact with other inmates. The Court mentioned that although the applicants were not subjected to complete isolation, it cannot be overlooked that both applicants were kept under such an ‘impoverished regime’ for extended periods of time (12 and 14 years, respectively). Under such circumstances, isolation should be justified by particular security reasons. Automatic segregation and isolation of certain (categories) of detainees, such as life prisoners, may in itself raise an issue under Article 3 ECHR, especially if no comprehensive activities outside the cell or stimulus inside the cell are available. ⁶⁹ In Savič v. Latvia, the applicant, also serving a life sentence, shared a cell with another inmate for certain periods of time, but was nevertheless segregated from the rest of the prison population. The Court stated that

automatic and thus arbitrary segregation of life-sentenced prisoners from the rest of the prison population and from communication among themselves, in particular in circumstances in which no comprehensive out-of-cell activities or in-cell stimulus are available, may raise an issue under Article 3 of the Convention. ⁷⁰

However, in several European countries, remand prisoners are segregated from other prisoners, having less activities and spending more hours in their cells. ⁷³ In some countries, remand prisoners are even locked up in their cells for up to 23 h per day, which is unacceptable according to the CPT. ⁷⁴ The CPT therefore pleads for the implementation of comprehensive prison regimes with out-of-cell activities. ⁷⁵ In this context, it notes that

[t]he aim should be to ensure that remand prisoners (as well as sentenced prisoners) are able to spend a reasonable part of the day (i.e. eight hours or more) outside their cells, engaged in purposeful activity of a varied nature (work, preferably with vocational value, education, sport, recreation/association). ⁷⁶

Conclusion

Prison regimes provide limited physical, mental and social activities and are therefore by their nature impoverished environments. This is especially true in regard to the detention of specific categories of detainees, like prisoners on remand. A large body of animal studies and recent neuropsychological research in a Dutch prison provide a new perspective on these environments. It suggests that an impoverished prison environment could further negatively influence (important brain functions for) self-regulation of detainees. However, self-regulation is crucial in order to successfully rehabilitate into society. Therefore, an impoverished prison environment could ultimately obstruct a prisoner’s progress to rehabilitation.

Firstly, we have argued, in this article, that if the prison regime or conditions hamper rehabilitation, a positive obligation exists for member states to facilitate rehabilitation, for instance through preventing and neutralizing unwanted harmful side effects of detention. After all, designing or maintaining prison environments, which obstruct a prisoner’s prospects of rehabilitation, does not meet with the positive obligation to secure prisons with the aim of rehabilitation and facilitate prisoners to make progress towards their resocialization. Furthermore, we have argued that the threshold of whether states comply with the positive obligation of rehabilitation should be heightened. Since neuropsychological research shows that facilitating rehabilitation requires more efforts than we thought, the Court should also positively oblige states to take all the efforts needed.

Secondly, we explored some possible implications of impoverished detention environments and their neuropsychological effects for the prohibition of torture, inhuman and degrading treatment ex Article 3 ECHR. Segregation and isolation of certain (categories) of detainees may raise an issue under Article 3 ECHR, especially if no comprehensive out-of-cell activities or in-cell stimulus are available. Whether a specific complaint attains a minimum level of severity will ultimately depend on all the circumstances of the particular case. Since the Court interprets Article 3 ECHR in the light of present-day conditions, the threshold of the minimum level of severity could be influenced by new neuropsychological insights that expose the possible effects of impoverished prison environments.

In conclusion, neuropsychological findings should be taken seriously. In our view, their potentially far-reaching implications for detention in Europe require at least further research in this area to assess the consequences of an impoverished environment in more detail and to determine how negative effects – as far as they exist – could be alleviated by enrichment programs. Moreover, we believe that states should be interested in the potential neuropsychological effects of their sanctions. In fact, we would argue that in line with the positive obligation to facilitate rehabilitation, research in this area should be initiated by member states of (the Council of) Europe.