Human Rights and the Global Prison

By July Henriquez, attorney and director of Lazos de Dignidad, one of AfGJ’s closest partnered organizations. July has been defending Colombia’s political prisoners for over eleven years. The following is translated and reprinted with permission from Fundación Lazos de Dignidad.  http://fundacionlazosdedignidad.org/Articulos.html 

Trans. Nasim Chatha

Capital and the Prison: A Lethal Mix for the Poor

The prison has been in constant transformation throughout history. The first transformation was for it to become the primary penalty of the nineteenth century[i], replacing the atrocious penalties that were imposed on lawbreakers in ancient times and in the Middle Ages, like slow and painful death (drowning, burning, stoning), beheading, mutilation, whipping, drilling, branding and torture, during which time the prison served only as a place of passage where the offender awaited sentencing.

As the prison became the primary penalty, prisons implemented changes based on the development of techniques or treatment plans to which the offender would be submitted, within which we can see distinctions for those accused and those convicted, distinctions between men and women, between minors and adults, and based on the gravity of the crime for which the person was convicted. There are also distinctions in the change of infrastructures, the implementation of disciplines of control and surveillance, and in re-education, also called “re-socialization.”

Since its inception, the prison sentence has been portrayed to the world as a benevolent development in comparison with the old penalties, and as an irreplaceable solution to the most serious problems facing society. Proponents of the prison have succeeding in labeling it the penalty of civilized societies and, little by little, with the reasoning that it represented a softening of customs, the prison prevailed as an institution of social criminal-legal control. But although it was formally established as an institution in the system of “criminal justice”, it has not ceased to be an instrument of repression and punishment. Therefore, the prison has been the object of questioning, both in its form and in its aims.

More than three decades ago, Michel Foucault was right to affirm that the prison is an essential piece of the punitive system, and that it marks important moments in history, such as humanity’s access to criminal justice, and the colonization of the institution of judicial power by the new class power.[ii] And it is precisely in carrying out this colonization that the powerful and wealthy class exercises social control, subjecting men and women considered “non-productive” to discipline – supervising them, in some cases exploiting them, preparing them to accept the social order that it has established, all the while taking care to internalize within society the need for the prison as the institution for retribution and for curing offenders.

In this sense, the goal of the prison sentence was to repair the damage caused by the crime, and the application of a corrective treatment directed at the offender, which in theory guaranteed that the conduct would not be repeated. In the name of society, this conferred the State with the permission to punish a person by imposing a period of deprivation of physical liberty, seemingly in proportion to the harm caused by the crime as much to the victim as to society at large, but it also authorized the state to monitor and discipline the offender. This formula, in which the infraction constitutes a debt and prison is a form of paying said debt, was characterized by Foucault as prison wage labor[iii], which permits taking the time of the person deprived of liberty, monetizing it, and making it appear to be reparation of an infraction which, beyond damaging the victim, has damaged all of society.

The prison sentence exported by Europe was accepted by most countries in the “modern” world, and was instilled from its beginnings with racist and discriminatory ideologies. In places like Latin America, in the words of Zaffaroni, these constituted a small institution of kidnapping inside the gigantic institution of kidnapping, colonization.[iv] The institution of prison was imposed without considering the cultures and particularities of each country, reproducing a punitive model influenced by the dynamics of capitalist accumulation.

Consequently, it is not surprising that the historical inhabitants of the prison have always been the same: the social enemies of those who hold power and capital. In Europe, at the time of the so-called industrial revolution, the daily bread was misery, begging, unemployment and prostitution. More than hundreds upon hundreds of human beings deprived of their basic needs were taken to prison, being considered non-productive by the prevailing economic model, thus hiding the unfortunate reality of their existence in society, a consequence of a global economic crisis. In turn, profit was extracted from prison labor, and according to Melossi and Pavarini, the prisoners were prepared for the acceptance of an order and a discipline that would make them docile instruments of exploitation, where the functional link between prison and factory is evinced.[v]

These “social enemies” are linked to the harmful effects of capitalism, such as the disappearance of the welfare state, reduction of social benefits, unemployment, famine, lack of opportunities, impoverishment, dispossession, exclusion, and “expulsion.” Expulsion is a phenomenon that, for Saskia Sassen, is due to the active construction of socio-economic systems by large corporations and many sectors of government which expel and impoverish a large part of the population from the system.[vi] This population is enclosed within the “dangerous classes” or” criminal classes,” categories of people for which, as Zygmunt Bauman points out, only imprisonment is possible, thus replacing the functions of the welfare state.[vii]

Within neoliberal logics, according to Sassen, the prison becomes a kind of warehouse of people that the system cannot absorb because they cannot be used. Therefore, human beings who are not functional to the system are expelled and condemned to live warehoused, and without possibility of reentry. [viii] In the same sense, Bauman argues that those unable to participate in consumption are marginalized to the point of being at risk of committing crimes, since there are few or no possibilities of satisfying their desires. Then they are demonized before society, such that the demons are exorcized by subjection to those severe and cruel “cleaning systems” or “cesspits,” as prisons are called – those places where the demons are thrown so that those people who are still functional to the system may remain in the game of consumption without worrying about the bad luck of others. This too explains the boom of the “prison industry.”[ix]

According to this logic, the prison must be consistent with its purpose of accumulation. It is no longer enough that the prison is the primary penalty for dangerous and/or criminal classes, it must also reproduce the forms of monetary relationships, thus keeping the economic-moral aspect of punishment proposed by Foucault in force.[x] This explains the monetization, or quantification, of punishments, in days, months and years.

Proof of the above are the current Western criminal laws, where in addition to the time that the offender serves in “reparation” of the offense (the deprivation of liberty in detention, house arrest, weekend arrest, etc.), the penalty of a fine is included as an accessory to deprivation of liberty (reparation of damages with wages). “Security bonds” are imposed on those granted parole (an “economic” guarantee in case of a flight) and compensation of damages is established in exchange for not going to prison. Everything relates to money, which is precisely what this incarcerated social class lacks.

Thus, imprisonment has become a necessity through which the prevailing economic model is guaranteed a place to deposit and/or eliminate human beings not fit to be consumers, and who are excluded by the system, while at the same time extracting profits and expanding the prison industrial complex, which in recent times has been justified under global policies of intolerance and mano dura, or strong-arm, tactics.

Mano Dura Policy: An Antecedent to the Prison Industrial Complex

In times of the Cold War a doctrine of national security was developed in which communism was considered the main enemy, unleashing persecution against all expression associated with it. Consequently, the prisons of the time were filled with political opponents, but exclusive prisons were also built to be inhabited by those who were considered the internal enemy. In the present day, this policy is still in force and, in the words of Loic Waquant, it now focuses on “remedying social ills with a strong arm”, in which the media-manufactured fear of the poor, the young, the immigrant, the black, and the political opponent plays an important role in generating popularity for the punitive discourse, and in maintaining a society interested only in the toughening of criminal policy.[xi]

In the 1970s, the powerful states showed signs of fiscal crisis, neoliberal policies expanded, and the transnationalization of capital was developed; this situation had an impact on global criminal policy and therefore on prisons. The Reagan administration in the United States encouraged a reassessment of the Welfare-State model of prisons, and opened the field for the implementation of the Prison Complex. Construction plans were put into place for industrial complexes of prisons, including maximum security prisons, where the re-socializing element of the sentence disappears and the security regime is prioritized as punishment; cell isolation is sanctioned, and penitentiary rights and benefits are restricted. Likewise, the policy of prison dispersion, or the prisoner’s constant transfer to prisons far removed from the social and family environment, was imposed.[xii]

From within the United States, the policy of “zero tolerance” was designed by means of the “broken window strategy,” which established the persecution and drastic punishment of minimum infractions or suspected infractions, justified by “preventing the damage from going further.” Police corps, judicial structures and prison construction plans were augmented. Prison privatization was also initiated, ending the penalty of “resocialization” and replacing it with “neutralization”. In this regard, Bauman states that in the United States “…the unlimited dominance of the consumer market…during the ‘anything goes’ years of the Reagan-Bush era…went further than in any other country. The years of deregulation and dismantling of welfare services were also the years in which crime, the police force and the prison population grew.”[xiii]

In this same vein, the so-called “culture of emergency” was developed in Europe, through which anti-terrorist laws that augmented sentences were enacted, detainees were held with no outside communication for days, security forces were strengthened, special jurisdictions and tribunals for the prosecution of terrorism were created, and maximum security prisons were opened.

It follows that these “zero tolerance” and “emergency” policies were focused not only on persecuting the political opponent deemed subversive or terrorist, but also on common behaviors such as drunkenness, consumption of psychotropic substances, petty thefts, prostitution, vandalism, begging, unemployment, among others; for which, indeed, the toughening of penalties and the transformation of the penitentiary and prison system have become the primary treatment.

It is in this context that the contemporary prison model, based on privatization and the maximum-security regime, achieved acceptance in several countries including Colombia, where the influence of policies of intolerance and emergency was evinced by the permanent declaration of a state of siege, the imposition of the security statute, the administration of justice by a faceless and anonymous authority, the citizen security policy, the anti-terrorist statute, Plan Colombia, the construction of new prisons under the influence of the United States federal government, and the implementation of the so-called “new penitentiary culture”.

The Prison Industrial Complex Advances in Leaps and Bounds 

In the last three decades of the prison industrial complex’s development, it has been denounced by social, political, and human rights organizations as a new form of human exploitation, where the prison population works for industries without receiving appropriate salary, unemployment insurance, and holidays, much less compensation; thus rendering it profitable to deprive individuals of freedom en masse.

This model is a profitable business for private capital, in which the profits are not only obtained from human slavery, but from the construction of new prisons and the provision of prison services. In this regard, Nils Christie confirmed that the American Corrections Today magazine’s June 1991 issue printed 111 advertisements relating to three main categories of services: 1. Construction of prison units (entire or partial, adaptable to the requirements of the criminal policy of the moment, made in record time) 2. Equipment for prisons (telephones, electronic surveillance system, weapons and security equipment) and, 3. Administration of prison facilities (private personnel to impart justice and discipline, non-lethal weapons like the Cap-Stun II to maintain control).[xiv]

The above undoubtedly represents a distancing from the legal standard that the administration of justice is the responsibility of the state, and consequently represents the endorsement of the execution of prison law by the private sector. This means that private personnel and companies are assigned the custody and supervision of prisoners, food supply, medical care, health services, communication and correspondence services among other things, causing the special bond that is the state’s responsibility to guarantee the human rights of the prison population to dissolve.

The industrial model of prisons is mainly exported by the United States, which the Alliance for Global Justice (AFJG) [xv] has denounced as “prison imperialism.” This is based on mass incarceration that allows neoliberal economies to manage, by force and intimidation, the inevitable consequences of global capitalism: massive social rupture and growing political dissidence.[xvi]

According to research developed by James Jordan[xvii], since 2000, the United States has increased its intervention in the restructuring of international prison systems, affecting around 25 countries, starting with the Program for the Improvement of the Colombian Penitentiary System, signed by The United States Embassy, ​​and the Department of Justice and Law of Colombia, on March 31, 2000. Then, during the years 2002, 2003 and 2004, following the globalization of the fight against terrorism, the US built new prisons in Guantanamo, Afghanistan and Iraq as part of their occupation plans.

For Latin America, the expansion of the prison industrial complex of the United States federal government is no longer simply something to be aware of, it is a plan in execution in which Colombia, as strategic ally of the empire, plays a leading role. Not only has it built new prisons and implemented restrictive reforms and policies, but it is serving the Empire as an exporter of the industrial model of prisons to Mexico, Honduras, Panama and Peru. According to Jordan, between 2009 and 2013, Colombia trained 21,949 military personnel, police, judicial and prison officials, half of them from Mexico, Honduras, Guatemala and Panama, trained more than 11,000 police officers in 20 countries in Africa and Latin America, and trained 6,000 Mexican federal and state law enforcement officials, including guards and prison officials.[xviii]

From the year 2000, Colombia began the process of transforming the penitentiary and prison system, constructing new prisons and high security corridors, transforming the internal regulations of prisons by tightening the disciplinary regime, and reproducing the policy of prison dispersion, especially when it comes to political prisoners. The government has repeatedly submitted the prison system to legislative reforms that seek privatization. In this respect, Law 906, a reform the Colombian criminal procedure, was issued in 2004. When put into practice, it increased the criminal judges’ tendency to abuse the preventive detention measure and increased prison overcrowding, exacerbating the prison crisis that was declared by the Constitutional Court to be a state of unconstitutionality in its Judgment T-153/98.

The situation of overcrowding that aggravated the prison crisis has also been the hobby-horse of each Colombian government in turn, used to justify the construction of new prisons, and to open the field for the legal transformation of the prison model, all under the fallacy of the so-called “new penitentiary culture.”

Nonetheless, the real causes of the crisis are ignored, as are the solutions proposed by the inmate population and the human rights and social organizations that make up the National Prison Movement. These have repeatedly demanded the installation of a National Council of Prison Coordination, which would first resolve the urgent issues of the prison population, and then would transcend the design of policies and plans for the transformation of the prison under international human rights standards.

A Need to Redirect the Changing of the Prison and its Purpose

The transformation of the penitentiary system towards the development of the prison industrial complex does nothing to solve the harsh living conditions of the prison population, since, as I said above, it moves toward a warehousing of human beings, who are then subjected to suffering beyond the deprivation of liberty. This calls into question the validity of the goal or function of punishment and imprisonment. This question is a pending task for modern criminology, and critical theory has called attention to it.

The role of traditional criminologists and jurists has been reduced in penalizing, judging which punishment will be applied, and evaluating harm. Alternative ways of treating the culpable behaviors are left by the wayside. Instead, it is considered enough for them to weigh and compare existing penal law.

This problem is a ticking time bomb, alerting us to the need to find an alternative solution to imprisonment to resolve social issues or conflicts, which are undoubtedly a product of the social realities of the world. In the case of Latin America Bergalli emphasized in 1983 that an epistemological revision of history should be made and a political theory of its own should be built, from which the immediate work of a Latin Americanist, liberatory, and transforming criminology must be carried out.[xix]

To add to this, not only have abolitionist theories been maintained in modern times, but also trends in thinking have been developed which, on the one hand, defend the existence of the prison under the minimum standards of guarantee of human rights, and on the other, reserve the jail for those who represent a real danger to society, making space for penalties other than the deprivation of liberty.

However, one of the first steps towards actualizing these transformative alternatives is to separate the prison from the interests of capital, since while this link exists there will continue to be a contradiction between the prison and human rights.

If the prison is the penalty that society chooses as its maximum punishment to guarantee that certain harmful behaviors will not be repeated, it must be transformed, and it must not deny people their humanity, it must not separate them from their dignity, it must be used as revenge, it must not reaffirm inequality, and it should not be a reproduction of another prison system imposed by Empire. On the contrary, the prison must find the most appropriate way to take social realities into account.

Conclusions

In the height of the 21st century, prison continues to be a punishment for those who the powerful deem part of the dangerous and/or criminal classes, to hide behind bars and walls the reality of a world in crisis, a sick, decomposing society, and a criminal economic system that has devastated humanity for centuries and is increasingly brutal.

The prison industrial complex is lethal to the condition of being a human and to human rights, and constitutes an instrument of social control belonging to those who have proclaimed themselves the owners of the world. Therefore, it is legislated to repress, neutralize, annul and destroy, under the distracting fallacy of re-socialization.

It is relevant that in our times we are still asking questions like, “what is the point of defending re-socialization in an unjust society?” “What sense does it make to defend the prison if it destroys the human being?” These matters fall to the old, the new and future generations, because the prison remains a reflection of our “society”.

It is necessary to detach the prison from the interests of the world of capital and confront it instead with the social realities of each country. Consequently, it is necessary to construct our own political theory that will allow the development of a Latin Americanist, liberatory and transformative criminology, in which we conceive of penal alternatives and prepare society to detach itself from the fear instilled under the assumption of “insecurity”, which is certainly an insecurity in itself, manufactured by the dominant and wealthy classes that through punitive populism exercise social control.

[i] FOUCAULT, Michel, Vigilar y Castigar, Ed Siglo XXI, 1984, Pág. 233.
[ii] FOUCAULT. Ob. Cit. Pág. 234.
[iii] FOUCAULT. Ob. Cit. Pág. 234.
[iv] ZAFFARONI, E.R.: En busca de las penas perdidas. Ed. Ediar, Bs. As, 1989
[v] MELOSSI, D., PAVARINI, M.: Cárcel y fábrica, Ed Siglo XXI, Bs. As, 1987.
[vi] SASSEN, Saskia.: Territorio, autoridad y derechos. Katz editores, Bs. As, 2010
[vii] BAUMAN, Zygmunt.: Trabajo, consumismo y nuevos pobres. Editorial gedisa, 2005. Pag. 117
[viii] Entrevista a Saskia Sassen, diario El Pais, enero 29 de 2012.
[ix] BAUMAN, Ob. Cit. Pág. 117.
[x] Ibídem.
[xi] WACQUANT, LOIC, Las cárceles de la miseria, Madrid, Ed. Alianza, 2000.
[xii] AUTORES VARIOS, El populismo punitivo, Ed. Coneixer Barcelona, 2005.
[xiii] BAUMAN, Zygmunt, Trabajo, consumismo y nuevos pobres. Editorial gedisa, 2005.
[xiv] CHRISTIE, Nils, Crime Control as Industry. Towards GULAGS, Western Style? 1993. Oslo, Noruega.
[xv] http://afgj.org/about/our-mission
[xvi] http://www.fundacionlazosdedignidad.org/imperio-de-carceles
[xvii] Co-Coordinador de Alianza por la Justicia Global (Alliance for Global Justice – AFJG)
[xviii] JORDAN, James, Imperio de Cárceles: cómo los Estados Unidos está extendiendo el encarcelamiento en masa alrededor del mundo. 2014.
[xix] BERGALLI, Roberto, Crítica a la Criminología, Ed. Temis, 1982.