September 27 2023

Watching me, watching you

Watching me, watching you

From their cells in Jeremy Bentham’s panopticon, prisoners are able to grasp their window’s bars, peering out into the lives of their fellow inmates.  Constructed in a circle, with a central tower dominating the institution, Bentham’s prison model aimed to maintain order through scrutiny.  By exposing every prisoner to the gaze of the all-seeing eye of the tower’s prison guards, the hope was that inmates would be deterred from acting out. This omnipresent fear of observation would serve as a Foucauldian punishment.  It was not punishment through brute force, but through psychological power games. 

Bentham was not short of acolytes, but this carceral model never won round the politicians, civil servants, or the public needed to see it enacted on a wide scale.  In part, this was because such a dystopian model discarded even the barest notion of privacy.  Prisoners became perpetual performing monkeys, knowing that whatever action they took, however mundane, could be scrutinised, examined, or mocked by the surveilling guards and their bedfellows.  Such pervasive fear might have fulfilled prison’s purpose of punishing the incarcerated, but would do little to help rehabilitate and re-educate them.  Twitchy, edgy and suspicious are not the traits the state should be trying to inculcate in its prisoners before they are released back into society.

This does not mean that Victorian society was overly concerned with prisoner well-being, nor that Bentham’s philosophy was prioritising prisoner reeducation or rehabilitation.  The public hanging of convicted fraudsters, forgers and pickpockets had only just come to an end, and corporal punishment was still inflicted with abandon.   Worries over prisoner well-being only occupied the minds of radically liberal social reformers like Elizabeth Fry.  Bentham may have been a liberal measured against his contemporaries, but he was not a radical one; and his utilitarian philosophy pushed him towards considering the greatest good for the greatest number.  Prisoners were easy sacrifices, whether by Bentham developing his carceral philosophy, or by the government crafting penal policy. 

HMPs Holloway and Pentonville, constructed within ten years of each other in yet-to-be-gentrified mid-1800s Islington reflected this fixation with punishment and deterrence.  Red-brick walls rose up, dominating the skyline and guarding the central tower from which the prisoner wings radiated.  Intimidating and behemothic,  the ambition was to punish the convicted, to deter the like-minded, and to give vent to the outrage of society. These were some of the final prisons to be constructed by local authorities, with the central government taking control of the UK’s carceral institutions with 1877’s Prisons Act.  But changing the policy-maker did little to change the nature of the  policies made.  

Despite the growing tide of academic literature that emphasised the social and economic causes of crime, and encouraged governments to take a more nuanced approach to penal policy, the fixation on punishment and deterrence remained and remains.  Throughout the 20th century and into the 21st, the rotating cast of ministers in Downing Street and Whitehall weighed and weigh this data and evidence against the atavistic vengeful instincts of the public, with the scale tipping firmly towards the latter every time.  The consequence is that rather than governments being effective on crime and the causes of crime, they obsess over being tough on it.  

The escape of Daniel Khalife from HMP Wandsworth this week has come at an unfortunate time, overshadowing the recent decision of a court in Germany’s Karlsruhe blocking the extradition of an Albanian drug smugger to the UK.  According to Karlsruhe’s Higher Regional Court, Britain’s prison conditions mean it would be unlawful for Germany to extradite him to the UK to stand trial.  Deporting the defendant would expose him to the risk of being kept in ‘inhumane conditions’, violating both ‘Article 3(1) ECHR and Article 1 of German Basic Law’. Germany’s Basic Law takes precedence over the ECHR in Germany’s domestic system, but both articles cover the same ground, with Article 1 recognising that ‘human dignity is inviolable’ and Article 3 prohibiting exposure to ‘inhuman or degrading treatment’. 

This question would previously have been a non-issue under the EU’s European Arrest Warrant (EAW) scheme.  The EAW made the EU a de-facto single jurisdiction on questions of criminal law, operating on the presumption that EU member states had equivalent standards on what constituted adequate carceral conditions and fair trials, with defendants extradited as a matter of course.  While there may be extradition terms within the Trade and Cooperation Agreement, it does not maintain the EAW’s presumption in favour of deportation.  Instead, it gives individuals arrested abroad the opportunity to ask the local courts to scrutinise the adequacy of the UK’s penal system.  

In this case, the court was most concerned with the “chronic overcrowding of the prison system, staff shortage and massive problems of violence in the prison facilities in the United Kingdom”. Within their judgment, the justices noted that the UK still operated ‘Victorian-era’ prisons, “that still do not meet minimum requirements for ventilation, light and space”.  Rather than refuse the extradition request on the basis that British prison standards were inadequate, the court sought assurances from the UK that the defendant would be housed in a way that respected his human dignity.  These were assurances the UK government was reluctant to give.  Despite there being ‘improvements’ within the UK’s second response – the first being inadequate – the German court took a dim view of the likelihood of any meaningful change in prison conditions, prosaically observing the ‘continuing’ overcrowding of prisons, with 82,176 prisoners occupying 77,753 spaces. 

The Ministry of Justice clearly anticipated that the German court was looking for little more than a rubber-stamp to ease its conscience and to give it plausible deniability.  But the judges turned out to be looking for more than vague guarantees.   Rather than blithely accept the UK government’s submissions, which sought to reassure the German judges that the defendant would be treated humanely, the court examined them with a critical eye. A ‘general assurance’ from the UK did not ‘release the court…from making its own risk prognosis’, and the UK had failed to answer its questions ‘comprehensively’.  From here, a refusal of extradition was inevitable.  The judgment is written with teutonic contempt for the British carceral system, not least our allowing prisons to be put in the hands of ‘private providers with the intention of making a profit’. 

Running prisons for profit is an unlikely legacy of utilitarianism’s progenitor, but it was how he hoped to make his fortune.  He was not a Magwitch, hoping to do good and retire as a ‘happy, mawkishly benevolent old man’, but a yet-to-be-redeemed Scrooge, ‘devious, tenacious, and above all, acquisitive’, as Semple puts it in Bentham’s Prison.  Within his panopticon, Bentham envisaged the inmates labouring for his benefit.  In today’s neo-liberal governments, who are all-too-willing to outsource questions of state morality and human dignity to private agencies, he has kindred spirits.  Waving the veil of majority rule, concerns about objective standards and human rights are obscured, with minorities – of which prisoners are perhaps the most vulnerable – sacrificed on the altar of the ‘greatest good for the greatest number’.  

The Karlsruhe’s decision should have humiliated the UK  and its failed carceral state.  A contemporary nation-state has examined our system and found it unfit for purpose, preferring to let a defendant walk free on the streets of Germany rather than send him to the UK for trial.  Instead, it has been ignored.