What Rights should Prisoners have? Part 1
Prisoners are unlikely to be the most favoured category within society. At the same time, they do not cease to be human beings at the moment they are sentenced. What is the balance which should be drawn between deprivation of liberty and the consequent deprivation of other rights? How should prisoners be treated, and what are the relevant considerations in making those decisions? Do these considerations differ according to the nature of the crime or the nature of the prisoner?
I recently read a piece by US lawyer (I am an associate member of the American Bar Association) which referred to the astonishing attitude that some prosecutors and other commentators display to the position of certain prisoners. The particular prisoners are those convicted of white collar crime. In the post-Enron climate such people are regarded with about as much sympathy as witches might have been in an earlier era. Whilst there is no doubt that crime of this sort can cause much misery to huge numbers of people whose lives are blighted by the ensuing economic consequences, it is still somewhat perturbing (at least in my eyes) to see some of the things that are said. In particular, violent rape by other prisoners (and various other forms of inmate on inmate violence and bullying) is hardly unknown within the US prison system. This can be particularly severe for anyone who has no affiliation with the gang or like grouping. Some commentators, including prosecutors, have made barely veiled references in gleeful terms to the likelihood of convicted defendants being the subject of sexual assault in prison. The inference from the comments would seem to be that in some bizarre way this should be regarded as part of the punishment.
The fallacy of such a suggestion can immediately be exposed by considering whether it would be regarded as acceptable to administer electric shocks or other ill-treatment to prisoners (although in the era of "extraordinary rendition" this might not be regarded as quite as fanciful a suggestion as at other times). Allowing prisons to degenerate into some sort of primaeval Darwinian struggle of strength can be no part of a prison policy. A mere moment's thought should show that. Even were it regarded as morally acceptable, it would in fact inevitably involve penalising the weak or unsupported in favour of the strong and criminally organised. There is certainly no logical basis for supposing that the crimes of the latter category are likely to be less serious than those of the former, and thus no conceivable justification for handicapping or allowing one such group of prisoners to suffer misery for the gratification of the other.
I would have thought that on any rational view taking some sort of "devil take the hindmost" approach to the treatment of prisoners consequent upon a loss of control of prisons could hardly be regarded as acceptable, still less as a legitimate part of the punishment. If one allowed disease to run rife within the prison, would one regard that and the prospect of illness or death as "part of the punishment"? To do so would be unacceptable and absurd.
However just because some consequences at the ludicrous and of the scale are plainly not to be treated as a consequence of imprisonment, that does not mean that there is not a line to be drawn. Next week we shall consider where perhaps legitimately that line might be drawn.