The rule of law, security-development and penal aid: The case of detention in Haiti
| Date | 01 December 2013 |
| DOI | 10.1177/1462474513504796 |
| Published date | 01 December 2013 |
| Author | Kara Brisson-Boivin,Daniel O’Connor |
| Subject Matter | Articles |
Article
Punishment & Society
15(5) 515–533
! The Author(s) 2013
The rule of law,
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security-development
DOI: 10.1177/1462474513504796
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and penal aid: The case
of detention in Haiti
Kara Brisson-Boivin
Carleton University, Canada
Daniel O’Connor
University of Waterloo, Canada
Abstract
The combination of flawed penality, crushing poverty and a natural disaster that deva-
stated Haiti’s already fragile criminal justice infrastructure made the country a fitting
candidate for a new kind of international aid effort, which we call penal aid. This inter-
national aid effort uses rule of law theories and practices to develop credible criminal
justice institutions and reform penal practice throughout the world. According to rule
of law measures, detention indicates flawed justice and a weak state, whereas trial and
transformative punishment promotes global security and poverty reduction. The rule of
law is a method for punishing better, a mechanism of international aid, a measure of
global security and a means for the recognition of law-abiding states. Rule of law recon-
struction is about international state-crafting and remaking Haiti in the image of a global
penal state.
Keywords
aid policy, detention, Haiti, rule of law, security, United Nations
Introduction
Detention is a form of penal practice. It is typically understood as a limited gov-
ernmental measure where an accused is confined in advance of a trial or judicial
Corresponding author:
Daniel O’Connor, Department of Sociology and Legal Studies, University of Waterloo, Waterloo, Ontario
N2L 3G1, Canada.
Email: daniel.oconnor@uwaterloo.ca
516
Punishment & Society 15(5)
determination of guilt or innocence. ‘Pre-trial detention’, as it is commonly called,
is deployed for various ‘non-punitive’ reasons, such as ensuring the presence of the
accused at trial, protecting witnesses or preventing the resumption of criminal
activity by the accused before trial. However, within the Haitian justice system,
detention is often deployed to serve a punitive function. As such, Haitian detention
blurs the distinction between pre-trial detention and punitive confinement. In add-
ition, and in so far as it serves a punitive function, Haitian detention is problema-
tized for not being accompanied by socially redeeming objectives and techniques,
such as the transformative-rehabilitative programmes that correlate with the birth
of modern western ‘prisons’. The use of detention in its punitive function, that is,
beyond its pre-trial utility and independent of due judicial process (i.e. trials), has
long been problematized for failing to limit governmental authority and for failing
to cultivate (through rehabilitative measures) the self-governance necessary for a
life of freedom. As a result, detention is dissociated from proper penal practice and
has become a significant indicator of an ineffective and flawed system of justice.
This detention problematic has made Haiti a target of international governing
efforts aimed at transforming flawed justice systems around the world. This inter-
national effort is directed by the United Nations. The earthquake that rocked Haiti
in 2010 destroyed much of the country’s criminal justice infrastructure and created
an opportunity for international aid efforts to assist in the reconstruction of
Haitian justice. In 2011, the UN introduced Rule of Law Indicators as a way to
measure the performance and determine the credibility of criminal justice institu-
tions relative to an international standard. The Indicators would also enable inter-
vention efforts to identify and target the most pressing justice problems. Haiti also
happens to be the poorest country in the Americas according to other UN indica-
tors (United Nations Development Programme’s Human Development Index). The
combination of flawed penality, crushing poverty and a natural disaster that deva-
stated its fragile infrastructure has made Haiti a fitting candidate for a new kind of
international aid effort, which we call penal aid. Penal aid connects flawed penality
with global security and attempts to solve these problems through the deployment
of a particular kind of security-development penology.
Genealogy of the international rule of law
The rule of law is a dispositif. It is a heterogeneous assemblage of rationalities and
technologies of governance that organize and shape possibilities within fields of
social practice (Ilcan et al., 2003; Slater, 2008: 248). While the particular constel-
lation of elements that form a dispositif might prove to be relatively stable, it is the
regularity of their effects that registers as stability. Dispositifs are also adaptable to
various problems and settings across time and space (see Walters, 2012: 77).
Dispositifs are not, therefore, equal to institutions, that is, as arborescent structures
that are seen to develop through processes of differentiation or dedifferentiation.
As adaptable formations, dispositifs migrate through capillary action (Fraser,
2003) across domains, jurisdictions and even scales (see Valverde, 2010) infusing
Brisson-Boivin and O’Connor
517
and transforming social institutions, organizations and other forms of multiplicity
(Foucault, 2007), colonizing domains, spaces or institutions, to shape them accord-
ing to their own requisites (Dean, 1996: 61). Dispositifs are assembled to meet an
‘urgent need’ to manage, govern, control and orient the conduct of the multiplicity
(its behaviours, gestures, thoughts, customs, habits, productive practices, etc.) and
to decode and recode relations within the multiplicity in a way that purports to be
useful (Agamben, 2009: 12,14; Hardt and Negri, 2000: 23) through the composition
of diverse legal, architectural, professional, administrative, financial, judgemental
forces (Miller and Rose, 2008: 63) with multiple and varying dimensions (Dean,
1996: 55). As a result, dispositifs are ‘multiform instrumentations’ (Dean, 1996: 61)
that spread to form networks of heterogeneous, locally constituted governance
formations, comprising a unique ensemble of procedures, rules, subjectivities and
normative expectations (O’Connor, 2002: 37–38).
In order for governance functions, such as deterrence, surveillance, control,
precaution and so on (Aradau and Van Munster, 2007; Foucault, 2009) to be
actualized, they have to be rendered operable (Miller and Rose, 2008: 33, 63),
which is to say that they have to become technical. Technologies of government
seek to translate governing aims ‘into the domain of reality, and to establish ‘‘in the
world of persons and things’’ spaces and devices for acting upon those entities of
which they dream and scheme’ (Miller and Rose, 1990: 8). In this sense, technol-
ogies of governance include not only diagrams, models, formulas and procedures,
but also architectures, routines and rituals, as well as certain intellectual technol-
ogies that serve to render existence actionable, calculable and amenable to
intervention.
While certain governance functions have affinities with particular techniques,
the logic and rationalities of governance do not absolutely determine which tech-
niques will be used. As such, techniques ‘need to be studied separately rather than
being relegated to the extra-theoretical realm of implementation’ (Miller and Rose,
2008: 33; Valverde, 2010: 8). Central to this technological imperative is the prob-
lematization and transformation of previous attempts at governing.
Governing is a congenitally failing operation (Miller and Rose, 2008: 183). This
means that new governing dispositifs emerge through the work of problematiza-
tion. Problematization works to render prevailing forms of governance as failed
operations and, at the same time, as problems to be solved through the develop-
ment of new objectives and mechanisms (see Osborne, 2003: 11). It is on the basis
of failures/problems that new governing dispositifs are formed, since governing
efforts are understood as ways of thinking and acting on problems. For example,
should the objective of punishment be to impede the reiteration of criminal values
or should it be to normalize conduct? Stopping the proliferation of criminal values
might require the reduction of all power and authority to law and all law to a
discourse of prohibition, where banned activities and corresponding punishments
would circulate among the multiplicity as ready-made lists (legal/penal codes). The
perceived failure of law to render social order is associated with the birth of
normalizing strategies where new governmental objectives required transformative
518
Punishment & Society 15(5)
strategies coupling penal confinement with repetitive activities – especially work –
and virtual surveillance to enforce the continuous self-assessment of conduct (dis-
cipline). The perceived failures of disciplinary confinement (‘prison’ properly
called) in western societies is associated with the birth of biopolitical penal strate-
gies where governmental objectives shifted from the normalization of individual
offenders to the management of ‘indices of risk’ (O’Connor and De Lint, 2009: 58)
through practices of ‘variable detention’ (Feeley and Simon, 1992: 453–454). Under
the biopolitical regime, prisons are recycled and transformed into technologies of
variable detention, where they function ‘as a kind of reservation, a quarantine zone
in which purportedly dangerous groups are [variably] segregated in the name of
public safety’ (O’Sullivan and O’Donnell, 2007:...
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