The Janus face of imprisonment: Contrasting judicial conceptions of imprisonment purposes in the European Court of Human Rights and the Supreme Court of the United States
| DOI | 10.1177/1748895820911967 |
| Author | Netanel Dagan |
| Published date | 01 November 2021 |
| Date | 01 November 2021 |
| Subject Matter | Articles |
https://doi.org/10.1177/1748895820911967
Criminology & Criminal Justice
2021, Vol. 21(5) 633 –649
© The Author(s) 2020
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DOI: 10.1177/1748895820911967
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The Janus face of
imprisonment: Contrasting
judicial conceptions of
imprisonment purposes in
the European Court of
Human Rights and the
Supreme Court of the
United States
Netanel Dagan
The Hebrew University of Jerusalem, Israel
Abstract
This article considers how the Supreme Court of the United States and the European Court of
Human Rights apply, interpret and frame abstract imprisonment purposes, and how they view
their relevance to prison conditions, while discussing the constitutionality of prison conditions.
The article argues that the Supreme Court and the European Court of Human Rights view,
conceptualise and interpret the purposes of imprisonment differently. Regarding the purposes
of retribution and rehabilitation specifically, the analysis presented in the article exposes a ‘Janus
face’, meaning that each purpose can, and is, interpreted in two different, and almost contrasting
ways. The article offers three themes regarding the conceptualisation of imprisonment purposes
by the Supreme Court and the European Court of Human Rights: First, the relationship
between the purposes of sentencing and imprisonment along the penal continuum, and the
role of rehabilitation in a prison regime: should sentencing purposes be relatively static during
their implementation in prison, meaning that retributive-oriented sentencing purposes should
be pursued (Supreme Court), or should they conversely progress with the passage of time,
from retribution to resocialisation as the primary purpose of imprisonment (European Court
of Human Rights). Second, the meaning of retributivism in regard to prison conditions: should
prisoners pay a debt to society by suffering in restrictive prison conditions (Supreme Court),
or is retributivism achieved by atonement and by finding ways to compensate or repair harms
Corresponding author:
Netanel Dagan, Institute of Criminology, Faculty of law, The Hebrew University of Jerusalem, Jerusalem
91905, Israel.
Email: netanel.dagan@mail.huji.ac.il
911967CRJ0010.1177/1748895820911967Criminology & Criminal JusticeDagan
research-article2020
Article
634 Criminology & Criminal Justice 21(5)
caused by crime (European Court of Human Rights). Third, the way in which prison rehabilitation
is framed and understood: should prison rehabilitation be seen as a risk management tool aimed
purely at lowering recidivism (Supreme Court), or as a moral concept grounded in a prisoner’s
ability to change his life and belief in personal responsibility for one’s actions (European Court of
Human Rights). Possible theoretical implications and general policy implications are considered
in the article.
Keywords
Comparative law, prison law, purposes of imprisonment, retributivism
Introduction
The ultimate questions that need to be faced in penal policy, as Garland (1986) argued,
‘are not about power or no power but instead about the precise way in which power should
be exercised and the precise objectives to be pursued’ (p. 880). This article seeks to con-
tribute to the understanding of the way in which the purposes of imprisonment are exer-
cised, framed and interpreted by the European Court of Human Rights (ECtHR) and the
Supreme Court (SC) of the United States, while discussing the constitutionality of prison
conditions. As Foucault (1977) famously observed, modes of penal power are also always
modes of power-knowledge. How the SC and the ECtHR rationalise their actions, concep-
tualise the challenges they face, problematise the objects of their actions and define the
proper ends and means of penal practice, are all ideational aspects of penal power that
ought to be taken into consideration when analysing penal policy (Garland, 2006). In
addition, judicial decision-making may be a symbolic indicator of the system approach to
the purposes, the ideologies and the values of prison (Rogan, 2018; Whitman, 2003).
Sentencing scholarship has dedicated considerable attention to the purposes of impris-
onment throughout the sentencing stage, but has dedicated far less attention to the pur-
poses of imprisonment throughout the implementation of the punishment (e.g. Duff,
2001; Kerr, 2019; Tonry, 2018). Also, despite the fact that in many countries courts hold
power to administrate prisons, their decision-making, their conceptions of imprisonment
purposes and their relevance to understanding penal culture has received relatively little
criminological attention so far (Calavita and Jenness, 2015; Kerr, 2019; Rogan, 2018).
On the one hand, as Kerr (2019) noted, sentencing scholarship emphasises the quantita-
tive dimension of imprisonment without giving much attention to the subjective ‘pains
of imprisonment’ (Hayes, 2018; Kolber, 2009). On the other hand, prison scholarship
perceives the sentencing court as the forum in which ‘justice’ is served, while prison is
perceived as relevant mainly to the matters of institutional security, rehabilitation and
risk management (Genders and Player, 2014; Liebling, 2004). Prison problems are
framed in a pragmatic ‘what works’ way, which deflects attention from its normative
aspects (Murphy and Whitty, 2007). Prison officials themselves do not perceive their
task as one of delivering moral messages, but rather, adopt managerial and risk-oriented
approaches (Liebling, 2004). It might be that prison is largely seen as being located in a
different temporal, institutional and legal sphere than sentencing. As a result, the inter-
sections between the two stages are often neglected.
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