Category: Geen categorie

Graduated with a Master’s degree in International Humanitarian Law and International Human Rights Law (IHRL), my first encounter with prisons’ issues were mostly through a legal prism. My first experience with the detention environment took place during an internship in a human rights organisation in Lomé (Togo). Here, I carried out monitoring activities in detention with the aim of submitting an alternative report to the United Nations human rights bodies on the issues of the carceral system in the country. Afterwards, I continued to study the provisions of the IHRL regarding detention through my academic and professional experiences.

Currently I am working as assistant coordinator of RESCALED in France. In this respect, taking my background knowledge into account, it is interesting to question in what way RESCALED is relevant from an IHRL point of view.

1. Prisons and human rights: Key principles of the IHRL

First, I will recall the main principles of the IHRL regarding detention.

Some International and Regional Human Rights norms are specifically focused on the treatment of incarcerated persons and others include references to this. Although deprivation of liberty is allowed under the IHRL, it must be carried out in a humane and dignity-respecting manner.[1] Persons deprived of their liberty continue to have their fundamental rights, without other restrictions than those inherent to detention.[2] Consequently, incarcerated persons may not be subjected to inhumane and degrading treatment. The European Court of Human Rights, like other human rights bodies, has qualified the conditions of detention as inhumane and degrading in several cases.[3] This qualification is based on the size of the individual space, access to walks and activities, privacy, access to natural light, ventilation and hygiene, amongst other things.[4] In addition, other rights that are guaranteed by international texts, such as the right to privacy and family,[5] freedom of religion,[6] the right to vote,[7] the right to health,[8] etc. also apply to incarcerated persons.

2. RESCALED in the light of the IHRL: Pillars in compliance with human rights

The majority of prison systems face problems, such as overcrowding, characteristics of facilities and difficulties in accessing care and activities, that prevent prisons from meeting these IHRL standards.

By proposing a new model for places of deprivation of liberty, RESCALED offers an alternative that can be compliant with the requirements of the IHRL: replacing the current large prison institutions by small-scale, community-integrated and differentiated detention houses.

2.1 Small-scale – Normalization

First of all, with the principle of a small-scale house instead of a large prison institution, RESCALED aims to normalize the conditions of detention, i.e. to create a place of deprivation of liberty in which the conditions of life resemble as closely as possible those of life in freedom.[9] Normalizing detention conditions is in accordance with international principles on detention. The European Prison Rules state that “life in prison shall approximate as closely as possible the positive aspects of life in the community“,[10] and the United Nations Standard Minimum Rules for the Treatment of Prisoners (hereafter referred to as the Nelson Mandela Rules) state that “the prison regime should seek to minimize any differences between prison life and life at liberty“.[11]

2.2 Community integration

Second, the detention house should be community-integrated, which creates a dynamic interaction between the detention house and the community and thus facilitates the reintegration into society. This is in line with international texts which indicate that the treatment of persons should aim primarily at the reintegration,[12] reformation and social rehabilitation of incarcerated persons.[13] In particular by “establish[ing] in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so [and] encourag[ing] their self-respect and develop their sense of responsibility”.[14]

The community integration of detention houses, that RESCALED proposes, echoes international provisions. These state that prisons should encourage incarcerated persons to establish or strengthen relationships with external persons and organisations that can assist their reintegration and that “co-operation with outside social services and as far as possible the involvement of civil society in prison life shall be encouraged”. More specifically, prison systems are encouraged to strengthen or establish links with public health services to enable continuity of care and access to the same standard of care. By giving incarcerated persons a role in the community and having them interact with the community, RESCALED adheres to these principles of international law and even seeks to go further.

2.3 Differentiation

By differentiation of detention houses RESCALED aims to place incarcerated persons in the best context according to their needs. Namely providing the right security level and offering services, activities and programs that fit the needs of the residents.

The Nelson Mandela Rules provide that incarcerated persons should be placed in groups to ensure that they are treated according to their abilities and needs with a view to their social reintegration.[15] Detention houses, given their small scale and the differentiation of the programmes they offer, therefore make it possible to meet these requirements in a comprehensive manner.

Differentiation, according to the security level and the introduction of dynamic security, also meets the requirements of the Nelson Mandela Rules, which state that detention facilities should not provide the same level of security for all incarcerated persons and should have varying degrees of security according to the needs of different groups.[16] By offering a level of security that is appropriate to the risks posed by individuals, detention houses seek to balance security, humane treatment and preparation for release and therefore propose to implement the principles set out in the above rules.

3. The IHRL to change the detention framework?

In conclusion, RESCALED, through the three pillars of a detention house, suggests a model that seems to meet the requirements of the IHRL and seems to be likely providing solutions to the violations of fundamental rights witnessed in detention today.

Furthermore, the inscription of RESCALED in these legal principles could lead to thinking of the IHRL as a means to change the framework of penitentiary systems. While international law can be seen as relatively indeterminate and allowing interpretations of norms and concepts,[17] it is still marked by balances of power in favour of the interests of some actors over others.[18] It is therefore possible to question whether IHRL has the potential to be a means of changing the framework of penitentiary systems or whether it is rather a tool to identify and respond to problems without changing this framework.

In this respect, it seems interesting to broaden the reflections on detention, on its being, functions, place in society, etc. Because of the interdisciplinary approach of RESCALED, we question those aspects and shine a new light on detention.

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[1] See for example: Article 10 International Covenant on Civil and Political Rights (ICCPR).

[2] See for example: Human Rights Council, resolution 24/12, 26 September 2013. European Court of Human Rights (ECHR), Campbell and Fell v. UK, n°7819/77 and 7878/77, 1984.

[3] See for example: ECHR, J.M.B. and others v. France, n°9671/15 and others, 2020. Human Rights Committee, Brown v. Jamaica, 775/1997, § 6.13.

[4] See for example: ECHR, Muršić v. Croatia, n°7334/13, 2016. ECHR, Cucolas v. Roumania, n°17044/03, 2011.

[5] Article 8, European Convention on Human Rights. Article 17, ICCPR.

[6] Article 9, ECHR. Article 18, ICCPR.

[7] Article 3, 1st Additional Protocol to the ECHR. Article 25, ICCPR.

[8] Article 12, International Covenant on Economic, Social and Cultural Rights.

[9] Dan Kaminski, “Droits des détenus, normalisation et moindre éligibilité”, Criminologie, vol 43, n°1, spring-summer 2010.

[10] Rule 5, European Prison Rules.

[11] Rule 5.1, United Nations Standard Minimum Rules for the Treatment of Prisoners

[12] Rule 4.1, United Nations Standard Minimum Rules for the Treatment of Prisoners

[13] Article 10.3, ICCPR

[14] Rule 91, United Nations Standard Minimum Rules for the Treatment of Prisoners

[15] Rule 93 and 94, United Nations Standard Minimum Rules for the Treatment of Prisoners

[16] Rule 89.2, United Nations Standard Minimum Rules for the Treatment of Prisoners

[17]  Martti Koskenniemi, “From Apology to Utopia – The structure of international legal argument”, Epilogue, 2005

[18] Rémi Bachand, “Les quatres strates du droit international analysées du point de vue des subalternes”, Revue Québécoise du droit international, 2011.

Cycles can be discerned in a person’s life; day and night, winter, spring, summer, autumn. There are also cycles to unravel in society. In 1922 Clara Wichmann was 36 years old and was mainly concerned with changing criminal law. She advocated not detaining people in prisons. One hundred years later, I’m 36 years old and I work for the movement RESCALED that works to replace small-scale detention centers with large prisons. There is exactly a century between us. But when I read her text, it doesn’t feel that way.

The realization that, on the basis of Clara Wichmann’s ideas, we have not succeeded in stopping the construction of large prisons in the hundred years between us, makes me humble. She laid an important criminological foundation with her ideas, both in an ideological sense and in a scientific sense. Yet a hundred years later we see the same patterns: of class society, of the rhetoric of retaliation, and of reducing crime to an act of the individual rather than the result of the organization of society. I therefore do not have the illusion that a radical change in our criminal justice system will take place soon. I do wish, as a society, to treat each other in a more civilized way. And that can be thought through in the legal system by thinking from a circular justice perspective.

Civilization Process

Circular justice is a plea for the moral development of society. The legal system should not be intended to establish an individual morality of guilt, but should be an in-between space that is primarily aimed at balancing and, where necessary, restoring the network of political, social and cultural relations through connecting past, present and the future.

Everyone agrees that a person exhibits morally culpable behavior to a greater or lesser extent. But what about acting in and from society? When do we speak of a more or less civilized society? An individual has the responsibility and obligation to justify his behavior. Shouldn’t that also apply to systems we’ve created together? There is too often a gap when it comes to taking responsibility when things go wrong. While the power of moral development lies precisely in the rejection of social habits that are harmful to fellow human beings.

This is how I remember a visit, long ago, to a former prison in Rome. In the Middle Ages, people were imprisoned in a dungeon in too small a space with too many people. The guide said that people had to sleep sitting down because otherwise they would drown in the low water in which they were forced to live. When we look back on this, we find it morally reprehensible. In two hundred years, the writer Arnon Grunberg wrote a few years ago in a footnote to the Volkskrant, we will find our criminal justice system barbaric.

The civilizing process is continuously going on in a business cycle. However, as far as I’m concerned, certain outdated systems, such as prison, may finally be gaining momentum for real change. Let’s take the next step and decide not to put people in large prisons anymore. Let’s recognize our social responsibility in the creation of crime. The result is that we no longer punish people, but that actions have consequences. Consequences for individuals as well as for us as a society. And yes, there may be differences in the way we express these consequences. The concept of circular justice offers plenty of scope for this.

By Veronique Aicha, March 18, 2022

Link naar Nederlandse versie

Belgium continues to build large-scale prisons that are based on a 19^th century model. These new prisons are larger than ever. While Belgium used to be a pioneer and an example of a constitutional state that protects its citizens, it now lags behind with a prison system that does not do justice, neither to the incarcerated people, nor to the victims and taxpayers. I am an incarcerated person and I read that each year millions of euros are spent on prisons. Yet, in my opinion, this system has no purpose and disregards people’s needs. It reduces human beings to mere numbers and is therefore not fit for today’s society.

In today’s society, gender identities are a ‘hot topic’ and heavily discussed. People are not born as boys or girls but they are considered boys or girls, and people who identify themselves differently should still be tolerated and accepted in this society. Sometimes I think: I am not born as a criminal but I am considered as one. What if I were considered a boy who did not receive enough attention? In prison, I have become a citizen that does not fit so easily into society, and yet, I will soon return to society. Instead of preparing this return, a prison tends to push incarcerated people, and often also their partners and children, towards social exclusion and economic poverty.

In the meantime, alarming situations are happening within these prison walls. I am surprised to see that proper support is lacking in a prison facility in which people, like myself, are serving long sentences. Support for addiction to medication or drugs, for instance, is necessary. When people with additions enter prison, they drown even more in their problems and their debts keep building up. People who are caught with drugs are not supervised and supported. They are on their own. What does exist, however, is a repressive approach: being transferred from an open section to a closed one, or put into isolation. This is no solution. It is sad that the facility itself is failing to provide the necessary tools. In search of solutions, different departments and governments are mainly pointing and looking to one another, without offering help.

In sum, we may ask ourselves if this outdated mentality is still justifiable? Is it acceptable to continue to financially invest in a state facility that does not offer solutions? Let us innovate and rethink the goals of detention. Let us be ground-breaking and keep up with the present and the future and invest in detention houses. In such houses, people are not restricted in their personal growth. This is crucial because such fundamental restrictions take everything away from people, who are then left with nothing when they return to society. In such houses, incarcerated people gain a new sense of responsibility and a close connection with society. This is lacking in today’s prisons.

From 11/10 to 14/10 me and other members of APAC went to Norway, Oslo. We were introduced to the organization ‘Wayback’ and the Norwegian prison system.

1. RESCALED AND DETENTION HOUSES

Wayback and APAC Portugal are both founding partners of the European movement ‘RESCALED’. RESCALED stands for small-scale, community-integrated and differentiated detention houses instead of the classic panopticon-model prisons we are used to. The goal is to offer every incarcerated person a place in a detention house, allowing the current prison system to be replaced. Therefore, it’s important for the detention houses to be ‘differentiated’, which means that all kinds of penalties and levels of security shall be considered.

Whenever the idea of detention houses is proclaimed, the same question pops up: “How can you organize community-integrated detention houses for individuals who committed serious crimes and therefore require a high level of security?”. That is why we will be addressing here, in more detail, the connection between high-security incarceration and community integration.

2. EIDSBERG PRISON: DO HIGH-SECURITY AND COMMUNITY INTEGRATION GO HAND IN HAND?

During our stay in Norway, we had the chance to observe a good example of community integration within a high security regime. We went to ‘Indre Østfold Fengsel – Eidsberg Unit’, a high-security prison where different prison sentences of various categories are carried out, regarding different categories of crimes.

The focus on community integration can be perceived in the chances that incarcerated people are given to participate in community life. Here, community life should be viewed broadly: both in- and outside the prison.

2.1 COMMUNITY LIFE INSIDE

Firstly, community integration is fostered by the way the living environment is organized inside the prison. Each floor is composed of four different wings, with a capacity for twelve persons each. Although isolation still occurs – since each person has an individual cell – the truth is that each wing is also equipped with a shared living room and kitchen where people can spend time and socialize, within a restricted and closer community. This strengthens community life of incarcerated men among themselves.

2.2 COMMUNITY LIFE OUTSIDE

Regarding the link to the community outside, at the entrance of the Østfold prison in Eidsberg there is a shop where wooden products, produced by incarcerated men, are sold. In the shop, you can find tiny wooden houses that can serve as boxes for playrooms, garden benches, hen houses, bird boards, garbage or mailbox racks, hunting towers and so on (Indre Østfold Fengsel, 2021).

Furthermore, we visited a studio inside prison where ‘Røverradion’ – Norway’s only radio show made by incarcerated people within the walls of Norwegian prisons – is recorded. They talk about how it really feels to be in prison and how forms of exclusion occur (NRK Radio, 2021, 26 October). On Friday 15/10/21 they even organized an edition ‘Røver Pride’, to create awareness about LGBTQ+ people and their extra vulnerability to exclusion and discrimination (NRK Radio, 2021, 26 October). From the inside, they make a connection with the outside by inviting and interviewing Norwegian celebrities – including politicians – and by sharing messages with the broader society. This radio show is broadcasted both inside and outside Norwegian prisons.

2.3 COMMUNITY LIFE IN- AND OUTSIDE

Last, but not least, it’s important to mention the relationship between the staff and the incarcerated men. This community life can be considered both internal and external since the relationship is established within the prison walls, but the prison staff is actually composed of people who go outside after their shift in prison.

This type of relationship is also described as ‘dynamic security’, a term that includes a working method by which the prison staff prioritizes everyday communication and interaction with incarcerated people (European Union, 2018).

How is this theoretical term put into practice? For example, we participated in a reflection group, facilitated by a mentor of Wayback, with incarcerated people inside the Eidsberg prison. During the workshop, where lots of emotions were shared, a member of the prison staff was not only attending, but also participating. Here, it’s agreed that everything that becomes part of the circle stays inside the circle. This way of dealing with each other creates confidentiality between the incarcerated men and the prison staff. On top of that, the boundaries of power and subordination are faded and replaced by a trustworthy relationship.

3. EVEN BROADER THAN COMMUNITY INTEGRATION

The Eidsberg prison has good initiatives, not only regarding community integration, but also regarding another fundamental principle of RESCALED: normalization, according to which life in prison should approximate as closely as possible the positive aspects of life outside. For instance, every incarcerated man is given a card, that has a certain amount of money provided by the State and also, in some cases, by family members. With this card, they can go to a convenience store inside the prison, to buy, for example, ingredients to cook a meal themselves, but also clothes, toiletries and ice creams.

This practice of normalization, in turn, contributes to the sense of touch with life outside.

4. WE ARE NOT THERE YET

This blogpost does not intend to praise the Eidsberg prison as a perfect model, because it is still not small-scale, nor community-integrated enough. The prison institution is still occupied with approximately 100 incarcerated men (Angelis, Giertsen, Tostrup, & Memarianpour, 2020) and located on a busy road, far away from a built-up area.

On the other hand, this prison is an example to demonstrate that high-security incarceration can be organized in a way that most people thought was not possible: creating shared spaces to develop social skills; engaging with the local communities through selling products made in prison; sharing feelings about incarceration with society through a radio show; promoting the engagement of the prison staff in activities with incarcerated men, to develop relationships of trust.

So you see, there are plenty of options to make the connection with community, even for incarceration that requires a high level of security.

REFERENCES

Angelis, S., Giertsen, H., Tostrup, E., & Memarianpour, Z. (2020). Statistics. Six Norwegian Prisons. Consulted on 26 October 2021, from https://www.sixnorwegianprisons.com/statistics

Bundo, K. (2018, 6 September). Brick and building [Photo]. Unsplash. https://unsplash.com/photos/q_E_ME5kRp4

European Union (2018). EU-funded project on dynamic security.

Indre Østfold fengsel (2021). Nytt og brukt annonser: FINN Torget. FINN.no. Consulted on 26 October 2021, from https://www.finn.no/butikk/indreostfoldfengsel?sort=RELEVANCE

NRK Radio (2021, 26 October). Røverradion. Consulted on 26 October 2021, from https://radio.nrk.no/serie/roeverradioen

Dear members, dear all, my dear friends

It is really a great pleasure for me, and an honour, to inaugurate – and in person too! – in my capacity as chair this General Assembly of our international organization “RESCALED”.

I would like to begin by thanking all the members of our board, and Helene in particular, for your confidence in entrusting me with this responsibility.

This organization is the result of more than a decade of work founded on Hans Claus’ conviction that we all need to re-paradigm how we think about prison.

Indeed, prison must not only deprive individuals of their liberty in the interest of public safety, but it must also be the road to social rehabilitation, contributing to lowering the all too high rate of recidivism we experience in many European countries.

No, a prison is not just a building that stands apart from society; prison is an institution that is part of society, and must contribute to society’s improvement. 

From this conviction, we draw our core concept which is: small-scale, differentiated in treatment of individuals, and integrated in the wider community. These are the three pillars of “the new house of detention”.

And I am personally very happy, as are the members of the board, that Hans accepted to serve on our board as the guardian of this concept, because focus can easily shift to well-intentioned initiatives in the prison context that can be very valuable but that are not linked to houses of detention because they do not contribute to re-purposing prison.

Today this concept is carried forward by the five countries that adhere to this Non-Governmental Organization, Belgium, the Netherlands, Norway, Portugal, and France, along with the support of a large number of voluntary associations.  It is this movement that has breathed life into this concept and has made our organization a reality, making it a recognized international association as, for example, is borne out by the recent royal decree that ratified our statutes and articles.

We will continue working together towards our goal, which is step by step, do away with large traditional prisons and have them replaced by smaller “houses of detention”, which more intelligently and realistically focus, in terms of security and support, on the individuals under detention, and which are more closely integrated into the surrounding social and economic fabric.

Resistance to such change can be challenging, as we have often learned, and faced difficult disappointment.

And so it’s not always easy to work together given our different cultures, the geographical distances between us, our working habits, and our differences of language, but we are nevertheless united by the shared values that dedicate us to our work: first and foremost our conviction that a person can pick themselves back up and stand tall if we honestly help them find their way to reclaiming their destiny and dignity, and that what matters most is respect for the humanity of every person.

We are convinced that such a path for re-integration can be more effectively found for more people through this new model of detention.

And we are engaged in trying to convince all concerned, working hard to bring aboard new countries and partners, looking forward to the time when our societies will accept the challenge of this change in the understanding of prison, and make progress with us in a consensual way. 

So let us be as intrepid as Rodrigue in Pierre Corneille’s great play “Le Cid” who said to his king, “We were only five-hundred when we left, but joined by allies, to our joy, you now see three-thousand of us here in arms for you”.

The task now is to stay the course and keep looking ahead together.

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.

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^[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 

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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.