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Only no prison is a good prison

13 Jun 2018 14:06 | Johannes Feest

Short presentation by Johannes Feest (University of Bremen, Germany)
at the international Seminar on “Justicia Restaurativa y Prisión”, organized by the Ministry of Justice of the Basque Country, June 4, 2018.

The author is part of a group of criminologist from different parts of Europe. In the context of the conference “Abolitionist Futures: Building Social Justice Not Criminal Justice” (ICOPA 2018) we are presenting the book
Massimo Pavarini & Livio Ferrari (eds.) NO Prison. London: EGPress 2018. 

I. Prison as a punishment is an obsolete social technology

The invention of the prison as a penal institution (pentitentiary) dates back some 400 years. It can be seen as a step in the right direction when the main task was to abolish the death penalty as the main form of punishment. But today, we must admit that it has become obsolete for several reasons. I will make a long story short, but you will be able to check the details in our book.

  • ·         The deprivation of liberty as a punishment does not fulfill its proclaimed goals, i.e. rehabilitation, deterrence, reduction of crime. It is instead known as a powerful instrument of de-socialization
  • ·         Furthermore, imprisonment violates fundamental human rights: it involves forced labour, forced celibacy and imposed poverty. Long term imprisonment must even be seen as a form of torture.
  • ·         Finally, imprisonment leads to the co-punishment of third parties: children, spouses, parents, friends, employers etc.

All of this is well-known. There exists a lot of research to prove what I have just said. While some researchers still try to prove that imprisonment has some beneficial effects in some cases under special conditions, they leave aside the other negative effects mentioned. But, among politicians and the general population the prison institution is still widely considered to “work”.

II. How shall we deal with these findings?

Those of you, who agree more or less with what I have said so far, will ask: what can we do with, how can we react to such a failed institution?

The usual answer will be: we have to find alternatives to the prison institution. There is some truth to that, as I will explain in a moment. But I believe that, before looking for alternatives, we need to adopt an “abolitionist stance” (to use a word coined by the great Norwegian sociologis and abolitionst Thomas Mathiesen). That means: saying NO to all inhuman institutions.

In the past such a primarily moral stance has worked with other institutions. Who would have thought that slavery could ever be overcome as an economic device? Who would have predicted that torture would be outlawed as an instrument of criminal law? Who would have believed that Europe could ever be an area free of capital punishment?

If such fundamental changes were possible in the past, why not in the future a society. Even a world without prisons?

III. Some prisons are here to stay a little longer

But to convince a sufficient part of the population to abandon the idea that prisons serve a useful purpose will take a long time. In order not to appear naive, we should admit that not all forms of imprisonment are doomed to be redundant. At least the following types of confinement have at least some future:

  • ·         as long as we conduct criminal trials, we will want to have some forms of pre-trial detention (if there are no other ways to secure the presence of the accused at the trial)
  • ·         as long as we have people that pose a concrete and grave danger to themselves or to others, we will want to have some form of quarantaine (and try to keep that as short as possible)
  • ·         and as long as we have wars and make prisoners in that context, we will want some sort of P.O.W. camps (and make sure that the standards of international humantitarian law are upheld).

In what follows, I will concentrate on the question how to get rid of penitentiaries, i.e. prisons as a form of punishment. This should not make us forget the evil of administrative detention, which, in some states (e.g. Egypt, China, Israel and USA/Guantanamo) constitutes a form of extra-judicial punishment.

IV. Practical strategies to abolish penitentiaries

There are a number of ways that are available to achieve this goal. And they are not mutually exclusive, but should be used simultaneously, e.g.

  • ·         a first step is to reduce the total character of the prison institution, i.e. to adapt the conditions of confinement as much as possible to outside standards. A prison sentence should consist in the deprivation of liberty and nothing more (as it is laid down in the European Prison Rules).
  • ·         another step would be give sentenced offenders the option to “do time” outside institutions. Instead of serving a prison sentence, they could spend the time doing community work, reparation, therapy, training etc.
  • ·         even more important: large scale decriminalization is called for. A logical starting point would “crimes without victims” like drug offences, which could be dealt with as a health problem rather than a crime problem. This alone would eliminate about half of the present prison population in Europe.
  • ·         another approach would be to release all prisoners who do not pose a clear and present danger to society. That does not mean that they will go unpunished, but that they serve their sanctions in the community (see above).
  • ·         as I said before: only those who present a grave danger to themselves or to others need to be confined in some sort of quarantaine. But because of our limited ability to predict future behavior, we need new principles, e.g. a presumption of non-dangerousness (in analogy to the presumption of innocence).

V. Brief reminder of the Massachusetts experiment

To get rid of penitentiaries, we will first of all need courageous and creative civil servants and politicians Let me therefor conclude with the example of one such person: Jerome Miller (1931-2015).

Jerome Miller became in 1970 head of the Youth Services in the State of Massachusetts. Among other things, he was responsible for the two juvenile prisons of the state, one called “reformatory”, the other “industrial school”. He decided to do away with both of these institutions. His way to go about this seems to me very instructive. He formed a committee of academics and practitioners, which held its sessions at the university. One by one the juvenile delinquents were brought before this committee. There, the committee members looked carefully into every single case and decided what was best for the juvenile (e.g. therapy? education? Work counselling? Placement in a foster family?). At the end of two years, they had found alternatives for every single person. And the prisons were closed down (and never reopened). I think that the Massachusetts experiment can serve as a model for doing away of other prison-like institution (for juveniles as well as for adults). There may be obstacles to such a procedure in other parts of the world. But the main lecture we can learn from it is this:
We need not think of a “perfect” system of alternatives beforehand, but rather find the alternatives in a case-by case process.  This would be in keeping with the notion of „the unfinished“, which constitutes a central part of Thomas Mathiesen’s philosophy of abolition (see: The Politics of Abolition Revisited. Routledge: London and New York 2015, 21 ff).

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