Human Rights and Prisons

3.5 Securing Rights at the Operational Level

Thus far, it is made apparent that cultures of penal populism, as well as burgeoning prisoner numbers, can lead to struggles to maintain positive rights-based practices for prisoners and prison staff. These issues are generally directed from outside the penal estate – as, for example, the prison service cannot control the number of people they receive. However, it is also clear that rights standards can be undermined within the prison environment.

For instance, overseas studies (Crawley, 2004; Piacentini, 2004) have illustrated that prison officers are not always keen to engage with rights, for varied reasons, including that:

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  Officers view that prisoners have ‘too many rights’ – that prisoners get more rights than they do, or that rights should be ‘earnt’ privileges;
  

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  Human rights signify external or managerial interference – it is not a part of the remit of officers ‘on the ground’, who are ‘doing the job’. Instead, rights are viewed as part of the ‘do-gooder’ agenda, established by people who do not understand the prison culture or who want to ‘shame’ prison officials. Subsequently, rights standards are to be ignored, circumnavigated or met with defensiveness;
  

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  To secure rights can be seen as an act of weakness or of ‘social work’; it contradicts the prison ethos of security and control. Human rights standards can be undermined through the conflicts of interests between respective providers of care and control;
  

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  Human rights may represent more work. They are viewed by officers as an administrative burden – officers become concerned about the numbers of complaints; the completion of forms; the need for further meetings, and so on. Further, maintaining rights standards often requires extra effort or creativity. From this perspective, human rights reform is a commodity, rather than a way of thinking about the prison experience;
  

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  Human rights can be a frustrating experience – prison officers can become dispirited when some prisoners are provided with opportunities that they do not, then, develop. For example, an officer may invest large amounts of time and energy on certain prisoners – to, say, develop their employment options – and then find that the prisoner returns to prison soon after release. In these circumstances, some officers might think ‘why should I bother?’;
  

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  Human rights are viewed as window-dressing and become a ‘tick box’ exercise. After all, even if we have prisons that can tick all the boxes – and that can cover all minimal standards – that does not necessarily mean that prisons will have positive outcomes in terms of rehabilitation practices or the long-term attainment of rights at community or societal levels. Given this, it seems useful to consider rights practices in prisons in terms of outcomes and not just process (Coyle, 2007; Owers, 2008).
  

From these arguments, some of which may have resonance in New Zealand, it is evident that human rights policies (that can, on paper, appear as a rational and appropriate means of attaining positive relations) may face hurdles at an operational level. Prisons are places of discretion and human rights are continually contested. Thus, while prison managers certainly ‘set the tone’ for rights standards, human rights are established and maintained on the ground level. Rights are, after all, about relationships between people. In the context of the prison, as elsewhere, a focus on practice (and not just policy) is vital.

The Context of Managerialism

At the same time, it also appears that the Correctional shift towards a remit of efficiency, security and risk-management, may well have a bearing on the operational attainment of rights. Many Western governments have realigned themselves to models of managerialism. Managerialism simply refers to the privileging of bureaucratic and managerial principles within governmental agencies, such as Corrections (Coyle, 2007). On one level, it is an enticing idea as it promotes innovation, autonomy, quality standards, flexibility and performance (while meeting consumer needs); it places an emphasis on ‘strategies, mission statements, visions and goals’ (Scott, 2007:58).
Yet, academics have also argued that managerialism challenges the implementation of rights standards within prisons. The remit of managerialism – to embed ‘performance cultures’; to prioritise cost-effectiveness and value for money; to audit and measure effectiveness and efficiency; to ‘contract-out’ prison services and management; to approach the management of prisoners as a technical challenge; or, to rationalise the policy process around risk-management – can result in negative consequences (Coyle, 2007; Garland, 1990; Scott, 2007). Claims for efficiency can ‘bring in its wake moral indifference’ (Liebling, 2008b:71) in which prisoners are no longer addressed as moral, economic, social or psychological beings but are depicted as an ‘unruly risk group’ that must be identified, classified, incapacitated and risk-managed at low cost (ibid; Feeley and Simon, 1992).
Internationally, much has been written about the movement of criminal justice systems along risk-management lines. Ericson (2007) highlights how governments and criminal justice actors have increasingly presented the notion that any risks of crime, or harm, can be eradicated by more effective punishment practices. As a consequence, an appetite for security ‘is legitimated and given much freer rein’ (Loader, 2009:247) to ensure that ‘they’ who risk or threaten ‘our’ lives are securely managed (cf Pratt, 1997). At the same time, the chimera of a risk-free life can mean that the public, and organisations, become less concerned about the impact of securitisation on those who ‘receive’ it – such that longer sentences and increased prisoner restrictions are readily accepted. This can be dovetailed with a reluctance to articulate other values that are mistakenly thought to threaten security – such as human rights, statutory oversight or legal redress (Loader, 2009). This is a ‘treadmill’ ‘of ‘‘tough’ action/new criminal outrage/renewed public anger/more ‘tough’ action’ (ibid:252), and results in increasingly harsh responses to social problems.
The New Zealand realities of managerialism in punishment practices can be observed in new developments, including:

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  Community punishments (such as home detention, community detention and extended supervision) have been directed towards the surveillance, control and management of offenders. Probation work has simultaneously changed, from a basis of welfare and rehabilitative values, to meet this new ethos;
  
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  The 2009 Corrections ‘value for money’ review has emphasised prisoner rehabilitation alongside staffing efficiences. The review recommended the removal of correctional officers from rehabilitation processes and redirection of these tasks to other specialist staff. A Rehabilitation and Reintegration Services group was subsequently established as the focal point for Corrections’ rehabilitation and reintegration work;
  
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  The re-introduction of private prisons that will most likely contribute to a reduction in conditions and staff pay;
  
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  Opportunities afforded to prisoners – such as in relation to family visits or working outside the prison walls – have been eroded in the name of security;
  
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  The reworking of Corrections policy to emphasise aspects of security, risk management and centralised administration processes. In 2010, Corrections introduced the Prison Service Operations Manual (PSOM). The PSOM focuses upon management processes related to induction, risk assessments for double-bunking, the secure movement of prisoners, the correct processing of property, some prisoner activities, prisoner communications and visits, prisoner misconduct rules, complaints, and prisoner releases⁵.
  
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  The tightening of Parole Board decision-making on the basis of risk-management.
  

Each of these measures may be developed and sustained in an ongoing climate of economic uncertainty and penal populism (indeed, the criminal justice system has been subject to constant legislative reform by different government administrations over many years). However, these factors contribute to an institutional structure of imprisonment, and punishment, in which human rights are more likely to be ‘squeezed out’. In their focus on economic efficiences, standardised reporting and prisoner recording, technical alignment, risk management and securitisation, these measures may direct thought, imagination and practice away from a rights framework. After all, these approaches tend to concentrate on ‘processes and outputs rather than outcomes’ (Coyle, 2007:513).

A related concern about this approach is that human rights are implicitly presented as being antithetical to prison security. In reality, this is not the case. Imprisonment concerns go way ‘beyond effectiveness and efficiency’ (Coyle, 2007) and large international studies (Liebling, 2004) indicate that human rights are deeply connected to the maintenance of security. Prison officer and institutional values of decency, fairness, support, well-being, respect, humanity, trust and personal development are highly significant in reducing conflict, developing well-being, creating harmony and enhancing security within prisons (ibid; Coyle, 2008). As Zinger (2006:127) argues, ‘compliance with human rights obligations…is more conducive to positive change’ among prisoners and this, in turn, ‘enhances public safety’. Conversely, prisons that lack rights-based values ultimately change prisoners, staff and institutions for the worst.
This is, undoubtedly, challenging work. Nonetheless, as Liebling (2004:491) argues, ‘…it is surely important to try and preserve (or try to generate) a notion of citizenship’ within and without the prison walls. Generating a commitment to civic virtues must be a better strategy…than crowding them out’.