I was delighted to be invited to write a blog for Justicia +, an organisation based in Mexico, on the globally relevant concept of accountability in our prisons. The English version is below, and the original (in Spanish) can be found here.
Accountability and the rule of law take on particular importance in the prison context. International human rights norms emphasise the need for independent monitoring, proper record keeping, and fair procedures in decisions which affect the fundamental rights of prisoners, such as family rights in the case of family visits and transfers, as well as procedural justice during disciplinary hearings. It is well established that fair procedures enhances the legitimacy of prisons, and the role of staff in these processes is essential. As the Association for the Prevention of Torture has said about the Optional Protocol to the United Nations Committee on the Convention against Torture has stated, the ‘basic premise is that the more open and transparent places of detention are, the lesser the risk for abuse’. The rule of law is upheld through clarity in prison regulations, the application of the rules equally, and with fair procedures, recourse to a process of appeals, and respect for rights. These principles are of fundamental importance in places where State power is at its most potent.
Prisons are places of power, which flows in a variety of crucial ways. State power is exercised by means of the imposition of punishment; power flows through relationships between staff and prisoners, out to prisoners’ families, amongst prisoners themselves, between oversight bodies, staff and prisoners, and between various grades of staff. At the same time, prisons are eminently rule-bound institutions, subject to local regulation, national legislation, regional legal instruments and human rights norms, and international obligations. These act as checks on unrestrained power, regulating prison conditions, forms of disciplinary sanction, and contact with the outside world, and are crucial aspects of legitimate penal regimes, as the work of Ben Crewe, Alison Liebling and Sparks and Bottoms has shown.
Two essential elements of the rule of law in prisons are avenues of complaint for prisoners which are independent of the person or body making a decision about a prisoner, and mechanisms for inspection and monitoring on a regular basis. The European Prison Rules emphasise the importance of mechanisms for responding to complaints by prisoners and the possibility of an independent appeals process, while the Committee for the Prevention of Torture has stated that “effective grievance and inspection procedures are fundamental safeguards against ill-treatment in prisons” (2nd General Report). The European Court of Human Rights has also laid down the basic elements which any investigation into the death of a prisoner must comply with. In order to vindicate the procedural element of Article 2, which contains the right to life, an investigation into the death of a person in prison must be instigated by the state, be capable of establishing responsibility for any wrongdoing, involve the family of the deceased prisoner, be independent, and prompt. The Court has also emphasised the importance of effective investigations when allegations that a person has been the subject of torture (see, for example, Makhashevy v Russia). These are principles which transcend national borders.
Clarity and certainty in the law are also essential requirements of a system which is governed by the rule of law. The kinds of behaviour which might result in a disciplinary sanction must be clear to prisoners, and the circumstances in which a prisoner might be refused a visit with a family member or friend must also be readily understandable and have a basis in a law which is accessible to prisoners. In Moiseyev v Russia the European Court of Human Rights held that in matters which affected fundamental rights, it would be contrary to the rule of law that limitations on those rights would be subject to the exercise of unfettered discretion (see further Rogan, 2014).
Accountability in prisons is a critical concept for the safe running of prisons and the vindication of the rights of prisoners. It is also important that we learn more about how accountability mechanisms feel to both prisoners and staff, in order to advance our understanding of what accountability means, and why it is important in the prison context.