Degrees of freedom

Abstract

One cannot think of challenging the central place of imprisonment in modern systems of punishment without changing the penal system as a whole. This claim underlies the thinking behind a large part of the move towards the introduction of non-custodial intermediate sanctions, especially those served in the community. Critical questions about reducing the importance of imprisonment by changing the sanctioning system abound. Perhaps most prominent is the oft-reiterated claim that the extension of the range of non-custodial sanctions increases the size of the penal net without reducing the prison population. To this there can be various, not necessarily mutually exclusive, responses. They may range from a flat empirical denial, through arguing that, while this might happen, it can be prevented by sufficient procedural safeguards, to a resigned acceptance of net widening--supported by the proposition that additional sanctions may be necessary to punish offenders whose offenses, while not requiring imprisonment, are too serious to allow them to get away with a mere slap on the wrist. I do not wish to enter this debate directly. Instead I simply postulate that the result of the increased range of sanctions has been that, instead of a simple prison / non-prison dichotomy, modern penal systems subject sentenced offenders to different degrees of loss of freedom.(1) I wish to argue that, if adequately administered and with the necessary legal safeguards in place, these degrees of freedom can be used creatively to change for the better not only prisons but the whole penal system. The Growing Overlap In modern penal systems the degrees by which the freedom of the individual are reduced may range from the extremely limited restrictions of standard probation to incarceration made harsher in the latter instance by internal punishments such as loss of privileges or even solitary confinement. The extent to which these reductions in freedom are imposed directly as a punishment varies, as do the controls on abuse in their imposition and implementation. In these variations lies the true danger of net widening, for it is not always easy to rebut the argument that new penal variations are open to abuse in ways which their predecessors were not. To focus first on imprisonment: I start with a paradox. In most countries the development, for the greatest part of this century at least, has been away from formal variations. Judges generally do not have to choose between types of prison or types of sentences. The old form of imprisonment with hard labor, as opposed to ordinary imprisonment (with ordinary labor), has all but disappeared. The resultant gain in legal clarity has been impressive. Since it has been accepted, in Paterson's well-known adage, that people are sent to prison as punishment not for punishment, it has been possible to recognize, legally at least, that the penal content of imprisonment is the loss of liberty and that the prison regime may not deliberately be organized to be punitive in any other way. This insight provided the basis of the sustained and often successful attack on all compulsory forms of rehabilitation in prison. It also formed the foundation for the assertion that, except for the loss of liberty, prisoners retain all basic rights except those which have necessarily to be restricted to ensure their safe custody. This proposition underlies the attempts to defend the status of prisoners through international minimum standards and prisoners' rights litigation. Of course we are speaking of an ideal, for even in legal form the notion that prisons should be punitive has never disappeared entirely. It has lingered in many ways, not least in the duty to work still imposed in most countries on prisoners. But that duty too is beginning to crumble in the face of the logic of the penal content of the prison sentence--and the practical problem of lack of suitable work.(2) The paradox lies in the fact that, just below the surface of the formally uniform prison sentence, developments, inspired by the ideal that prisons regimes should be relaxed and prisons opened to the outside world, have proceeded apace in the opposite direction. …