Prisons and the Crisis of Imprisonment and Legitimacy
by A. Konig

Editor's Note: While this essay does not specifically address Bad Girls or its storylines or characters, it provides an overview of criticism of the institution of prison in general, and analyzes many of the same issues and themes as Bad Girls does.  It therefore provides a fascinating context for the political agenda of the program pertaining to prison reform.

The fact that the penal system is facing a 'crisis of legitimacy' should not indicate the problem is, or will be, as short-lived as the word 'crisis' suggests. Nor should it indicate the imminent possibility of change; a 'critical juncture[1]' that may yield either revolution or collapse. No, the 'crisis of legitimacy' the prison system faces is of 'depth and durability[2]', is ideological in nature and looks to the moral right to wield power,[3] challenging that right. The idea of legitimacy has been raised to explain the disorder and chaos of prison riots, penal unrest and institutional brutality, and legitimacy has been posited as the tool by which order can be re-established. This is somewhat unfortunate, given the inevitable neglect of far more fundamental political questions as to the role and aims of the prison in modern society, the possibility of its abolition, and that the pursuance of legitimacy is a 'matter of justice.[4]'  Put simply, legitimacy has been used to ask the wrong questions and disorder is but one symptom of an endemic disease. This discussion will look to a satisfactory definition of legitimacy, attempt to explore its deficiency in the penal system, and argue that the 'crisis of legitimacy' will only be solved by returning to ideas of social justice and a rehabilitative ideal.

Part of the conceptual problem with 'legitimacy' rests with the panoply of possible perceptions; legitimacy derived from whose judgment? As Zedner points out, the 'judgments of prison and probation staff, of outside observers, of political commentators, and of the general public,[5]' in addition to the very subjects of the penal system, are all relevant. The dichotomy is relatively simple to explicate. Popular public opinion will decide that the legitimacy of prison as an institution derives from its coercive and punitive institutional capacity. However, the more incarceration becomes castigating and repressive in its response to inmates, the more legitimacy is eroded in the eyes of those inmates. Whether the deprivation of liberty should be the only punishing aspect of prison, or whether the unpleasant, negative experiences inside the walls of the prison are part of the intended (and externally-desired) penalising approach is relevant to this obvious conflict. If the latter is true, this leads us to the possibility that the legitimisation of the penal system cannot be simultaneously confirmed by both external observers and internal subjects.

Indeed, Beetham's definition of legitimacy marks the concept out as uncomfortable at best, logically irreconcilable at worst when applied to those in custody. Power is legitimate, according to Beetham, when it conforms to established rules, the rules can be justified by reference to beliefs shared by both the dominant and subordinate, and there is evidence of consent by the subordinate to the particular power relation[6]. A difficult aspect of this definition is the 'shared beliefs' and 'consent' of the subordinate. If the subordinate is taken to mean the subject of custody, the inmate, consent becomes an almost intractable idea. In order to derive a semblance of legitimacy from a penal situation, one must impute beliefs and consent to prisoners in order to logically reconcile traditional ideas of legitimacy with legitimacy within the prison context. Consent to a particular power relation would proceed on the basis of what needs were addressed, what rights were protected and what interests were served, and we must infer that this is desired. In a system where conflict is inevitable between the controlled and the controller, such harmony between power and its subject is artificial and fated to fail. It is this impossibility of the legitimate distribution of power and authority in prisons that has led some academic commentators to call for the abolition of imprisonment[7].

Nevertheless, as Sparks points out, consent to power rarely proceeds on the basis of coercion alone, and is usually motivated by some reasons of self-interest. On this basis, we can make some assumptions as to the abuses of power that are not consented to and illegitimate the prison system. The conditions of imprisonment and the arbitrary execution of power by prison staff are two factors that most threaten legitimacy within a prison. Overcrowding is a long-term problem that naturally generates a dearth of sanitation, safety and privacy. Privacy may seem a meaningless term when applied to custody, but 'cramped and squalid[8]' conditions will exacerbate a situation that is already mostly intolerable. The poverty of conditions extends to routine victimisation, a lack of purposeful daily activities, and limited opportunities for education, training or treatment. At worst, the system reveals an underbelly of scandals involving the 'manacling of pregnant and dying prisoners when they received treatment in hospitals; record numbers of suicides; the jailing in 2000 and 2001 of six prison officers from Wormwood Scrubs for planned and sustained attacks on inmates[9]' and institutional racism[10]. Legitimacy may sometimes prove hard to define, but it is relatively easy in the face of this, to argue that the system is suffering a crisis where the implementation of authority cannot be morally justified given these appalling direct and indirect results. Coercive institutions derive their legitimacy from 'justifying principles and political rationalities [such] as rehabilitation, normalization and control[11]' and a 'crisis of legitimacy' occurs when these rationalities are removed. Where prisons operate in a moral vacuum, and where purpose does not extend beyond containment, the 'crisis of legitimacy' persists.

Indeed, the most satisfactory interpretative account of this crisis lies in the collapse of the rehabilitative ideal[12]. The penal system previous to the 'prison works[13]' Conservative policy and subsequent enthusiastic punitivism on the part of New Labour was rooted in ideas of rehabilitation. This raison d'être legitimised the aims of the institution in its respect for rights, dignity and autonomy, and legitimised the environment of the prison in its provision of training and treatment for prisoners aiming to benefit, not dehumanise. The lack of a rehabilitative ethos is starkly obvious in light of the recent 'rolling back[14]' of state responsibility and the privatization of prisons. The move away from rehabilitation towards containment and deterrence is consistent with the adoption of privatization as a viable policy option, which poses a greater problem for upholding legitimacy within the penal system. Under a 'prison as punishment' and 'law and order[15]' approach, the expansion of the prison population is inevitable. Prisons are costly to run, so a system designed to reduce those costs is unsurprisingly attractive. This alliance of public and private interests generating a prison-for-profits system would crumble within a rehabilitative framework. A privatized prison system that anticipates the release of prisoners through rehabilitation would put itself out of business. There is a fundamental problem then, that legitimacy is dependent upon a rehabilitative ethos, and yet this ethos is at odds with the commercial interests of privatization.

Privatization can be seen as further augmenting the 'crisis of legitimacy' in that it engenders a constitutional dilemma. The enforcement of state punishment is the responsibility of the state and should not be delegated to private organisations that operate without a direct democratic mandate. Democracy is grounded in the rule of law and accountability, and therefore the enforcement of penal legislation should be the undiluted responsibility of the state[16]. Whilst those have argued that there is a difference between allocation of punishment (a state responsibility) and its administration (a task legitimately delegated)[17], this overlooks the fact that punishment's administration will require quasi-judicial decisions that affect the legal status and wellbeing of prisoners. Punishment is a matter of social power, requiring a moral claim, and should not be reduced to the economic successes of competitive commercial organisations. If the current trend is to be observed, privatization is now an irrevocable feature of our penal system and deeply unsettling on grounds of legitimacy.

The 'crisis for legitimacy' undoubtedly exists, although it persists in a manner uncharacteristic of a passing and momentary dilemma. It endures as an inevitable by-product of a system that fails to attach moral claim to the power it wields. Overcrowding, poverty of conditions, brutality, corruption, a lack of transparency, and disorder - these all contribute to, and result from, the 'crisis of legitimacy'. Unless there is a return to an ethos and ideal that looks beyond the mere containment of prisoners; that intends to benefit both society and those that offend against it, the 'crisis of legitimacy' will continue. Any attempts to solve overcrowding and squalor with temporary measures neglects the broader picture, and privatization is unfortunately only consistent with policies that intend to further expand the prison population.


 


[1] Cavadino, Mick & Dignan, James. The Penal System: An Introduction (3rd ed.). Sage Publications, United Kingdom. 2001. Chapter 1.

[2] Sparks, "Can Prisons be Legitimate?" British Journal of Criminology. Vol. 3, 1994: pp. 14-28.

[3] Cavadino & Dignan, ibid.

[4] Zedner, Lucia. Criminal Justice. Oxford University Press. 2004. Chapter 7.

[5] ibid.

[6] Sparks, ibid.

[7] Mathieson, Thomas. The Politics of Abolition: Essays in Political Action Theory. Scandinavian Studies in Criminology, Oslo: Universietsforlaget. 1974.
----. Prison on Trial. Waterside Press, United Kingdom. 2005 (1990)

[8] Zedner, ibid. In 2003, 85 of the 138 prisons in England and Wales were overcrowded and over 16,000 prisoners were doubling up in cells designed for one (Prison Reform Trust, Briefing from Prison Reform Trust October 2003)

[9] Cavadino & Dignan, ibid.

[10] Wilson, David. "'Keeping Quiet' or 'Going Nuts': Strategies Used by Young Black Men in Custody." Howard Journal. Vol. 43, No. 3, July 2004: pp. 317-330.

[11] Carrabine, Eamonn. "Prison Riots, Social Order and the Problem of Legitimacy." British Journal of Criminology. Vol. 45, Issue 6, 2005: pp. 896-913.

[12] Tony Bottoms (1980a) cited in Cavadino & Dignan, ibid.

[13] Michael Howard, then Home Secretary, 1993.

[14] Genders, Elaine. "Legitimacy, Accountability and Private Prisons." Punishment & Society. Vol. 4, No. 3, 2003: pp. 285-303.

[15] Cavadino & Dignan, ibid.

[16] Radzinowicz cited in Genders, ibid.

[17] Sparks 1994, Harding 1997, Moyle 2001 in Genders, ibid.



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