The use and over-use of prison around the world

Catherine Heard, Director of ICPR’s World Prison Research Programme, writes on a new report looking at disparities in prison use in ten countries, across five continents.

prison-report-launchMarch 16th saw the launch of our new report, Prison: Evidence of its use and over-use from around the world.

Over 40 guests came to the launch (kindly hosted by the law firm Clifford Chance) to hear about the report’s highlights and watch presentations by experts on imprisonment in Brazil and the Netherlands, two of our featured countries. The event was also addressed by speakers from the international human rights NGO, Fair Trials, who co-published the report and are ICPR’s partner on the wider project – of which the new report is the first output.

The human stories behind the data

Given ICPR’s strong focus on prison statistics (as hosts and compilers of the World Prison Brief) we want to ensure this project never loses sight of the many ways prison affects people: not only those imprisoned, but their families, their wider communities and the people who work in prisons.

That is why a core element of our methodology in the wider project is about mapping the ‘custody journey’ in each country. That means drawing on real cases to understand the lived experience of criminal justice and imprisonment – after arrest, in pre-trial detention, during custodial sentences and after release.

Every human story behind a prison statistic has something to tell us about how a particular country uses imprisonment to respond to crime. The importance of listening to the human story came out clearly from the presentation by Jago Russell and Alex Mik of Fair Trials, about their work with individuals who have experienced unfair treatment in criminal justice systems. They played prison-report-launch2a one-minute animation by the Royal College of Art and filmed interviews with three people who have experienced pre-trial detention in different European countries. These can be viewed on Fair Trials’ website.

I was struck by what Jago had said in his Foreword to our report: ‘Statistics alone can sanitise reality – they do not speak to the violence, intimidation and isolation that are part of the daily experience of custody’.

Brazil’s recurring nightmare

Who better to pick up this theme than Dr Sacha Darke, from the University of Westminster? Sacha has visited 30 Brazilian jails and is an expert in the country’s sad history of uncontrolled growth in prisoner numbers – Brazil has seen prisoner numbers increase twenty-fold from around 30,000 in 1973 to over 600,000 today – and the violence and horror this has unleashed. He showed images from recent massacres and riots in prisons in northeast Brazil (discussed on pages 8 to 10 of our report). He then described the importance of prisoner governance, and organised crime group affiliation in Brazil’s prisons. Organised crime groups are by-products of wholly inadequate staff/prisoner ratios. In many of Brazil’s prisons, the role of staff is essentially to guard the perimeter, while prisoner ‘trusties’ are left to organise, arbitrate and discipline on the inside.

It was clear from Sacha’s presentation that Brazil’s prisons have always been in crisis and that there is no real prospect of enough capacity being built to change this. But, on a brighter note, he spoke of his visits to some of the country’s ‘community prisons’. These first emerged in the seventies in São Paulo and, though few in number, they are very different from the hellish, overcrowded prisons that prevail in Brazil. There is close collaboration between the prisons and prisoners’ families and communities. Many ex-prisoners come back as volunteers. Governors and senior managers are often former prisoners. Sacha referred to Fiona Macaulay’s research on Brazil’s community prisons, which have been praised as exceptionally humane in approach.

The Netherlands: reversing the punitive turn?

It was then over to Professor Francis Pakes (University of Portsmouth) to address the question: how did the Netherlands reverse its punitive turn? As explained in our report (page 21), after decades of low imprisonment levels, the Dutch prisoner rate surged from the late eighties, increasing by 200% and peaking at 134 per 100,000 in 2005. Interestingly, despite a strong Dutch tradition of criminology – and good statistical data – there is no consensus on precisely why the subsequent turnaround happened.

After hearing Francis speak, I was confident that in choosing the Netherlands we’d picked the right country to contrast with the high incarcerators featured in this report. There is a lot we can learn from the Netherlands. Maybe our project will contribute to the on-going inquiry about how the Dutch turned around their prison juggernaut.

FURTHER INFORMATION

Understanding and reducing the risk of imprisonment: interview with Catherine Heard

Report authors

Dr Jessica Jacobson, Director of ICPR
Catherine Heard, Director of ICPR’s World Prison Research Programme
Helen Fair, a Research Fellow at ICPR·

Read the press release about the report.

The World Prison Brief The statistical data in the report are sourced from the World Prison Brief, compiled by Roy Walmsley and hosted and published by ICPR. This unique and internationally renowned online database contains a wealth of information on prisons and the use of imprisonment in 226 independent countries and dependent territories around the world.

The Institute for Criminal Policy Research (ICPR) is based at the Law School of Birkbeck, University of London. ICPR conducts policy-oriented, academically-grounded research on all aspects of the criminal justice system. ICPR’s work on this report forms part of ICPR’s World Prison Research Programme.

Share
. Reply . Category: Law . Tags: , , , , ,

Why hate Human Rights? Understanding the case against the Human Rights Act

This post was contributed by Dr Frederick Cowell, lecturer in Law at Birkbeck. Dr Cowell’s forthcoming book, ‘Critically Understanding the case against the 1998 Human Rights Act’ is due to be published by Routledge in February 2017. Here, Dr Cowell offers an insight into his current research project behind the book.

The 1998 Human Rights Act is one of the most controversial and misunderstood pieces of legislation in recent history. The Act brought rights contained in the European Convention on Human Rights (ECHR), into UK law, allowing them to be used in UK courts. Britain had been a party to the ECHR since the 1950s – Winston Churchill helped shape the Convention and was one of its early supporters – but until the Human Rights Act came into force the EHCR had no force in UK courts.

The Act has come in for a wide variety of criticism on legal, constitutional, political and cultural grounds. In the late 2000s this escalated significantly when politicians seriously considered proposals for its abolition. Media stories about the Human Rights Act have assumed near mythological proportions claiming that the Act gives criminals a right to demand fried chicken from the police and prevents foreign nationals from being deported if they have a cat.

Human rights in the headlines (Images cc Huffington Post)

Human rights in the headlines (Images cc Huffington Post)

Reviewing the recent history of the Act

There was a Commission on a Bill of Rights set up in 2012 which delivered a mixed report with some members of the Commission arguing for a Bill of Rights to compliment the HRA and others arguing that there was no need. The Conservative Party’s proposals for a British Bill of Rights published in 2014 is predicated on repealing the Human Rights Act and replacing it with an instrument that would give more power to the government and limit the number and type of individuals who would be able to make human rights claims.

The Conservative Party had a commitment to repeal the Human Rights Act in their 2015 General Election Manifesto and after they won a majority committed to swiftly publishing proposals for a British Bill of Rights. This has since been pushed back and there is little certainty on when these proposals will be published.

During the debate about the referendum on the UK’s membership of the European Union various government ministers have expressed contradictory positions on whether the UK should remain part of Council of Europe – the ECHR’s supervisory body, which is a separate institution from the EU. On Monday the House of Lords EU Justice Committee issued a report criticising the limited aims of the bill of rights project recommending that it in its current form it should be abandoned.

About the research project ­ – What’s wrong with the Human rights Act?

This led me to launch a research project last year that asks just what is wrong with the Human Rights Act that necessitates its replacement. This is important as so much of the debate about a British Bill of Rights, and indeed a major reason why this debate is taking place in the first place, is due to the supposed inadequacies and unpopularity of the Human Rights Act. In spite of a range of hostile media coverage, which has cemented certain myths about the Human Rights Act, polling shows that the public remain broadly supportive of the Act and strongly support the universal applicability of certain rights, such as the right to a fair trial. However, in connection to certain issues, such as whether serving prisoners should have the right to vote, the public are a lot more hostile towards the Human Rights Act and human rights in general.

Dr Frederick Cowell

Dr Frederick Cowell

This project is an edited volume with contributors from academia and practice, critically analysing the arguments levelled against the Human Rights Act. There are several main strands of argument in the case against the Human Rights Act. The constitutional argument, which has been made principally by legal and constitutional experts, contends that the Act is dangerously distorting crucial elements of the UK’s constitution. Others have argued that UK’s tradition of common law rights and civil liberties make the need for rights protection by the ECHR superfluous.

Equally there has been scholarship from the other direction suggesting that the Human Rights Act has enhanced the UK’s constitution or is part of its gradual evolution. These arguments are evaluated alongside high profile issues, such as immigration and terrorism, where the Human Rights Act is widely criticised. Some of these arguments are predicated upon pervasive media misrepresentations about human rights and organisations such as Rights Info have endeavoured to unpick some of these myths. What this work aims to do is examine these arguments in depth and see how a Bill of Rights would be any different in these cases.

Whilst the plans for a British Bill of Rights remain uncertain understanding why hostility to the Human Rights Act occurs and the social and legal structures that are behind it, helps better understand the role that human rights play in society and the challenges that different mechanisms for rights protection might face.

Find out more

Share
. Reply . Category: Categories, Law . Tags: , ,

Why and how to study queer inheritance and will-writing?

This post was contributed by Antu Sorainen, research fellow at the Birkbeck Institute for Social Research

“Inheritance is a social and legal practice of profound significance. For many people, having control over what happens to property after death is both socially important and legally valuable.”

* Rosie Harding (2015).

gay coupleWhat does the inheritance system mean for queer people?

To provide novel empirical data to shed light on this question, I prepared a survey on queer will-writing and inheritance practices while visiting the Birkbeck Law School and the Birkbeck Institute for Social Research in November-December 2015. The 6-lingual online survey closed at the end of January 2016. The number of respondents was surprisingly high: 1007, instead of the excepted 200. The analysis of the survey results will be combined with 120 semi-structured interviews from the UK, Russia, Sweden, Finland, Romania and Hungary.

The analysis of the survey data and the 40 research interviews collected so far has just started. The initial findings suggest that friends often provide more support than relatives for queer people in life crises, such as ageing, divorce, unemployment, and housing or financial problems. It also seems obvious that queer families and relationships do not always fit in the rather narrow model of kinship presented in inheritance legislation in different countries.

A rich source of evidence about kinship

Many of the interviewees feel like Olli, a retired Finnish gay man:

“I had a gay friend who died of AIDS-related diseases and was hospitalized for several years. He would have probably suffered more if not for the circle of gay friends who took care of his practical matters, and visited him weekly to entertain and feed him in different institutions. It is our duty and also pleasure to help those members of the gay community who are dependent and willing to accept our help. We came as the supplement for the relatives who not able to provide the support he needed.”

Olli has written a joint will with his civil union partner to secure the surviving partner’s financial situation and ensure it is possible to hire care-givers during the final part of life. However, not all intimate or caring queer relations automatically turn into queer wills.

The British socio-legal researcher Sue Westwood (2015) has shown that a wide range of kinship formations and compositions – both connections and disconnections – complicate the ties of love and affection and disposal of assets in wills.

“I suggest that wills can sometimes be a rich source of evidence about kinship, but only when analysis takes into account the complexities and contingencies which can be involved”, she argues.

Top findings of the study

It is possible to suggest three things based on the initial findings of the survey and interview data.

  • First, queer people’s experiences about the inheritance system vary considerably from one country to another. North-European countries have different legal systems, such as the “testamentary freedom” UK and the “legal share” Finland. There are also extra-legal cultural differences that may influence will-writing. For example, godchildren may open up the queer inheritance debate in other ways in the UK (see Monk 2015) than in the secular Nordic countries where godparents do not figure very strongly.
  • Secondly, the inheritance system and laws, based on a relatively narrow cultural model of marriage and inter-generational succession does not always fit the life courses and relationship models of people belonging to sexually marginalized groups. For example, in Finland, many children in rainbow families are currently in an unequal position with regards to inheritance, as the co-mother is categorized as an “other” in the inheritance taxation.
  • Thirdly, some queer people, like Olli, would like the inheritance taxation system to support also activist post-life donations: “With the help of testamentary funds, we could, for example, establish pop up publishing houses that would publish such manuscripts that do not find forums elsewhere.”

When to write a will?

Rainbow flagThe Norwegian gay solicitor Halvor Frihagen strongly advices LGBTQ-people to write queer wills at a young age: “It is important to have thought through and talked about things while still friends. People do not think so much about death when one is young and healthy.” He points out that also same-sex couples should talk about who gets what if the relationship ends or one of the partners will suddenly die. (Nordvåg 2016.)

However, according to my survey data, many queer people are confused about the inheritance rules and taxation. What is more, most of the respondents in the sample have not written wills. One of the reasons for this can be a certain self-marginalisation and limited access to the legal advice, sometimes due to the bad experience with the members of the legal profession. For example, Inkeri, a 35year old queer woman, said in an interview that she would write a will would she “trust the straight lawyers to understand the specificities of queer relationships.”

The rule of blood kinship often replaces queer relations or care-givers in the passing of the LGBTQ wealth. Therefore, we have a reason to pose a serious question. In which ways lesbians, gays and other members of sexually marginalised groups as well as persons identifying as trans could get more and better information about the possibilities to arrange their inheritance, such as by writing a will or by other means?

Human life is about other people

But should we, as scholars, support the inheritance system by encouraging queer people to secure the old age of their rainbow friends, lovers and exes via queer wills? Doesn’t such a strategy strengthen the institution which so many of us in the critical troops would prefer to see abandoned and replaced by a more just system of wealth distribution?

My personal answer is this: why not to make a ‘queer use’ of the existing system while imagining more democratic forms that may have an altogether different outlook.

As Lynne Segal (2014) has pointed out, failing to “see any rainbow on the horizon, and knowing the brutal forces protecting every pot of gold, how do we nurture any hope for better times? Friends may die; political contexts change; creative challenges overwhelm us […] Human life is about other people, both the contexts and the ways in which they leave their mark on us.”

Find out more

References

Rosie Harding (2015). “The Rise of Statutory Wills and the Limits of Best Interests Decision-Making in Inheritance.” The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(6) MLR945–970.

Daniel Monk (2015). Sexuality and children post-equality. In Robert Leckey (ed.): after Legal equality: Family, Sex, Kinship. New York: Routledge, 200-215.

Nordvåg, Hanne Bernhardsen (2016). “Advokatens råd: Skriv sameiekontrakt og testamente!”: https://www.gaysir.no/artikkel.cfm?cid=17163

Segal, Lynne (2014). Out of Time – The Pleasures & Perils of Ageing. London – New York, Verso.

Sorainen, Antu (2015a). Inheritance System and Care. http://revaluingcare.net/inheritance-system-and-care-part-2/

Sue Westwood: (2015) Complicating Kinship and Inheritance: Older Lesbians’ and Gay Men’s Will-Writing in England. Feminist Legal Studies. 23:181–197

Share
. Reply . Category: Categories, Law . Tags: , , , ,

Structured Mayhem: Personal experiences of the Crown Court

This post was contributed by researchers Jessica Jacobson, Gillian Hunter and Amy Kirby from the Institute for Criminal Policy Research (ICPR), School of Law at Birkbeck discuss a recent collaboration with the Criminal Justice Alliance an organisation which works in partnership with 90 member organisations to promote better outcomes across the criminal justice pathway.

Structured-Mayhem-webStructured mayhem: Personal experiences of the Crown Court, is a digest of our research into what it is like to attend Crown Court as a victim, witness or defendant published in full earlier this year as Inside Crown Court (Policy Press).

The Digest describes the elaborate, ritualised and in many respects archaic nature of proceedings in the Crown Court, highlighting how these proceedings can be bewildering and alienating for victims, witnesses and defendants alike. The title of the Digest, Structured Mayhem, conveys the often chaotic nature of the criminal trial and other court hearings, and the inherent challenges involved in seeing a case through to completion. Trials often have a large cast of characters, which must be brought together along with vast documentation and a range of evidence in various forms including video or audio recordings and physical artefacts. Things often go wrong, and delays and adjournments are commonplace.

Participating in the court process

Court proceedings are highly theatrical; but these are dramas within which the legal professionals – particularly the prosecution and defence counsel – playing the starring roles, while the victims, witnesses and defendants having only minor parts. And if victims and witnesses occupy a walk-on role in proceedings, defendants could be said to take on the part of ‘ever-present extras’. Rather than being the focus of events, they often appear to be the least important characters at court: almost incidental to the proceedings that, in fact, largely revolve around them. One manifestation of this paradoxically central but marginal status in court is a marked passivity on the part of many defendants towards being in court. This passivity, which was frequently expressed in our research interviews, runs counter to the widely established principle in law that, in order to exercise fully their right to a fair trial, defendants should be able to participate effectively in the court process.

We have blogged previously about the often stressful and disaffecting experiences of Crown Court reported by victims and witnesses and also about the range of initiatives that have been introduced over recent years to help them at court. Examples include the introduction of the Witness Service, whose volunteers provide support to those giving evidence, and the ‘special measures’ made available for vulnerable or intimidated witnesses, including being permitted to give evidence from behind a screen or via a videolink. Provision for vulnerable defendants is less extensive than that for vulnerable witnesses, but it is increasingly accepted that their ‘effective participation’ in the court process often depends on adequate support and practical adaptations.

What needs to be done to improve participation?

Structured Mayhem includes a series of recommendations from the Criminal Justice Alliance for the Ministry of Justice, HM Courts and Tribunals Service and other agencies, which are aimed at improving the experience of all court users and enhancing the public’s confidence in the criminal justice system.

The recommendations include ensuring equivalence of provision of ‘special measures’ across all groups of court users; promoting the use of ‘plain English’ by professionals at court, and explanation of technical terms, to aid victims’, witnesses’ and defendants’ understanding of what is going on; greater use of restorative justice approaches to further offenders’ opportunities to take responsibility for their offending behaviour and to engage with the court process; and use of the dock during court hearings – which isolates defendants and further alienates them from proceedings – on a discretionary basis only, where the judge deems it necessary for reasons of safety.

Find out more

Share
. Reply . Category: Categories, Law . Tags: , ,