Projeto Ricardo (Against Prisons - Worldwide)

In other words, it is not the moment to speak of doing away with prisons. But the abolition of this punishment that is as cruel as it is irrational must be discussed at the wrong moment, it's the only way for it to be the right moment one day.

Autrement dit, ce n’est pas le moment de parler de supprimer les prisons. Mais l’abolition de ce châtiment aussi cruel qu’irrationnel doit être discutée à contretemps, c’est le seul moyen pour qu’un jour il en soit temps.

Catherine Baker (2004: 13)

The very idea of the modern prison was flawed from the start. Seen with hindsight, it was clearly and illusion to expect the torturous single cell to work the wonder of turning criminals into law-abiding citizens.

The idea to improve people by confining them to a solitary cell has never been a very coherent or convincing one. In the very first model prison - the Walnut Street Penitentiary in Philadelphia - the aspiration was to lead prisoners to a true faith in God and sincere repentance of their sinful behavior in the past. In the loneliness of his cell, the convict was free from bad influences from beyond the prison walls, but also from peer group pressure by other inmates (whom he would not be able to even catch a glimpse of during the entire time of his stay). He was alone with the Holy Scripture and with his attempts to hear God’s admonishing, forgiving, and correcting voice.

Evidently, the very concept of putting prisoners in small individual cells had been borrowed from traditional Christian monasteries. The idea being that what worked with monks should also be must have been that a system that had worked well for monks for a millennium should also work for delinquents. To the surprise of the inventors, though, the system produced an unlikely number of failures in the sense of suicides, depressions, and outright madness. What they had overlooked was the simple fact that the monks did not spend all the time in their individual cells, but that the basis for their productive lives was the community part of it: so pray and worship and talk and eat and drink with the others. And it was this part of the monastery that the cell prison did not replicate. The total and non-voluntary isolation from all other human beings is a strong driving force towards insanity. Today, this seems self-evident, but for the well-intentioned inventors of the prison this did not seem to be the case. Complete isolation and sensory deprivation - that was the fundamental flaw that lay at the origins of the cell prison, and that was what prevented it from functioning the way it was supposed to. It was something like the original sin of the prison project, or, to put it in less metaphysical terms, from the start prisons were nothing but “petrified giant errors” (Eberhard Schmidt).

As long as prisons remained what they were - a multitude of cage-like cells in large buildings - none of the many modifications in correctional philosophy and practice could overcome the negative influences of this setting.

The original religious idea of Philadelphia’s separate system of producing faithful and repentant sinners through complete isolation was soon rivaled by Auburn’s silent system which let prisoners work (but not talk) together by day and only separated them for the night, only to be reformed along the lines of the Irish progressive system and its diverse variations. Since none of these models met the expectations of their inventors, the prison reform process went on and on until this very day. Even the latest modernization attempt, though - the treatment ideology - has now exhausted itself.

To train people for a free life by stripping them of their liberty is not a very coherent idea. As experienced observers have pointed out again and again, there is simply no proof that constructive treatment is possible under the conditions of deprivation of liberty (cf. Busch 1986). Nevertheless, it has been tried over and over again. Prisons were seen as „treatment“ centers or places for offender „therapy“ for all too long and lastly to no avail.

On the other hand: the history of punishments has seen cruelties much worse than the prison. As a matter of fact, none of the earlier sanction systems had ever been greeted with such an amount of praise by theoreticians and practicioners alike as the invention of the modern prison, aka penitentiary. Over time, though, the promise of the prison had to give way to a deep and general disillusionment. Once believed to be something like a panacea to delinquency in that it was both humane to the convict and effective in protecting society, contemporary descriptions of the reality of mass incarceration make it hard to believe that the difficulties by which the prison system is beset could ever be resolved by reform. There is no way to bridge the gap between the rehabilitative ideal on the one hand and the abusive and degrading reality of life in most of the world's prison systems. There is no way to improve prison conditions without first addressing the prison-industrial complex, the power relations, and the fiscal restraints governing prison policy - not to mention a vengeful public opinion and its exploitation and fomentation by vested interests and mass media.

Instead of investing in the continuation of a century-old reform movement that tries to meliorate conditions inch by inch, we should rather look and move ahead. While those who bet on piecemeal reforms are being frustrated by the stubbornness of the system time has been moving on and has been making prisons obsolete without them noticing. In the digital age, control does not depend on bricks and fences anymore. Time is moving on and prisons are just waiting to be torn down in order to be replaced by something better. If cruelty and the lack of efficiency was the battlecry of those 18th century reformers who advocated the replacement of corporal punishments by the penitentary, the time has come for the prison to confront the very same arguments: too inhumane, too inefficient. Too expensive. Too biased. Too unfair. Too torturous.

It is time to think about prisons in a principled, more realistic, and less apologetic way. It is time, in short, to think of something better than prisons so we can tear down the walls and close this chapter in the history of punishments once and for all. Just as our generation is thankful for the earlier ones to have left us a world free of such institutions as the burning of witches and the whipping of slaves, future ones will feel pride in living in a societies that have moved beyond the pains of imprisonment to a much better way of reacting to crime and criminals. Prison - just like corporal punishment in earlier times - is still being considered by man as indispensable for the maintenance of public order. But that is an illusion. We can do without prison, and to make this step will be difficult at first, but rewarding at last, and it will be enjoyed as a major improvement of the quality of life for the good of all of us.

It is time to close the chapter of prisons in the history of punishment. To explain this position and to discuss the way to realize it we wrote this text. Our argument goes against imprisonment as a punishment for crime. It is direted against the buildings where the punishment of imprisonment is being executed. With a somewhat antiquated German term for court-ordered punitive deprivations of liberty we could say: we argue for the abolition of the Strafgefängnis. This is more than asking for a moratorium on new prison constructions, and it is even more than advocating a reduction of the prison system by shrinking it to half or less its current size. It means to do away with all prisons without exception and regardless of their often euphemistic self-descriptions as Justizvollzugsanstalten or correctional facilities. It is a call to stop the practice of punishing people by means of incarceration. To send people to prison - new or old, large or small, and whatever they might be called - must become as obsolete as galley slavery.

This said, we do not hesitate to recognize that the peculiar institution of the prison has had its merits in the past and continues to fulfil some important functions in contemporary societes. As far as these roles are necessary and legitimate, they can be assumed by better ways of doing things, though, and since better is the enemy of good, nothing should hinder us from taking this step forward. Nevertheless, we should not blind us to the good sides of imprisonment - if only to see what will be needed to replace the prison in the future.

First of all - and that is probably the best thing that can be said about it - the prison was not only intended to be a better (more humane and more effective) response to crime than what had preceded it, but to a certain extent this intention had even be realized.

Just think of executions like this one in Berlin in the year 1800 (from Evans 1997: 194):

“The woman was tied down and quickly strangled, and her limbs and neck were broken by a series of blows with the heavy cartwheel wielded by the executioner. In accordance with standard practice her body was then untied and fastened to the wheel, which was placed horizontally on a long upright pole fixed into the ground next to the scaffold … The head was cut off and stuck on top of the pole.”

If we compare this scene - in which punishment appears as demonstration of the sheer nothingness of the delinquent when seen from the tower of sovereign power - with the image of the delinquent as a sinner and the role of punishment as a way to a symbolic resurrection, we can fathom out the depths of the abyss that separated the new from the old system. The promise of the prison to never return to the atrocities of earlier times was and is one of the strongest arguments that can be advanced in its favour.

The repugnant spectacle of the pillory, of public whippings, brandings, mutilations and executions - most frequently in the form of hangings, but occasionally also by drawing and quartering of a convict, or having him boiled in oil or burned at the stake - explains the positive reactions of contemporaries to the invention of the prison sentence as a new and humane standard response to crime.

In the earlier societies of sovereign power, executions were a kind of propaganda play in which the condemned had to play his role as the sovereign's defeated antagonist, to be crushed in front of an impressed audience that justly felt that it was being taught an important lesson of law and its violation, of power and insubordination. See what happens! The idea that the delinquent could be given a chance to be re-inserted into the in-group of the good society was completely foreign to that old system. That explains why the idea of the penitentiary as a means to both punish and rehabilitate the criminal was a cultural revolution of sorts (a progress not lessened by Foucalt's critical view on its amalgamated disciplinary power).

In stark contrast to the spectacles of suffering that characterized European criminal justice from the High Middle Ages to Early Modernity, the penitentiary was designed as a keeper, not a killer. This modern prison maintained that those confined within its walls were susceptible of improvement and – in principle – deserved a second chance. A chance not only to walk through its gates once they would had done their time, but to be willing, able, and permitted to re-insert themselves into the day-to-day life of ordinary citizens. Free to start, as one says, a new life. There is little doubt that the prison is harmful to its inmates and that it is being meant that way, simply because it is a punishment. But it would mean twisting the truth to deny that in some cases the prison has also provided the security and the structure for some of its inmates (some political prisoners, e.g., but also some unknown rather dissocial ones whose lack of internal structure could be compensated by the rigid corset of prison discipline) to reagain some control over their lives. To acknowledge that truth is not to say that this cure is good for everyone under all circumstances, though. Rather, the contrary is true. For most people, prison is pain and torture and a lot of harm not easy to ever compensate by either intra- or extra-mural efforts.

The prison was designed as a multifunctional instrument of social ordering. Not only was it to keep the culprit instead of eliminating her, but also it was to keep society safe for the time of the convict’s punishment. That had a soothing effect on victims and on the general public. As long as they knew the offender locked up they could take deep breaths of relief and entertain the hope that once the inmate’s time was up he would not be a risk to his fellow citizens anymore. Those were the two most important functions of the new invention - and they still are the strongest pillars of its existence today.

To these two principal functions of the prison– i.e. rehabilitation and incapacitation – we can add two less conspicuous ones: that they provide a visible reassurance for the general (and law-abiding) public that the most serious offenses will not be tolerated, and that the very risk of a prison sentence can have a deterrent effect on some who otherwise might feel tempted to commit a crime.

As Vivien Stern (2006, ch. 2) explains:

“All may not be well within the high walls of the prison, but for those outside, the high walls, the watchtowers and maybe also the stories of dreadful happenings within are symbols of the power of the state to punish. They are a reassurance to the public that they will be protected from people who prey on them and threaten public peace. (…). Whether prisons are unjust and violent inside, whether they make the people who go to them better or worse, need not concern the law-abiding citizen. One thing is sure. Prisons protect society by holding people who would otherwise be outside, stealing, robbing, terrorizing, smuggling, causing damage and spreading fear.

So prisons – with their grey walls, watchtowers, razor wire and brooding blocks with small barred windows – symbolize the maintenance of law. They keep locked away people who would do harm to others. More than that, they also prevent crime in another way (…). Prison is such a grim place and loss of freedom is a very harsh punishment. People do not want to lose their freedom and the thought of being sent to prison stops the potential law-breaker committing a crime that would otherwise have been committed. The existence of the prison punishment deters people from committing crime. (…)

[A]lso (…) prisons can be good places, serving a useful purpose. They can be places of reform where criminals go in as bad people and come out a little better. Being sent to prison will teach them a lesson […or…] give them a chance they never had before to learn a trade, give up taking illegal drugs or get educated (…).”

All this together makes us understand why prisons are not being scandalized the way some other forms of punishment are. Prisons are an accepted part of social reality. At least as a necessary evil. And to many they are more than that. Prisons have a lot of collateral effects that speak in their favor. Prison construction can, e.g., help disadvantaged areas with investment and jobs – not to mention shareholders of such giants of the prison-industrial complex as the Corrections Corporation of America.

All things considered the rise of the prison from its humble beginnings to its present dominance as an indispensable backbone of criminal justice all over the world has all the ingredients of a wonderful success story.   The prison, then, tries to reconcile a number of conflicting objectives, and it does so by way of compromise. It tries to express a strong condemnation of the incriminated behaviour and to prevent the offender from committing further crimes by incapacitation and motivation, but it also tries to reassure the general public that some behaviours will simply not be tolerated by the state, and that crime does not pay in the end, but obeying the law does.

To make a long story short: while we recognize the merits and functions of the prison, we have come to the conclusion that whatever these merits and functions, it is time to move on. When corporal punishment revealed itself as too cruel and too ineffective, it had to cede its place as a standard response to crime to the ideal of incapacitation and rehabilitation through imprisonment. Centuries later, the prison has not only been thoroughly demystified, but its legitimation has come under pressure like never before. Today, the questions once directed towards the institution of corporal punishment increasingly turn themselves against its successor. The prison is ineffective. And it is inhumane. Therefore, it has to be abolished. In favour of more effective and more humane punishments. Or, even better: in favour of something better than punishment.

The Prison Is Obsolete

In a time of ever more individual freedom - and especially freedom of movement that manifests itself in the enormously increased international travel activities of young people all over the world - the deprivation of liberty is a much deeper cut into the citizen's human rights than it used to be in the olde days. An average citizen of the developed world has a car and a bicycle, maybe two cars, a year ticket for public transport, and takes pride in going on holiday wherever he likes. Compared with the ever widening horizon of a regular citizen today, the very fact of being excluded from all of this must be nauseating.

The prison has exhausted itself both as an ideal and as a standard response to crime. In former times, during the 19th and early 20th century, authors welcomed the prison because it was not just retributive, but also rehabilitative, and therefore could be seen to serve a useful purpose beyond the mere affirmation of the sovereign's power. The actual performance of the prison never seemed to be able to meet those high expectations, though. Meta-studies that looked for positive treatment effects fostered the sobering impression that "nothing" that was tried in terms of intramural therapy seemed to have produced convincing results. The very idea of seeing the prison as a kind of hospital for the treatment of delinquency was increasingly discredited. This decline of the rehabilitative ideal (Allen 1981) contributed to a general demise of the respective efforts and left the prisons with the problem of empty time. The less money and energy was invested in treatment programs the more imprisonment became a question of simple warehousing leaving prisoners to their own devices, their inner demons, and their hope for protection by intramural gangs. Prison conditions returned to a syndrome of of general neglect, abuse, and suffering that had already characterized the institution in the days of John Howard's.

One positive result of this drastically diminished faith in the benefits of imprisonment is the marked shift of emphasis from incarceration to financial penalties. In Germany, e.g., the 20th century started with a ratio of three to one in favor of imprisonment over financial sanctions, and ended with a ratio of four to one in favor of financial sanctions over prison sentences. In the course of one century, the prison sentence moved from being a standard response to being a comparatively rare and exceptional response to crime. Of all those sentenced, less than 20 per cent received a prison sentence at the end of the 20th century - the large majority of prison sentences being suspended ones accompanied by probation orders. On some 5% of all convicts are being sentenced to immediate imprisonment. This percentage could, theoretically, be reduced even further - maybe to 4, 3, 2 or even 1 or zero per cent? To that end, judges would just have to refrain to an ever higher degree from handing out prison sentences, and if they did hand out prison sentences, they just would have to decide to grant probation to an ever increasing part of the culprits. At the same time, probation services could and should be substantially improved so that there would be ever less revocations of the suspended sentences. Decades ago, such a scenario of the fading out of the prison sentence had been envisaged as a possible course of action to be completed by the year 2000 (cf. Schumann 1988: 17). The fact that this date has passed by now does not mean that the prison has to exist from now to all eternity. It is still possible and still necessary to overcome this obsolete system of pain infliction.

In a short but important essay entitled Postscript on the Societies of Control (1992) French philosopher and social theorist Gilles Deleuze even argued that in our digital age time is up for the prison as the preeminent instance of the enclosed environment doomed to obsolescence. For him, this is neither a good nor a bad thing, it is a development that has to be observed, analyzed, and dealt with, so one can try and stimulate its good sides and try and prevent its risky sides from becoming reality:

"We are in a generalized crisis in relation to all the environments of enclosure--prison, hospital, factory, school, family. The family is an "interior," in crisis like all other interiors--scholarly, professional, etc. The administrations in charge never cease announcing supposedly necessary reforms: to reform schools, to reform industries, hospitals, the armed forces, prisons. But everyone knows that these institutions are finished, whatever the length of their expiration periods. It's only a matter of administering their last rites and of keeping people employed until the installation of the new forces knocking at the door. These are the societies of control, which are in the process of replacing disciplinary societies. "Control" is the name Burroughs proposes as a term for the new monster, one that Foucault recognizes as our immediate future. Paul Virilio also is continually analyzing the ultrarapid forms of free-floating control that replaced the old disciplines operating in the time frame of a closed system. There is no need to invoke the extraordinary pharmaceutical productions, the molecular engineering, the genetic manipulations, although these are slated to enter the new process. There is no need to ask which is the toughest regime, for it's within each of them that liberating and enslaving forces confront one another. For example, in the crisis of the hospital as environment of enclosure, neighborhood clinics, hospices, and day care could at first express new freedom, but they could participate as well in mechanisms of control that are equal to the harshest of confinements. There is no need to fear or hope, but only to look for new weapons.

(...) "It may be that older methods, borrowed from the former societies of sovereignty, will return to the fore, but with the necessary modifications. What counts is that we are at the beginning of something. In the prison system: the attempt to find penalties of "substitution," at least for petty crimes, and the use of electronic collars that force the convicted person to stay at home during certain hours. For the school system: continuous forms of control, and the effect on the school of perpetual training, the corresponding abandonment of all university research, the introduction of the "corporation" at all levels of schooling. For the hospital system: the new medicine "without doctor or patient" that singles out potential sick people and subjects at risk, which in no way attests to individuation--as they say--but substitutes for the individual or numerical body the code of a "dividual" material to be controlled. In the corporate system: new ways of handling money, profits, and humans that no longer pass through the old factory form. These are very small examples, but ones that will allow for better understanding of what is meant by the crisis of the institutions, which is to say, the progressive and dispersed installation of a new system of domination."

In a similar vein, the French philosophers Michel Onfray and Tony Ferri as well as the member of parliament Noël Mamère, the former president of the International Observatory of Prisons, Gabriel Mouesca, the lawyers Lucie Davy and Yannis Lantheaume as well as the ex-prisoner Philippe El Shennawy and many other public figures, intellectuals, ex-prisoners and practicioners pronounced themselves in favor of overcoming "cette maudite habitude qui permet à l'homme d'enfermer l'homme et de le tenir emmuré". In their 2014 manifesto in favor of abolishing not only the prison but also its mechanisms and logics, they state:

"Nous affirmons qu'au XXIe siècle, enfermer quelqu'un, ce n'est pas le punir : c'est agir par paresse et par prolongement d'un système archaïque, dépassé et inadapté aux sociétés postmodernes. Nous exigeons que soit jetée aux oubliettes de l'Histoire cette maudite habitude qui permet à l'homme d'enfermer l'homme et de le tenir emmuré. Nous prétendons qu'il ne se passera pas longtemps avant que la prison apparaisse aux yeux des vivants comme le signe irrécusable de l’état de brutalité, d’arriération des mœurs et des sensibilités dans lequel vivait l’humanité au XXe siècle, et encore au début du XXIe. Et refusons que la Justice continue à condamner à des peines de prison en notre nom" (Onfray et al. 2014).

As Peter Kropotkin had already said in 1887:

"Si on me demandait — « Que pourrait-on faire cependant pour améliorer le régime pénitentiaire ? » je répondrais : Rien ! On ne peut pas améliorer une prison. Sauf quelques petites améliorations sans importance, il n’y a absolument rien à faire qu’à la démolir."

In his memoirs, Kropotkin reiterated this stance of his that prisons could not be reformed, just abolished:

"Every one knows that absence of education, dislike of regular work, physical incapability of sustained effort, misdirected love of adventure, gambling propensities, absence of energy, an untrained will, and carelessness about the happiness of others are the causes which bring this class of people before the courts. Now I was deeply impressed during my imprisonment by the fact that it is exactly these defects of human nature--each one of them--which the prison breeds in its inmates; and it is bound to breed them because it is a prison, and will breed them so long as it exists."

Limited Usefulness

"La prison n’améliore pas les détenus. Et d’autre part, nous l’avons vu, elle n’empêche pas les ci-nommés crimes de se commettre: témoins, les récidivistes. Elle ne répond donc à aucun des buts qu’elle se propose d’atteindre. / Voilà pourquoi la question vient à se poser: "Que faire donc avec ceux qui méconnaissent la loi — je ne dis pas la loi écrite. Celle-ci n’est qu’un triste héritage d’un triste passé, mais les principes mêmes de moralité gravés dans le cœur de chacun?" / C’est la question que notre siècle doit résoudre.» Catherine Baker

Resocialization: There is ample evidence that imprisonment is one of the least likely ways to bring convicts back into a legal existence - be it with or without intramural treatment efforts. To integrate people in society (again), one has to strengthen their social bonds and their sense of self-efficacy by means of small experiences of self-control, cooperation, and success at coping with the challenges of everyday private and professional life. All this is being made more difficult instead of being facilitated by any punishment involving a deprivation of liberty - a simple truth already spelled out by John Howard himself back in the 18th century. And the idea that delinquency is basically a kind of psychopathology that could be cured by intramural psychological assistance or treatment was a generalization that did not quite match reality. As John P. Conrad said: "We should never have promised as hospital".

Incapacitation: In some cases, to lock people up makes a difference in the respective community, because - for the time of their imprisonment - gang members, e.g., cannot continue their activities. While the same holds true for some serious sexual offenders including the terrifying (but infrequent) serial killers, incapacitation effects are more limited than most people think. This is already true for the bulk of sexual offenses with their low rate of recidivism. Most violent crime falls in the same category: new crimes are being committed by persons with no prior record, whereas the risk of recidivism tends to be low. Meaning that we are too afraid of those already convicted and not concerned enough with those still unknown. In many cases the delinquency is part of an illegal market. Such a market follows demand and supply laws and cannot be influenced by arrest of specific actors. The dramatis personae, in other word, are interchangeable. Even the arrest of a complete drug traffickers' organization does not mean that there will be less drugs being trafficked even in the medium term. Lost personnel is being replaced by new recruits, competing gangs' takeovers, or the creation of wholly new trafficking organizations. Even the comprehensive all-out efforts of the much-praised kingpin-strategies that perpetrated whole organizations with secret agents with the aim of getting all the way to the top ranks and then take out the big chiefs in order to destroy the whole organization did not produce the desired results. Much to the contrary: recent evaluations showed that things even went from bad to worse after killing or arresting king pins. ##cockburn

Deterrence: The knowledge that some actions can entail a prison sentence might be a deterrent in some cases. Waves of arrests for corruption might make members of the affected social strata more prudent and abstain from some otherwise attractive illegal activities like money laundering, bribery, and the like. This is especially true for rational actors with a sober assessment of the advantages and disadvantages of certain economic (and legal) choices. Even for those, though, it is not quite clear in how far the deterrent effect can be traced back to the specific existence of the prison and not to, e.g., the risk of simply being caught. In other words, maybe in a world without prison, the mere risk of being found out, scandalized, and heavily fined (and shamed) might have the same or an even higher deterrent effect. Criminologists agree that it is not so much the anticipated severity but rather the anticipated probability of punishment that generates an - albeit limited - deterrent effect.

Positive General Prevention: Are prisons necessary to reassure the general population of the continuing validity of the norm after it had been violated by the delinquent? Criminologists seem to accept this idea to a certain degree. If norm violations remained without negative response the norm itself could suffer erosion. But there is no need to infer from the need for a negative response that it has to take the form of imprisonment. Prison is just one kind of punishment - and all kinds of punishment, whatever their appearance, are only one form of negative reactions. There could also be non-punishing reactions to crimes that would deal with delinquency in a completely different manner and still exert the desired influence of showing the general public that violations of that norm will not be tolerated. In other words, to postualate the necessity of a specific punishment on the grounds that there is a need for some kind of negative sanction does not make sense.

Atonement: But what about exceptionally cruel atrocities? Don't they require a serious atonement on the part of the delinquent? And is not perpetual imprisonment a way to deal with them - lest one considered falling back on the death penalty? ## hannah arendt

All in all, the overall imbalance between costs and benefits of prison speak a clear language. The inexpediency of imprisonment is a well-known fact among criminologists. The general public is being shielded from this knowledge, though, and this veil of ignorance that hangs over the statistical facts of imprisonment is a powerful protective device that keeps the prison from being questioned and challenged and thus maintains the stability of a system whose dysfunctions would otherwise have discredited it and washed it away a long time ago.

Abridging Human Rights

Prisons had been invented, among other things, to safeguard the rights of convicts to be kept alive and to be respected as human beings even though they were serving a criminal sentence. In our time, the concept of human rights has been enlarged considerably if compared with the situation at the end of the 18th century. If the prison did not exist and if in today's societies we would have to invent a standard response to crime - would chances be that we would end up inventing the prisons? We doubt it. And the reasons why we doubt a post-modern inventability of the prison are two. Prisons embody principles of confinement that collide with human rights. This collision takes two forms, both of them scandalous, but in a very different manner. For one thing, they simply organize everyday life in the institution in such a way that some essential human rights are being denied. For another thing, there is a structural power difference and a climate of impunity with relation to abuses of power by guards that make the prison setting conducive to abuse.

Ideally, imprisonment deprives the convict of his or her freedom of movement, but nothing else. It leaves the person intact and leaves him or her all the rest of human, civil and social rights as guaranteed in national constitutions and international conventions - with the sole exception, of course, of being confined to a restricted area (the prison), because that is the very idea of the prison sentence: to single out the freedom of movement as the one freedom that the culprit has to to without for the time of his punishment. Notabene: The idea of imprisonment is not the drive the culprit into desperation, deprivation, and destruction, but to teach him or her a lesson by restricting the freedom of movement. Sadly, though, this limitation is not at all reflected in the very organization imprisonment. Much to the contrary, the prison still displays features of its pre-constitutional past that make it hard to believe that it can ever develop into a constitutional sanction in line with the most fundamental values of a free and democratic society under the rule of law.

Let it suffice here to point to three inherent contradictions of imprisonment:

Forced Labour

Most prison systems require prisoners to work. This is an extra burden that is not an inescapable part of imprisonment and therefore must be considered an additional punishment. Its existence goes back to the pre-constitutional days in which prisoners were seen asl "slaves of the state" who were deprived of the status of normal citizens. Later, this feature was legitimized as part of the punishment, today it is more often seen as part of the prisoner's path to re-integration. Prison work is supposed to prepare prisoners for the outside labour market (just in case they happen to find work), to help them structure their everyday life (as if they were industrial workers), and to help them compensate the crime victims for their loss (made all but impossible, at the same time, by the extremely low wages for prison work). Sine all of these justifications are debatalbe and brittle, the overriding reason for the persistence of forced labour in prison appears to be the maintenance of order within the institution. Prison authorities firmly believe that the system would break down without the instrument. Even meaningless work is seen as better than no work at all.

Imposed Poverty

In the beginning of the prison system, most inmates were poor anyway. Early workhouses that preceded the penitentiaries were warehousing prostitutes, debtors, beggars, poor people, sick people, orphans, and delinquents alike. It was evident they were not being paid for their work, and they only received what was deemed necessary to sustain them. This is another heritage of pre-constitutional times. Today, in Germany, the "wage" of a working prisoner has been frozen at 9 per cent of the average wage which keeps it far below the minimum wage (one fifth of the current eight euro and fifty cents per hours). Needless to say that old age poverty of prisoners is being pre-programmed by the additional discrimination that they are exempt from social security benefits. Months and years of prison work are not even being counted in as work time when it comes to pension claims. Like in some other countries, Germany had promised to do something about all this in the late 1960s, when the reform of imprisonment was higher on the agenda than today, but since then this legal promise has been annulled and never made it back to the agenda of any important political association, not to mention election platforms or legislative initiatives.

Sexual Deprivation

Prison is a single sex institution. This is not a necessary condition of the deprivation of liberty, as proven by the Russian Gulag system or, to cite another example, Bolivia's Palmasola prison village. In Europe and many other countries, though, the idea of whole families living together with the inmate seems strange and unjust towards the innocent but imprisoned family members. On the other hand, the more common single-sex method of confinement of the European and North American style imposes an enforced celibatary life-stlye on prisoners. It means that male and female prisoners alike depend on masturbation and/or individuals of their own sex for their respective activities. This in turn to leads to (voluntary and involuntary) prison homosexuality. Single sex prisons are equal to a considerable amount of suffering through prison rape and abuse. Studies from the U.S. suggest that every year four to five prisoners out of every 100 are being raped or otherwise abused by fellow prisoners (not to mention guards; NYRB). In spite of some mostly half-hearted attempts to counteract this tragedy by granting vacations from prison or long-time visits by spouses or families this collateral effect of imprisonment persists all over the word, and it stays not only an evident source of transmission of infectuous diseases like HIV, but also a serious and permanent violation of elementary human rights.

Co-Punishment of Third Parties

There is no punishment of offenders that does not - by way of collateral damage - also affects their families and friends, their children, wives, larger families, colleagues and friends. This is especially true of imprisonment. It does not only impede a normal sexal, but also a regular social life with family and friends. All such relations ae being radically reduced to rare and highly regulated and supervised letters, phone conversations, and visits. In a time of ever increasing mobility, inmates are not only suffering an ever more painful relative deprivation by being kept in cages that not even a modern zoo would subject its animals to, but they are also being kept away from the internet in a world where social life is ever less imaginable without the resources of the social media. The growing gap between the outside world and the prison's artificial backwardness makes imprisonment more hurtful and harmful than it would have to be. Beyond this, one of the saddest affairs in the world of the prisons is the much-neglected phenomenon that can be termed the co-punishment of children. There is no doubt that the imprisonment of parents has negative outcomes for the children. To make prisons "family-friendly" is an understandable, but fruitless endeavour. To hope for improvements here is as illusionary as it would have been to plead for gradual improvements in slavery instead of realizing its basic flaws and acting accordingly.

Can all those ills of the prison be abolished without abolishing the institution as such? Some may think that it would suffice to just abolish the old buildings and the cages and the tortures that characterize the non-so-modern prisons (and some of the very modern ones), but to spread the kind of prisons that could be called model prisons - with apartments instead of cells, and service personnel instead of brutish guards. Hotel-type correctional facilities, though, are a weird thing to imagine as a standard response to serious crime. A less utopian way of dealing with the prison problem seems to us to abolish prison punishment altogether and to move beyond this stage of evolution in criminal justice.

Prison Misery

How many condemnations have I seen more criminal than the crime?

Montaigne, in: Baker 11

Perhaps the prison's most important negative sides are not its above mentioned inherent shortcomings, but rather those variables of its institutional setup that increase the risk of seemingly isolated incidents.

Except for very special cases such as "Attica" in the New York State or "Carandiru" in São Paulo, prison issues do not usually make headlines. The reason for this is not that irregularities, abuse of power, human rights violations, revolts and repressions do not occur, but because they tend to arouse little interest beyond the cities and the professionals immediately affected by them. The general public shows little interest as long as things do not threaten to get out of hand completely.

Nevertheless, prison irregularities - aka prison scandals - should not be taken lightly when it comes to the questions of the raison d'être of prisons. Prison irregularities can take various forms. They can consist of individual cases of corruption, blackmail or physical violence, be it among inmates or between inmates and prison personnel. Or they can take the form of collective action between competing inmate gangs or prison employees, prisoners, and police - for instance in cases of large scale prison riots that might or might not result in outright massacres. The big question is in how far such irregular conditions can be seen as an argument against prisons as such.

Any critique of irregularities normally aims to improve a given system, not to abolish it. From such a perspective, every media coverage of a prison scandal can be read as an implicit plea in favour of a cleaner, better, more proficient system rather than an argument against the prison as such. Consequently, one might argue that prison scandals are not very likely to lend solid support to abolitionist arguments and that they should therefore better be left out of the game. Isolated cases of abuse do not prove that there is something wrong with the prison, they just prove that everybody who is in prison is human and subject to human fallibility.

On the other hand, though, there is also the possibility that "prison scandals" are not isolated incidents only, but that they have systemic roots. If, e.g., a certain condition C is known to increase the risk of scandals of type S to happen, and if prisons typically show the condition C, then the appearance of S in prison systems could hardly be attributed to isolated and atypical circumstances or personality characteristics of a guard or convict. In other words, if the appearance of scandalous shortcomings can be traced to the very structural essentials of prisons as such, then it would be justified to look for structural links between the prison and its scandals. If it could be determined that characteristics of the system are conducive to scandalous abuses of power, e.g., then we should not turn a blind eye to the possibility that the prison as such facilitates frequent and intensive violations of human rights, turning it into sheer hell for many of its inhabitants.

Prison conditions are famously bad in poor countries simply because of the lack of funds to maintain an orderly professional institution. Romanian prisons are just one example (Cartner 1992) for conditions that can be found in dozens of countries around the world:

"Some 500 inmates in 19 Romanian prisons protested on Thursday, with some refusing food, rattling bars, hitting windows with bottles, setting light to clothes and shouting “Down with the government!”, media reported. - An inmate at a penitentiary in central Romania attempted suicide on Thursday, according to reports. - Justice Minister Raluca Pruna said the authorities were carefully following the developments in all the penitentiaries across Romania, and that the situation was under control. - “We will start checking inmates’ claims and, wherever they are appropriate, will try to find solutions,” Pruna said on Thursday. - “Jail conditions have improved in recent years, but many problems still remain,” she added.

The protest began earlier this week at a high-security prison in Iasi, in the east of the country, and spread to almost half of Romania’s 44 prisons. - Pruna said however that many media outlets have exaggerated the protests, thus inflaming the situation. Several politicians have asked for her resignation, however. - Despite efforts to modernise, Romanian jails still fall below European standards. - Overcrowding, inadequate medical attention and poor diet remain the main problems, according to activists.

Romania has some 30,000 prisoners but the situation has eased compared with ten years ago, when there were some 52,000 detainees in a system with capacity for only 20,000. - According to official data, the state spends around 500 euro a month per inmate, with most of the money being used to pay the salaries of people working in the prison system. - The high number of prisoners is still a burden to the state. - Many jails still have inadequate hygiene conditions, with insufficient access to warm water, insufficient sanitary facilities, insufficient natural lighting and ventilation, and poor food quality, campaigners say."

The law accords each prisoner four square meters - an admittedly small space, but a space that to be put in practice would require quite an investment. The government (in April 2016) approved several measures to improve prison conditions requiring 838.5 million euro over seven years. There are plans to create 10,895 new places for prisoners (including the construction of two new prisons for 1000 inmates each) and to modernise 1,651 places in local penitentiaries by 2023.

Over the years, the European Court of Human Rights (ECHR) has repeatedly criticized the Romanian government for the inhumane conditions in the country's prisons. In 2010 the ECHR ruled in favour of a plaintiff who - in spite of suffering from hepatitis and high blood pressure - had to share a cell designed to hold 35 prisoners with another 120 inmates. The food did not meet his dietary conditions. In another case, a prisoner suffering from a lung condition was forced to share his cell with two cigarette smoking co-prisoners. In 2016, the court accorded almost 100,000 euro in compensation to 18 convicted inmates who had served prison sentences or were currently incarcerated because of the poor conditions in local prisons.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT 2015) stated in a report that "numerous credible allegations consistent with physical ill-treatment (punches, including with reinforced gloves, kicks with the knee and feet and blows with a truncheon) were received by the delegation. They were mainly inflicted on prisoners under a maximum security regime (“RMS”) and in the closed regime units of Arad and Oradea prisons by members of the intervention group (wearing balaclavas or masks). Medical evidence compatible with the allegations made was found in a certain number of prisoners' medical files in these two establishments. As regards material conditions in prisons, the report notes an overall high-level of overcrowding, with barely 2m² of living space per person in Târgşor Women’s Prison; these conditions were further aggravated by the fact that prisoners generally spent 20 to 22 hours a day in their cells."

In dozens of countries one will find similar systemic ills. Kenia is just one other country where there is a terrible lack of resources that would be required to run such a complex institution as a prison. The consequence is always the same: corruption, violence, and the spread of infectious diseases. Many inmates do not leave the prison alive. The following is an extreme case, but not a singularity:

“In 2004, a scandal was discovered in Meru prison in central Kenya. Five prisoners were found dead in a cell the size of a single bed. Seven other prisoners were also in the cell. At first it was thought the dead men had suffocated, but a post-mortem showed that they had been beaten to death. Reports said that they had refused to enter the cell because it was overcrowded, so the prison guards beat them up. The cell measured one by two metres. When they got into it they were attacked by the prisoners already in there. It was alleged that when the investigation started the prison staff tried to stop the chief government pathologist from conducting autopsies. The dead prisoners were not dangerous prisoners. Three of them were being held whilst awaiting trial after being accused of illegally brewing alcohol. The two others were serving sentences of just three months” (Stern 2006, p.1).

One would like to think of such cases as isolated events. But they are all but that. For their likes one only has to turn to countries like Albania, Brazil, China, and many many others. Cases like that are part and parcel of the prison system as it really is - worldwide.

What is worse: lack of resources is not the only - and not the main - cause for the scandalous nature of the prison. As both prison scandals in rich countries and empirical research by renowned scholars such as Philip Zimbardo have shown, the most relevant factor for violence to occur is to be found in the systemic disparities of power themselves.

In the area of empirical research, the famous Stanford Prison Experiment by Philip Zimbardo et al. (1973) has demonstrated the power of situational variables. In a closed setting with two groups, one of which is powerful, and the other one powerless, those with power are highly likely to resort to physical violence and brutality even when the individual members of that group are peaceful, "normal" persons. In case of conflict the powerful tend to fall back onto violence and abusive behavior to get what they want. They do so as long as they believe to be doing the right thing, and as long as they are convinced that they will not be reprimanded for their behaviour.

In a normal prison, the guards are the ones who really know what is going on, and it is the guards who try and determine who deserves what. With little administrative oversight, guards tend to become rather autonomous from the boss' surveillance. This gives them the experience of exercising more control than bein submitted to controls. Such a "control surplus" that goes unchecked by superiors turns every functionary into a small king. This situation is conducive to abuses of power - and, accordingly, Charles Tittle's Control Balance Theory (1995) predicts the emergence of exploitative and humiliating behaviour on the side of prison guards for all those cases in which the guards can act in an uncontrolled way and with no fear to be reprimanded.

Prison Abolition

Prisons are no way to deal with crime. They are outdated and they are unnecessarily cruel. So they are illegitimate. And should be illegal. So they have to be abolished. Done away with. Wholly. Once and for all.

But what exactly does it mean to "abolish prisons”? The answer to this question is both easy and difficult.

It is easy, because evidently to abolish prisons means to do away with them wholly. With the buildings (be they called gaols, jails, penitentiaries, prisons, remand centers or correctional facilities) including walls and watchtowers, bricks, barbed wire, steel and concrete. Of course, a few of them might remain and function (like Alcatraz and Auburn already do) as prisons-turned-tourist-sites. To walk through those abandoned prisons will send shudders down the tourists’ spines, and it will make them grateful for living in the contemporary world and not having to suffer through the times neither of the guillotines and scaffolds, nor of the pains of imprisonment.

It is difficult when we start thinking not of buildings, but of inmates. A serious answer to the question needs some reflection and - above all - differentiation. As a matter of fact, to find out what can and should be done about today’s prison population (and their future equivalents) might require that we first take a step back, calm down, and think about - what it does not mean to abolish prisons.

First and foremost, to abolish prisons does not mean to abolish all kinds of involuntary confinement. That might sound strange at first, but it becomes less so when we realize that “imprisonment” and “involuntary confinement” are not synonymous. As a matter of fact, “imprisonment” is only one (albeit outstanding) example of procedures, contexts, and institutions which restrict people’s freedom of movement against their will.

Just think of quarantine for people affected by a severe communicable disease. While extreme cases of quarantine also do raise serious moral and legal issues that have to be dealt with, there is no question that - as long as there is no less obtrusive way to protect public health - quarantine is a legitimate response to a social necessity. Similarly, the development of

Furthermore, there are cases in which individuals are being subjected to involuntary commitment to a psychiatric hospital in order to avert dangers for the patient and/or third parties.

Finally, to abolish prisons does not mean to abolish the need of locking up people who are an imminent threat to the life and limb of other human beings. Even if we believe it to be possible - with Friedrich Nietzsche - that future societies might one day be able to afford to let their offenders go unpunished, the abolition of punishment will not automatically free those societies from the need to lock up, let’s say serial killers, for merely preventive reasons. Even a society that renounces retributive punishment will not necessarily be able to renounce involuntary confinement for preventive reasons. Some things just have to be prevented from happening, be it the spread of an infectious disease, or be it a serial killer’s hunt for his next victim(s).

This is not to say that any of those necessary and involuntary deprivations of liberty has to be implemented in prisons or prison-like facilities. With no punishment intended, the living conditions of those affected by spatial separation from the rest of society must not be modeled after the penitentiary, but rather a middle-class home or at least apartment, both with regard to size and comfort. Whoever thinks that is exaggerated should halt a minute and consider this: these people are being forced to sacrifice essential parts of their (quality of) life for the life and liberty of others - without necessarily being “guilty” or “evil”. With no reproach involved and no vengeance, those who deprive these individuals of their liberty have good reasons to do everything they can to try and compensate their sufferings the best they can by, e.g., an artificially elevated level of living comfort. Since we cannot let them free, we should at least make their stays as positive, as pleasing, as creative and exciting, in short: as good and as tailored after their needs and wishes as possible.

Secondly, what the abolition of prisons does not mean is to keep all those prisoners in prison and only change the name of the institution and its inmates to “hospital/patients”, “treatment center/clients”, or “prevention house/residents”. Fraudulent labelling is a real danger, because it is both seductive (as a kind of subversive resistance open to all those who are part of the system and who are either unable or unwilling to accept a radical de-institutionalization) and sometimes hard to distinguish from a valid label (e.g., a correct risk assessment). It is also a real danger, because today’s prisons are fulfilling a hybrid function of both inflicting pain on inmates because of their past crimes (= deprivation of liberty as a punishment) and preventing them from committing more crimes in the future (= deprivation of liberty as a preventive measure).

Hence, to abolish prisons means to abolish the possibility for a criminal court to sentence an accused person to the punishment of imprisonment. Wherever and whenever that is achieved, prisons are just not needed anymore. Just like the abolition of the death penalty means to abolish the possibility for a criminal court to sentence an accused person to death. Wherever and whenever that is achieved, execution chambers are just not needed anymore.

The abolition of prisons also means to condemn the penitentiary type of prison buildings with their rows of solitary cells as their basic element to oblivion. The classical cell prison as it had been invented in the United States and exported to Europe (Pentonville), from where the colonial administrations spread it to the remotest corners of the world, has never fulfilled the high moral expectations of its founders and philanthropic friends. As of today, it is safe to say that it is both obsolete and a disgrace and a shame. Wherever they stand, prisons make good museums, but they must not be abused by still hold living people in captivity under conditions that are often worse than imaginable.

Instead of Prisons

The Real Sense of Punishment

Many people think committing a crime and being found guilty by a court means jail or prison. But even today, in most Western countries, with prisons still in use and often overcrowded, over 3/4 of all sanctions rely on financial penalties, community work or different degrees of supervision. Offenders are being put on probation (having to report to a probation officer and maybe visit him or her as frequently as multiple times a month or as little as once a year), maybe even intensive supervision probation (reporting to the probation officer three to five times a week plus unscheduled visits to the offender at home or work); offenders are being sentenced to restitution and fines (alone or in conjunction with probation, with payments to the crime victims or to the courts), to community service (to the benefit of the individual and the community), to substance abuse treatment and/or to day reporting (with offenders reporting each day how each hour will be spent during the day), to house arrest and/or electronic monitoring (restricting the offender to home except for work, school or treatment), or to a halfway house as an alternative to prison in a residential setting.

In all of these cases, convicted offenders are no being sent to prison, but they are still being punished. The state reacts to a crime by punishment, and a punishment, by its very nature, is - in the words of South African judge Thokozile Masipa uttered at the occasion of the sentencing of Oscar Pistorius in 2016 - "unpleasant, it is inconvenient, it is painful, it is certainly not what you would chose to do.”

It is important to note that punishment - pure punishment - is pain infliction as a reaction to the past, i.e. to a crime or crimes that the offender committed in the past. Pure punishment looks backwards. Pure punishment serves atonement. It is a symbolic response to an event in the past, and a response of sorts to affirm the continuing validity of the broken norm.

It is equally true that punishment, the basic legitimation of which lies in the past, will almost invariably also aim at the future. It wants to prevent the offender from re-offending, it wants to heal wounds of the victims as good as it can, and it wants to calm public anxiety that may have been fuelled by disturbing crimes. All these are (secondary) purposes of punishing offenders, but they are not what lies at the root of normative theories of punishment. If it was different, i.e. if the basic justification of punishment were only to lie in the prevention of recidivism, then "security measures" with no punitive element were to prefer over "punishment". And in those cases in which there was no recidivism to be feared, and in which, additionally, the victim had forgiven the offender and did not want to see him punished, there would be no need and no justification for punishment anymore. But still, there often are strong feelings in a community that the to restore peace and order, there was a need to respond to the crime in question by an authoritative actus contrarius.

Think of the Roman Polanski case: the film director's rape victim, then 13, and now in her 40s, had filed a statement in court asking for dismissal. An editorial of the Los Angeles Times stated the reasons why the court procedure should still go on, even against the victim's explicit will, saying:

"The case against Polanski was not brought to satisfy her (the victim's) desire for justice or her need for closure. It was brought by the state of California on behalf of the people of California. (...) Crimes are committed not just against individuals but againt the community. ... People accused of serious crimes must be apprehended and tried and, if convicted, must face their sentence" (Diamond 2012: 110).

Punishment is a specific reaction because of its expressive symbolism. Its fourfold meaning lies - at last according to Joel Feinberg (1970/1994) - in manifesting an authoritative disavowal of the act in question, a symbolic nonacquiescence to what happened, but it also emphatically reaffirms the law, and last not least it relieves others of suspicion and blame by way of concentrating guilt on those who are found to deserve the punishment.

Klaus Günther (2002: 218) resumes the core significance of punishment as being a public declaration that a certain event was an injustice perpetrated by individuals, and that this injustice is not and will not be tolerated by the community. This declaration, according to Günther, has three addressees (1) the victim (who is reassured that the community does not regard his harm as simply bad luck or fate, but as the result of unjustified and untolerated actions), (2) the offender (who is told that his actions are seen as responsible for that what happened and that his behaviour is seen as strongly reprehensible), and (3) the general public (who is being told that the negative consequences are being defined not as accidental, but as an injustice that cannot be tolerated and that this injustice is neither to be blamed on the victim nor on the public).

In the course of history, punishment has played a central role ever since the emergence of proto-states, and the function of symbolic reprobation has been associated with certain forms of hard treatment. For a long time, public executions were the most conventional symbols of symbolic reprobation. Later on, the prison assumed this role. There is no natural law that can prevent coming changes. Other forms of hard treatment will become conventional expressions of symbolic reprobation of the future.

The relativity of crime (what used to be a clear hanging matter some centuries ago can be an accepted lifestyle option today) does not make punishments go away. It just moves punishment from one behaviour to others, newly criminalized ones (e.g. from being gay to anti-gay discrimination). But punishments change their appearances, and their essential elements. What does not change is the function of punishment as a symbolic reprobation of the respective punishable acts.

Punishment without Prison: The Dangerous Few

If we want to find out, under these premises, if our contemporary societies can do without prisons, then we can modify the well-known shanty song of the Drunken Sailor. The modified shanty would pose the following questions, and only if we are able to find satisfactory answers to all of them we could be confident of our cause.

Here we go:

The Drunken Sailor (modified version)

• What shall we do with the drunken sailor,
• What shall we do with the drunken sailor,
• What shall we do with the drunken sailor,
• Early in the morning?

• What shall we do with the serial killer?
• What shall we do with the child molester?
• What shall we do with the roaming rapist?
• What shall we do wit the genocidical general?
• What shall we do with the ex-dictators?
• Early in the morning?´
• (and at the end of the day?)

​

The problem with serial killers is often that they are deemed (and proven) to be highly likely to proceed with their habit if not held in confinement. To keep them in custody - even if that custody were in a luxurious mansion with a large yard and garden - would be a merely preventive measure and would not necessarily have to comprise torturous elements of extra pain delivery. Still it would imply a symbolic reprehension. It would tell the victim that one cares, it would tell the offender that he is seen as a danger, and it would tell the community that this kind of behaviour is not and will not be tolerated. The function of punishment would be fulfilled without really using punishment.

In a spectacular criminal case in the USA, the repeated rape of an 18-month-old girl under the most gruesome circumstances earned former Coast Guard Eric Devin Masters a prison sentence of up to 200 years in April 2016. Even though Judge Trusock declared "You are truly an evil individual and we need to make sure that you are never allowed in society", the massive prison sentence did not satisfy all members of the public, many of whom believed he had deserved the death penalty for the heinous acts he had committed. The case gives evidence that the current conventional expressions of deepest moral indignation are the request for capital punishment and for lifelong confinement in prison. This does not mean, though, that things could not - and should not - change towards less radical punishments. Here, as in the case of serial killers, the need for public disapproval could be expressed in intensive supervision within the community. Extramural alternatives would provide the convict with a reasonable chance of survival (doubtful in prison), would have to provide the victims with a live surveillance technology and the certainty of constant police watch over the delinquent, and it would provide the community with the possibility of finding peace of mind, knowing that the convict is under control and inserted in a productive activity for the community.

A similar scheme would be applicable to the roaming rapist. But would it also serve the need for expressive symbolism in the case of the genocidal general? There is no question that there is a strong and legitimate desire for justice on the part of victims of large-scale crimes of the powerful. In some cases, victims' family members struggle for years or decades on end to find culprits and bring them to justice. In the case of Chilean folk-singer Victor Jara, tortured then shot in the head in September 1973 in a locker room at Santiago’s Chile Stadium, where thousands of perceived subversives, activists and communists were rounded up and detained by General Augusto Pinochet’s forces that had just toppled the elected government of Salvador Allende (Jara’s mutilated body was later found dumped outside the stadium with 44 bullet wounds), his widow Joan Turner Jara and their two daughters fought the fight for justice for the murder of their husband and dad for more than 40 years. When the day of the opening of the trial came in a Florida court in 2016, not only was it an "emotional and almost overpowering moment" for the family, but also "a powerful moment for all those who have been seeking justice and truth about what happened during the Pinochet coup,” according to Dixon Osburn, executive director of the California-based Center for Justice and Accountability that had been instrumental in bringing the legal action against the presumptive assassin (Luscombe 2016).

At the occasion of the Jerusalem trial over Holocaust organizer Adolf Eichmann, Hannah Arendt was critical of the legal arguments, but not of the result of the trial (Eichmann was executed in 1962). Instead of trying to press things into the categories of criminal law, Arendt argued, the court should have dared to offer a reasoning that would reach out for long-forgotten categories of natural law. Her judgement (Arendt 1977: 279) reads:

"You admitted that the crime committed against the Jewish people during the war was the greatest crime in recorded history, and you admitted your role in it.... We are concerned here only with what you did, and not with the possible noncriminal nature of your inner life and of your motives…. Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder. For politics is not like the nursery; in politics obedience and support are the same. And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations… we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang."

The problem with this is, of course, the precedent. There are many crimes that defy all notions of humanity. From genocides to serial killers to the rape of toddlers. For each one of the offenders, when you look closely at the deed and do not want to believe what you see or read, the monstrosity of the deed alone can be seen as "the reason, and the only reason", the offender "must hang".

After the Second World War, when German occupation of surrounding countries had ended, the day of reckoning had arried for collaborators. Norway hanged 25 of the most prominent collaborators and sentenced 47 prison guards to imprisonment who were convicted of maltreatment and/or killings of prisoners. A young graduate by the name of Nils Christie, later a world famous criminologist, who had interviewed many of the Norwegian camp guards, was not convinced that punishment was necessary or even only useful. Instead of hanging or imprisoning them (and thereby reinforcing the stereotypes that had been instrumental in their crimes in the first place), he argued, it would have been much more productive to have a long and fair trial that would establish the facts (and the responsibilities) - and thus to have come to a guilty verdict, and then let those shamed individuals go their ways. Could one imagine a more sovereign, a more devastating moral reprehension than this act of letting them walk out of the courtroom into a society that knows, and despises, what they had done?

There are advantages in Christie's way over our traditional way of reacting. The problem with eliminatory sentences is the slippery slope. Why should any member of the human race be expected to want to share the earth with any of those whose unspeakable cruelty that freezes the blood in your veins? The idea that some people are simply not worth living is neither new nor a rare thought in human history. Whoever orders or organizes a genocide is just one case in point. But can anybody be expected to share the earth with sadistic mass murderers and serial killers, child rapists and torturers, with terrorists and the hitmen and king pins of drug cartels? And what about corrupt officials who impoverish or endanger whole populations while amassing millions and literally billions of dollars on their tax haven bank accounts? In China, many of the more than 40 criminal offences that carry the death penalty are non-violent and economic in nature.

The prison question cannot be disconnected from more profound questions (and decisions) of an ethical and political nature. Whoever opts for the state's right to the death penalty will be likely to grant it also the right to keep criminal offenders locked up like animals in a cage. Whoever takes a more critical view of the state's rights over the individual and a more emphatic one concerning every human being's right to right to life and liberty will tend to reject the death penalty as a transgression of the state's rights over it's subjects and to be open to alternatives to imprisonment when it comes to questions of social control.

As far as non-violent crimes are concerned, the state's right to incarcerate could be questioned for reasons of disproportionality. Why respond to non-violence with the violence act of imprisonment? Why not adopt civil law measures and make the offender pay punitive damages that amount to three, four, five or ten times the value of his illicit gains? Why not invent some serious supervised community work for offenders who cannot repay the damage they inflicted?

Others might oppose the closing of all prisons because of the drug market. How, we hear them say, can we expect to deter traffickers, pushers, and dealers of dangerous drugs if we cannot even threaten them with long prison sentences? Without the threat of prison, people on the drug market would probably continue doing what they have been doing all along - but with more ease, and with a lower rate of staff turnover. As today, what happens in this market would be determined not by criminal justice interventions but by the basic forces of demand and supply. Things would not by themselves undergo dramatic changes without the prison threat, but there would probably be less violence overall, and a certain détente could occur that might give way to a more sober analysis of the role of criminal justice in the whole field of health risks through the supply and use of recreational drugs.

Even more people might oppose the closing of all prisons because of their concern over sex fiends. Sex fiends do exist and some of them defy the therapeutic capabilities of contemporary science and psychology, making them continuously dangerous to others and eligible for long-stay institutions that take care of dangerous individuals by locking them up for preventive reasons. As for the rest of sexual offenders - and probably and happily they will be the large majority - there is no question that a well-supported and well-supervised everyday life in liberty would be a welcome alternative to imprisonment. In their own interest as well as in the interest of a society that has understood that confinement, especially for this special clientele, breeds both violence and monsters, but that circles of support and accountability of the Canadian kind (COSA) are an effective and humane way of dealing with this complicated group of persons in a community setting.

Instead of Punishment

It is possible to imagine a society flushed with such a sense of power that it could afford to let its offenders go unpunished.

Friedrich Nietzsche

Child beating is particularly cowardly because it is a way for adults to vent their hatred, frustration, and sadism on those who are unable to defend themselves. Such cruelty is, of course, always rationalised with excuse like "it hurts me more than it does you," etc., or explained in moral terms, like "I don't want my boy to be soft" or "I want him to prepare him for a harsh world" or "I spank my children because my parents spanked me, and it did me a hell of a lot of good." But despite such rationalisations, the fact remains that punishment is always an act of hate.

Alexander S. Neill

We have seen that prisons are only one expression of the larger and more encompassing institution called punishment. In principle, therefore, prison can be substituted by other forms of punishment - some harsher, some milder, some neither this nor that but just different. Given our knowledge of the variety of punishments (corporal punishment, imprisonment, financial sanctions, community work etc.), this is quite obvious, of course. What may be less evident: punishment itself can also be seen as just one expression of a larger and more encompassing institution. If punishment is just one way of "repairing" the harm caused by a crime, there may be other ways, too - some harsher, some milder, some neither this nor that but just different.

The harm caused by crime is often more complex and more widespread than is usually thought. There is physical, psychic, and/or material damage, but there is also something in a crime that affects the community as such and even the normative structure of the social order. If there is to be an alternative to punishment then this alternative would have to take into account this three-dimensional harm. Any alternative would have to be able to respond to the question how it would deal with the challenge of re-instating the victim in his or her full status as a citizen (materially, emotionally, socially), how it would deal with restoring peace and confidence in a shaken collective, and how it would manage to publicly re-affirm the validity of a broken rule in order to prevent normative erosion. Crimes hurt victims, but they also hurt the law's claim to validity. Whereas victim compensation can do a lot to undo the harm inflicted upon the victim, punishment takes care of the crime's symbolic message in that it publicly and forcefully contradicts the impression that it is easy and okay to disobey the law - and that you can get away with it. Punishment is central to the normative order (and very existence) of society because it is an instrument with which to assure that a crime will not derogate the norm that it disobeys. It serves as the authoritative repudiation of the implicity anti-legal message of every crime that occurs. It is a performative (speech and non-discursive) act restoring the claim that the law - even if broken - has not lost its validity. And as we have seen, this anti-message against the message of crime contains not only a consolation for the victim, but also a relevant lesson to the offender, and a vital reassurance towards the affected community that breaches of the law are not being left acquiesced.

In other words: while one way of getting rid of prisons is to ("simply") replace one punishment by another - this is what the discourse about "alternatives" is mostly about - a more ambitious (but also more promising) one is that of moving beyond punishment altogether, and to renounce to punishment, but not to its three-dimensional restorative functions. If we want our societies not only to survive, but improve the living conditions for each and all of their members, then one of our central concerns should be to get rid of punishment without renouncing to its positive and necessary functions. To put it more clearly: how can we - after a serious offense has harmed the victims, affected the offender, and disturbed public peace - manage to fulfill the functions of punishment (i.e. to send a message that empowers the victims, teaches the offender, and restores community spirit) without resorting to punishment? Can we activate the healing elements of punishment without resorting to punishment?

To cut out corporal punishment and to question the necessity and legitimacy of the prison is a risky thing to do. It touches the archtypes of punishment and invariably puts into question the soundness of underlying concepts. Will a criminal justice system without the prison still be a real criminal justice system? Can, what is left over as sanctions, justly be called a punishment? If we can do without prisons - can't we just renounce punishment in general? Is punishment really a social and ethical necessity? Once there, our conventional notions of "crime and punishment" might begin to crumble, leading us to question the very concepts of crime, guilt, and - not to forget - free will and individual responsibility.

As Willem de Haan (2010) suggests, these questions should be taken seriously by everybody who cares about the quality of life in comtemporary societies, including academic criminologists. In his words:

"Criminology needs to rid itself of those theories of punishment which assume there are universal qualities in forms of punishment or assume a straightforward connection between crime and punishment. Given the perseverance of this conventional notion of 'punishment' as essentially a 'good' against an 'evil', any effort at changing common-sense notions of 'crime' and 'crime control' requires a reconceptualization of both concepts: 'crime' and 'punishment'."

To discuss prison abolition, one does not have to answer all the fundamental questions, but it cannot hurt to think about a world without punishment for a minute. Evidently, society would not be able to survive for any relevant length of time if reouncing punishment were to imply that rape and murder would henceforth not elicit any collective response anymore. To renounce any actus contrarius to any future crime would give carte blanche to those who delight in domination and exploitation of the less powerful, and it would probably lead to the most gruesome excesses of private vengeance and retaliation. In other words, societies would not stand a laissez-faire attitude towards murder, rape, or theft. They would disintegrate.

This is the central idea of the concept and practice of restorative justice as a means to repair the harm caused by crime to victims, the community, the offender, and the normative order. Restorative justice takes into consideration all three dimensions of harm, but it does so with a different procedure and emphasis. The procedure is not top-down like in a criminal court, and the basic questions are not "which law has been violated, who is the offender, and what punishment does he deserve?", but rather "what harm has been done, what has to be done about this harm, whose responsibility is it to do something about it, and do we go on from here?". The emphasis is on a collective effort to assess the damage and to repair it as good as one can with a view to the peculiarities of the case and the people involved. Whereas the criminal law dramatizes the violation of the state's norm and authority, restorative justice processes dramatize the harm and the need to make amends and restore peace and confidence. Where the criminal court individualizes, putting all the blame and the court-inflicted pain upon the culprit, restorative justice collectivizes in that it focuses on the situation and its resolution, not on one individual.

This is not to say that the offender plays no role. He or she is being called upon, and taken very seriously, but not with the sole aim of accusation and condemnation, but with the aim of creating awareness of the harm done, and of the responsibility that he or she might be able to acknowledge and the tasks he or she might be able to shoulder in the process of healing. The culprit is also seen as a person with virtues and failings, with guilt, responsiblity, but also with a need for healing.

If that sounds like social romanticism, then it be. As a matter of fact, social romanticism has always played an important role in the attempts of mankind to progress on the way of civilization (remember the role of Harriet Beecher-Stowe's rather schmaltzy novel about Uncle Tom's Cabin in the fight against slavery?). But this does not mean that restorative justice is just an idea with no practical value. In some corners of the world (that might seem remote from a Eurocentrist perspective) restorative justice is a consolidated practice with impressive outcomes. In England, an empirical test of restorative procedures as compared to classical criminal procedures has produced astonishing results in favour of the new approach.

From the perspective of restorative justice, criminal cases can be seen as conflicts that have been stolen by professionals from those immediately concerned (Christie). But when victims, offenders, and community members meet under the guidance of an experienced facilitator - not a judge - to decide how to deal with a "problematic situation" (Hulsman) the results can be healing for victims (and offenders), restoring in not only material terms, and even "transformational" in the sense of creating a better situation than that out of which the crime originated (Morris).

In today's world, restorative justice is not being implemented as a wholesale replacement for prisons. In most settings, it is offered - as a healing device - alongside or even after a criminal trial and prison sentence (for an example of post-sentencing restorative justice see the documentary "Beyond Punishment" by Hubertus Siegert (2015). This reminds of the additional, rather than substitutional role of the penitentiary in the age of capital punishment. But just as the prison was increasingly instrumental in abolishing capital punishment in large parts of the world, restorative justice has all the potential of doing likewise with the prison. If and how this could work for the good of the societies that adopt restorative justice depends on the force-field of social interests and influences. No reform is without risk of being kidnapped, transformed, or betrayed (cf. Christie). But to see a door in the prison wall and not go through it because of fear of freedom - who would knowingly advocate that?

For most of human history societies did not know prisons - nor did they know punishment as a standard reaction to crime by the state and its legal authorities - and still they succeeded in the task of re-affirming the validity of the norm broken by the perpetrator. What today is called crime was seen as a rupture of the natural order and/or as a wrong done to another person, but not as a crimen laesae maiestatis, an insubordination to the will of the ruler. This is why the dominant mode of "criminal justice" in earlier ages was one that could do without punishment. Justice was procedural and restorative instead of punitive-retributive. To react to crimes was an art that required communicative skills and a profound knowledge of both the respective customs as well as the concerned individuals and families. Conflict regulation needed patience, and the continuous mobilization of good will on the part of all those who were somehow affected by the event. In the end - if everything went well - peace and security were restored, the boundaries of acceptable behaviour were re-affirmed (or slightly re-drawn), and all expressive functions normally attributed to punishment were fulfilled, but without resort to punishment. It is time to remember this almost forgotten fact and to move on to a form of society that is free at least from both capital and prison punishments, and - hopefully - at last also from punishment as such.

Bibliography

• Allen, Francis A (1981) The Decline of the Rehabilitative Ideal. Penal Policy and Social Purpose. New Haven: Yale University Press.
• Arendt, Hannah (1977) Eichmann in Jerusalem: A Report on the Banality of Evil, revised and enlarged edition [1965] New York: Penguin.

• Baker, Catherine (2004) Pourquoi faudrait-il punir? Lyon: tahin party.
• Braithwaite, John (2002) Restorative Justice and Responsive Regulation. Oxford, New York: Oxford University Press.
• Bretschneider, Falk (2008) Gefangene Gesellschaft. Eine Geschichte der Einsperrung in Sachsen im 18. und 19. Jahrhundert. Konstanz: UVK

• Carlen, Pat (1990) Alternatives to Women's Imprisonment. Milton Keynes: Open University Press.

• Cartner, Holly (1992) Prison Conditions in Romania. A Helsinki Watch Report. A Division of Human Rights Watch. New York.

• Christie, Nils (1977) Conflicts as Property. Br J Criminol 17 (1): 1-15.

• Christie, Nils (2009): Restorative Justice: Five Dangers Ahead. In: Knepper, Paul/Doak, Jonathan/Shapland, Joanna (Hrsg.): Urban Crime Prevention, Surveillance, and Restorative Justice. Effects of Social Technologies. Boca Raton: CRC Press, pp. 195-203.

• CPT (2015) Council of Europe anti-torture Committee publishes report on Romania

• de Haan (2010) Abolition and Crime Control

• Deleuze, Gilles (1992) Postscript on the Societies of Control. October, Vol. 59. (Winter, 1992), pp. 3-7.
• Also: Deleuze, Gilles Society of Control
• Also: in Portuguese Deleuze, Sociedade ..

• Charles Dickens on Solitary Confinement, in: Solitarywatch 2010

• Ellis, Meaghan (2016) Eric Devin Masters: Child Rapist Receives Massive Dose of Karma ..., in: Inquisitr 17 April 2016 online

• Feinberg, Joel (1970) The Expressive Function of Punishment, in: Feinberg, Joel, Doing and Deserving. Essays in the Theory of Responsibility. Princeton: Princeton University Press, 95-118.

• Fennel, Katja (2008) Gefängnisarchitektur und Strafvollzugsgesetz: Anspruch und Wirklichkeit am Beispiel des hessischen Vollzugs. Saarbrücken: VDM-Verlag Dr. Müller

• Foucault, Michel (1979) Discipline and Punish. The Birth of the Prison. New York: Vintage.

• Galli, Thomas (2016) Die Schwere der Schuld. Ein Gefängnisdirektor erzählt. Berlin: Das Neue Berlin.
• Guimarães, Manoel Luiz Prates (16.07.2016) Desencarceramento: Idealidade abstrata e realidade concreta

• Günther, Klaus (2002) Die symbolisch-expressive Bedeutung der Strafe - Eine neue Straftheorie jenseits von Vergeltung und Prävention? in: Festschrift für Klaus Lüderssen zum 70. Geburtstag am 2. Mai 2002 (Cornelius Prittwitz ; Michael Baurmann ; Klaus Günther ; Lothar Kuhlen ; Reinhard Merkel ; Cornelius Nestler ; Lorenz Schulz, Hrsg.) Baden-Baden: Nomos, 205-220

• Haney, Craig, Banks, W. Curtis, & Zimbardo, Philip G. (1973) A study of prisoners and guards in a simulated prison. Naval Research Review, 30, 4-17.

• Hulsman, Louk H.C. (1986): Critical Criminology and the Concept of Crime, in: Contemporary Crises, 10 (3–4), 63–80.
• Hulsman, Louk H.C./Jacqueline Bernat de Celis (1982) Peines Perdues. Le système pénale en question. Paris: le centurion.
• Jaramillo, Alejandro Gómez (2008) Un mundo sin cárceloes es posible. México: Ediciones Coyoacán.

• Karagiannidis, Charalampos (2001) Abolitionism. Building an Avant-Garde Criminological Antitheory. In: CRIMINO-LOGICALS 16. Series on Study and Researches in Criminology, Crime Policy and Criminal Justice
• Kozlowska, Hanna (2015) The disturbing pipeline to prison for thousands of girls in the US starts with sexual abuse. Quartz
• Krisberg, Barry (2005) Reforming Juvenile Justice. In: The American Prospect, 14 August 2005

• Kropotkine, Pierre (1887) On ne peut pas améliorer les prisons
• [ht tps://www.goodreads.com/author/quotes/34296.Pyotr_Kropotkin Kropotkin, Pyotr Quotes]

• Laing, Aisleen (2016) Oscar Pistorius will serve half his six-year prison sentence for murdering Reeva Steenkamp before applying for parole. The Telegraph 6 July 2016 online
• Lesting, Wolfgang (1988) Normalisierung im Strafvollzug. Potential und Grenzen des § 3 Abs. 1 StVollzG. Pfaffenweiler: Centaurus.

• Luscombe, Richard (2016) Trial of former Chile military officer for murder of Víctor Jara opens in Florida. The Guardian 13 June 2016 online
• Maelicke, Bernd (2015) Das Knast-Dilemma. München: C. Bertelsmann.
• Mitford, Jessica (1973) Kind and Usual Punishment: The Prison Business. New York: Knopf.
• Neminski, Michael (2013) The Professionalization of Crime: How Prisons Create More Criminals.
• Nickolai, Werner (2011) Plädoyer zur Abschaffung des Jugendstrafvollzugs. In: Wolfgang Stelly & Jürgen Thomas, eds., Erziehung und Strafe. Symposium zum 35-jährigen Bestehen der JVA Adelsheim. Mönchengladbach: Forum Verlag, pp. 19

• Onfray, Michel et al. (2014) Abolir la prison, ses mécanismes et ses logiques.
• Ortner, Helmut/Reinhard Wetter (1975) Gefängnis und Familie. Berlin: K. Kramer.
• Ruggiero, Vincenzo (2015) The Legacy of Abolitionism. Penal Field/Champ Pénal XII (Special Issue on Abolitionism)
• Ruggiero, Vincenzo (2010) Penal Abolitionism. Oxford: Oxford University Press.

• Schumann, Karl (1988) Eine Gesellschaft ohne Gefängnisse, in: Karl F. Schumann, Heinz Steinert, Michael Voß, Hg., Vom Ende des Strafvollzugs. Bielefeld: AJZ, 16-34.
• Schwarz, Karl-Peter (2016) Gefangene in Rumänien rebellieren. Die maroden Haftanstalten des Landes sind überfüllt. FAZ 15.7.2016: 8.

• Sherman, Lawrence W. & Strang, Heather (2007) Restorative Justice: The Evidence. The Smith Institute

• Smith, Caleb (2009) The Prison and the American Imagination. New Haven and London: Yale University Press
• Stern, Vivien (2006) Creating Criminals. Prisons and People in a Market Society. London: Zed Books.

• Strawson, Peter (2003)Freedom and Resentment, in: Gary Watson, ed., Free Will. New York: Oxford University Press, 72-93.
• Sykes, Gresham (1958) Society of Captives. A Study of a Maximum Security Prison. Princeton: Princeton University Press.
• World Prison Brief

Leftovers

• History of Punishments
• Magiera, Kim (2014) Restaurative Gerechtigkeit. Grundlagen und Beispiele aus der Praxis. PPT
• Mathiesen, Prison on trial, p. 161 (1610, Logrono witch burning ...)
• Neill, Alexander S. (Summerhill) On punishment as act of hate
• Prison conditions 18th century: http://vcp.e2bn.org/justice/page11361-types-of-punishment-imprisonment.html
• Quaker reforms: https://www.history.org/Foundation/journal/Summer11/prison.cfm