The Ethical Dimensions of



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Introduction


The aim of this paper is to discuss the current situation with regard to the treatment of prisoners in both the developed and developing world. The report aims to explore the thesis that although the rights of prisoners in developed countries may be better upheld than the rights of prisoners in developing countries, the conditions remain far from ideal. The study aims to explore not only the violation of human rights, which are often the occurrences most publicized, but also the violation of other basic rights to which all prisoners should be entitled.

This is an important topic as it is only through investigation of the situation that any problems may be addressed. For example through a careful examination of the conditions which may be present in prisons in developed countries at the present time, it may be possible to identify which areas require attention. Although prisoners may be thought of as a population group of low importance, it is worth remembering that many of these may be remand prisoners and may therefore have not been proven guilty of any crime.206 This therefore indicates that the importance of these individuals’ rights may not be considered to be any less substantial than those of the general population. They also represent a substantial group within the population, given that as of 2003 there were estimated to be more than 8.75 million individuals held within the world’s penal systems.207 In particular, the violation of human rights of prisoners is of public concern and political importance.208

It is expected that this paper will demonstrate that the rights of prisoners in the developed countries may be breached in numerous ways. It is expected that these same rights and more may be breached in developing countries. This paper will show that the rights of prisoners in developed countries are more respected than those of prisoners in developing countries, although these are likely to remain far from ideal.

The Current Situation in Prisons in Western Countries

The numbers of prisoners in developed countries has increased drastically over recent years. The US has one of the largest western prison systems, and as such provides a good example of the pattern of increase. In 1970 there were a total of just over 196,000 prisoners held in detention, and this increased to just over 1.276 million in 1999.209 In particular it is important to note that there has been a drastic increase in the number of female prisoners in the US, with figures going from around 5,600 in 1970 to around 40,500 in 1999.210 These figures have even further increased to the present day, and in 2006 it was estimated that around 0.75 % of the population were prisoners.211 Overall, this means that by December 2006 there were 2,258,983 prisoners held in Federal or State prisons or local jails. There are no later figures than these available, although it is anticipated that the current rate of detention would be even higher. This is based on the observation that the prison population had increased by 2.9 % in 2006 from 2005.212

As prisoners within the US constitute the highest proportion of prisoners from across the world, they provide possibly the best example of prisoners in developed countries. Also, because a large amount of information is within the public domain it is possible to more fully analyze the situation in the US prison system than in some others. There are however other prisons which may serve as adequate examples of prisons within developed countries, including those in the UK, Western Europe and Australasia. In particular, prisons within the UK also provide a large amount of information that is available in the public domain. Figures available for the UK for May 2008 show that there are currently just fewer than 83,000 prisoners in the UK.213 This may also serve as a good example of developed prisons given that this is the highest rate of prisoners per 100,000 populations in Western Europe.

Rights of Prisoners

The overall rights of prisoners may vary by country, just as attainment or violation of these rights may vary widely by country.214 In particular, the judicial system in the US has considerable control over determining the rights of prisoners once incarcerated. Although certain human rights are fundamental regardless of circumstances, the decisions as to which civil and other rights prisoners possess may be open to change. The decisions which are reached may be impacted by pressure from civil rights groups, human rights groups and other groups concerned with the rights of prisoners. It has however been suggested that increasing problems with violence in prisons may have led to a decrease in sympathy for prisoners, and this may have begun to reflect in judicial decisions.215 It is however important to recognize that the removal of these rights is specific to the country and is not universal. This is in direct contrast to human rights, which are considered to be universal and are generally not considered to be flexible in their application.

The general human rights to which all prisoners should be entitled include the right to a court and legal assistance, and the rights to humanity, respect and dignity. This may encompass many more specific rights, such as the right not to be assaulted and the right to access health care resources.216 There are a number of human rights groups which monitor the provision of these rights in all countries around the world, including in prisons in developed countries.217

Many developed countries have legislation which specifically details the rights which prisoners have when they are incarcerated. An example of this may be seen in the UK, where the Prison Act 1952 and the Prison Rules 1999 detail the general rights of prisoners. Even in this instance, however, the courts may use case law from elsewhere in determining any area which is considered not to be explicitly detailed in these documents. It is also the case that these laws may be subjected to change and may further develop as the laws of a country also develop. In the US there is a legislative group called the American Civil Liberties Union, which specifically acts on behalf of prisoners and governs the preservation of rights for those incarcerated in prison. There are also numerous pieces of legislation which may deal explicitly with specific areas of rights, for example the Prison Rape Elimination Act 2003.218 There are also usually channels provided for prisoners in developed countries to complain should they feel that their rights have been breached.

The decision of which rights of an individual may justifiably be restricted is usually based on an assessment of the “dangerousness’ of the prisoner. Baker,219 however, suggests that this may not be an entirely appropriate means of deciding which rights should be restricted for an individual. This is due to the method having been shown to often lead to inappropriate conclusions. Most errors committed are due to excessive caution being exercised.

In the period spanning from the 1960s to the present day, the US has experienced a prisoners rights movement which was aimed at attracting attention to the issues which were inherent in the treatment of prisoners in that country. It appears that this movement was successful to some extent in its aims, and managed to lead to the creation of a number of policies that ensured better maintenance of prisoner’s rights in the US.220 This movement has since continued, and Freudenberg221 suggests that that movement has actually gone from strength to strength in recent years.



Criticism of Other Nations

Developed countries may be very critical of the practices of developing nations with regard to their prison systems. Although it may be difficult for developed countries to comment on the laws of any other country in terms of how they determine the civil rights of prisoners, the criticism usually focuses on human rights breaches. This is considered justifiable given the universal nature of basic human rights. In particular, a substantial amount of research has focused on a discussion of how the history of human rights of a country may determine the US foreign policy towards that country.222 It may not only be the US which engages in these criticisms however, as the UK and other European countries, along with organizations such as the UN, may also engage in such criticism.

The focus of the criticism of some countries often relates specifically to the treatment of political prisoners rather than those convicted of more general crimes. The criticism also usually relates to the occurrence of torture and capital punishment rather than more “trivial” breaches of human rights such as confinement in inappropriate accommodations.223 A particular area of criticism has also been of the manner in which these prisoners may have been detained, specifically under accusations of terrorism, a claim often judged to be unsubstantiated.

It is not clear why the focus is on these political prisoners, as it would be assumed that all other prisoners within these countries are also subjected to frequent human rights violations if this is determined to be acceptable within that country’s penal system. It is also unclear why government criticism may focus on some countries while ignoring others. For example treatment of prisoners in Africa appears to go largely unnoticed by Western governments.224



Failure to Meet Basic Rights

It appears to be the case that even in developed countries there may continue to be significant breaches of human rights for prisoners. This is initially based on the observation that agencies such as Amnesty International appear to receive significant complaints regarding the treatment of prisoners even from countries such as the US. Overall, the entire process of incarceration ensures that some of the basic rights of prisoners may be compromised, for example prison removes the freedom of movement for every individual to a certain extent. This is, however, an integral part of the imprisonment process, and as such the only alternatives which would ensure that this right was not violated to any degree would be through the use of punishments other than imprisonment. Although alternative punishments have previously been suggested as more appropriate for the sake of preservation of human rights, it is acknowledged that these solutions may not be entirely practical.225 There do appear to be different extents of the removal of these rights even within one country’s system, such as the extent to which freedom is actually removed. For example in the UK prison system not all prisons involve being confined to a cell each day, and some open prisons may actually allow offenders to leave the prison under certain circumstances, for shopping trips for example. On the other extreme of the spectrum, many prisons in the UK, US and Europe may use isolation as a punishment for prisoners who breach specific rules in the prison. This may involve being confined to a very small space, being isolated from others, and may also include the use of restraints. This practice is very controversial in terms of whether the violation of rights which this involves may be justifiable.226

Not all cases of violation of rights may however be justifiable. It is recognized particularly that there may be a provocation and temptation for members of staff within prisons to use excessive force when dealing with prisoners, particularly when they themselves may have been attacked or provoked in some manner.227 The use of excessive force may be in direct violation of the rights of the prisoner, no matter of the circumstances surrounding the use of the excessive force. It may be hard to determine the exact extent to which this may be a problem within the system in developed countries as there is a lack of specific data available.

It is possible that the violation of rights may be different between different groups within the prison population in one country. For example, Freudenberg228 discusses the impact on the rights of imprisoned women of color. The study found that when these women are incarcerated, they are removed from their communities, removed from the opportunity of accessing needed services and also placed in close proximity with others who have higher rates of infectious diseases.

It may not be the prison which is directly responsible for the violation of prisoners’ rights; it may simply be that they have failed to protect the rights of the prisoner. There are many instances where it may be the other prisoners who are responsible for the actual violation of rights. For example a study into the prison system in Australia identified substantial occurrences of sexual and other assaults of prisoners each year.229 A further study by Robertson found significant incidences of rape of male prisoners within the US prison system.230 Another example of this may be the case in which prisoners’ health is not protected. Prisoners have a right to have their health, both physical and mental, protected while incarcerated. When incarcerated, it is possible that prisoners are placed in direct contact with many infectious diseases, and this may lead to much higher rates of these diseases within the prison population.231 Although it could be suggested that this would be an unavoidable problem of imprisonment, it may however be that a contributory factor is the failure of provision of basic health care services. An example of how this may be the case is that only around two fifths of prisoners who have mental health problems ever receive any kind of help while in prison.232

It is possible that prisoners may pursue legal action for incidences when they believe their rights to have been unjustifiably violated while in prison. Studies suggest however that this may not often be successful.233 It has also been suggested that as a result of the pursuit of litigation by prisoners who are still incarcerated it is possible that their rights will be further compromised. A study by Brown234 found there to be widespread violence by prison guards towards inmates who were pursuing litigation against the prison system for alleged sexual abuse. This violence therefore would further violate the rights of prisoners.

A further area which is the subject of immense controversy in any human rights discussion is the continuation of capital punishment within a number of developed countries’ legal systems. Aside from the arguments against capital punishment which are based on the problem of miscarriage of justice, whereby someone may be wrongfully convicted and subsequently killed, it is also argued that capital punishment is a complete violation of human rights. One of the fundamental human rights is the right to life, and it is very difficult to justify ever removing that right from an individual. With the sentence of the death penalty, this fundamental human right is removed.235 Amnesty International also suggests that not only is the right to life compromised with capital punishment, so too is the right to not be submitted to any cruel, inhuman or degrading punishment.236

Changes in the Prison System

There are a number of changes which may have recently occurred in the legislation of some developed countries which affect the governance of the penal systems within those countries. Most of these changes have been brought about as a result of terrorism against the West, and have been designed to allow these countries to better protect themselves from potential terrorist attacks.

In the UK, the main piece of legislation introduced was the Terrorism Act 2000, although there were further subsequent acts put in place to supplement the new laws. This included the introduction of the Anti-Terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005, and the Terrorism Act 2006. The introduction of the new legislation in 2000 and March 2007 resulted in 1165 arrests in the UK under the new laws. It is the Terrorism Act of 2006 which contains a number of measures that increase police powers when investigating suspected terrorists. This specifically extends the rights of police in such a manner as may actually contravene some rights of prisoners in a way which was not previously permitted explicitly by law. An example of this may be that the police are able to detain suspects for much longer periods while under investigation.237 There does not however appear to be any change in the UK’s laws which specifically impact the treatment of prisoners once detained. This is in stark contrast to the anti-terrorism laws introduced in the US.

In the US, legislation has also changed, particularly post-9/11. The new legislation includes the Terrorism Risk Protection Act 2001, the Financial Anti-Terrorism Act 2001, and crucially, the Patriot Act 2001. This Patriot Act serves to greatly extend the powers of investigation authorities in the US in their investigation of terrorist suspects, to such an extent as to greatly impose on the civil liberties of the general population. In addition to this, however, the most controversial move which the US has made in fighting terrorism is the decision to alter the manner in which terrorist suspects are detained. Rather than being incarcerated in the normal prison system, the US government has sanctioned the use of Guantanamo Bay naval base for interrogation of these suspects. This decision was made because of a convenient legal loophole: because the prisoners have been moved to a US base in another country (Cuba), the laws which govern imprisonment on US soil no longer apply.238

There are various reports from ex-prisoners which claim that the fundamental human rights of prisoners within Guantanamo Bay are being grossly violated. In particular, the use of this overseas base in itself implies that the purpose is specifically to allow for the denial of the human rights of the prisoners. It would therefore indicate that despite the criticism which the US focuses on other countries in their breach of the human rights of prisoners, there may also be many instances in which developed countries also regularly violate the human rights of prisoners, even though these countries may attempt to justify this treatment.

Necessity of Restriction on Rights

It is clear that prisoners in both developed and developing world have a number of their rights restricted upon entering prison. It is, however, critical to consider whether it is truly necessary for these rights to be restricted before any judgment may be made as to how this impacts on the system, or makes it better or worse than another.

Although human rights activists argue for the rights of prisoners and claim that prisons should work to maintain their rights, there is an important distinction to be made between basic human rights and civil rights. In particular, as discussed in the previous section, the main difference is that human rights are considered to be universal and applicable to all, whereas civil rights are bestowed upon individuals by a country, and as such may also be removed by that country. Therefore the laws within each individual country will take account of precisely which civil rights may be restricted within the prison system, in accordance with the initial civil rights which individuals within that country have when free. In contrast to this, although prisoners are subject to strict regulations while in prison, the purpose of prison is not to remove their human rights.239

This distinction means that, if governments perceive it to be necessary to restrict certain civil rights than they may do so. They may also attempt to include legislation which restricts certain human rights, but there are many councils and agencies in place across the world which may oversee these decisions, such as the European Council of Human Rights and the United Nations. As also previously discussed, the choice about whether it is considered necessary to restrict a particular right is based upon the judgment of dangerousness of an individual. In particular, dangerousness is defined as an “individual’s propensity to cause serious physical injury or lasting psychological harm”240, this may be understood as both harm to others and harm to themselves. This may therefore lead to justification to restrict certain civil rights of criminals while in prison.

One pertinent example of this may be in the restriction on voting which most countries have regarding prisoners. For example if known criminals were allowed to vote while still incarcerated, this may be considered to be quite dangerous; it is possible that large numbers of prisoners would be able to collaborate in order to bring about a political result which met their own criminal agendas, which could lead to long term damage to the country.241 Therefore many countries have legislation in place which severely restricts voting rights for prisoners. In a number of countries, such as the UK, there is in fact a blanket ban on all prisoners voting.242

Recently, such behavior was found by the European Court of Human Rights to be in contravention of these prisoners’ human rights. In addition to being considered a political and civil right, the right to vote is also generally recognized as a basic human right. This does not, however, indicate that the countries affected by the ruling must immediately allow all prisoners to vote. Instead the UK initiated a review of the system which would consider a number of elements, such as sentence length and seriousness of offence, and then use this to individually decide which prisoners should be entitled to vote while incarcerated.243 This system is therefore considered to be more just as the information collected allows for an individualized assessment of the dangerousness of allowing a particular prisoner to vote. The main problem with this is that it is not deemed justified to restrict the rights of all prisoners as a matter of course, instead the decision may only be justified when based on an assessment of the individual prisoner’s dangerousness.

Given that the European Court of Human Rights deemed it justifiable that the rights of some prisoners to vote should be restricted, this would suggest that other human rights may also be justifiably restricted based on judgment of dangerousness. Another major example of this is in the restriction of the prisoners’ right to free movement, which may also be considered a human right. It is however clear that there must be some degree of restriction on this movement or there would not be such a thing as prisons in the first place. Again, it may not be justifiable to impose the same restrictions on all prisoners; instead, this should be done on an individualized basis. In the US, this is partially achieved at the time of sentencing. Instead of one standardized prison to which the individual is sentenced, there are a range of different types of institutions. This means that those who are considered to be a high danger to others may be incarcerated in a type of institution termed a “SuperMax Prison”. In this type of institution, the movement of the prisoner is severely restricted, as are other elements of their daily life, such as contact with staff and other inmates.244 In addition to this, in countries such as the UK and the USA, it is possible that movement may be entirely restricted through the use of restraints. This is performed usually only as a temporary measure, in cases where there is suspected to be a mental health issue in which the prisoners present a threat of extreme violence towards themselves or other inmates or staff.245

In direct contrast to high security prisons, there are also allowances to ensure that those prisoners who are considered to be of low threat have their freedom of movement preserved as much as possible. In the UK this includes sending these prisoners to open prisons, in which there are few restrictions on movement, and in which some prisoners are even allowed beyond the confines of the prison under agreed circumstances.246 This is therefore a further example of how certain rights may be restricted in developed countries, but that this may be justifiable.



The Justification for Restrictions on Rights

Although it has so far been demonstrated that it may be justifiable and necessary to restrict some of the rights of prisoners while they are incarcerated, the discussion has also raised some other important elements which must be considered in the process of initiating these restrictions. The main issue is that of the Parameters on which the assessment of risk of prisoners is based. Baker247 suggests that at the present there is a lack of a definitive definition of what precisely constitutes danger in a prisoner. For example, the current definition which is given earlier in this essay may be highly subjective. This means that where one person may judge a particular prisoner to be highly dangerous, another may consider them to present little threat to anyone else. It is likely that this would then result in large differences in the treatment of the prisoner, and which rights were considered could be justifiably restricted. In particular it has been demonstrated that errors may be made in the assessment of dangerousness which is made at sentencing in the US.248 This includes errors in both judgment and in the application of the available tools which may help with such a judgment, and also the assertion that there may be fundamental flaws in these tools themselves. Overall this would therefore indicate that the restriction of rights of a prisoner may currently be based on very subjective perceptions at the time of sentencing. Despite this, it is also clearly necessary for an individualized judgment to be made rather than blanket restrictions imposed. It would therefore appear that this is an area which requires further improvements in method, even in developed countries.

Some suggest that the importance of risk assessment of prisoners should stretch beyond the courtroom and those sentencing the prisoner to the actual establishments themselves. For example it is clear that while a prisoner may not be deemed to be of significant threat upon presenting in the courtroom, there may be incidents which occur during incarceration which alter the perceived dangerousness of the individual. For example it is important within a prison that every individual who both resides and works there is able to feel safe.249 This, therefore, means that it may be necessary for the prison itself to engage in continual risk assessment of prisoners to ensure that the rights of all others within the establishment are also met. It is important that the actions which are taken by the institution in such a case remain in keeping with the ethics of a system which is humane, healthy and constructive.250 This means that there must be a careful assessment made before further restrictions on the rights of the prisoner are imposed, such as through solitary confinement, as this may not be entirely in keeping with this ethos.251 In particular, while these types of restrictions on an individual’s rights may be necessary in the short term, the process of risk assessment should be continual as prolonged exposure to these circumstances may be damaging to prisoners,252 and therefore may not be justifiable as long-term solutions.

Can the Restriction of All Rights be Justified?

Although it is clear that developed countries may be justified in restricting the rights of prisoners to a certain extent, it is not possible that all such restrictions may be justified. One prime example of this is in the use of capital punishment, which is promoted by certain individuals within the developed world, but also comes under harsh criticism by human rights groups. The use of capital punishment within the developed world is not as widespread as in previous times. Some countries, including certain states of the US, do however maintain capital punishment for the most heinous crimes. This punishment however completely removes the human right to life of the individual, and as such, it would be extremely difficult to justify this punishment on the argument which has thus far been presented. In the US, the use of capital punishment is considered to be justified where there is an assessment made that an individual poses a continued and great threat of violence to the public. As previously discussed, however, there have been shown to be numerous errors in judgment which have occurred by mental health care professionals in relation to making this decision. It has also been suggested that much of the information which may be used in forming these decisions is inadequate for its purpose.253

This in itself indicates that the process of judging the appropriateness of this punishment is complex, and it is suggested that removing the right to life may in fact never be justifiable. It is unlikely that the threat of continued and significant aggression towards others may be controlled to any greater extent using capital punishment than through long-term incarceration. For example it has been demonstrated that those who are subjected to prison terms under five years are in fact those who are most likely to exhibit aggression towards others while in prison.254 It has also been shown that the level of violence which is exhibited in prison by those convicted of capital crimes may not be significantly higher than that of those convicted for less serious offences.255 In addition, those who are convicted of capital crimes but fortunate enough to be released also exhibit lower levels of return to prison than those convicted of less serious offences256, which is indicative that many do not in fact pose a continued threat to society upon release from prison.

Another important consideration is that the restriction of rights was based predominantly on the intent of protecting the rights of others. It is not however clear how the use of capital punishment and the removal of the right to life may better protect the rights of others than simply imprisoning an individual. Removing the individual from society by putting him in a prison should be able to protect the rights of other individuals living within that society.

It is also difficult to justify the restriction of a number of other human rights based on this argument. For example, restricting the right of the prisoner to dignity would serve no purpose in protecting the rights of other prisoners, staff or the wider community. There would however appear to be frequent incidences in prisons in developed countries when this particular right is restricted. An example of this was that of excessive violence used by staff within prisons towards prisoners.

In fact, such acts not only encroaches on the prisoner’s right to dignity, but also directly on their right to safety from violence. There are also other occurrences within prison which may equally breach these rights in a manner which is not justifiable. For example being subjected to sexual assaults appears also to not be uncommon257 258, and this too is a direct violation of the rights of the prisoner. Even though such occurrences may not be directly attributable to the prison, it is the responsibility of the prison worker responsibility to protect prisoners from such incidents, and therefore promote the human rights of the prisoners.



Developed versus Developing Nations

While there is great interest in protecting the rights of prisoners in developed nations, in many developing countries, not only are the civil rights of prisoners removed, but also their basic human rights. It appears that the observation of rights of prisoners in the developed world is thus superior to that in the developing world in general.

The main exception lies in the recent changes to the law, and the use of legal loopholes, which allow for the rights of suspected terrorists to be effectively removed. Although these prisoners are judged to be of a great and prolonged threat to the wider population, it remains difficult to justify why terrorism suspects may be treated differently than any other criminal suspect. In particular this is true given that it is a fundamental human right that an individual should be assumed to be innocent until proven guilty, and should therefore also have the right to legal counsel among other rights. In particular, it is noted that the changes in the law are specifically designed to extort loopholes in the law so that they would appear not to breach human rights laws. A notable example within the Patriot Act 2001 is in the use of the term “torment”, which is used due to the prohibition of torture, but remains very ambiguous in meaning. In particular, this type of treatment also makes it very difficult to justify the criticism which is placed by these developed nations onto developing countries. One of the main criticisms has been in the manner in which those out of favor are held as political prisoners, and accused of terrorism, in order to justify particularly brutal treatment or capital punishment. In effect, this is not entirely dissimilar to some of the behavior in which some developed countries may currently be engaging.

Conclusion

Overall, it appears clear that the rights of prisoners in the developed world are reasonably well protected. There are many rights which are actively promoted by prison services within these countries, such as the right of religious choice and the right to education. There remain, however, some issues which require further attention, including some rights, such as the right to vote, which are intentionally removed, as well as some rights such as that of protection from violence, which are not intentionally violated, but are nevertheless inadequately protected.

There are governments in the developed world that are attempting to foster a more rights-based approach to prisoners at the present time. This is reflected in a number of new initiatives which are being put into place, with evidence of these changes particularly obvious in the UK and the US. A great deal of this change has been brought about through pressure from the public and various agencies, as awareness of prisoners’ rights and the conditions within prisons seems to have increased over recent years. In particular, Boston259 implicates the media attention which was received by abuses of human rights of prisoners in Abu Ghraib, in Iraq, as being critical in raising awareness of those in the developing world to the treatment of prisoners on their own soil. Another focus of media attention, the prisoners detained by the US in Guantanamo Bay is also likely to have contributed to increasing public awareness and the debates which have taken place.

It is however actions such as those which occur in Guantanamo Bay which create a significant blot on the record of some developed nations, and as such belittle the efforts which are being made in other areas to foster a rights-based approach to prisons. It is clear therefore that the conditions within prisons in the developed nations may still require further improvement in the near future if the rights of prisoners are to be fully observed and protected.



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