Are human rights bad for prisoners?

By Dr Sarah Armstrong, Director of the Scottish Centre for Crime and Justice Research

In October 2007, a 19-year old woman named Ashley Smith killed herself in a Canadian prison cell, while guards stationed outside her door filmed it. Her death marked the endpoint of four years’ detention, a stretch that had begun when she was sentenced, at 15 years old, to one month in jail for throwing an apple at a mailman. Ashley Smith never left prison after that one-month sentence, as her detention was continuously extended for disciplinary infractions while behind bars. These largely consisted of self-harming (at least 150 times were recorded) as well as spitting on and verbally abusing staff entering her cell responding to these incidents. Over the course of her imprisonment, she was transferred 17 times between eight institutions and five Canadian provinces.[1] This allowed the Canadian prison service to keep her in solitary confinement past legally prescribed limits.

An inquiry into Ashley Smith’s death was taking place during the year my family and I spent in Toronto (2012-13). The case was being talked about in the news and the corridors of the University where I was on sabbatical. I, like many others, was haunted by Smith’s experience and demise. And yet, while the numerous reviews, trials and inquests investigating Ashley Smith’s death have all found the conditions of her confinement were unfortunate and her death likely preventable, all have upheld her treatment as consistent with Canada’s human rights laws. Lingering concern continues to echo over her death (with at recent journal special issue providing sustained reflection of it).

This case is an important driver of my interest in the problems of punishment in progressive societies. How can we make sense of bad things that happen in ‘good’ places, that is, in countries that have reputations for adhering to progressive values in policy and practice? Scotland is an example of such a place, where, like Canada, human rights are embedded in prison governance. (Scotland’s Prison Rules were influenced by the European Prison Rules, which in turn were drafted based on the European Convention on Human Rights). Scholars sometimes talk about human rights failure, to mean the situations where a human rights-based law was not complied with. But what about human rights success, involving tragedies, like Ashley Smith’s suicide, that are exhaustively reviewed against rights-based norms and held to be compliant?

This is the topic of a recent paper I published, called Securing Prison through Human Rights: Unanticipated Implications of Rights-Based Penal Governance. In it I consider how human-rights led reforms of prisons, while improving some aspects of prison conditions, also have operated to extend and legitimate the power of prison authorities. That is, I found that the problems of prison do not persist in spite of or due to lax enforcement of human rights rules, policies and laws, but also because of them. I ultimately conclude that human rights frameworks often serve as a mechanism that secures the stability and authority of large-scale penal bureaucracies in ways that suppress the voices and interests of the imprisoned.

Three examples involving Scottish prisons demonstrate this happening in different ways. This includes the 2017 decision in the case of Billy Brown, who claimed his rights were violated when his 40 day sentence stretched to five years, as he was stuck on wait lists for rehabilitation courses the prison service required him to take. The case went all the way to the UK Supreme Court, which ruled against Billy Brown, finding no rights violation. Significantly, the Court refused to consider whether a five-year extension of a 40-day sentence independently constituted a rights violation, circumscribing the dispute to the availability of rehabilitative opportunities in prison, including but not limited to the mandated courses. Hence, in a prison context the human right to liberty has been narrowed to exclude a broad concept of unjust and excessive detention and instead will now focus on ‘rehabilitative opportunities’ as a test of rights compliance.

The second example involved the so-called ‘slopping out’ case, Napier v Ministers (2005), where the Court of Session ruled in favour of a prisoner who claimed his human rights were violated by lacking a toilet in his cell. In upholding the prisoner’s claim, the courts awarded prisoner Robert Napier £2,400. As a result of its legal loss, and warning of potentially hundreds more lawsuits on the same issue, the Scottish Prison Service obtained from Government a large litigation pot (in the tens of millions of pounds, which was increased every year between 2006 and 2010). It also received half a billion pounds of capital investment to refurbish and build new prisons. The tidal wave of lawsuits never materialised, while a major prison renovation project did. In the end, a human rights loss for the Prison Service nevertheless facilitated large-scale financial success.

The final example concerns the Scottish prison policy on trans* prisoners. The SPS drafted its gender identity policy in partnership with the Scottish Trans Alliance, promulgating a commitment to house prisoners according to their lived social gender. This policy often is cited as evidence of the progressiveness of Scotland’s prison system, including by me. In more critical analytical terms, however, the trans* prisoner policy also can be read as a form of organisational marketing and pre-emption of Equality Act litigation. I consider in particular how it re-draws the lines of power in prison, muddling the conventional opposition of prisoner and keeper as one whose rights are limited and one with the power over them, to those on opposite sides of a gender politics divide.

In these examples, human rights served as an opportunity for the prison system to: divert attention from its extra judicial extension of sentences; to expand its budget and upgrade its physical estate; and to market itself as a progressive organisation while obscuring its power to exert physical force on people in its custody. It achieved these successes in courtrooms and policy offices and press releases where it holds technical and resource superiority relative to prisoners, and where the alien  culture and language of law, statistics and policy are hegemonic. These are the spaces where human rights circulate as much as in the jail cells where prison scholars most often look for clues of the prison’s power. This is why I conclude with a call for researchers to spend more time in bureaucratic spaces for signs of prison violence. About 25 to 30 people die every year in Scottish custody, with two recent suicides unusual only in their ability to trigger wider interest in prison conditions. If the response to these tragedies follows previous practice, failures of prison will be translated into calls for further investment. Will this be seen as the triumph of rights?

Sarah Armstrong is Director of the Scottish Centre for Crime and Justice Research and a Senior Research Fellow in Sociology at Glasgow University. She studies prisons and punishment and takes a particular interest in the material culture of penal policy and bureaucracy.


[1] The Toronto Star documented the harrowing conditions she was kept in during transfers (please note the story contains distressing images and details):


This post was published on the 26 of November, 2018.