What Rights Should Prisons Deny?

By James Petty

This article is part of our February theme, which focuses on one of the great silences in the human rights conversation in Australia: Prisoners’ Rights. Read our Editorial for more on this theme.

To ask “What do prisons do?” seems at first an absurd question with an obvious answer. However, prisons and their specific functions are not universal and have changed dramatically over the course of history. Therefore it is worth considering what functions prisons should fulfil and, perhaps more importantly, whether they actually achieve them.  Broadly, the main function of prisons is to incarcerate those who breach criminal law to the extent that carceral punishment – and thus a severe intervention upon one’s liberty – is warranted. This punitive dynamic seeks restitution by denying a person certain rights. By failing to meet the standards of lawful behaviour set by the state, many of the benefits and “freedoms” provided or allowed by the state are withheld or denied. While there may be other, ancillary functional aspects to prisons and the purposes of sentencing may vary between individuals, this is the broadly accepted utility. However, while this is the general consensus that exists within society, the precise meaning and practical consequences of it are largely vague and inchoate.

There is no precise consensus regarding what specifically is included within this swag of deprivations and how far such intervention and its consequences can and should extend. Several are obvious: geographic freedom (for want of a better term) is self evident – the prisoner is incarcerated – the right to self-determination, at least while incarcerated, and the right to live beyond the forceful intervention of the state are all withheld. But what about other, less obvious rights such as the right to privacy, to internal bodily freedom, to intellectual stimulation, to sex (or to be free from unwanted sex), to one’s role as a parent, sibling or son/daughter? Does the state have the right to intervene on these matters that are either fundamental human rights or arguably exist outside of the state’s purview?

What if sentencing aims are in conflict with basic human rights – which should be given precedence?

The United Nations High Commissioner for Refugees (UNHCHR) states that prisoners should enjoy all the rights contained within the International Covenant on Civil and Political Rights (ICCPR) subject to “restrictions that are unavoidable in a closed environment”. A prisoner’s right to be treated with humanity, dignity and respect are set out in articles 7 and 10 of the ICCPR; however, these articles are subject to interpretation. What specifically, for instance, is included within the terms “humanity, dignity and respect?” What if sentencing aims are in conflict with these standards – which should be given precedence? Does protecting the human rights of a prisoner obscure or dilute the punitive purpose of incarceration? Or perhaps, as some would question, does anyone who has received a custodial sentence rightfully forgoes any access to such basic rights.

There are myriad instances where such questions arise yet we have very little capacity to consider these issues fairly.  Instead it seems the standard response is to err on the side of caution, often to the detriment of the prisoner and their family and friends. Take the experience of Melissa for example, who lost her sister, mother and stepfather within a period of five months. Her mother – a deaf mute – was in palliative care, her stepfather died unexpectedly within six hours of Melissa’s mother, on Christmas Day. Her younger brother Mathew, her only living sibling, is serving a custodial sentence. He was given a choice of either visiting the hospital or attending the funeral of his mother, but not both; no explanation of this rule was provided, despite Melissa’s inquiries.  As Melissa’s mother was deaf, mute and very ill, she had been unable to visit Mathew in prison and was unable to speak with him on the phone – she hadn’t seen him since the day he was incarcerated. Mathew chose to attend the funeral and did not see his stepfather or mother before they died. He was also not allowed to act as a pallbearer at the funeral.

Prisons are, among other things, supposed to have a therapeutic and rehabilitative function.

Mathew’s right to partake in the ritual of grief was severely restricted. Further, this apparently arbitrary rule prohibited Mathew from being able to support Melissa and fulfill his role as brother and son within his family. The consequences of such a decision resonate far beyond the individual prisoner – Melissa was forced to be the sole bearer of responsibility for arranging a double funeral and was alone in her grief.  Further, she was subject to the inflexible bureaucratic processes of Corrections Victoria in this already distressing and difficult time and was either met with bureaucratic deflection or simply ignored.

What definition of “humanity, dignity and respect” is being adhered to here? Prisons are, among other things, supposed to have a therapeutic and rehabilitative function – if such principles are not relevant in this situation, when are they? Perhaps deprivations such as these are included within the mandate of punishment. Is this what prisons are designed to do? Was Mathew’s right to partake in family grief intentionally denied, simply unavoidable in a closed environment, or an unnecessary undermining of his dignity and that of his family?

Mathew’s right to partake in the ritual of grief was severely restricted.

When discussing these issues broadly, it is perhaps easy to say that prisoners should be denied so many of the rights we take for granted. The tabloid media often run stories on taxpayer dollars being wasted on hotel-like prisons that pamper prisoners by providing them with television. Melissa’s story, however, offers a different picture.  A picture of prisoners and their families being subjected to decision-making that cannot be understood to serve the core aim of humane imprisonment for the purpose of reformation and social rehabilitation.  It can easily be understood to do just the opposite: instill a sense of resentment and distrust of public institutions and society as a whole.  Is Melissa and Mathew‘s deprivation really an unavoidable incident of imprisonment, or is it a harm that can and should be avoided in the interests of the dignity of families like Melissa’s and the health and safety of the community?  When real-life experiences are brought into view, the question ‘what are prisons for?’ becomes a serious one with practical consequences of the most intimate and important kind.

James Petty recently completed a BA (Hons) at the University of Melbourne; his thesis focused on Victorian drug policy, and specifically the Severe Substance Dependence Treatment Act 2010 (Vic), a statute allowing for the detention and involuntary treatment of substance users.



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