Towards an optimal parenting context in detention

Deze foto van Onbekende auteur is gelicentieerd onder CC BY-ND

When a judge imposes a prison sentence, it has far-reaching consequences for the convicted person, for his or her family and the children involved. The consequences for children are often dire. For example, research warns that incarceration of a parent can disrupt children’s psychological and emotional development processes resulting in, for example, low self-esteem, anxiety, depression and attachment problems.

While these problems can arise from the absence of a mother and father, international research shows that women in detention are often responsible for the main caregiving responsibilities. When incarcerated, their children cannot always call upon the social network of the parent and there is no or little possibility for successful bonding with a parent. In Belgian prisons, children under the age of three can therefore stay in prison with their mothers. Several prisons provide specific facilities for mothers with children. Mothers and children can make use of specific support on the wing and ‘child friendly’ facilities. For example, working mothers can use the prison’s childcare facilities and are supported by services that are also provided in free society such as ‘Kind en Gezin’ (child and family).

While the presence of children in prisons is a daily reality, it remains an under-researched topic in Belgium and abroad. This lack of attention from politicians, scientists and media results in an institutional invisibility of these children (Pösö et al., 2010). As a result, the effects of incarceration on mother and child remain underreported and political pressure to address this situation remains limited. Nevertheless, the need is high: children are not punished however they live in the same context as persons who are subjected to the most severe punishment known today within the Belgian and European criminal justice system: imprisonment. In international literature such a stay in prison leads to a lot of complex debates that are situated at the intersection of different themes such as parental rights, children‘s rights, duties of parents and legal restrictions on imprisoned parents that make it difficult or impossible for them to take on certain responsibilities. This blogpost does not offer answers to all of these complex questions. We limit ourselves to the matter on how to ensure the rights of children and parents as much as possible in a society that permits the deprivation of mothers’ liberty. We moreover focus on the increasing political awareness on finding solutions.

THE CURRENT BELGIAN SYSTEM FALLS SHORT FOR MOTHERS AND THEIR CHILDREN IN DETENTION

Despite all efforts, we see that it is difficult to respect children’s rights in prison. This is partly because the systemic structures of today’s prisons do not sufficiently allow for the creation of a child-friendly environment. After all, in a prison there is institutional violence that interacts in subtle ways with all incarcerated persons. Despite the fact that children are not subject to punishment, their mere presence in this context makes them subject to control. Indeed, people in detention acquire certain codes and behaviour that allow them to survive in a highly controlled environment. Children even begin to normalize this control and adapt their behaviour. Striking examples from research describe, for example, how children re-enact situations in which they constantly count how many people are locked up in the cells (Tabbush & Gentile, 2013). In a Belgian study, a mother expressed her concern that her daughter imitates her and stands with her arms and legs spread as the mother does during a body search (Nuytiens & Jehaes, 2020). Clearly, children get used to institutional forms of control that are far removed from the context in which we want to see children grow up and flourish.

Women do not experience prison as a place where they can adequately perform their caregiving duties as mothers. Often, incarceration is accompanied by feelings of guilt and concerns about the impact of incarceration on parenting. Mothers feel they have failed as a parent because their child(ren) live(s) within the strict routine of prisons. The prison routine does not allow to respect their child’s rhythm. In Belgian research, mothers refer very specifically to the many hours they spend with their child in the limited space of the cell. This limited exercise space hinders children from getting rid of their energy. In addition, mothers feel ashamed about their daily humiliations, exposed to their children (Nuytiens & Jehaes, 2020).

While the context limits ways to perform a mother role, it remains important to encourage mothers to take on their parental duties. Not only for the mothers and children in question but also for our broader society. Studies on the desistance process from crime show that parenting can play an important role. Desistance refers to the gradual process by which people eventually stop committing crime. During this process, changes in perceptions of identity play a central role. In a variety of studies, individuals testify that taking on a father or mother role can change the perceptions of one’s identity in a positive way. One then no longer sees oneself as a delinquent but primarily as a father or mother.

It is therefore in the interest of the child, the mother and society at large to create an optimal parenting context.

A CRITICAL NOTE

Before we elaborate on ways to improve conditions for mothers with children, we wish to stress that this remains a pragmatic solution for countries that allow the imprisonment of parents. In our opinion, we should use detention houses only as an ultimum remedium and within a reductionist detention policy. Thus, a detention house for women should never legitimize the all too easy imprisonment of mothers with their children. This is in line with the view of the Council of Europe. It recommends that prior to sentencing, consideration should always be given to whether there is an alternative to detention for the parent, especially when it comes to a parent taking primary care of the child.

Thus, improvements to detention conditions should not prevent larger discussions on whether societies should abolish the incarceration of parents. Since it is still allowed in Belgium to imprison parents, the implementation of the proposal below should, in our opinion, go hand in hand with a system that takes a critical look at any deprivation of liberty. Below we describe models that allow to limit detention harm, but we wish to emphasize that any form of deprivation of liberty causes harm.

WHAT DO WE LEARN FROM ABROAD?

While Belgian politicians only recently started to search for ways to starkly improve the situation for mothers in detention, other countries have more experience with specific detention modalities for mothers. Before we elaborate on the proposals that came to the forefront in Belgium, we take a look at the situation in Spain, a country with a longer history on detention modalities for mothers with children. To our knowledge, Spain is one of the few countries in Europe that pays specific attention to small-scale and community integrated prison modalities for mothers with children.

In Spain, article 38.2 General Penitentiary Organic Law (LOGP) regulates the presence of minor children inside prisons. Women who are imprisoned can keep their young children with them. Since the 1980s, a series of structures were set up looking for optimal prison conditions. This is how the following four structures were put into operation:

— First, there are Mothers’ Units (or mothers’ modules) (Articles 17 and 178 -181 Real Decreto por el que se aprueba el Reglamento Penitenciario 190/1996, 9 February (RP)). These are specific modules inside closed prisons. The modules are, however, architecturally separated from the rest of the building. As a consequence, there is no interaction between children and other prisoners. Most of the children under the age of three who accompany their mothers during the sentence reside in these modules inside the prisons. Although these modules are defined as adapted to children’s needs, in reality, children do not have enough outdoor spaces or ample places to move freely. Additionally, children have to get used to the prison regulations, the rules of coexistence and schedules that regulate daily prison life.

– Second, there are Family Modules or Family Units. In these units, father and mother jointly share the raising of children, only in those cases in which both are serving a prison sentence in a closed prison.

— Third, there are Dependent Units or “halfway houses”. These are small homes for people that are categorised as posing a low security threat or that are eligible for the open regime[1]. These houses are generally managed by NGOs in cooperation with Penitentiary Institutions. Article 165 RP defines Dependent Units as “architecturally located units outside the prison grounds, preferably in ordinary dwellings in the community environment, without any sign of external distinction related to their dedication”. Although there is not much research on this issue and the law does not specify much more about the development of motherhood in these Units, it has been considered important to refer to an example of a Dependent Unit that houses mothers with their children in Spain, the case of the Dependent Unit associated to the Prison Alcalá de Guadaira (Seville, Andalusia). It is a Dependent Unit, managed by the “Nuevo Futuro” association since 1992, and consists of a home to house women who pose a low security threat and who have their children under three years of age with them (there are some cases in which they can house second level inmates, but this is of a more exceptional nature).  As stated in the Defensor del Pueblo Report (2006): “It is a house, with capacity for eight women with their children, located in the urban centre of Seville. It consists of a central patio, three floors and a roof terrace; on the ground floor there is an office for the prison officer stationed there, a living room, a children’s playroom, kitchen, dining room and a toilet, on the 2nd and 3rd floor are the bedrooms and the rest of the rooms ” (p. 191). The organization of life within the home corresponds to the Association “Nuevo Futuro”  and the regime of the women inmates mainly consists of domestic tasks, attention and care of children, etc. The inmates compliance with the schedules, behaviour and additional leaves are supervised by the Penitentiary´s Institution staff, but staff members do not wear a uniform. In addition, women can also be supported by the prison psychologist or social worker. The reality is that these Dependent Units are less and less used in Spain. Since third-level inmates who are women with children started to be housed, an attempt is being made to intensify the fully open third-level concession as well as the use of electronic monitoring to avoid transferring this type of inmates to these Dependent Units.

— Lastly, there are Mothers´ External Units. In 2004, the General Secretariat of Penitentiary Institutions decided to remove children from prisons. In order to achieve this goal, external units were built, away from the penitentiary centres with a vocation of integration in the community. These units are a “hybrid” model between the Dependent Units and the Mothers’ Units inside the prisons. These External Units depend on the so-called Social Insertion Centres (open prisons), and are located away from prisons that are usually located next to the Social Insertion Centres where women can live. These units can house:

  1. convicted women classified in ordinary regime who are in charge of children under three years of age;
  2. women in a situation of preventive detention (awaiting a final judicial sentence) with minor children in their care (under three years of age), only when authorized by the judge after an evaluation;
  3. exceptionally, these units house third-level inmates or inmates in open regime (however, these women usually go to dependent units);
  4. women who are pregnant for six months and who find themselves in circumstances described above
  5. exceptionally, children will be allowed to stay with their mothers until the age of six. After three years, it will be evaluated whether their presence in prison is a better alternative than being separated from the mother. Also, women assigned to the Unit with a child under three may request the admission of another child not older than six years.

In order to serve their sentence in Mothers´ External Units, women have to accept the acquisition of work, voluntary and active participation in the proposed therapeutic programs, maintaining healthy lifestyle and conduct in accordance with the rules and participation in a therapeutic program in the case she is or has been a drug user. Also, these units have “non-aggressive” surveillance based on electronic surveillance control systems composed of cameras, alarms and presence detectors. Obviously, children are not subject to any measure of legal restraint. The main objective for them is to enjoy childhood, having contact with the outside world and relating to their families and other children.

RESCALED BELGIUM AND DETENTION HOUSES FOR MOTHERS

It is clear that several European countries have been developing different forms of detention over the years in order to be able to respect children’s and parents’ rights. In Belgium, vzw De Huizen/RESCALED proposes the concept of detention houses for mothers and children. It is believed that this will improve their situation.

These detention houses, similar to the Dependent Units in Spain, are small-scale forms of deprivation of liberty that are integrated in society and allow for differentiation. In this way, we can minimize detention harm, develop an approach tailored to the women and children who reside there. Additionally, mothers can resume responsibilities and perform caring responsibilities. Moreover, proper guidance in taking up the mother role can promote the development of the bond between mother and child. Finally, the domestic atmosphere of the detention house allows children to live and grow at their pace.

This model suits most incarcerated mothers because, generally speaking, this group poses little to no escape risk. While a closed and highly secured prison cuts itself off from society, detention houses remain connected to the immediate environment thanks to their proximity and integration in the community. This facilitates visits from other children and family members or services and mothers. Moreover, children have the opportunity to maintain or re-establish social contacts and have access to services outside the house. This uninterrupted connection with the neighbourhood and the social anchoring of the detention house ensure the disappearance of an institutionalized living environment, allowing us to actually work on reintegration.

(Do you want to know more about the RESCALED-concept? www.rescaled.org / www.dehuizen.be )

POLITICAL SUPPORT

In Belgium, political support for this kind of detention houses is growing.

In September 2019, Belgium opened its first transition house. This house is similar to what is internationally known as a halfway house. In Belgium it is a house, integrated in the community, which accommodates imprisoned persons. Imprisoned persons within 18 months before their legal conditional release date can be transferred to a transition house. Consequently, this house is only open for people who find themselves in a specific part of their detention trajectory. Political awareness is growing that not only this specific group of people might benefit from small-scale detention. In 2020, this was emphasized by the new federal government’s coalition agreement. This agreement states that:

In cooperation with the communities, the federal government creates a framework to actively prepare the reintegration of prisoners from the start of their sentence through individual detention plans, the strengthening of psychosocial services, and the further development of small-scale detention projects for certain groups of prisoners (e.g. parents with children, detainees shortly before release, young offenders, etc.) (Federal Coalition agreement, 2020: 71).

The current debates in the Justice Commission of the Federal Parliament, show that the opening of new houses is high on the political agenda and several steps are being taken to open new houses in the near future (e.g. mayors have been contacted in order to find support for the opening of new houses and at the beginning of August, 19 communities showed their interest in a detention house). While the coalition agreement states that the detention houses should improve reintegration in society, an analysis of the debates in the parliament shows that this is also clearly linked to other goals such as the improvement of detention conditions.

In the Parliament, debates that focus on the incarceration of mothers in detention additionally provide insight into the broader policy for parents in detention that the Minister aims to develop. In January 2021, the Minister stressed his belief that detention houses will reduce recidivism. Besides the previously mentioned goals of detention houses (reintegration, improvement of detention conditions, expansionism), a reduction of recidivism is another goal that increasingly pops up. Moreover, and on a critical note, the interpretation of what reintegration means often appears to be reduced to the absence of recidivism. When questioned in regard to the opening of a detention house for children and mothers, the Minister clarifies this policy view:

The desire to focus on “parents with children” is related to the desire to reduce recidivism. After all, we know that maintaining family ties is an asset for effective reintegration. That said, it is still too early to determine exactly which groups will be considered for detention houses, since that will depend on several factors, such as the nature of the buildings chosen and their geographical location, but it will obviously be the intention to target specific groups of detainees, whom we will provide with an adapted framework and supervision, with a view to reducing recidivism. (Justice Commission, 21 January 2021: 11).

Later on, in May 2021, the Minister repeats his intention to open detention houses for people with a specific profile such as women with or without children. Concerning the specific group of women with children, he highlights that Belgian’s largest prison with 1190 places, that is currently being built, will have an external unit that is adapted to mothers with a child. In the future, the Minister generally hopes that detention houses will provide a better context for parents:

…In this regard, it is certainly possible to provide a transition house for women, with or without children. In addition, on the Haren prison site, outside the perimeter, there will be a number of small-scale units of which one is adapted to mother and child, and where detention conditions will be created that meet the same principles of small scale and porosity. Small-scale detention houses are an interesting addition to the existing capacity, but added value should not be limited to mothers only. There are few women who have a child with them during detention. Also for other parents a transition home or a detention house often provides added value, because contact can be made with children in a much more homely atmosphere (Justice Commission, 11 May 2021: 23).

Clearly, this policy entails some improvements to the current detention conditions of mothers in large prisons. However, it is also stressed that these houses are seen as an ‘addition to the existing capacity’ and are not considered as a replacement of prisons but are being opened to increase the country’s prison capacity. For decades now Belgium is facing serious prison overcrowding. At this moment the overcrowding rate is still one of the highest in Europe. National and international pressure currently results in expansionist policies rather than reduction in the use of imprisonment. Detention houses clearly play a role in this expansionist policy. The larger debates on the use of imprisonment that we hoped detention houses would provoke, are unfortunately absent. Another negative note is about the belief that an external unit of what will be the largest prison of Belgium can provide the same support as detention houses. However, we wish to stress that the units remain part of a larger entity that is located in a remote area.

FUTURE PERSPECTIVES

Nowadays we must not remain blind for the far-reaching and pernicious consequences of a stay in prison, especially when it comes to our children who are not undergoing punishment. We even dare hope that this awareness can also lead to broader adjustments, including for parents whose children are not staying with them in prison. After all, we hope to evolve towards an optimal parenting context for all children. Also for children with a parent in detention. For these reasons, we advise politicians to re-examine the incarceration of mothers and children; and of parents in general. The modalities in Spain, as discussed above, show that some countries pay special attention to this group in detention. Belgium cannot stay behind.

We believe that small scale and community integrated detention houses can be part of this solution. Moreover it is our opinion that this approach should be part of a wider debate on imprisonment and especially the imprisonment of parents and its impact on children. For us, a critical look at the imprisonment of parents (regardless of the place where detention takes place) is crucial and intrinsically connected to this debate.

Critical reflection on the current Belgian policy in relation to detention houses is necessary. We encourage all efforts to improve detention conditions focusing on detention houses to achieve this goal, but at the same time we are worried about the fact that this is embedded in an expansionist prison policy. We moreover recognize the need for a thorough discussion on the interpretation of reintegration, as a more complex process rather than a reduction of recidivism. Finally, we wish to stress that also detention houses can cause harm. We therefore believe that criminal justice interventions and criminal punishment should always be seen and used as ultimum remedium.

REFERENCES:

  • Defensor del Pueblo Andaluz (2006). Mujeres privadas de libertad en centros penitenciarios de Andalucía. Informe al Parlamento. Defensor del Pueblo Andaluz.
  • Martí, M. (2021). Prisoners in the community: the open prison model in Catalonia. Nordisk Tidsskrift for Kriminalvidenskab, 106(2), 211–231. doi:10.7146/ntfk.v106i2.124777
  • Ministerio del Interior-Secretaría General de Instituciones Penitenciarias. Unidades      externas de madres. Ministerio del Interior-Secretaría General Técnica.
  • Navarro Villanueva, C. (2018). El encarcelamiento femenino. Barcelona: Atelier. Libros Jurídicos.
  • Nuytiens, A. & Jehaes, E. (2020). When your child is your cellmate: The ‘maternal pains of imprisonment’ in a Belgian prison nursery. Criminology & Criminal Justice,
  • Pösö, T. ; Enroos, R. & Vierula, T. (2010). Children Residing in Prison with their Parents. The Prison Journal, 90, 516-533.
  • Real Decreto 190/1996, de 9 de febrero, por el que se aprueba el Reglamento Penitenciario.
  • Tabbush, C. & Gentile, M.F. (2013). Emotions behind bars: The Regulation of Mothering in Argentine Jails. Journal of Women in Culture and Society, 39 (1), 131-149.

[1]  “level three, similar to the English category D, corresponds to people who are serving prison terms under open conditions. Towards the end of their sentences, third-level prisoners may be released on parole” (Martí, 2019, p. 213).

Photo of unknown author licensed by CC BY-ND 


Pooling our efforts

It seems that we all have gained some experience in deprivation of liberty since the outbreak of COVID-19. It seems that on average we have become more empathetic for those, namely prisoners, who find themselves entirely in that kind of situation.

We like to call our lockdown our own (open air) prison. This comparison appeals to the imagination.

Organisations committed for many years now to helping prisoners are doing everything to strengthen their ambitions getting carried along on the unexpected waves of presumed empathy.

I admire the efforts of those organisations and chuckle about their shrewdness to try to make progress towards meaningful detention, mediation, probation and humanisation in these Covid-19 times. Prisoners deserve more attention. It is a real disgrace that prisoners are still held in overcrowded, often dilapidated prison facilities.

But anyone who seeks better treatment of prisoners within the existing concept of prison, however well intended, forgets that that prison itself is the reflection of values we are no longer defending.

And let’s be clear, we have reached the limit of individualisation; community building is what we should focus on in the future.

Alienation, megalomaniac ideas and bureaucracy keep the old system in place for the time being but the system is doomed to failure. Enforcement of sentences will finally evolve as well. The mega prison concept is the last revival of a model of society that is in fact untenable.

In future, therefore, enforcement of sentences will have to give shape to long-lasting relationships. Small-scale and community-integrated detention houses, together with a whole range of non-residential sentences, are an integral part of taking a long-term view.

We need to start working towards that future now. In fact, we have been doing this for quite a while. Probation, community service, electronic monitoring are sentencing options that try to maintain the social fabric of convicted persons.

But if imprisonment is needed, it must also give shape to all the fine principles that are already legally anchored in the meantime, but not yet put into practice.

And allow me to say the following: anyone who wants to give shape to meaningful, restorative and community building punishment through imprisonment must always add that this is almost impossible within a prison system.

That is why I urge all these people to also promote small-scale detention houses based on the RESCALED concept from now on.

Otherwise I suspect them of not thinking hard enough or feeling so tired from working that they are giving up, fearing the social reaction?

They just keep going around in circles but now is a good time to stop this.

Taking the lead, together with all the progressive penitentiary forces, we might succeed in achieving structural changes.

But not if we systematically keep quiet about the necessary structural redesign.

Incarcerated students are also students: Challenges and solutions from a practical perspective

All people have the right to education. This human right is also enshrined in international human rights instruments for incarcerated people (see for example the Nelson Mandela Rules 104-108). International research shows that prison-based education reduces recidivism.[1] The main explanation for this observation is that prison education enhances the chance of employment after release.[2] Moreover, by strengthening the intellectual, cognitive, and life skills of incarcerated people, prison education can help lower some “natural” barriers to positive community reintegration.[3] As an education coordinator in two Belgian prisons, it is my job to provide incarcerated people with the same education opportunities as people outside prison.

Prison education in Belgium

A fundamental tenet of the Belgian prison system is the normalization principle. This principle entails that the living conditions in Belgian prisons should resemble those in society as closely as possible. Therefore, people’s right to education remains crucial, despite the deprivation of liberty. In practical terms, incarcerated people must be given the same opportunities as other people in society when it comes to their education needs. The Belgian legislator is convinced that bridging the gap between inside and outside, through the provision of a differentiated range of social assistance and services, of which education is an important aspect, will ensure a better reintegration into society, and reduce the risk of recidivism.

Challenges education within prison walls

Nevertheless, the practical organisation of prison-based education is complex. This is partly due to the complex political structure of Belgium. Whilst the federal government is responsible for the execution of sentences, education is a Flemish competence (both inside and outside prison). This means that the many important factors and preconditions for good education are to be provided by the federal prison administration (DG EPI): suitable infrastructure and classrooms, sufficient prison officers so that activities can be organized smoothly, no overcrowding that hampers the good management of the prison, the daily regime in which education can have a place, etc.

Another challenge for prison-based education is that the overall prison population is very diverse in terms of demographic background and (educational) needs. Especially in larger prisons. This diversity makes it very difficult to tailor the offer of group-based prison education to the specific learning needs of each individual. The inevitable consequence is that the offer of education programmes is rather static, and certain individuals will feel let out, despite the best intentions to provide a wide range of educational programmes. In other words, the size, design, and management of large prison institutions make it difficult to individualize the offer and meet everyone’s needs.

Even more importantly, incarcerated people do not have access to the internet. They can only use legally permitted means of communication (art. 65 of the Belgian Prison Act). As a result, incarcerated people are not only physically and socially, but also digitally secluded from society.[4] Digital poverty is one of the most poignant problems of the 21 century. Not only within the prison system but also in society at large. For most of us, a life without the internet is unimaginable. The internet is intertwined with our everyday lives. For the most basic things like making an appointment with the bank or buying a bus ticket, we need internet. In addition, many social services, such as remote learning, are only accessible online and thus, unfortunately, not available for persons incarcerated in Belgian prisons.

If we don’t teach incarcerated people how to use these digital tools – in the same way as people outside prison – they risk missing the boat again upon release.[5] Enabling digital access and strengthening digital skills should not be an issue in detention, but should be self-evident.

Corona crisis as a catalyst for digital developments

Last year, the corona crisis exposed the challenges related to the lack of digitization within the prison walls. The country went into lockdown and incarcerated people were secluded from society even more than usual. No visitors were allowed and almost all social workers were forced to work from home for a certain period. But this crisis has also enabled us to gain momentum. The justice department recognised the importance of digitization, and took action. It was acknowledged that the reintegration of incarcerated people in a rapidly evolving society will be more successful if these changes are anticipated. Two actions were taken. First, the justice department started using Webex (inside and outside prisons), which is a digital tool that enables incarcerated people to make video calls to their family. Second, a working group was established to investigate how to respond to today’s digital needs in the field of prison-based education.[6]

As a practitioner involved in prison-based education, I see improvements and the efforts made. But things are moving slowly… too slowly. The basic question remains whether the prison system will ever catch up, as long as it tries to fit new ideas and new developments from a rapidly developing society into an old prison concept. The prison concept wants to evolve … but continues to face challenges while trying.

Creating the right context for education

Everyone who has ever visited a prison in Belgium, will have seen that the buildings are literally not made for organizing high-quality education. Incarcerated students are supposed to get the same education opportunities as students outside prison, which nowadays involves many digital tools. This is difficult if not impossible in too little and small classrooms, outdated equipment and a strict daily regime. We literally hit the wall while trying.

Why not approach these issues from another perspective? What if we change the context instead? Let’s imagine that we could do our work in small-scale, differentiated and community-integrated detention houses.

First, let’s start from the individual. Good education requires an individualized approach for each person. This is easier in a small-scale context. I work in two Belgian prisons with a different scale, one for about 50 people and one for about 120 people, and notice this difference in my everyday work. In the smaller facility, I know more incarcerated persons by their name, character and their specific needs. This also works in the other direction: they reach out to me more easily, because they know me better.

Second, detention houses that differ from each other, can have their own policies in terms of access to digital tools and internet. In so doing, it does no longer make sense to deny all incarcerated people access to the internet because a few might abuse this access. Some detention houses will have a more liberal policy than others, but as a general rule, all detention houses should have access to the internet. We are living in the 21st century, also in detention.

The differentiation must not only be based on security levels or restrictions, but also consider the content. What do you think of a detention house that focuses specifically a high school diploma? Or on workplace learning and an internship in the community? By working in a differentiated or individualized way, people learn how to deal with freedom and responsibilities, step by step. Taking responsibility also means arranging appointments with community services (such as a school), scheduling meetings and making video calls. Of course, with the support that is necessary. In other words, by differentiating, we would enable self-development.

Third, we must use the services that the community has to offer. This is also done in the current prisons, but as explained above, this is challenging. In practice, we adapt incarcerated student’s learning questions to the limited prison-based educational programmes, instead of using the full range of programmes available in society. Bridging the gap with the regular education system would be easier in a detention house. In detention houses with a higher security level, we can focus on remote learning. Online access to the school’s learning platforms is enough to start a trajectory. But there are other options: the detention house might share a classroom with a school in the neighbourhood (shared spaces) or teaching activities can be organized for mixed groups with incarcerated and other students, which is not exceptional in Belgium (even in closed prisons).

If the old prison concept, designed for individual confinement, isolation and (religious) reflection, cannot simply be given a new purpose, isn’t it time then to evolve towards a detention concept genuinely fit for the 21st century?

[1] Kim, Ryang & Clark, David. (2013). The effect of prison-based college education programs on recidivism: Propensity Score Matching approach. Journal of Criminal Justice. 41. 196–204. 10.1016/j.jcrimjus.2013.03.001.
[2] Cho, R. M., & Tyler, J. H. (2013). Does Prison-Based Adult Basic Education Improve Postrelease Outcomes for Male Prisoners in Florida? Crime & Delinquency, 59(7), 975–1005.
[3] Fabelo, T. (2002). The Impact of Prison Education on Community Reintegration of Inmates: The Texas Case. Journal of Correctional Education, 53(3), 106-110. Retrieved March 10, 2021.
[4] Beyens, K. Robberechts, J. & Vanhouche A.-S. (2020). De coronacrisis als momentum voor het gevangenis? Panopticon, 41(4), 365-372
[5] Director general of the Belgian prison system, Rudy Van De Voorde, 2021.
[6] De gevangenis wordt een digitale omgeving. 

Less and smaller prisons for more human dignity

Prisons are highly potent but highly damaging institutions, both symbolically and in their real effects. Prisons are especially potent in “producing prisoners”, that means persons who are by definition seen as bad-mad-weak-and/or morally inferior. This mechanism plays both inside the prison walls, where staff tend to apply a sameness principle, and in the public penal imaginary, where the prison walls symbolise protecting us, the “good”, from them, the “bad”. The damage is equally high: degrading persons to one characteristic (offender, prisoner) violates their dignity and identity, negates their individual needs and hampers their social reintegration.

This is problematic for the persons involved but also for society as a whole. Respecting the dignity of all human beings is an essential value for any modern society (Article 1 Universal Declaration of Human Rights) and this includes unpopular minorities such as prisoners. Degradation has been shown throughout history to enhance the risk of abuse of power; it leads to resistance and tensions inside prisons; and has an emotional impact on prisoners, families and prison staff. The findings by the European Committee for the Prevention of Torture (CPT) and the European Court of Human Rights demonstrate the continuing challenges raised by prisons in Europe in these respects.

And yes – scale matters. Some prisons are more “survivable” than others, as shown by comparative prison research and by the stories of prisoners and staff members alike. This is linked to many factors, including the quality of the interactions between prisoners and staff; safety, well-being, personal development and family contacts for prisoners; social relationships between prisoners; and the overall quality of life experienced by the prisoner. So small scale is not a guarantee in itself, but it may facilitate several of these dimensions. The emphasis by Rescaled on an individual and differentiated approach and on integration of the detention houses in the community is hence as important as their scale.

We should be aware though of the risk of net-widening in the implementation of detention houses. As is often the case with interesting and promising “alternatives” to traditional imprisonment, the risk that they will not replace traditional prisons seems real. On the inflow-side, they could be used for offenders who would not have been imprisonment in the first place, e.g. because they offer adequate treatment programmes and more protection of society than ambulant treatment. At the output-side, they could be introduced as yet another additional stage between prison and conditional release (cf. “halfway” houses), even where this is not strictly necessary for a successful reintegration.

This should not refrain our efforts to strive for more moderate and less damaging penal policies. This includes less and smaller prisons, more respect for the inherent dignity and the needs of victims and offenders, and more support for staff involved in this complex responsibility.

How to exercise autonomy within a small-scale detention house?

Autonomy is a fundamental human need. This is also true for incarcerated people. However, when people are detained in a closed setting, they lose a great deal of their autonomy. Their freedom of movement is limited and so is their freedom of choice. Even small things like toilet paper become something they have to ask for. Things that were normal, without ever thinking about them, become suddenly impossible.

 

Autonomy and self-reliance are two concepts that recur in almost all discussions and stories about detention houses, pilot projects, alternative wards, and experimental regimes that exist or have existed in Dutch prisons.[1] In these discussions, autonomy and self-reliance are considered crucial for incarcerated people’s future perspectives, motivation, and the ability to make the right choices.

RESCALED proposes to implement liberty-deprivation in detention houses instead of prisons. While re-thinking the way in which liberty-deprivation takes place, let us also re-think the way in which people in detention can continue to exercise autonomy. The many small detention houses will differ from each other in terms of security levels, methodologies and working methods, interaction with the neighborhood, and involvement of support networks. This also means that the opportunities for autonomy and self-reliance can be individually-tailored and should only be restricted as far as strictly necessary.

Competence, belonging and autonomy are three psychological needs of any human being

Let us now take a closer look at the concepts of autonomy and self-reliance, and how they relate to human brains, psychology and behavior. The study of Deci and Ryan (1985) is an interesting starting point. Deci and Ryan have studied the interaction between autonomy, belonging, and competence, which are three psychological needs of any human being. Autonomy is defined in this study as the experienced choice regarding one’s own behavior. When these needs are not met, it will negatively affect people’s self-motivation and mental health. The reverse is also true: when people become autonomous, their performance, well-being and involvement increase. This is in line with other research findings (Sheikholeslami & Arab-Moghaddam, 2010; Meijers, Harte & Scherder, 2018).

 

So, if autonomy is key to people’s well-being, how do we establish the right conditions for people to be autonomous whilst deprived of their liberty? Fortunately, I am not the only one to pose this question, and certainly not the first one. In the Netherlands, many pilot projects and prison units have been implemented exactly for this purpose: to increase incarcerated people’s self-reliance. In some units, residents have the key to their own cell; in others, they can use their own phone or can leave for work in the daytime. Not only the material conditions but also staff members play an important role in increasing the feeling of autonomy. A study by Molleman and Leeuw (2012) shows that people in detention experience more autonomy when staff plays a more supportive role. Many pilots were evaluated positively, and staff witnessed improvements in residents’ health. Moreover, these residents focused more on future perspective and seemed better prepared for their life after detention.

 

Let us now take this one step further and think about the ways in which autonomy can be increased in detention houses. The starting point is that the sentence consists only of the deprivation of liberty and that people should retain as much autonomy as possible. The big advantage of detention houses is that they are small. That means that the way of working can be individually tailored. Each individual has his or her own way to deal with autonomy. In houses with a low-security level, this will be easy. People will be able to cook together, have access to their phone to contact family and friends, might have internet-access, and leave the detention house for work or other daytime activities. But also in detention houses with a higher security level, this will be important. Perhaps even more important to think about.

 

In a high-security detention house, increasing autonomy will be all about small elements of self-reliance. The freedom of movement inside the house and garden does not have to be restricted. By giving people the key to their own room, their feeling of autonomy will increase. But autonomy involves more than physical movement. It also includes control over daily life activities that can be implemented in a closed setting: managing one’s own finances, under supervision if needed, determining one’s own daily schedule, being able to cook, even if it is only once a week, being able to do one’s own laundry and to order groceries. The feeling of control and autonomy will also increase when people can set their own goals, in addition to their goals of reintegration, and when they are supported in achieving these goals by enabling them to study or exercise, or by involving their social network. And why not empower them by letting them organize social activities in the detention house?

 

The custodial sentence only limits people’s freedom, so let’s not shackle the brain!

 

Amongst others [1] Meer autonomie en contact met de buitenwereld maakt gedetineerden minder agressief

Prisons: no more brick in the wall

The Ministry of Justice has recently published the statistical series of persons in custody[2] in France between 1980 and 2020. One of the major findings: more and more people are being incarcerated. Indeed, the number of people in custody has increased from 36,900 in 1980 to 82,300 in 2020, including 70,700 people in prison. A record number was reached in April 2019: 71,828 people in prison. It must be said that France is regularly singled out for its inhuman detention conditions. In January 2020, France was condemned by the European Court of Human Rights in a landmark ruling recommending to take measures to end prison overcrowding.

Over the centuries, France has developed a prison complex composed mainly of large institutions. Of the 186 prisons in existence today, 130 have a capacity of more than 100 persons. The small scale prisons built in the 19th century are slowly but surely being replaced by large institutions. These “city-like prisons” now dominate the prison landscape, while other smaller institutions, which we will discuss later, are struggling to develop.

A LACK OF COHERENCE IN POLICY DECISIONS
As described by Manu Pintelon in his latest blog, the Belgian government is pursuing two seemingly incompatible objectives: the expansion of the prison complex with the construction of new facilities with several hundred places, while promoting small detention houses for certain target groups.
In the same way, in France, political decisions in terms of imprisonment sometimes seem inconsistent to us.

On the one hand, the new Minister of Justice, Eric Dupond-Moretti, wants to develop alternatives to incarceration, in particular with the use of house arrest under electronic surveillance for sentences of less than 6 months, as well as alternatives to prison from the moment of the hearing for sentences of less than one year. In other words, the Minister of Justice reminds once again that prison, as mentioned in the law[3], should not be the reference sentence in criminal matters, and that other measures should be developed in order to avoid detention.

On the other hand, the government plans in its Programming and Reform Law for Justice 2018-2022[4] to build 7,000 new places by 2022 and then 8,000 additional places, for a total of 15,000 places in addition to the current 60,626 places. This law continues the ongoing attempts to solve the prison overcrowding and more specifically the Chalandon plan, which promised the construction of 13,000 additional places as early as 1988. It has become clear, however that the curve of the increase in prison places only follows the curve of the increase in incarceration without ever catching up. The words spoken in 1819 by Duke Decaze are still valid: “as construction expands, the number of prisoners increases”. As a result, living conditions in detention are marked by difficulties in maintaining ties with relatives, lack of privacy, conflictual relations between detainees and with prison staff, limited access to work posts. New prison places will not necessarily contribute to improve these conditions, especially if they are built in the same way as the previous ones, far from the cities, in the form of large complexes of dehumanizing size. This is all the more problematic since investing in new prison places seems to be prioritized over the maintenance of existing facilities, and over the development of non-custodial sentencing options. This is particularly unfortunate because these are more humane, less costly and much more effective solutions to prevent recidivism and remedy prison overcrowding.

Lutterbach penitentiary center (in the Grand Est region, near Mulhouse), construction started in 2018, to be completed in 2021. Lutterbach penitentiary center (in the Grand Est region, near Mulhouse),
construction started in 2018, to be completed in 2021.

TURNING THE SENTENCE INTO AMEANINGFUL TIME
In order to promote the rehabilitation and desistance of incarcerated people, the Prison Administration has launched several experiments. Of the 7,000 new prison places pledged between now and 2022, 2,000 are part of the SAS program (“Structures d’Accompagnement vers la Sortie”). These facilities receive between 60 and 180 people with a sentence shorter than one year, or at the end of their sentence. The promise: an enhanced program of activities and greater autonomy. Another project that will be launched in 2021 is InSERRE (Innovating through Experimental Structures for Empowerment and Reintegration through Employment): prisons with a capacity of 180 people, all enrolled in a vocational training program or work. These experiments are interesting, but will they be enough to challenge the entire prison system?

In addition, the Prison Administration encourages the development of “outdoor placement”. This allows a person who is sentenced to prison to serve all or part of that sentence outside of a prison, while being supervised by an NGO that collaborates with the Prison Administration. Today, around 600 people are being taken care of by organizations during their transition from prison to freedom. One example is the Emmaüs farms, presented in a blog by Inês Viterbo. This measure when it is carried out in NGOs with small numbers of persons allows for individualized support. We know how an appropriate tailored approach helps reintegration and facilitates desistance. We have everything to gain from the development of this type of initiative.

In sum, we can see a contradiction in these policies: alternative sentences are encouraged, while at the same time promoting the extension of the prison facilities. Efforts to reduce overcrowding should focus on developing alternatives measures to detention. When detention is necessary, it should be carried out in a context that respects the dignity of the individual. Let us make the sentence useful both for the detained person and for society. Let us put reintegration back at the heart of the sentence through individualized counseling, in small-scale centers such as detention houses where everyone’s responsibility is engaged.

[1] In reference to the song ” Another brick in the wall “, from the band Pink Floyd.
[2] This legal act (“être sous écrou”) covers several realities. A person in custody may occupy a place in prison or be accommodated outside the prison (at home, in a shelter or in other accommodation) when his or her sentence has been adjusted.
[3] Law n° 2009-1436 of November 24, 2009.
[4] 2018-2022 Programming and Reform Law for Justice, which entered into force on March 24, 2020.

 

Inconsistent detention policy

Belgium formed a new government in September 2020. Exciting times for organisations that want to influence policy. RESCALED Belgium succeeded in putting detention houses on the political agenda. Literally it is stated in the Coalition Agreement that small-scale detention projects for different target groups, such as those shortly before release, young people aged between 18-25, parents with child… will be continued. Good news, but another remarkable thing is that our government is also creating extra prison capacity by building new large prisons. Two compatible or rather conflicting objectives?

FOCUSING ON SMALL-SCALE DETENTION

In order to be able to situate the concept of small-scale detention within the new policy, we need to take a closer look at some political documents. On 30 September 2020 the Coalition Agreement of the new De Croo government was published. The section on the enforcement of sentences refers to the implementation of Master Plan III, which is an update of Master Plan I and Master Plan II of the previous governments. These Master Plans are the basis for the prison policy in Belgium. More specifically, these Master Plans, together with the Coalition Agreement, serve as a starting point for the policy document of our new Minister of Justice. On 4 November 2020, his policy document was published in which he outlined his strategy for the coming years.

Small-scale detention was included for the first time in Master Plan III: small-scale transition houses were to be realized in Belgium. These are detention houses intended for people serving the last part of their prison sentence. The first transition house opened in Mechelen in September 2019 (15 places). In January a second transition house (15 places) opened in Edingen/Enghien (see June blog post). It was clear from the start, however, that the government intended to expand this total capacity to 100 places. This was also mentioned in The Coalition Agreement and the policy document. So soon more transition houses will be set up.

Other forms of small-scale detention houses are included for the first time in the policy document of the minister of Justice. The minister sees them as solution to the ‘prison problem’ and prison overcrowding. But he also expressed a new way of looking at our prison system. He believes that detention houses are able to break the vicious circle, especially for young people, in a way that prisons cannot.

In this way the government is creating adjusted capacity with a differentiated level of security that allows incarcerated people to maintain social relationships in society and thus preventing or limiting the harmful effects of detention. In so doing, these small-scale forms of detention play an important role in the subsequent return of these people to society.

FOCUSING ON BUILDING MORE PRISONS

The first two pillars of Master Plan III explicitly contain action items such as renovations, extra prison cells and completely new prison facilities. The Coalition Agreement, and the policy note in particular, do emphasize this. In other words: the construction of new prisons is high on the agenda and is planned for the near future.

The construction of two “mega prisons” is planned in 2021-2022. The Dendermonde prison will house 444 people in detention and is built according to the well-known Ducpétiaux model (star-shaped prisons with radiating cell wings from a central observation point). The new Haren prison will accommodate up to 1190 people in detention and is also referred to as a “prison village”. This is promoted as a prison with more humane conditions. Without doubting the good intentions and the need for improved material conditions in Brussels prisons, working towards reintegration will be more difficult in these large prisons, as they cannot be integrated in the community in the same way as small-scale detention houses.

Prison village in Haren.

Prison village in Haren.

(Bron: https://www.gevangenisharenprison.be/nl/werf/)

New prisons are planned in Antwerp (440 places), Leopoldsburg (312 places), Liège (312 places), Verviers (240 places) and Vresse- sur-Semois (312 places). Some new prisons are being built to replace outdated facilities; other prisons are constructed as a “solution to reduce prison overcrowding”. In short, a lot of extra places.

TWIN-TRACK APPROACH OR SIGNS OF COLD FEET?

In the policy documents published by the Minister of Justice there are two things that draw attention. On the one hand the inconsistent approach focusing on small-scale forms of detention, while also building new “mega prisons”. On the other hand the fact that our government is committed to creating extra detention capacity, which is worrying. Why do these inconsistencies arise? A twin-track approach or signs of cold feet?

While the government is sending a clear message that it is aware of the negative impact of imprisonment, increasingly supporting small-scale detention projects, all too often the decision is made to construct “mega prisons”. It is argued that “this is necessary in order to alleviate prison overcrowding”. But we do not think it is as simple as that. Over the past years we have learnt that building new prisons will not reduce prison overcrowding, on the contrary it results in a lack of capacity. Moreover, we must remain vigilant with regard to net widening.

A second reason for building new prisons is also because the current prisons are very outdated, which is logical. These buildings date back to the 19th and 20th centuries. But not only the buildings are outdated. The concept of prison is also hopelessly dated. Society has changed dramatically since then. Innovation is the key word of policymakers, but are modern prisons also part of a progressive prison system’s approach? In the coming decades we will be tied up on the choices we make now. The choices must therefore not only be consistent with the current social needs, but also with those in 20 years’ time.

A third reason is that politicians, together with the rest of us, are used to prisons as places for liberty-deprivation. It takes courage and perhaps some imagination to see that liberty-deprivation can also take place in small-scale detention houses. In fact, implementing liberty-deprivation in small-scale, differentiated and community-integrated detention houses is more in line with the principles underlying our Prison Act. Many Belgian politicians are getting convinced of the importance of detention houses. Expanding small-scale forms of detention is a concrete result of this. However, politicians consider detention houses as being part of a bigger picture, whilst considering large prisons absolutely necessary to solve the capacity problem in the short term. This is a quantitative-based argument that does not go into the very essence of the matter. After all, it does not take so much imagination to see that the 19th century prison concept is not best suited to meet current and future social needs. Focusing on small-scale, differentiated and community-integrated forms of detention would make a qualitative difference.

Replacing the outdated prisons facilities by small-scale, differentiated detention houses that are embedded in society, and no longer by mega prisons who will lead to a situation of ‘security overkill’ to the detriment of care and guidance of people in detention, would in my view demonstrate much more consistency in detention policy. It is time to get rid of our penitentiary heritage breaking the vicious circle for real.

The geographical placement of detention houses: why community-integration matters

While Norwegians urbanize towards the big cities, Norwegian prisons migrate out. Prisons are no longer welcome as part of our city plans. In the last decade, the Government has shut down existing small-scale prisons. These prisons have been replaced by new large-scale prisons, in secluded locations. Why are we seeing this trend towards building new large-scale prisons in rural contexts?

We have clearly witnessed this development over the last decade. The latest example of this trend is the brand new Agder fengsel: Norway’s largest high-security prison, which opened in 2020. Agder fengsel consists of two departments, including Froland fengsel (200 prison places) and Mandal fengsel (100 prison places). Located in the forests and at the outskirts of industrial parks, these facilities remain closed and unavailable to the public. This is at odds with key principles of Norwegian prison policy, such as the proximity principle.

“The proximity principle is an important principle for the correctional services which entails that prisoners should serve their sentence as close to where they live as possible. Keeping close contact with family and friends is important during imprisonment, but also in a rehabilitation perspective. Imprisonment near the prisoners’ home is also of great importance for keeping family ties, especially for children with a parent in prison.”Hanne Hamsund (managing director), The Organisation for Families and Friends of Prisoners (FFP)

DISTANCE EQUALS DISCONNECTION.

For many, the rural placement of Agder fengsel equals long distances and impractical travel routes, which can make it inconvenient and difficult to visit. This inconvenience affects important contact with personal relationships like family and friends. Another consequence is a lack of access to existing networks and services outside of the prison walls for the incarcerated person. Ultimately, leading to the loss of touch with normal life. This form of disconnected imprisonment can increase the level of institutionalization and erect barriers for reintegrating back into society after being released.

The Norwegian correctional service is based on the ideology of rehabilitation, and the principle that prisons should serve as institutions for change and personal development. The people in detention should be able establish a future from behind the walls, so that when they are released, they already have a home to return to, a positive and reliable network, as well as an education or career path to pursue. All in all, incarcerated people should be able to build a strong foundation while in detention that can enable a safe return to their home environment.

Rehabilitation is the expected outcome for the people detained in Agder fengsel. However, if we want them to rehabilitate and successfully reintegrate back into society, we must provide them with the grounds to do so. These grounds can be found in the community. Therefore, we must stop building large, introverted and disconnected institutions. Institutions that become displaced and forgotten.

Instead, we need to re-value and build accessible detention houses that are embedded as part of our urban communities. Socially integrated detention houses with an opportunity to participate and give back to its neighbourhood.

Let us also remember what purpose prisons serve in our society. When prisons are physically removed from society, they fail to convey their message to society, that is to remind us that there is a consequence to crime, which brings about a general deterrence effect, but also that there is a shared responsibility for the successful reintegration of people who have spent some time in detention.

OUT OF SIGHT, OUT OF MIND

Large facilities deviate from the highly valued proximity principle. A principle sought to be implemented by the Norwegian correctional service. By doing so, we physically disconnected ourselves from prisons. However, to what end? And, more importantly, what are the effects of doing so?

RESCALED proposes an alternative that supports the principles of proximity, rehabilitation and reintegration, all key to Norwegian prison policy. In sight and in mind.

The “new normal” in the prison system?

In Portugal, the Law no. 9/2020, 10th of April, approved an exceptional regime for loosening the execution of sentences in times of the COVID-19 pandemic. The law provides, amongst other measures[1], for the amnesty of crimes with a prison sentence (i) of no more than two years or (ii) whose remaining period does not exceed two years, if the convicted person has already served at least half the sentence. [2]

The measures included by the Government in this legal diploma were subject to the most trenchant criticism by some opposition parties, who considered them to be excessive and prone to a dangerous social alarmism, based on the fear that the release of convicted individuals would pose a risk to the security of the population. Almost four months after the entry into force of this Law, and according to information provided by the Directorate‑General for Reinsertion and Prison Services, the crime rate of the individuals released due to the pandemic was almost nil. According to what was reported by the Jornal de Notícias, “only 24 out of the 1314 individuals released from prison (1.8%) under an amnesty measure (…) committed new crimes and returned to the prison system“.[3] These figures dismantle the prediction, at times apocalyptic, of a significant growth in crime that would stem from the implementation of such loosening measures.

But if the application of the aforementioned measures does not seem to have brought up negative outcomes with regards to recidivism, the same cannot be said about social reintegration, an indicator as relevant as the previous one to assess the efficiency of a prison system. Truth being said, these new measures have uncovered a long-perceived reality: the profound difficulties of social reintegration for people who have been subject to a custodial sentence. According to the reported data, cases occurred of individuals who preferred seclusion to freedom: five people voluntarily returned to a prison establishment and eleven did not provide the necessary consent for a renewal of their leave. [4] It is urgent to reflect about these cases.[5]

One of the main purposes of a sentence is the social reinsertion of the convicted person. This is, from the very beginning, the first of the aims listed in article 2 of the Code of Enforcement of Sentences, according to which “the execution of sentences and security measures involving deprivation of liberty aims at the reinsertion of the agent in society“. But how can the prison system prepare an individual for a return to society if the deprivation of liberty is lived, from beginning to end, in segregation? Can the isolation of an individual, over a long period of time, enlighten him or her on how to live in a community? In many cases, such rupture can be difficult to restore. This isolation is so marked that, when the moment of freedom came, some preferred to voluntarily go back to prison. Now, this result is clearly the opposite of what a prison system purports to achieve. Many people had no back‑up solution at the time of their release for pandemic reasons: some reached out to hospitals, others knocked on the door of the Santa Casa da Misericórdia de Lisboa in search of a room to sleep, others ended up living on the street and there were still those who stayed in a campsite, an emergency response prepared for no more than 40 people.[6]

But what could and should be different, then? How could a prison system be more efficient in achieving its purposes? Going deeper, in light of what criteria should a prison system be assessed? Are the recidivism rates and/or reinsertion metrics sufficient? Even if these are, in themselves, valid criteria for evaluating the ends (or results) achieved, what will be the best criterion for choosing the means to adopt?

The normalization principle, expressly enshrined as the fifth fundamental principle of the European Prison Rules of the Council of Europe, according to which “life in prison shall approximate as closely as possible the positive aspects of life in the community“.[7]

Using a simplified narrative about the purpose of a sentence, it is valid to say that those who have caused a harm to society – by committing a crime – are deprived of their freedom, so that the period of imprisonment becomes a real opportunity [i] to have a greater insight on the extent of the damage caused, [ii] to gain a better understanding of the conduct that would have been expected from them and [iii] to acquire the tools and skills that are necessary to maintain a socially responsible conduct. Now, a socially responsible way of living is not learnt in theory. It is necessary that life in detention comes as close as possible to a community life, in practical terms. And this normalization must be poured into daily routines, into spaces, into decision-making. How can anyone learn how to better make decisions, individually and jointly, if there is even no freedom to choose what to eat? How can one get used to the responsibility inherent to a job if working in prison is still a perk, a rare opportunity? How can someone learn to better live in society if there are no dialogue forums – where decisions about community dynamics and tasks can be discussed democratically – and, instead, all decisions are imposed from a higher hierarchical level? How can someone acquire the necessary and tailor‑made tools for a full re-socialization, if the attention of one reintegration technician is shared by dozens, sometimes hundreds, of incarcerated persons and if detention is lived in an undersized space – which still happens in about half of the Portuguese prison establishments?

If the context of the current pandemic has created enormous difficulties – namely because of the greater isolation of prison communities, for reasons of public health – it has also enabled the implementation of innovative loosening measures and, with it, the access to data that should not be ignored, but rather used for a deeper reflection. To what extent should (or could) more normalized solutions for detention be offered? Isn’t the securitarian focus given to imprisonment too excessive, insofar as, by restricting the simplest daily decision-making and the most basic family, social and professional interactions, it also coerces the necessary learning of an adequate life in society? Isn’t such a strong isolation from local communities counterproductive? How can I learn to relate to something that is increasingly distant from me?

The truth is that new solutions for detention are emerging throughout the European Union. This includes both “detention houses” and “transition houses”, the latter dedicated to serving the final sentence of a custodial sentence. In contrast to the large prisons of the 19th century, which tend to manage large groups of people within infrastructures that are standardized and separated from local communities, these houses – implemented, with the context-specific adaptations, in several Member States, such as the Netherlands, Belgium, France, Italy and Malta – are small-scaled, integrated in the community and provide a differentiated treatment to each person, three pillars that, while not being an end in themselves, are essential precisely because they allow a normalization of life in detention. Small houses allow the acknowledgement of each resident as a unique and unrepeatable individual, the creation of personal relationships and the tailoring of individualized reintegration paths. Houses integrated in a local community allow – even if not instantly, but thoughtfully and progressively – the creation and development of bonds between each resident and the local community. This way, it becomes possible (i) to demystify a certain alarmism of dangerousness (that was on the basis of the opposition to the measures recently adopted in Portugal), (ii) to gradually restore the harm caused to society, namely through services or works carried out by residents, for the benefit of the community and (iii) to establish relationships, either personal or professional, that may last and support the convicted person in the transition to freedom.

In addition, these solutions have proven to be more efficient in fostering reintegration, in reducing recidivism and, consequently, in building a safer society. Now, going back to what was said at the beginning: recent data shows that, in Portugal, the crime rate did not increase as a result of the amnesty given to sentences of no more than two years. If this is the case, a fortiori, the execution of the last two years of a prison sentence in a transition house is not expected to pose a risk to general safety. Will this be an opportunity for such houses to become the “new normal” in our prison system? With great crises come great opportunities, times for change. Could this be the chance for normalization to be the new normal?

[1] Among these measures are (i) the possibility of presidential pardon granted to those who are over 65 years of age and have physical or mental illness or lack autonomy; (ii) the possibility of renewable leaves granted for periods of 45 days, provided that specific requirements are met – such as, for example, the successful exercise of previous leave, the protection of the victim and a founded expectation of a socially responsible behaviour; and (iii) the possibility of anticipating parole for a maximum period of 6 months, provided that the aforementioned leave has been successfully exercised. Both the leave and the anticipated parole are cumulated with the obligation of house permanence under surveillance.
[2] Excluded from the scope of this amnesty was a specific list of crimes, among which are the crimes of homicide, domestic violence and ill-treatment, rape, human trafficking, criminal association, laundering, corruption and drug trafficking. Under the terms of this law, the said amnesty is determined by a penalty enforcement judge and granted “under the condition that the beneficiary does not commit any willful offense in the following year, in which case the penalty applied to the supervening offense accrues to the pardoned penalty” .
[3] Jornal de Notícias, article. Additionally – under distinct loosening measures – 59 people have returned to prison establishments, for failure to comply with the required obligation of house permanence.
[4] Article 
[5] Accordingly vide opinion article 
[6] Jornal de Notícias, article 
[7] Council of Europe, Recommendation Rec(2006)2

Circular justice

There is a well-known Dutch writer, Rutger Bregman, who has written a book entitled ‘Humankind’. With this book, the writer wants to sketch a new image of humanity, creating a new paradigm in which people are good.

‘Was Jean-Jacques Rousseau right? Is it true that man is good by nature, and that everything only went wrong with the emergence of civilization?’

His answer is yes, man is good by nature, so the Enlightenment philosopher Jean-Jacques Rousseau was right when he wrote ‘Émile, ou De l’éducation’. In his book, Bregman gives dozens of examples in which individuals make the right decisions in difficult situations. In itself, this is a noble endeavor. With tear-jerking examples, he convinces the reader that in most cases humans are actually peaceful creatures.

Bregman is a child of our democratic society. He develops his theory on humankind based on classical-liberal thinking, individualism. Individualism has dominated our society for a long time and, logically, is based on the idea that an individual can fully develop in society and that every person is equal to each other. This is how the principle of equality arose in criminal law, the idea that our law should not be applied arbitrary and that it should treat every person as equal. The problem with that is that humans are not equal. We live in a deeply socially unequal society. Our criminal justice system was also born from this inequality. Is it surprising that our entire criminal justice system is largely made up of white professionals, judges, lawyers and people in prisons are predominantly from different cultural backgrounds? In prisons, individualism translates into all kinds of courses that focus on the dysfunctional individual. Someone is mentally ill, low literate has too little knowledge and capacities, etc. Help and support is quickly limited to ‘improving’, or ‘resocializing’ an individual. And rarely is a situation viewed holistically, or rarely do government agencies take responsibility for creating a “bad” situation that drove an individual to act. In the Netherlands, the government is the largest creditor of people in detention, this concerns health insurance, etc.

The ironic thing about Bregman’s ‘new’ view of mankind, that human beings are good, is that it is nothing new. It is a continuation of an old paradigm born out of religious morality, dichotomous thinking, namely that man is either good or bad. Strikingly, it is the Bible itself that implicitly argues against our modern criminal justice system. The prohibition on eating the apple of the tree of the knowledge of good and evil. God forbade Adam and Eve to eat an apple from this tree. I like to think because human beings are not supposed to judge about one another when it comes to what is good and what is evil. At the same time, this is precisely what our entire criminal justice system is designed for, condemning individuals to punishment. A crime is reduced to that one act of that one person. We only take the circumstances, the social network, or socio-economic situation into account as a backdrop when determining the person’s sentence. As if the circumstances are a still life in which that one person can be judged against a scale from good to evil. In this sense, justice is linear, a one-way route on a scale. The legal system should not be dealing with the individual morality, the individual’s ‘good or evil’, but should serve as an in-between space that balances the network of political, social, and cultural relations. Simply put, crime arises from the person AND the situation. Punishment is not central, but the consequences of the choices made by our legal system. Currently, we only look at one side of the story, nature. How about nurture? How does society deal with social issues and to what extent do we criminalize certain issues that could just as well be defined as a social problem that requires a social solution? To what extent can you hold the person responsible and to what extent has society been responsible for not solving structural social problems? This kind of reasoning might sound extreme to some people, but so was the idea that the Earth was round. It is time for us to take responsibility. If we want to reduce the widespread social inequality in society we will need a legal system that does no longer place the consequences of social inequality on the shoulders of individuals but addresses the inequality itself. Just as we can design our economy in a circular manner, we can also redesign our legal system towards circular justice. Circular justice can be defined as the process of exercising group autonomy with the aim of reaching social equity within society.  This cannot be done overnight, but step by step. However, that starts with daring to choose a different horizon, a new future when it comes to a fair legal system.

With the RESCALED movement, this new future is in sight. With the small-scale detention houses, we want to move beyond the paradigm of individualism, based on the old-fashioned ideas of philosophers like Rousseau. You cannot raise a person outside of society to become a perfect person and then expect it to be the same person upon re-entering society. Instead, in detention houses, we assume that people are defined by their immediate social structures, the people they associate with, and the socio-economic context in which they live. We all take responsibility for our neighbor, justice is circular.