Securing Prison through Human Rights: Unanticipated Implications of Rights‐Based Penal Governance

Abstract

Human rights are a dominant framework for regulating prisons. However, there is little critical interrogation of human rights as they are actually translated into tools for governance. This article develops a critique of human rights by analysing and considering policy as a means of realising rights. It urges sustained and ethnographic attention to policy settings, arguing that policy exerts a form of agency. The article revisits critical criminological claims that reform expands penal control, examining this specifically in the context of human rights governance of prisons. To do so, it draws on the anthropology of policy and science and technology studies (STS) suggesting that these fields offer useful tools and insights in the study of policy. In the final part the discussion turns to three examples of human rights issues in the Scottish penal context to problematise rights‐driven penal policy and suggest directions for research.

Becoming a Prison Officer: An Analysis of the Early Development of Prison Officer Cultures

“…These changes spring from the 2013 Organisational Review: Unlocking Potential, Transforming Lives (Scottish Prison Service 2013) which heralded a notable change in direction for penal policy in Scotland. Unlocking Potential articulated a significant change to organisational vision and strategy in Scotland, embracing an ‘aspirational, rehabilitation focused vision’ (Armstrong 2018a), rooted in a strengths‐based approach in desistance theory. It is within the SPS that desistance theories have had particular impact in Scotland (McNeill 2016) with the key areas of desistance theory reflected in organisational vision and values and key policy documents (Scottish Prison Service 2013, 2016), and in staff training (Morrison 2018).…”

“…However, within this context, persistent and undeniable punitiveness remains, most notably in its extraordinary (by Western European standards) use of both imprisonment (Armstrong 2018b; Brangan 2019, 2020; van Zyl Smit and Morrison 2020) and community penalties (McNeill 2018). Although human rights approaches have been adopted within the context of Scottish imprisonment, this merely allowed for an expansion of the penal apparatus (Armstrong 2018a). Although Scottish imprisonment may appear more ‘civilised’ than imprisonment in its immediate neighbours, and its penal politics certainly more moderate, this narrative of ‘exceptionalism’ allows, and indeed permits, penal excess (Brangan 2019, 2020; see also Armstrong 2018a, 2018b).…”

At Risk of Rights: Rehabilitation, Sentence Management and the Structural Violence of Prison

“…One aspect of a specifically legal violence, that is explored later in this article, is the way that judicial reasoning and decisions govern through time, temporally ordering prison experience, selectively extracting and decontextualizing the lived experience of prison, and denying prisoners' reality and the diffuse nature of suffering in prison. In this way, human rights litigation generates and is part of a technocratic field that systematically disempowers by disbelieving the detained (Armstrong 2018). In the meantime, we can understand that a governmentality lens can help one see how rights operate as a particular mechanism of control in which the controlled cooperate, to some extent, while a structural violence perspective shows how this governance through rights carries damaging consequences for the person in prison.…”

Trans Rights as Risks: On the Ambivalent Implementation of Canada’s Groundbreaking Trans Prison Reform

“…Legal scholars have argued that human rights have the potential to coerce correctional authorities into implementing more humane and just practices because "rights have the ability to manifest as a significant organizational risk" (Whitty 2011, 124) in the prison context (see also Murphy and Whitty 2007;Whitty 2016;Armstrong 2018). Organizational risk refers, first, to the actual or anticipated legal and financial consequences of rights-based litigation, and second, to "the capacity of human rights activism to propel an issue to center stage, damaging an organization's operations and reputation, irrespective of actual legal liability" (Whitty 2011, 124).…”