The tricky balance between protection and limitation of prisoners’ rights.

By: Alice Ducros

Since the creation of prisons in 1785, just after the American Revolution, the theoretical justifications for incarceration are retribution, incapacitation, deterrence, rehabilitation, and reparation. The prison system was put into place not only to punish the person who had disrespected the legal policies, but also to try and rehabilitate the system and reduce crimes. This goes hand in hand with the limitation of prisoners’ rights, as they lose their autonomy and freedom of movement.

Nevertheless, prisoners have rights that should be legally respected, as stated by the United Nations Human Rights Office of the High Commissioners in the Basic Principles for the Treatment of Prisoners. According to the latter, except for the clear limitations that are implied by their incarceration, all prisoners shall retain the fundamental freedoms set out in the Declaration of Human Rights. This consists of protecting their personal rights, owing them respect for their culture and religion, and freeing them of all discrimination. Favorable conditions should be created for the reintegration of the ex-prisoner into society, and they should all have access to the health services available in the country without discrimination on the grounds of their legal situation.

Even if, on paper, they should be free of all discrimination, the facilities and situations that tend to happen prove this wrong. There is a real problem between what should be the protection of prisoners’ rights and how reality tends to limit them.

One of the main fundamental rights that causes problems in prison is due process of law. All legal rights that are owned by a person should be respected. However, access to justice in prisons happens to be an issue, as the infrastructure tends to emphasize hierarchical governing and distance relations. Access to justice implies access to a trustworthy superior; a lack of superior, family, social, or financial background capable of providing a competent lawyer therefore drives discrimination and the inability to protect freedoms in the prison’s compound.

When the prison suppresses individual autonomy but at the same time is required to protect prisoners against state abuse and discrimination, a peculiar approach has to be found.

Additionally, even if prisoners manage to gain access to rights, prison culture has a major impact on how they receive legal services. Sociologists highlight how prison culture tends to lead the prison’s population to oppose itself to the justice system and staff. For this reason, the pursuit of justice through institutional channels can involve stigmatization, abuse, and violence, which are widely normalized and accepted responses, promoting the deployment of conflict resolution by informal means.

While the law tries to protect prisoners’ rights, which already find themselves to be quite limited, the stigma of being a criminal distances prisoners from seeing themselves as ‘worthy of justice’, thus promoting inaction.

Incarceration is a largely debatable system and a geopolitical challenge. There is constantly a debate about the protection of prisoners’ rights, notably limited because of socially hierarchical relations and tense environments, and how this system of isolation should be kept to rehabilitate prisoners by limiting their freedom for a certain amount of time from a perspective of reducing crime in society.

sources

United Nations. “Basic Principles for the Treatment of Prisoners.” OHCHR, 14 Dec. 1990.(https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-treatment-prisoners)

Carvacho, Pablo. “Access to Justice in Prisons or the Limitations of Prison Defense.” Crime, Law, and Social Change, 13 Feb. 2023, Accessed 19 Apr. 2023.(https://link.springer.com/article/10.1007/s10611-023-10082-1)

UNODC. “Crime Prevention & Criminal Justice Module 6 Key Issues: 1. Introducing the Aims of Punishment, Imprisonment and the Concept of Prison Reform.” July 2019. (https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-6/key-issues/1--introducing-the-aims-of-punishment--imprisonment-and-the-concept-of-prison-reform.html)

Miller, Greg. “The Invention of Incarceration.” JSTOR Daily, 18 Mar. 2022 (https://daily.jstor.org/the-invention-of-incarceration/)

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