Benutzer:Woozle/Against Penitentiaries

It is time to close the chapter of prisons in the history of punishment. It is time to say good-bye to imprisonment as a punishment for crime. It is time to tear down the buildings where the punishment of imprisonment has been executed for years, decades, ages. With a somewhat antiquated German term for court-ordered punitive deprivations of liberty we could say: let us abolish the Strafgefängnis once and for all. The demand to abolish all jails, prisons, penitentiaries and correctional institutions where convicts have been (and are) serving time may seem audacious to some - and utopian to others. And, indeed, to do away with prisons would certainly be a step of historical dimensions - more wide-ranging than a moratorium on prison construction and more than any plan to shrink the current prison systems to half or less their current size. To do away with all serving prisons without exception and regardless of their often euphemistic self-descriptions represents a qualitative leap. It means the end of the era of punishment by 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.

Such demands require a serious explanation. One that shows awareness for all the counterarguments put forward to justify the status quo. We believe we do have this awareness - and that we can answer all objections. For instance, we do not deny that the invention of the penitentiary had been a significant advance over preceding sanctions. We give the prison credit for the attempt to find a compromise between the divergent and conflicting objectives that it is burdened with. We acknowledge without hesitation that "this is not the right time to talk about prison abolition". But we insist that it is high time to abandon both the ideology and practice of imprisonment as modernity's standard response to crime. And we hope to convince readers that it is not only possible to overcome the age of confinement without losses in terms of victims' rights, security concerns or the rule of law, but that this task is an urgent one.

Prisons Work

Prisons are not without merits. Probably the best thing that can be said about them is that they are much better than the punishments that immediately preceded the birth of the modern penitentiary. Just think of executions like this one. The description (from Evans 1997: 194) takes us back to the Berlin of the year 1800, decades before Prussia abolished this specific form of punishment:

“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.”

Since imprisonment was seen as something like the more humane successor of all those repugnant spectacles (including the pillory, public whippings, brandings, mutilations or at times having the offender boiled in oil or burned at the stake) the modern cell prison was greeted with almost unanimous relief. Designed as a keeper, not a killer, the prison sentence manifested a revolution in the attitudes towards delinquency: those behind its walls were seen as sinners who could be redeemed and who – in principle – deserved a second chance. A chance not only to walk through its gates once they they 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. That was a stunning turnaround that explains why the promise of the prison never to return to the atrocities of earlier times was and still is one of the strongest arguments in its favour.

The second best thing that can be said about prisons is that they do "work" - at least in a certain sense, to a certain extent, and with relation to the expectations of a significant part of the general public (even though that may be said, retrospectively, also of medieval punishments, of torture, and, with regard to present-day practices in many countries, of capital punishment).

They may not work all too well with regard to the (re-) socialization of inmates, but they seem to satisfy those whose role has been described by Michelle Brown (2009) as that of the "penal spectator". For penal spectators, prisons are there to punish. They are meant to inflict pain on criminals in return for the wrong they did to others. This is their primary purpose, and they fulfill it reasonably well considering the diversity of opinions and attitudes within what sufficiently well , even though . They are a strong signal of disapproval. They visibly inflict pain on those found responsible for criminal activities - and they intentionally stigmatize offenders, while symbolically siding with the victims of crime, thus also exonerating them from potential feelings or ascriptions of guilt or co-responsibility. In other words: incarceration punishes the offender, but it also supports the victims, and it re-assures the public of the continuing validity and enforcement of the norm that the offender had broken. Symbolically, prisons send out a clear message that violations of the penal code will not be tolerated - and that potential future offenders should think twice before succumbing to the seductions of crime (Katz 1988).

If punishment is the first purpose of imprisonment, then incapacitation is second. The prison prevents its inmates from continuing to steal and rob, to rape and to kill - at least for a time, but hopefully (by either intimidation or treatment) also for the rest of their lives and in their post-prison environments. Surely, there is no way to prevent crimes from happening within the prison system - but that is another story. For the penal spectator, what counts is to be able to safely walk the streets at night (and during daytime). The very existence of prisons conveys an atmosphere of relative safety.

Thirdly, and in more cases than none, the prison even lives up to its promise of helping offenders to some kind of cognitive and/or emotional maturity and thus enable them to lead a law-abiding life after release. post-internment life by developing both cognitively and emotionally, so that at the time of release they can lead a better and a law-abiding life (rehabilitation).

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 (…).”

In this sense, prisons work. They may generate all sorts of unpleasant phenomena. But they are an accepted part of social reality. Last but not least because they can also be seen as a positive economic factor. Prison construction creates jobs - as does the running of a prison. On a worldwide scale, prisons employ hundreds of thousands, maybe millions of individuals. Not to mention the shareholder profits of such giants of the prison-industrial complex as the Corrections Corporation of America. Seen from the perspective of Realpolitik, the history of the prison has all ingredients of a tremendous success story. 

An Untimely Issue

Admittedly (and sadly), we cannot even claim originality for our abolitionist intentions. As a matter of fact, the institution of the prison has often been wished away (albeit so far to no avail). As Peter Kropotkin, with enough prison experience in his time, 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 reaffirmed his conviction 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."

Almost a century later, in 1981, the Canadian Yearly Meeting of the Religious Society of Friends, better known as the Quakers, approved a "Minute on Prison Abolition". This memorable minute (Nr. 93) first remembers the Quakers' advocacy of prisons as an alternative to corporal and capital punishment and their subsequent work for prison reform. Then the text takes a turn. It reads:

"Today, Friends are becoming aware that prisons are a destructive and expensive failure as a response to crime. We are, therefore, turning our efforts to reform prisons to efforts to replace them with non-punitive, life-affirming and reconciling responses. - The prison system is both a cause and a result of violence and social injustice. Throughout history, the majority of prisoners have been the powerless and the oppressed. We are increasingly clear that the imprisonment of human beings, like their enslavement, is inherently immoral and is as destructive to the cagers as the caged."

In contemporary high crime societies (Garland 2000), to most observers the very idea of doing away with prisons lacks both plausibility and feasibility, though. Some even see a nuisance in those who (still) argue for the end of imprisonment. They contend that this kind of talk could seriously impede any real progress in prison reform and in criminal policy as such, which, by its very nature, has to deal with the world of facts, not fiction. And they can certainly point to one undisputable fact: empirical data seem to demonstrate beyond reasonable doubt that there has been - and still is - an almost insatiable demand for ever more prisons to be built in almost all countries of the world.

The Demand for Prisons

To assess the force of this demand for prisons realistically one has to look back in time until, let us say, the early 1970s. At that time, the imprisonment rate in the Netherlands was around 20 per 100,000, while in Norway, it stood at 37 (cf. Tak 2001: 151). At that time, the trend seemed to be to send ever fewer people to prison and to get ever more people out. International experts saw Holland and the Scandinavian countries as models to be followed - not only in terms of quantity, but also quality. There, prison conditions were sometimes described as "a home away from home", with the social distance between inmates and guards so reduced that it became hard to tell who was a guard and who an inmate (Pratt 2002: 145).

Almost half a century later, the Dutch and Norwegian rates are hovering around 70. Globally, a punitive turn that had started still in the 1970s, has resulted in ever-expanding prison system in a majority of the world's countries and in more people behind bars today than at any other time in human history (about 10 million). A report on global prison trends (PRI 2015: 7) states:

"Over the last fifteen years or so, prison populations have seen particularly sharp rises in Latin America, where Brazil has seen a 150 per cent increase, Colombia a 125 per cent increase, and Mexico, 53 per cent. (...) In Asia, particularly steep rises in the use of prison have been seen in Indonesia (183 per cent) and Vietnam (136 per cent). Prison numbers rose by 58 per cent in the Philippines and by 38 per cent in Iran. Thailand’s prison population fell between 2001 and 2007 but then rose again – its 325,000 prisoners in 2014 amounted to 30 per cent more than in 2001. India’s prison numbers rose by a similar percentage between 2001 and 2013. China with the largest absolute numbers of prisoners in Asia appears to have seen a more modest rise although data is incomplete in respect of pre-trial detainees and those subject to administrative detention. In the Gulf region, the use of prison has doubled in Saudi Arabia (from 23,700 prisoners in 2000 to 47,000 in 2013) and in Qatar – from 569 in 2002 to 1,150 in 2013."

Interestingly, the quantitative surge seems to go hand in hand with an improved reputation of the prison system in science and public opinion. In spite of lasting and widespread academic prison-bashing fuelled by such as works as Georg Rusche's and Otto Kirchheimer's Punishment and Social Strucure (1939) and Michel Foucault's Discipline and Punish (1975) the public's generally supportive perception of the prison as a standard response to crime seems not to have suffered any serious setback. And even in academic circles, radical criticism of prisons has reached a new low.

All told, imprisonment as a swift and easy way of dealing with troublemakers is as popular today as never before. Gone are the days when heavy reliance on imprisonment - often instead of a sound social policy - used to be regarded as a kind of informal monopoly of dictatorships and similar regimes of little sophistication. Meanwhile none other than the global flag bearer of freedom and democracy has assumed the leading role in selling incarceration as a panacea for all kinds of social ills. From Richard Nixon's declaration of the War on Drugs (1971) over "get-tough" approaches based on neo-classical just deserts ideologies and their manifestation in sentencing guidelines all the way to Bill Clinton's 1994 Violent Crime Control Act which, among other things, expanded the death penalty, encouraged states to lengthen prison sentences and helped skyrocket the population behind bars in the United States of America by more than 600 percent between the 1970 and 2000 (Mauer 2001; 2003: 1), the superpower's incarceration rate has long surpassed those of Russia and China and has now reached a flabbergasting 716 per 100 000 (Williams 2016). With a prison population of 2.2 million (including thousands on death row), the world's socio-cultural role model has also been at the forefront of nurturing a prison-industrial complex that combines the fight against rising crime rates with substantial financial gains for diverse prison-related lobbyists and industries (Christie 2016), thus adding another thrust to the rising number of incarcerated individuals. While the nation is slowly waking up to the fact that mass incarceration also means mass releases from prison (with yearly more than 600 000 citizens seeking reintegration after doing time; Harty 2012: 1)), there is no doubt that the prison has attained a more significant role in American society than ever.

In such a situation, a radical critique of prisons - one that is envisaging neither a "mere" improvement of living conditions in prison nor a reduction of imprisonment rates, but an outright abolition of all prisons - is a rather untimely endeavor, to say the least. Often, it is even being reproached of being counterproductive. Criminal policy makers deplore the paradoxical consequences of the abolitionist discourse which in their opinion - while chasing the end of the rainbow - fails to engage in realistic reform projects, belittles the seriousness of crime, estranges itself from both victims and public opinion (e.g., van Dijk 1989; Guimarães 2016).

Anti-Abolitionism

In this vein, the then British Minister of State for Police and Criminal Justice, Nick Herbert (2008), made himself the spokesperson for anti-abolitionist resentment when commenting on the 12th International Conference on Penal Abolition (ICOPA) hosted by the Howard League at King's College, London, in the summer of 2008. Coming out in defense of prisons he accused the organizers of what he called the abolitionists' criminal conspiracy, and went on to say that

"Jails may have changed, but the enduring truth that they are necessary has not. We will always have a small minority of offenders who, by their behaviour, pose so great a threat to the lives and property of the law-abiding majority that they must be kept apart from us. Ignoring this reality and arguing for the total abolition of prison is a hopelessly utopian goal that does the credibility of penal reformers no service. (...) What do the abolitionists really want? If it's the end of all custody, including for the most serious and dangerous offenders, then we can dismiss their demands as truly silly. (...) It would be nice to live in a society where there were no prisons, just as it would be nice if there were no hospitals because there was no illness. But until someone steps forward with a ten-year plan to Make Crime History, jails are here to stay. The challenge is to create prisons with a purpose – not to hold lazy conferences making futile calls for their abolition."

A typical reader's comment in the online version of the newspaper article read:

"An excellent, well argued and logical article. Thanks. Now lets hear from the lunatic lefties who disagree, and see what kind of referenced counter arguments they can put up to convince us that you are wrong."

Expanding these arguments one might even point to the current global trend to skate round the prison altogether and to resort to "solutions" both non-custodial and non-judicial, but much worse than prison - like torture and/or summary executions. Such practices have, of course, always existed alongside the regular criminal justice systems. In dictatorships, populist regimes and states burdened by a past of slavery (like Brazil and the United States, e.g.), iron fist policies were or are tacitly understood as an authorization for extrajudicial executions by police, militias, secret services or death squads (for Brazil cf. Denyer Willis 2015). With the gradual adoption and increased respectability of extra-judicial liquidations in leading Western countries (Cockburn 2015), such non-custodial crime policies are gaining more ground all over the world now. In the Philippines, Rodrigo Duarte won the presidential elections by promising to have 100,000 drug dealers and other gang members killed for the sake of his understanding of making the country safe again. Penal procedures are (again) seen as too cumbersome and time-consuming. The logical consequence is the authorization of everyone willing (police as well as bounty hunters and ordinary citizens) to do the job and cash in on the rewards promised by the Philippines' new president (Fähnders 2016; Placido 2016). In the face of such developments (once initiated in Asia in the days of former Thailand's premier Shinawatra Thaksin) it might be hard for prison abolitionists to justify their demand to close prisons, because it might generate fear of a subsequent rise in those kinds of fast track solutions. Why slam the prison - which might well be considered last bastion of the rule of law in those countries - if the alternative would be a return to blatant barbarism?

There is no reason to easily dismiss these criticisms, but neither is there reason for prison critics to let themselves be discouraged by them. The urgency of combatting today's de-civilizing tendencies must not lessen the concern for humanity. A punishment that affects ten million people at any given moment must not be treated as a trifling matter - and to be called all kinds of names by those who think that the prison is here to stay forever is not a shame (and much less an argument). Abolitionist arguments are not as far from reality as some politicians want us to believe. They are simply untimely. They do not fit nicely into the great issues of the mainstream media in post-democracy. That should not deter us from raising the issue, though. At the beginning of any substantial reform process, the topic in question has always been derided as marginal or lunatic. That is completely normal. It had been the fate of the early British opposition to the transatlantic slave trade (Thomas Clarkson), to US-Americans questioning the legitimacy of slavery in the United States (William Lloyd Garrison; Elijah Lovejoy), and, last not least, of the suffragettes when they started fighting for women's voting rights (Emmeline and Christabel Pankhurst).

Our objective is to show that a radical critique of prisons is not only justifiable, but an urgent necessity. It is an urgent necessity, because prisons do much more harm than good, and because they can be abolished without hazard to the rule of law, public safety, or victims of crime. And one thing should be undisputed, after all: any harmful policy that can be abolished without detriment is a policy that has to be abolished - with urgency.

Given the state of affairs in the real world, it may not be the right moment to speak about abolishing prisons altogether. But what does that mean, after all? Does it mean to hide the truth and to shut up, does it mean to tolerate the misery of imprisoned persons all over the world without even making it known? That cannot be the answer. In our opinion, French abolitionist Catherine Baker (2004: 13) was right when she insisted that prison abolition must be discussed at inopportune times - this being the only way to ensure that one day it will be the right moment: "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."

Unattained goals

It is certainly true that there is a demand for prisons. In some cases, the prison-industrial complex may have stipulated such a demand in the first place. But however this may be: prison systems are expanding almost all over the world, and in most places, this expansion is still finding approval and consent. Expansion and acceptance are only one side of the coin, though. The other side consists of shortcomings and costs both material and human. To begin with the shortcomings, we have to scratch the surface - and we will find a list of unkept promises ranging from unsatisfactory offender rehabilitation and incapacitation all the way to the limits of deterrent effects.

Offender Rehabilitation

As far as rehabilitation is concerned, the history of the prison has been built upon a truly tragic illusion. The fundamental idea behind the Philadelphia penitentiary and its method of solitary confinement for all prisoners from day one until their release was utterly flawed from the start.

Inspired by medieval monasteries the idea was to isolate prisoners from all contacts and thereby direct their attention to their own conscience and the search for salvation. But this parallel was a misconception. Even monks were not confined to their cells 24 hours a day. Their voluntary segregation from the world did not hinder them to have a gratifying and productive community life within the walls - praying, singing, worshipping, talking, eating and drinking together. And it was this part of the monastery that the cell prison did not replicate. The Pennsylvanian invention of the penitentiary with its principle of sensory deprivation had to drive inmates into desorientation, depression, insanity, and suicide. Insofar, the single-cell prison was justly dubbed a "petrified giant error" by Eberhard Schmidt (1961: 5). But that did not hinder its expansion over the whole globe in the wake of 19th and 20th century colonialism and imperialism.

Offender rehabilitation was and still is the most noble and the least effective of the prison's purposes. The endless story of reform attempts are an impressive manifestation of both the seriousness and the futility of those efforts. After the separate system came the silent system Auburn style, followed by the so-called progressive or Irish system and its diverse ramifications all the way to the idea that what prisoners really needed was psychological treatment so they would be "healed" at the time they went throgh the prison gates and back into society. But in the end, nothing worked to a sufficient degree. The treatment ideology exhausted itself and confirmed the professional scepticism of experienced practicioners concerning the possibilities of constructive treatment under prison conditions (cf. Busch 1986).

The high hopes once invested in the promise of the prison have given way to a deep and general disillusionment. Once hailed as a panacea that 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 in the world's prisons.

Imprisonment is one of the least likely ways to bring convicts back into a legal existence - be it with or without intramural treatment efforts. Re-integration into society requires the strengthening of social bonds; it needs everyday experiences of autonomy and responsibility to build a sense of personal identity and self-efficacy; it needs support and accountability, self-control, cooperation, and success at coping with the challenges of everyday private and professional life. The prison is not conducive to such experiences - rather to the contrary. The deprivation of liberty does not facilitate the right kind of social learning. This is, by the way, a simple truth already spelled out by John Howard himself back in the 18th century. The 20th century delusion to see crime as an illness to be "treated" led prison policies on a collision course with the parameters of punishment. As John P. Conrad said: "We should never have promised as hospital".

Incapacitation

But there are more limits to prison than just its inability to correct. While it is a truism (and an important fact) that dangerous individuals cannot commit street crimes while in prison and that serial killers are best prevented from pursuing their gruesome activities by keeping them locked up, imprisonment's general necessity and capacity to incapacitate offenders is not quite what it is deemed to be.

On the whole, the incapacitating effects of prison are much more limited than most people think. Contrary to current beliefs, most sexual offenders belong to the group of inmates with a low risk of recidivism. To prevent them from committing more crimes, an extramural web of counseling and accountability would serve the best interest of both convicts and communities. The same holds true for the majority of offenders serving time for violent crimes. They, too, have a low basic rate of re-offending, while most new violent crimes in the communities are being committed by hitherto unknown young people with no prior record. All in all, the idea that prison is needed for purposes of incapacitation with regard to all those who are being kept inside is largely unfounded. With regard to the bulk of prisoners, including those convicted of sexual and violent offenses, incapacitation is a pretense and a sham rather than an empirically founded function.

The distance between common notions and empirical data is exacerbated in the case of drug cartels and similar economic networks supposed to severely harm society. Prosecutors, police, secret services and special agencies like the globally active Drug Enforcement Agency (DEA) are used to invest virtually unlimited amounts of time and money into the penetration of such organizations. Informants and undercover agents risk their own lives and sometimes take the lives of others for the sole purpose of infiltrating and finally busting a cartel. The preferred method of doing so is getting all the way to the top of the hierarchy and to take out the all-powerful chiefs or kingpins by either killing them or sending them to prison for the rest of their life-times. Logical as this incapacitation strategy sounds, it did not and does not deliver the expected results.

On the contrary, even the most costly, time-consuming and successful operations against drug cartels - like that against Pablo Escobar - did not harm the drug market in the least. Even with a significant number of kingpins dead or arrested and sent to prison with accumulated sentences of hundreds or thousands of years, things on the ground only went from bad to worse. As analysts Barry Crane and Rex Rivolo (1997) found out to the chagrin of U.S. policy makers, the effect of the successful "incapacitation" of kingpins was exactly the contrary of what had been expected. It did have an effect on prices and supply of cocaine in the United States, but the effect was not the one intended: "Far from impeding the flow of cocaine onto the street and up the nostrils of America, it was accelerating it. Eliminating kingpins actually increased supply" (Cockburn 2015).

All told, there is an undisputed need to keep some people under lock and key - with two important caveats, though. The first being that this need is not to be confused with the need for punitive segregation prison-style, and the second, that - contrary to popular belief - this small group does not comprise the majority of violent and sex offenders (for whom a tightly woven net of community control and support would be a superior method of crime prevention). As far as illegal markets are concerned, the successful incapacitation of leading kingpins and even the successful destruction of economic entities (cartels) has proven to be an inefficient tool of criminal policy. In the case of illegal markets, the strategy of incapacitation via the locking up of kingpins produces counterintuitive effects. As far as, e.g., the cocain market is concerned, even successful arrest and destruction policies just lead to increased supplies of illegal goods in the affected communities.

Deterrence

Similary, the deterrent effect of prisons has to be put under scrutiny. On the one hand, it is easy to prove (ex negativo) that there is, indeed, a deterrent effect of prison. We only have to look at the habitual abuse of power by police forces (e.g. extrajudical killings) in many countries. Researchers agree that one of the main elements in any explanation of such happenings is the certainty of delinquent police officers that they will not be punished for their misdeeds. This means, in other words, that an eventual replacement of present-day impunity (or impunization; Denyer Willis 2015, Genelhú 2015) by an expectation of imprisonment would be a promising way of reducing police transgressions: the prospect of imprisonment would have a deterrent effect. Speaking a little more generally: the knowledge that some actions can entail a prison sentence might be a deterrent in some cases.

On the other hand, there are severe limitations to the deterrent effect of prison. Firstly, the deterrent effect only seems to work rather well with (the minority of) rational actors who have a sober assessment of the advantages and disadvantages of varying courses of action. Secondly, even if the prospect of imprisonment does have a deterrent effect this does not mean that this effect could not be brought about by an unlimited number of functional equivalents. Deterrence does not depend on the existence of the prison. The prospect of a dishonourable discharge, a heavy financial penalty or any other fine-tuned sanction could produce the same or better effects. Besides that, one of the soundest criminological research results pertains to the fact that what counts is not the expected severity, but rather the anticipated certainty of negative sanctions.

Therefore, the deterrent effect of imprisonment has little or nothing to do with the prison as such. It could be substituted by the risk of simply being caught. In other words, in a world without prison, the mere risk of negative reactons might have the same or an even higher deterrent effect than the expectation of imprisonment.

Fundamental Problems

Prisons are obsolete. They are not even reaching their self-defined goals. Even worse, they are a blatant violation human rights. The prison's limited effectiveness in reaching its conflicting goals can be seen as an indicator that it should not be impossible to find more efficient alternatives. This rather technical approach is not the only aspect in the critique of imprisonment, though, and it is certainly not the most relevant one. There are more preoccupying deficiencies that have to do with the prison's outdatedness as a means of social control and with its denial of human rights.

Obsoleteness

One striking feature of prison buildings is their rapidly increasing obsoleteness. In an age of unprecedented mobility and expanded personal freedom, the prison seems to have fallen out of time. Compared with the time of the first penitentiaries, when ordinary people often spent their whole lives within small dark housings and seldom travelled to far away places, the relative deprivation that an inmate experiences as compared to his everyday life in freedom, has been growing by the decade. Today, when travel for educational, business, and leisure purposes has become a most usual phenomenon, and when the average mobility and horizon of citizens are much higher and broader than only two or three generations before, when freedom of movement is of paramount importance for the freedom of the person, the act of imprisonment into a cell measuring 6 by 8 feet with a steel or brick wall and one solid or barred door that locks from the outside is bound to be a more traumatizing event than ever before and an infringement of a cherished human right (Schumann 1988: 19). What in the early 19th century might have been adequate, has not only become inadequate for our times, but scandalous.

The prison has exhausted itself both as an ideal and as a standard response to crime. According to French philosopher and social theorist Gilles Deleuze (1992), the digital age and its specific modes of free-floating control are about to ring the death bell for all 19th century closed environments of the total institution type - and, among other things, for the prison:

"We are in a generalized crisis in relation to all the environments of enclosure--prison, hospital, factory, school, family. (...) 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. (...) 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."

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).

For good reasons, this idea - that imprisonment has become an anachronistic way of dealing with crime and delinquency - seems to be spreading in recent times (cf. for Italy, Ferrari 2015, Ferrari & Pavarini 2014; for the USA Davis 2003; and for Great Britain, Scott 2015).

In a certain way, criminal justice trends do support the suspicion of the obsoleteness of the prison. Whereas many people still believe that committing a crime and being found guilty by a court will automatically mean jail or prison, this is certainly not what the reality is like today. In ever more countries, more than half - and sometimes more than four fifths - of all sanctions do not lead directly to prison. Rather, justice systems rely on financial penalties, community work or different degrees of supervision. There is probation which lets the offender stay out of prison as long as he duly meets his obligations - and there is intensive supervision probation which implies reporting to the probation officer three to five times a week plus unscheduled visits to the offender at home or work. Ever more offenders are being sentenced to restitution and fines - alone or in conjunction with probation, with payments to the crime victims or to the court - and/or to community service to the benefit of both the individual and the community. Others are sentenced to substance abuse treatment and/or to day reporting with offenders reporting each day how each hour will be spent during the day. Last not least there is the sanction of house arrest and/or electronic monitoring which substitutes imprisonment by restricting the offender to his or her home except for work, school or treatment.

Excessive Punishment

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. On the other hand, in most of the world's prisons, the respect for human rights has not followed suit. The question is unavoidable: if the prison had not been invented yet - could present-day societies allow themselves in the light of the human rights ethos of our days, to invent and to operate such systems? In out opinion, doubts are allowed. For one thing, the very institutional design of prisons is a denial of essential human rights. Secondly, the very situational variables governing prison life are conducive to abuses of power and helpless misery that - by themselves - would be sufficient cause for a Supreme Court to ban this kind of punishment altogether.

Ideally, imprisonment deprives the convict of his or her freedom of movement, but nothing else (cf. European Prison Rules 102.2). 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 to drive the culprit into desperation, deprivation, and destruction, but to teach him or her a lesson by restricting the freedom of movement. As for all the rest: within the walls the highest goal of prison policy should be to make the inmates fit for legally earning their livelihood and leading a socially productive life after prison.

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 that could be recognized as being 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 the following four inherent contradictions of imprisonment: forced labour, imposed poverty, sexual deprivation, and the co-punishment of innocent third parties.

Forced Labour

Most prison systems require prisoners to work (van Zyl Smit/Dünkel 1999). 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 as "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). Since 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 this implicitly disciplinary tool. This explains, too, why even meaningless work is seen as better than no work at all by prison staff and chiefs.

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 hour). Trade unions traditionally do not see working prisoners/imprisoned workers as part of their clientele. Needless to say that old age poverty of prisoners is being pre-programmed by their formally legal, but highly discriminatory exclusion from social security. Months and years of prison work are not even being counted in as work time when it comes to pension claims. Like a few other countries, too, 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 political agenda.

Repressed Sexuality

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, North America, and many more areas and countries, though, the idea of whole families living together with the inmate seems strange, and even unjust towards the innocent but imprisoned family members. On the other hand, the common single-sex method of confinement imposes involuntary celibacy, thereby adding significantly to the pains of imprisonment. It means that male and female prisoners alike depend on masturbation and/or (sometimes voluntary, but mostly involuntary) prison homosexuality, with a substantial risk of 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 prison leaves or long-time visits by spouses or families this collateral effect of imprisonment persists all over the word, and it remains not only a source of infectious diseases, but beyond that 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 affect their families, friends, and colleagues. This is especially true for the punishment of imprisonment. It does not only impede a normal sexual, but also a regular social life, with all relations to family and friends radically reduced to rare, tightly regulated and supervised elements of communication such as (often censored) letters, phone conversations, and visits. In a time of exponential growth of interpersonal communications, inmates are not being kept in cages that not even a modern zoo would subject its animals to, but they are also being kept away from cell phones, internet and the social media, while social life beyond the walls is ever less imaginable without those resources. 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 all this, one of the saddest affairs in the world of the prisons is the much-neglected phenomenon of the co-punishment of offenders' children. There is no doubt that the imprisonment of parents has negative outcomes for the children. To make prisons "family-friendly" is an understandable wish, but lastly a fruitless endeavour as long as the prisons persist.

No Remedies

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 not-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. 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 on.

Permanent Crises

The institution of the prison had started with high aspirations. Early work houses and penitentiaries were often rich in ornaments, objects of admiration by both the cities' inhabitants and visitors from near and far. This did not shield inmates from humiliation and maltreatment (Brietzke 2007). But with the prison system's long-term colonial expansion on the one hand and a certain decline of the rehabilitative ideal on the other hand, the prison lost its place of prominence in public funding and attention in many parts of the world. For politicians, prisons became an uncomfortable subject of conversation. This even more so as the new millenium started with the emergence of top secret "black sites" as a kind of illegitimate offspring of the prison system under the auspices of secret services worthy of any ancien régime. While not even aspiring to be part of criminal justice, those eery makeshift prisons certainly did cast a dazzling light on the inhumane potential of post-modern institutions of confinement and the dangers of state barbarism.

The prison cannot be judged by a mere look at the normative order alone. The law-in-the-books, penological monographs and internationally consented minimum rules are just one side of the coin. The other one is the prison system's social reality and structural conduciveness to recurrent crises of overcrowding, contagious diseases, and intramural violence. It is this what the law-in-action is all about, or the second code of the prison (McNaughton-Smith 1968). To discuss imprisonment only platonically - without reference to what it looks like in real terms - would not do justice to the seriousness of the matter. Our attitude towards the prison should be informed not only by the letter of the law, but also by the law in action. In other words, it is important to know what the prison is like in the real world.

One problem with a look at prisons in the real world is their enormous qualitative diversity (Newman 2010). There are high class prisons in which inmates have space, medical attention, and a respectful social environment. But there are also locations in which imprisonment can easily be a veiled death sentence. Unfortunately, in many countries it is not a rare event for a prisoner not to return alive, be it because of disease or violence by guards or gangs (Stern 1999).

A second problem is the inherent bias in the penological discourse when it comes to having an empirical look at the prisons of the world. Many researchers have either roots in the prison-industrial complex or they are dependent on the good-will of governments or private prison operators - all of which may make them lean towards the status quo. Moreover, most researchers look at their own countries and neighboring countries when it comes to prison research - and since something like an estimated 80% of all criminologists and penologists come from the USA, Great Britain, Canada, Australia, Germany, France, Italy, the Netherlands, Belgium or any of the other countries that make up the world's 36 richest countries, our knowledge about the prison system is likely to be biased in favour of generalizing conditions that are not typical for the system in general, but only for a privileged section of it. For any person to be a prisoner, though, chances are that he or she would not be imprisoned in of the 36 richest countries of the world, because their prisoners make up only a minority of all prisoners in the world (for a list of the richest and poorest countries cf. Pasquali 2015). Chances are, when you are a prisoner, that your prison is located in one of the poorer countries like, e.g., Russia (wealth-rank 51 of a list of 185 countries), Romania (rank 61), China (83) or Egypt (96). If you are less lucky, your prison might be in one of the very poor countries such as the Philippines (118), India (125), Pakistan (134), Bangladesh (140), Haiti (166) or the Democratic Republic of Congo (185 out of 185).

Given the number of prisoners in those areas of the world, it would clearly be unfair to leave them out of the picture when debating the merits and deficiencies of the prison as an institution of punishment. This is why we should look at both the rich and the poor countries. We should not close our eyes when it comes to horror stories (with "Attica" and "Carandiru" as the tips of the iceberg), and we should find out as much as we can about first-hand experiences in various prison systems (Dreisinger 2016; Whetter 2016). Once the link between the systemic structure of the prison and all those deficiencies and injustices has been established, we shall see more clearly that there is only one way of overcoming the inhumane and degrading conditions of confinement: the abolition of prisons altogether.

Prisons in Rich Countries

The 36 richest countries presumably house the "better" prisons. These also happen to be in the focus of the international criminological prison discourse. But the rich countries have a tendency to take the plan for the reality. They discount uncomfortable scandals as extraordinary cases that should be ignored when judging the prison system itself. The contrary might be more adequate though. The smoothly running model prison is probably an absolute exception to the rule and should not be mistaken for what constitutes the reality of the prison. In such a view, prisons cannot be separated from the recurrent crises that they go through. Much to the contrary, the prison must be recognized as the structural condition from which those recurrent crises emerge.

Even in rich countries prisons most of the time do not even meet their governments' self-declared and undersigned minimum standards. Prison buildings are often too old and too large in terms of capacity, while at the same time overcrowded and not giving enough space to each individual. The command and obedience structure of the internal prison regime is often exacerbated by inadequate qualifications of prisons staff due to a negative recruitment steered by low wages and unattractive work atmospheres in the setting of total institutions with a difficult clientele. Prisoners see themselves dressaged and bullied around by wardens who are often undertrained and overly bossy. They see themselves confronted with disinterest, malperformance or even harassment by often equally untertrained functionaries from specialist services such as prison psychologists, social workers, or even doctors. Regularly, their lawyers do not belong to the A-list of their profession (those are where the money is). Therefore, their access to legal protection is not as it should be. All in all, it would take a good deal of operational blindness to ignore or deny the inadequacy of prison reality as compared with the officially proclaimed standards. This is even true for such a model country as Norway (Henley 2016).

In this sense, and seen from the experience of imprisonment itself in the real world, the prison system as such is, even in the rich countries, the venue of permanent multiple crises. Recurrent themes of the permanent crises are overcrowding, the lack of hygiene, of medical attention, and of respect for basic human rights. Objective conditions plus the respective subjective perceptions and coping strategies of prisoners themselves result in what can be said to be the experience of imprisonment. This is different, of course, for young and old, male and female, wrongly and rightly convicted inmates, but also for different personality types (and those with various personality disorders). But they are also similar in that the experiences always concern themes like the pains of imprisonment, the stigma, the power relations and how differing vulnerabilities are being shielded, detected, and exploited (Reeves 2016).

Prisons in Poor Countries

In poor countries the same is true, but on a different scale. This is due to insufficient economic resources and the state‘s inability or unwillingness to secure even minimum standards of prison conditions. Because of the low salaries of prison employees, corruption is endemic. As a prisoner in a poor country, you will have a high likelihood of suffering from infectious diseases, from the lack of hygiene, from inadequate medical and psychological assistance, from unhealthy diets, and - very importantly - from lack of respect by undertrained (semi-) professionals and sometimes violent guards.

There are not many published reports detailing prison conditions in poor countries. As a matter of fact, the UN Subcommittee on Prevention of Torture (SPT) has visited the prisons of many poorer countries, but only few of them agreed to the publication of the respective reports. What follows here, are a few probably exemplary findings excerpted from published reports - one each for an Asian country (ranked 142 on Pasquali's list), a Latin American one (ranked 106) and an African one (ranked 55):

13. Despite some positive measures taken by the authorities to tackle the issue, torture and ill-treatment is prevalent in the country,primarily driven by the following alarming structural and systemic problems:

(a) Weak rule of law, including the absence and/or non-observance of basic legal safeguards and inadequate registration system;

(b) The reliance of the law enforcement and justice sectors on confessions and the lack of effective prosecutorial and judicial oversight of law enforcement activities;

(c) The lack of access to independent and qualified medical examinations and the insufficient access for detainees to appropriate health care;

(d) The prevalent corruption within the system, including in the legal profession, and exacerbated inter alia by the low level of professionalism in all sectors;

(e) The impunity and general lack of accountability of officials;

(f) The overall poor material and financial conditions of places of detention, psychiatric hospitals and institutions for persons with disabilities which often in itself lead to inhuman or degrading treatment;

(g) The on-going discriminatory practices faced by minority communities at both the institutional level and within the public at large.

14. All these factors create a vicious circle of systemic problems in which the widespread practice of torture and ill-treatment represents an integral part of the law enforcement and justice system reality. While acknowledging the commitment of the Prosecutor-General to fight impunity for torture and ill-treatment by strengthening prosecutions against perpetrators and increasing the prosecutorial oversight over law enforcement officials , the lack of recognition of the depth and systematic nature of the problem by most officials and consequently the lack of political will (with few exceptions) to address the problem, is further combined with a general atmosphere of impunity. As a result, persons deprived of their liberty are at continued and systematic risk of being ill-treated and are deprived of effective protection from the State. (SPT Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Kyrgyzstan, 2013).

55. Overcrowding remains a cause of concern. Tacumbú has capacity for approximately 1,200 inmates but houses far more than double that number. The Subcommittee is aware that the Government has made an effort to increase the number of beds in Tacumbú Prison, but would point out that those efforts will not be sufficient, since the prison structure is inadequate. ... The Subcommittee is of the view that Tacumbú National Prison should be closed as soon as possible and requests confirmation from the State party of the above-mentioned announcement, together with information on the timetable for its closure...

57. According to statements made to the Subcommittee, torture and ill-treatment have continued to be commonplace and have been the usual means employed by prison guards to impose their authority...

59. Although prison authorities report having removed corrupt prison staff from their posts, inmates and other credible sources have told the Subcommittee, in great detail, how corruption continues to affect each and every area of prison life. “Fees” continue to be charged for the different services (such as access to a doctor, to a given block or wing, etc.), with some modifications. “If anything has changed”, some inmates said, “it is that now you have to pay more for certain things.” Whereas, slightly over a year ago, inmates had to pay the guards 5,000 guaraníes in order to be allowed to carry a knife, the sum had risen to 50,000 guaraníes by September 2010. The Subcommittee has also been informed of other illegal fees now being charged by the guards (e.g., a fee of 2,000 guaraníes for allowing an inmate’s visitor to sit on a chair or to return a mobile phone to a visitor who was required to leave the phone at the prison entry hall)...

61. The Subcommittee is extremely concerned by information received from credible sources which indicates that corruption is not confined to a given prison or operational level. On the contrary, it seems to exist in almost all of the country’s prisons and to be very well coordinated and organized. The Subcommittee has repeatedly been apprised of consistent allegations that certain political circles are profiting from this nationwide form of organized corruption.(SPT Report on the follow-up visit to the Republic of Paraguay from 13 to 15 September 2010).

15. Le SPT constate qu’en dépit de quelques mesures , la torture et les mauvais traitements demeurent répandus, favorisés principalement par un certain nombre de problèmes structurels et systémiques préoccupants, liés:

- Au faible respect des garanties édictées par la Constitution, les traités internationaux, les lois et règlements applicables au Gabon ;...

- A l’absence d’accès à des examens médicaux indépendants et qualifiés et l’accès insuffisant des détenus à des soins médicaux appropriés ;

- A l’impunité et l’absence générale de responsabilisation des fonctionnaires de police et de gendarmerie ;

- A une indifférence généralisée à l’égard des personnes privées de leur liberté et une certaine résignation des victimes et du public en général;

- A l’impassibilité et le consentement passif des pouvoirs publics vis-à-vis des abus entre codétenus induits par le système d’autogestion observé dans les trois établissements pénitentiaires visités ;

- Aux mauvaises conditions matérielles et financières inhérentes aux lieux de privation de liberté qui entraînent généralement des mauvais traitements (et sont même, dans certains cas, constitutifs de torture). (SPT Rapport sur la visite au Gabon, 2014).

The situation is not so different in some of the poorer countries in Europe. Consider the conclusion from the European Committee for the Prevention of Torture (CPT) (on their visit to a country ranked 61 by Pasquali):

Regarding the situation in prisons, 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. (CPT News Flash on the visit to Romania 2014, for a detailed report see the French version). What also throws a light on local Romanian prisons: in 2016 the ECHR took the unusual step of according almost 100,000 euros in compensation to 18 (ex-) convicts in compensation for the poor conditions they had to endure - instead of the much lower symbolic sums that it normally accords to successful plaintiffs.

Relatively speaking, European countries are, however, far better off than their African or Latin American counterparts. For one thing, most European prisoners may take their cases before the ECtHR whose jurisdiction only covers the 47 member states of the Council of Europe. A second important difference is that many European countries can count on substantial finacial aid from the European Union.

A Violent System

Prisons are breeding grounds for an incessant stream of seemingly isolated events sometimes called "scandals" - but they go by that name only if they make the news (which they normally don't). The ubiquitous presence of unreported and underreported cases waiting in vain to be scandalized betrays the institution's brutish nature. In most prison systems, episodes involving degrading maltreatment or outright violence are so frequent that insiders look upon them with just a shrug of their shoulders, knowing that this kind of thing - while it should not happen according to the impeccable legal statutes governing the prison regime - can neither be prevented nor eliminated as long as there are prisons.

This undercurrent of harshness and harassement that is part and parcel of the institution and that belongs to the prison like choirs and prayers belong to a church is something like a trademark. It characterizes the essence of imprisonment - including its pains and its futility. Above all else, it ensures the perpetuity of discontent, of the feeling of injustice and the urge to resort to vengeance as a means of self-assertion. It is not only the small-scale warfare of resentment and mobbing, of pestering and bullying that flourishes under the conditions of a total institution.

There is an air of violence pervading the prison systems' ground operations. What characterizes prisons almost all over the world is the use and abuse of the power to punish - with violent abuse being more the rule than the exception. And while one would like to think of those irregularities as nothing more than a collection of atypical events, empirical research (Milgram 1965, Zimbardo 1995) as well as theoretical concepts (e.g. Tittle 1995) could demonstrate and explain how specific structures routinely produce situations in which even "good people turn evil" (Zimbardo 2007). The prison itself has to be understood as an institution inherently conducive to recurrent human rights violations of all degrees of seriousness. While such violations may be especially dramatic and newsworthy when connected to famous standoffs such as the Chinese crackdown on the Tienanmen protests or the West's War on Terror (cf. Hersh 2005; Liao 2013; Ratner & Ray 2004), the real lesson to be learned is an even more general one.

What is at the root of the scandalous nature of the prison, of its ubiquitous flow of cases of abuse and violence, is not the much lamented lack of funds, but - first and foremost - the systemic disparity of power in combination with the power-holders' subjective conviction that they neither deserve moral reprehension nor will be reprimanded for what they did or do.

In an average prison, the guards are the ones who really know - and determine - what is going on, who deserves which kind of treatment, and who will be informally sanctioned (and how). With little administrative oversight, guards tend to become rather autonomous. The inmate social system with its own hierarchies functions as a parallel power and makes use of its own ways and means - often in accordance with the guards' tacit or explicit acquiescence.

The prison allows for informal power holders to indulge in a "control surplus" - exercising more control over others than being controlled. Such a control surplus is conducive to a kind of delinquency that is characterized by abuse, degradation, exploitation, and sometimes sadism (Tittle 1995).

With the increasing abandonment of therapeutic benevolence, the state of the prisons in the world is more and more that of a human warehouse characterized by overcrowding, poor hygiene, abuse of power, general misery - and no amends. That is, to be sure, not the official penal policy, but it is the result of a systemic fault in the system, exacerbated by a syndrome of material and psychological neglect that has its own structural roots and foreseeable consequences. That is why it is time to look out not for better prisons, but for something better than prisons. It is time to look out for either alternative punishments that fulfill the legitimate functions of imprisonment while avoiding its illegitimate ones - or for alternatives to punishment.

The Meaning of Prison Abolition

Everyone who has come to the conclusion that prisons are no good way to deal with crime and criminals, that prisons are outdated and unnecessarily cruel, that such institutions are therefore illegitimate (and should hopefully be made illegal soon), will agree that the right thing to do is to get rid of them once and for all. This is what prison abolition means. It means to make it clear - just as it has been made clear once and for all that slavery is not the way to deal with the need for cheap labour - that prisons are not the way to deal with offenders and offenses in a just society. While societies may rightfully still deem it necessary to react to (some) crimes by means of punishment, incarceration for the purpose of punishment should no more be allowed as an option.

Clear as this may seem there will invariably remain some important questions as to the limits and the exact meaning of such a statement of principle. Both penal experts and civil society at large will want to know - from different perspectives, to be sure - what exactly it will mean to abolish all prisons. What does it mean, for instance, for dangerous offenders, and what does it mean for prisoners awaiting trial - should they all be set free?

What abolition means

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 or correctional facilities) including walls and watchtowers, bricks, barbed wire, steel and concrete.

The only exception should be educational ones. Penitentiaries, especially the very old ones, make good museums. To walk through Alcatraz in San Francisco's Bay Area, through the Eastern State Pentitentiary in Philadelphia or the Mamertine Prison in Rome will send shudders down visitors' spines and might teach them a whole lot of things about the way earlier ages deal with crime, deviance, and heresy (including the relativity of it all).

To understand what prison abolition means we can also learn from the death penalty. To abolish the death penalty means that this sanction is being eliminated from the penal code. Where capital punishment is abolished, no court can sentence an offender to death. That makes death rows and execution chambers things of the past. They can be turned into museums. The same holds true for our case. Where prison punishment is abolished, no court can sentence an offender to imprisonment. That makes prisons as places for punishment a thing of the past. It means the death of the penitentiary and hence, as Foucault would have phrased it: the death of the prison.

What abolition does not mean

On the other hand it must be clear that the abolition of punitive incarceration does not mean the end of all types of involuntary confinement.

No preventive detention?

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 anti-asylum movement of the 1960s and 1970s together with progress in the development of more efficient (especially anti-psychotic) drugs has greatly helped reduce the number of involuntary hospitalizations of persons suffering from mental illness - but there are still cases in which there is no viable alternative to the commitment to a psychiatric hospital. Similarly, in many countries today there is a highly welcome search for alternatives to pre-trial detention - but none of even the most progressive protagonists of such alternatives would deny that in some cases you just have to lock individuals up if you want have them in court for their trial (and if you want to prevent some dangerous individuals from committing more crimes). All told, the abolition of prison as punishment does not extend to those cases in which a deprivation of liberty is necessary in order to avert dangers to others. 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 victims. This means, to be clear, that even once imprisonment as punishment is abolished, there will still be a need for confinement.

But that will be for other reasons - foremost for reasons of prevention. This raises other important questions: is it legitimate to detain people for crimes they have not yet committed? How well can future dangerousness be predicted? While criminal law provides some safeguards and guarantees against arbitrary imprisonment, this is not necessarily the case in the field of civil and administrative detentions. It is therefore mandatory to develop a body of restraining principles applicable to coercive preventive endeavour by the state, e.g. a presumption of harmlessness (Ashworth/Zedner 2014, 167/168). The authors add an important caveat: "The question remains, however, whether it is possible to articulate principles that cover all cases of preventive detention in such a way as to mitigate possible abuses of power on ground of public protection. It imposes deprivation of liberty ahead of wrongdoings; grants considerable discretion to criminal justice professionals and to the courts; it is based upon predictions of dubious reliability; and it risks creating arbitrariness in its varied forms and practices" (Ibid, 170).

Preventive detention must not be carried out under prison-like conditions, but in well-supervised residential settings instead of a cell prison. There is no need to impose prison conditions or prison-like conditions on anyone on earth. This is really an important point worth repeating. To say that even after prison abolition there will continue to be some form or forms of involuntary confinement is not equal to saying that any of the remaining deprivations of liberty would be allowed to take place in 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. With regard to size and comfort, they should rather resemble a decent middle-class home or at least apartment. 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 bad, evil, guilty, or even responsible for the risk they pose. 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. This can be done by, e.g., an artificially elevated level of comfort in their living conditions. Since they cannot be set free, they should at least live their restricted lives as good as possible, with their living conditions tailored to their needs and individual priorities, as long as that does not endanger the purpose of their confinement.

No Punishment ?

Another point might also need some clarification. The abolition of prisons does not mean that there will be no punishment for crimes anymore. It only means the end of one specific form of punishment (cf. de Haan 2010). While a small minority of people might believe in the possibility of a society without any punishment, there is a completely justified feeling in probably all societies that heinous acts should be responded to by the intentional infliction of retributive harm upon those responsible for them. One might even say that common sense and jurisprudence both believe in a kind of natural law logic that crimes must be responded to with punishment: crime requires punishment. Not only the reduction of risks. But what exactly is punishment and what are the needs it responds to? First of all, punishment is "the intentional delivery of pain" (Nils Christie), it is a strong affirmation of a negative value judgement concerning the punished person's past violation of an important norm. For the punished person, punishment 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.” And that is the very sense of it. By its emphatic negation of the offender's deed and by making the offender suffer for what he did, the court declares in the name of state and society that this kind of behavior will not be tolerated, and that offenders will have to live with the consequences. Punishment sends a strong symbolic message to the offender and to the public, but also to the victims of crime. 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.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 social reaction to harmful behavior will become conventional expressions of symbolic reprobation in the future. Even if we suppose punishment to persist for a long time to come, one thing is certain: the prison has not been there forever, and it will not be there forever. It is but one form of punishment - and forms of punishment come and go. And maybe even punishment is not here forever (see Braithwaite 2002; Sherman/Strang 2007; Christie 2009).

Beware of fraudulent labelling

Thirdly, 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). Germany is an interesting case in point. Some convicts, after completing their sentence, were held in prison for indeterminate periods, under the label of "security detention" (Sicherungsverwahrung). This was regarded as a security measure, not as a punishment. Therefore, normal criminal law priciples (like the prohibition of retroactivity) were not seen as applicable, until they European Court of Human Rights finally intervened: "The concept of “penalty” in Article 7 is autonomous in scope. To render the protection afforded by Article 7 effective the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see Welch v. the United Kingdom, 9 February 1995, § 27, Series A no. 307‑A; Jamil v. France, 8 June 1995, § 30, Series A no. 317‑B; and Uttley, cited above). The wording of the second sentence of Article 7 § 1 indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a “criminal offence”. Other relevant factors are the characterisation of the measure under domestic law, its nature and purpose, the procedures involved in its making and implementation, and its severity ... The severity of the measure is not, however, in itself decisive, since, for instance, many non-penal measures of a preventive nature may have a substantial impact on the person concerned". ([Case of M.v.Germany_17._12._2009 http://hudoc.echr.coe.int/eng?i=001-96389]).

What is to be done?

Prisons are to be abolished. Especially prisons-for-punishment. All over the world, there is a growing recognition of this fact (e.g. Davis 2003; Ferrari 2015; Galli 2015; Jaramillo 2008; Onfray 2014; Scott 2015) But to achieve this goal will be no easy task, given the popularity of prisons among politicians, media and great segments of the population. What is needed is both an abolitionist stance and strategies for concrete abolitions.

An abolitionist stance

There is a consensus that inhuman institutions need to be changed. Usually, however, this is couched in terms of finding alternatives. But we need to be wary about this notion. The major exponent of such a critical approach with respect to prisons is Thomas Mathiesen. He believes that to look for ready-made alternatives before changing an existing institution is the wrong way. He argues that "the alternative lies in the unfinished, in the sketch, in what is not yet fully existing" (Mathiesen 2015, 47). For him, the most important thing is to nurture an abolitionist stance, a stance of saying "no!" (Mathiesen 2009; 2015, 31-36). It is also necessary to work for concrete abolitions. But an abolitionist stance will help us to avoid the pitfalls of a sterile reformism. In the long run, this may contribute to fundamental changes: "The turning points of the past, the abolition of slavery, the abolition of the death penalty at least in some places, the abolition of youth prisons in Massachussetts, the abolition of forced labour or what what have you - should be scrutinized as examples for the future. What fostered them, what caused some of them to return under a different mantle? Turning points probably surface for structural, economic and political reasons. They become 'ripe fruit' to use a Norwegian expression. But people act and channel them as they surface. An abolitionist stance of saying 'no!' was certainly part of past abolitions. It may be so again" (Mathiesen 2009, 62; Mathiesen 2015, 35).

Penal Reductionism

Maybe the most well-known abolitionist strategy is reductionism. This means reducing the capacity of prisons, until there is nothing (or not much) left. It means to demand the destruction of (e.g. older, outmoded, unused) prisons and resist the building of new ones (Rutherford 1984). Publishing and comparing imprisonment rates can serve as a tool for shaming high-incarceration countries. The theory behind that strategy is that capacity determines imprisonment rates, i.e. overcapacity will eventually be filled. This may be so. But will the lack of prison cells change the sentencing behavior of judges? Not necessarily. Overcrowding will eventually persuade politicians to build more prisons. Waiting lists as an alternative to overcrowding were practiced for quite a while in the Netherlands (before reductionism was swept away by a new prison building boom). A modern version of quantitative reductionism is the movement for "justice reinvestment" ( Chris Fox, Kevin Albertson, Kevin Wong 2013). Here the focus is explicitely on re-directing the funds spent on prisons in a more reasonable direction (community alternatives, education). "The question should be 'What can be done to strengthen the capacity of high incarceration neighborhoods to keep their residents out of prison?' not "Where should we send this individual'" (Tucker/Cadora 2003).

Normalization of prison conditions

Reductionism focusses on imprisonment rates, i.e. frequency and length of imprisonment. But that is not the only dimension of imprisonment. Of equal importance is what David Downes has called the "depth" of imprisonment (Downes), i.e. the prison conditions. Prisons can be more or less total institutions. If imprisonment is to be nothing more than the deprivation of liberty (European Prison Rules), the situation within prisons should approach "normal" living and working conditions as much as possible. Why should imprisoned citizens not have normal voting right? Why should imprisoned workers not be paid regular salaries? When we demand for prisoners normal rights as citizens and workers, the inner logic of such demands points to a gradual abolition of prisons as we know them (Mitford 1973). Even the deprivation of liberty itself allows for gradation in terms of more or less open prisons. In a similar vein, Hedda Giertsen calls for "tuning down prisons": placing responsibility where it should be, in the ordinary public services, as it is for other citizens" (Giertsen 2015, 292). Obviously, the term "normalization" is not used here in Foucault's sense, but as a normative principle around which some recent prison reformers , including prisoners, are rallying (cf. Feest 1999).

Segmentary abolition

Since prisons have not always existed, a world without prisons is perfectly conceivable. But it is unlikely that such an institution can be abolished in one go. Another strategy is therefore to demand the abolition of specific sectors of the prison system. This was successfully done in Norway and Germany with work houses, in Massachussets with juvenile training schools. It was tried with varying success with respect to short-term imprisonment (Germany), fine-default imprisonment (Denmark, Sweden) and with lifetime imprisonment (Norway, Spain) etc. It has also been advocated for deportation prisons (Graebsch 2008), juvenile prisons (Schumann et al. 1981) or for womens prisons (Carlen 1990). Our own focus on "Strafanstalt", on serving prisons, on prisons-as-punishment, can be seen as a segmentary approach. We advocate abolishing these kinds of prisons, but we are well aware that there are other prisons or prison-like institutions (e.g. pre-trial prisons; security detention; deportation facilities) that may need to be abolished too.

Linking up the strategies

Obviously, these strategies are not mutually exclusive. They will have to be combined with "Anti-Funktionsarbeit" (Mathiesen 1989, 168 ff), i.e. creating a public discourse about the explicit and implicit functions of prisons. And they need to link up with existing movements for restorative justice. This is exactly what Fay Honey Knopp and her co-abolitionists had in mind, with explicit reference to Thomas Mathiesen: "We have structured an attrition model as one example of a long range process for abolition.'Attrition', which means the rubbing away or wearing down by friction, reflects the persistent and continuing strategy necessary to diminish the function and power of prisons in our society.To clarify our terms, the reforms we recommend are "abolishing-type" reforms: those that do not add improvement to or legitimize the prevailing system. We also call for partial abolitions of the system: abolishing certain criminal laws, abolishing bail and pretrial detention and abolishing indeterminate sentences and parole" (Morris 1976, ch.3).

Summing it up

Prison-as-punishment - just like corporal punishment in earlier times - is still being considered as indispensable for the maintenance of public order. But that is an illusion. It is time to think about prisons in a principled, more realistic, and less apologetic way. It is time, in short, to say no to prisons, 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 inhuman 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. 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. To achieve all or some of this, penal spectatorship (Brown 2012) will not do. We certainly need movements guided by an "abolitionist compass" (Scott 2012, 313 et sequ.).

This would not be the end of abolitionism though. Because it would leave us with at least two questions, which go beyond the scope of the present paper. Do we need prison-like places for preventive purposes and do we need punishment for a sufficient reaction to crime?

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