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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'
that may yield either revolution or collapse. No, the 'crisis of
legitimacy' the prison system faces is of 'depth and durability',
is ideological in nature and looks to the moral right to wield
power,
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.'
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,' 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.
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.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'
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' and institutional racism. 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'
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. The penal
system previous to the 'prison works' 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' 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' 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. Whilst those have argued that there is a difference between
allocation of punishment (a state responsibility) and its
administration (a task legitimately delegated), 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.
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