Juridical Message in the Shadow of the Carceral: Prison Discipline, Additional Days and the Feasibility of Penal Communication
| Published date | 01 December 2021 |
| Date | 01 December 2021 |
| DOI | http://doi.org/10.1177/0964663920973743 |
| Subject Matter | Articles |
Article
Juridical Message in the
Shadow of the Carceral:
Prison Discipline,
Additional Days and
the Feasibility of Penal
Communication
Netanel Dagan
The Hebrew University of Jerusalem, Israel
Abstract
Juridical and carceral scholarship seldom interact. As a result, the visible and less visible
intersections and gaps between the two penal logics and discourses are often over-
looked. The paper argues for better understanding of juridical power, and how it may cut
through the boundaries of juridical/carceral separation. As a case study, the paper
problematises the disciplinary punishment of imposing ‘additional days’ of prison time
(AD) for prison rules violations, through the lenses of communicative sentencing theory.
The paper argues that AD may undermine the juridical communicative ideal as it may
cause penal censure to lose credibility, trivialise the value of prison time, and harm the
feasibility of penal communication by disconnecting imprisonment from the offence of
conviction. Conclusions for socio-legal and penal theory and policy are discussed.
Keywords
Carceral, censure, juridical, penal communication, sentencing theory
Corresponding author:
Netanel Dagan, The Institute of Criminology, Faculty of law, The Hebrew University of Jerusalem.
Email: Netanel.Dagan@mail.huji.ac.il
Social & Legal Studies
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DOI: 10.1177/0964663920973743
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2021, Vol. 30(6) 869–889
Introduction
Should the juridical care about the carceral regime? Kerr (2019: 85) recently argued that
‘fields of punishment and sentencing theory largely avoid the prison’, calling for more
serious engagement of the juridicalphase with the ‘black box’of prison. The paper aims to
answer Kerr’s (2019) call by exploring what happens when juridical logic looks beyond
the boundaries of the sentencing stage.
1
More specifically, the paper seeks to explore the
feasibility of the juridical logic, discourses and conceptions within the legal life of the
carceral. We hope to bring to the core of the inquiry a more detailed understanding of
the mechanics of penal power: how it is fragmented, diffused, negotiated, transmitted and
‘translated’ along the penal continuum (Foucault, 1977; Tadros, 1998; Young, 2020).
The paper will do so by analysing how the censuring message of sentencing – a main
purpose of Western sentencing, and probably that most identified with judicial authority
(Ashworth, 2015; Duff, 2001; von Hirsch, 2017) – acts within the carceral disciplinary
framework. As a case study, the paper will problematise one of the most severe prison
disciplinary punishments: that of imposing ‘additional days’ (AD) on the prisoner for
prison disciplinary offences. In doing so, the paper will apply the logic of a prominent
and influential retributive sentencing theory – the communicative theory (Duff, 2001).
As the paper will argue, in the case of AD, the carceral logic may overshadow the
juridical, and the assumed superiority of the juridical over the carceral may be chal-
lenged. Such challenge is due to the fact that the censuring message of AD may under-
mine the credibility, value and feasibility of penal communication that sentencing seeks.
The practice of imposing prison days, up to the final date of the sentence, as a prison
disciplinary punishment,
2
is recognised in different forms in several Western jurisdic-
tions, such as: England and Wales (‘additional days’) (Owen and MacDonald, 2015),
Ireland (‘forfeiture of remission’) (Griffin, 2007), US (‘good time’ credits forfeiting)
(Demleitner, 2017)
3
and Canada (‘loss of earned remission’) (R v. Shubley,1990).
Currently, the disciplinary punishment of AD means that a prisoner found guilty of a
prison rules violation (‘offence against discipline’)
4
may be subject to ‘ ...in the case of
a short-term prisoner or long-term prisoner, an award of additional days not exceeding
42 days’ per offence (Prison Rules, 1999 (as amended), r. 55(A)(1)(b)). Before inquiring
into a disciplinary charge, the prison governor shall determine whether the charge is so
serious that AD should be awarded, if the prisoner is found guilty (r. 53A(1)). In such
case, the prison governor should refer the disciplinary charge to an ‘independent adju-
dicator’, a district judge (not a sentencing court), hearing the case within prison walls.
For him to inquire into it, and if proved, determine what disciplinary punishment is
appropriate (PSI 05/2018, ss. 2.76–2.8). In suc h case, the ‘independent adjudicator’
should impose a proportionate discipline, including AD, taking into account the serious-
ness of the disciplinary offence (whether the violation poses a serious risk to prison order
or safety), the prisoner’s disciplinary history, the likely effect of the discipline on the
prisoner, and any mitigation the prisoner may offer (PSI 05/2018, ss. 2.29–2.37).
Practically, AD delays the normal release date for prisoners eligible for parole or
automatic conditional release (Easton, 2011; Owen and MacDonald, 2015). However, it
cannot extend the original sentencing expiry date, and therefore may be perceived only
as reinstatement of the original sentence. Nevertheless, both legal scholarship (Coyle,
870 Social & Legal Studies 30(6)
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