Securing Prison through Human Rights: Unanticipated Implications of Rights‐Based Penal Governance
| Author | SARAH ARMSTRONG |
| Published date | 01 September 2018 |
| DOI | http://doi.org/10.1111/hojo.12270 |
| Date | 01 September 2018 |
The Howard Journal Vol57 No 3. September 2018 DOI: 10.1111/hojo.12270
ISSN 2059-1098, pp. 401–421
Securing Prison through Human
Rights: Unanticipated Implications
of Rights-Based Penal Governance
SARAH ARMSTRONG
Senior Research Fellow, University of Glasgow
Abstract: Human rights are a dominant framework for regulating prisons. However,
there is little critical interrogation of human rights as they are actually translated into
tools for governance. This article develops a critique of human rights by analysing and
considering policy as a means of realising rights. It urges sustained and ethnographic
attention to policy settings, arguing that policy exerts a form of agency. The article
revisits critical criminological claims that reform expands penal control, examining this
specifically in the context of human rights governance of prisons. To do so, it draws on
the anthropology of policy and science and technology studies (STS) suggesting that these
fields offer useful tools and insights in the study of policy. In the final part the discussion
turns to three examples of human rights issues in the Scottish penal context to problematise
rights-driven penal policy and suggest directions for research.
Keywords: anthropology of policy; human rights; prisons; science and
technology studies (STS); Scotland
This article advances a substantive claim about, and suggests a method-
ological addition to, the study of human rights in prisons. The substantive
claim is that rights-led prison reform contributes to prison bureaucratisa-
tion and through this, transforms, extends, and legitimates, forms of penal
control. The methodological addition is applying ethnographic approaches
to mundane and ‘boring’ (Star 1999, p.377) aspects of prisons – namely
policy reform and legal cases, exploring the documentary representation
of life lived in cells – to show this. Neither this claim nor this methodological
approach is entirely novel, but they are drawn together here in an attempt
to show how ethnographic attention to bureaucratic spaces of punishment
can develop and advance understanding about the nature of punishment
and control in contemporary times. In particular, work by anthropolo-
gists of law, policy and science (Riles 2005; Shore and Wright 1997; Star
1999; Strathern 2000) offers new insights, especially about the material
and cultural dimensions of something like penal policy, that, in turn, can
show how policy articulation of human rights facilitates increasing power
401
C
2018 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol57 No 3. September 2018
ISSN 2059-1098, pp. 401–421
of prison relative to prisoners. The article seeks to complement the rare
but valuable ethnographies of criminal justice bureaucracy (for example,
Annison 2015; Souhami 2012) that have brought to life the people who
write, interpret, and act, through policy, by focusing alternatively on the
way policy writes, interprets, and acts through people.
A simple conundrum provides the impetus of the analysis: given the
widespread acceptance among liberal democratic states of human rights
frameworks for the regulation of prisons (Coyle 2009; Van Zyl Smit and
Snacken 2009), why do we still find evidence of the kinds of conditions
that gave rise to rights standards in the first place? Even in countries that
have actively embraced a human rights approach to prison management,
such as Scotland, the jurisdictional focus of the present article, the evidence
on the success of rights, is mixed. It remains standard for many Scottish
prisoners to be kept in cells for 22 hours per day (HM Inspectorate of
Prisons for Scotland (HMIPS) 2017), and increasingly common for long-
term prisoners to remain in detention for years, and in some cases decades,
past the completion of their sentences (Scottish Prisoner Advocacy and
Research Collective (SPARC) 2018). In 2013, the latest year in which the
cause of death has been determined for all deaths in Scottish prison custody
(this fact alone raising questions about the transparency and accountability
of prisons) seven of the 24 deaths were classified as suicide, a rate only
slightly lower than that of England and Wales in 2013, and actually higher
than the proportion of suicides taking place there in 2017, a period in
which the prison system is recognised as being in turmoil.1
One might argue that while there is always room for improvement, the
direction of travel in Europe is the right one, moving towards the achieve-
ment of rights-respecting institutions. This suggests current reform efforts
should continue as before to develop, improve, and implement, rights-
informed penal policies, such as by keeping prisoners active and healthy,
and limiting unnecessary use of prison. However, these are precisely the
policies that were put in place starting over six years ago in 2012, when
the Scottish Prison Service (SPS) rolled out an aspirational, rehabilitation-
focused vision called ‘Unlocking Potential, Transforming Lives’, and over
a decade ago when the Scottish Government adopted nearly every recom-
mendation put forward by an independent Scottish Prisons Commission
(Scottish Prisons Commission (SPC) 2008). The Scottish experience is not
unique, with recent (Calavita and Jenness 2015) and not so recent (Feeley
and Rubin 2000; Feeley and Swearingen 2004) studies of rights-based re-
form in American prisons finding that rights-driven reform has in some
ways strengthened penal control. The conclusions of these studies seem to
offer evidence of Foucault’s (1977) critique that reform serves to sustain
and expand the penitentiary. And yet, if there is any point to scholarship, it
might be to contribute to understanding that might help avoid a nihilistic
fate of simply repeating the past and continuing to reproduce policies that
extend penal control.
A starting point for the present analysis, therefore, is that it is impor-
tant to elucidate how penal policy and human rights work, before it makes
sense to assess how well they work. Specifically,the questions organising the
402
C
2018 The Howard League and John Wiley & Sons Ltd
To continue reading
Request your trial