Research project When punishment is drifting: A rights-based account of parental imprisonment

The project aims at providing an analysis of a number of philosophical and ethical questions in relation to imprisonment as a mode of punishment. To this end I use different philosophical perspectives and theoretical starting points. In comparison to other questions found in the literature on the philosophy of punishment, such as ‘why do we punish?’ or ‘whom may be punished?’, questions about various modes of punishment, and imprisonment in particular, has received far less attention. For example, even if it is often assumed to be punishment of choice, at least for serious offenders, the use of imprisonment is rarely defended explicitly. Moreover, questions concerning what constitute ethically defensible prison conditions and prison management are too often overlooked by philosophers and legal scholars working on legal punishment. Yet, imprisonment is the perhaps most intrusive and drastic form state power, and these questions are therefore important for both political and moral philosophy as well as criminal justice policy. In this sense, my thesis makes an important contribution to a field of research which has largely been neglected in philosophy.

Granted that imprisonment in some form is morally justifiable, two papers jointly discuss what constitutes ethically defensible prison conditions. The first paper discusses whether prisoners have a right to privacy, whereas a second paper addresses whether the indirect harm imprisonment too often entails for people who are economically, socially and emotionally dependent on the person being incarcerated gives rise to special moral obligations toward the families and children of prisoners. The third paper focuses on a philosophical argument in debate on prisoners voting rights. The forth paper discusses whether prisoners with ADHD should be offered medical treatment and why this would be morally required from a moral perspective.

Starting with the paper Treating Inmates as Moral Agents: A Defense of the Right to Privacy in Prison, I argue that although imprisonment inevitably involves supervision and control, which in turn affect inmates’ prospects of privacy, prison inmates ought to enjoy as much privacy as possible insofar as this does not compromise safety and security. The view underlying this position is that the right to privacy is important because of its connection to moral agency. More specifically, I defend three ways in which respect for privacy is crucial for moral agency: (i) privacy is crucial for empowering agents to formulate their own autonomous and authentic decisions and beliefs; (ii) respect for one’s privacy is crucial in order to conceive oneself as a self-determined agent; and (iii) respect for one’s privacy is crucial in order to conceive oneself as a trustworthy agent. All aspects become important in the prison context, where lack of privacy implies that each aspect of moral agency is threatened. For example, if inmates lack privacy it is hard for them to act autonomously, but also to be recognized as moral agents in the sense that they are always capable of moral reform and to act on moral considerations. Being able to act autonomously is also crucial given how empirical studies have indicated how the lack of selfdetermination during incarceration erodes inmates’ abilities for autonomous choice and decision making. This analysis is important because punishment should be so constrained that it is compatible with treating inmates as moral agents (i.e., as autonomous agents responsive to moral consideration in the sense that he or she can be moved by these considerations and may take them into account in practical deliberation). As I argue in the paper, this constraint on legal punishment is inherent to or can be motivated from different established philosophical theories about the justification of legal punishment—including retributivism, consequentialism, the moral education theory and the communicative theory of punishment. Therefore, these theories should support inmates’ right to certain levels of privacy.

Even though privacy is important in prison, any defense of inmates’ right to privacy face two possible problems. First, how much privacy should be allowed during imprisonment? Second, what should be done when this right is in conflict with other rights, such as the rights of the public, prison staff, as well as the prison inmates themselves? This last point is particularly important since the right to security—with which the right to privacy is often held to be in conflict—must be specified and further elaborated, notably to those who are owed the right to security. In the paper I argue that respecting privacy can be a good way of promoting and creating a safer and more secure environment. For example, even though it might be argued that a gain in security always overrides inmates’ right to privacy, one must also consider the long term effects of doing so. For example, issues that can arise from the control process, such as cell searches, strip searches, and drug tests, imply that these processes must, as far as possible, be carried out in a way that respects inmates’ privacy and integrity. Performing the aforementioned procedures in a respectful manner can lead to the development of a more balanced and secure environment. Moreover, there is empirical evidence that indicates how individuals who are unable to control aspects of their own lives may suffer from a number of maladies, including seemingly irrational behavior designed to provoke some sort of response and intolerable levels of frustration which may lead to sudden uncontrollable outrage. If this is correct, respecting the right to privacy should arguably be part of the objective of creating and upholding a secure environment, which would have a better effect in the long term.

This paper has had important impact outside academia. For example, in a recent report from the Nongovernmental organization Community Justice Coalition in New South Wales on a new type of prisons – called rapid build prisons – prisoners right to privacy is consider as an important reason to oppose this new type of prisons. My paper is cited a number of times in support of this conclusion. I have also been invited to talk on this subject to part of the Swedish Ministry of Justice, to the Swedish Prison and Probation Service and to the organizations for voluntary social workers (Riksförbundet frivilliga samhällsarbetare). I have also written a short popular piece on this topic for the Swedish Prison and Probation Services staff magazine.

The second paper, The Harms Beyond Imprisonment: Do We Have Special Moral Obligations Towards Families and Children of Prisoners? focuses on the consequences imprisonment often has for prisoners' families. Typically, philosophical theories of punishment focus on the individual offender, where the offender is treated as a free-standing individual. As a result little focus has been given to how imprisonment affects their families. In this paper I critically examine this question and I argue that the collateral harm of imprisonment often endured by families and children of prisoners is ethically problematic and ought to be mitigated. In developing my argument I critically discuss two established positions in normative ethics, consequentialism and deontology, and to what extent they can explain whether allowing for the indirect harm to the children and families of prisoners documented in criminological research can be morally permissible. For the consequentialist, who holds that an act is morally permissible if it contributes to the largest amount of wellbeing, it is argued that although imprisonment acts as a deterrent and does incapacitate serious offenders, we should not be too optimistic about the crime-reductive effects of imprisonment. Rather, it is not clear that these effects outweigh the harm to families and children of prisoners or that mitigating these collateral harms would jeopardize the crimereductive effects of imprisonment. To the contrary, allowing for and facilitating meaningful contact with one’s family could help encourage and support inmates and act as an incentive for their reform and rehabilitation. However, in order to fulfil this role, concern for and mitigation of the harm to families and children of prisoners is crucial. Otherwise it is probable that this expectation merely adds to the burdens families and children of prisoners suffer. Whereas the consequentialist has a hard time showing that the harm to families and children is outweighed by the supposed benefits of imprisonment, the deontologist cannot appeal to the doctrine of double effect
associated with this view. This is because it is questionable whether the doctrine is applicable to the case at hand. In making this argument, I use the following formulation of the doctrine:

1. The behavior is not bad in itself.
2. The agent’s intentions are good
3. The good does not flow from the bad and/or the agent does not intend the bad as a means to the good.
4. The good is good enough compared to the bad, and there is no better route to the former.

Applied to the case at hand, I argue that we may grant that conditions (i)–(iii) are satisfied, but raise doubts about whether condition (iv) is fulfilled. For if the intended good effects are crime prevention and crime reduction, the aforementioned arguments in relation to consequentialism holds. If we consider other goods, such as a supposed intrinsic value of retribution, we can also question whether this value is achievable only at the expense of causing foreseeable harm to the families and children of prisoners. For example, it is not clear that just desert requires imprisonment in all or even most cases. If not, other types of sanctions would be appropriate. If imprisonment is required for the sake of just desert it is not obvious that this requires a prison system that does very little to help families and children of prisoners. Rather, retributivism can be equally compatible with a system that mitigates these harms as much as possible. A consequence of the ethical analysis summarized above is that prison should be used only as a last resort. Where incarceration is deemed appropriate, I hold that the harm caused to third parties gives rise to special moral obligations. In the paper I use the notion of residual obligations to defend, clarify, and categorize the special moral obligations that we owe to prisoners families and children. I propose that to mitigate some of the harm, prisons ought to be made more accessible and friendly for visits by family and children. Among other things, I argue that specific accommodations should be made for this purpose and, where manageable, a guest apartment should be provided to facilitate longer visits in a family- and childfriendly environment. Moreover, prison staff should be informed of and have knowledge about the needs and life situations of prisoners’ children in order to mitigate the potential harm associated with parental imprisonment.

This paper has also attracted a lot of attention from both academics, including philosophers, legal scholars and criminologists, as well as practioneers. For example, in May 2015 I was invited as a speaker at the Children of Prisoners Europe's (C PE) annual conference when it was held in Stockholm. The paper is also mentioned by representatives of Prison Reform Trust in a presentation for the Scottish Sentencing Council on sentencing parents with dependent children.

The third paper, Felon Disenfranchisement and the Argument from Democratic Self-determination, focuses on an argument in the philosophical debate on prisoners voting rights. This argument, originally proposed by Andrew Altman, states that felon disenfranchisement is permissible, as democratic collectives have a collective right to self-determination and to be able to define their own political identity. In making this argument, Altman holds that a legitimate democratic collective’s right to self-determination is limited and the choice to disenfranchise anyone must be connected to normative considerations of political significance, where he argues that criminal offenses have such a connection. In discussing this argument I focus one a number of objections that has recently been raised against it C laudio Lopéz-Guerra, who argues that it (i) fails to show why felon disenfranchisement can be permissible without saying that disenfranchisement on the basis of gender or race is not; (ii) fails to show that a democratic collective may have good reasons for disenfranchising felons beyond a mere desire to do so and simultaneously asserts that the interest of a democratic collective in defining its identity is stronger than the felon’s interest in voting; and (iii) rests on the dubious premise that the political identity a democratic collective might want to assert by disenfranchising felons cannot be asserted in ways other than disenfranchising felons. In the paper I argue that none of these objections disprove the original argument.

Although Altman may disagree, I suggest that the types of crimes that can be said to have political significance, and for which one may be disenfranchised, are those that involve violation of the normative constraints that are fundamental to a democratic society and are needed to assure individuals’ security and the prospect of leading decent lives informed by autonomous choices. These most reasonably include the right to life, freedom, autonomy, and, to some extent, property. These rights are politically significant because it is reasonable to say that democratic systems build upon and are governed by these rights. Moreover, these rights are also safeguarded by the same system. For example, the ideal of collective self-governance, which underlies democratic systems, entails that the members of a democratic community can make autonomous decisions and have the capacity for self-government. Therefore, criminal offenders who freely violate the normative constraints needed to assure individuals’ security and the prospect of leading decent lives informed by autonomous choices are not only acting wrongfully from a moral point of view, but also from a democratic perspective because they have equally violated the basic preconditions for democratic citizenship as well as core values of liberal democracy. In addition, crimes related directly to the democratic process, such as electoral fraud, are among the criminal wrongs for which it would be permissible for a democratic collective to adopt disenfranchisement policies.

With this in mind, the decision to disenfranchise those convicted of such offenses can be understood as a way in which a democratic collective expresses and affirms its view about the standards of citizenship it endorses. For example, it seems to be, at least prima facie, a plausible view for a democratic collective to hold that those considered full members in one’s democratic community, and therefore, allowed to participate in shared democratic decision-making, should equally restrain from violating the sort of normative constraints that protect the rights and values underlying and safeguarded by the same democratic system. Framed in this way, we can see how and why felon disenfranchisement, contra disenfranchisement on the basis of sex or race, is not arbitrary or ungrounded. We can also see why a democratic collective may have both a reason for, as well as a strong interest in disenfranchising serious offenders, namely as a way of affirming the core values of liberal democracy and to express a normative view about the normative standards and expectations associated with democratic citizenship. This is a view which is hard to account for without a disenfranchisement policy.

Even though the argument from democratic self-determination suggests that disenfranchisement of serious offenders can be morally permissible, there are reasons for resisting the adoption of such a policy. It may for example have negative implications for offender rehabilitation and reintegration. If the negative consequences of a disenfranchisement policy are extensive, this may also override the collective right to democratic selfdetermination. Thus, this paper concludes that any democratic society has reasons to grant prisoners the right to vote, even though it may in certain cases be morally permitted to deny them this right.

The forth paper, ”It will help you repent”: why the communicative theory of punishment requires the Provision of Medications to Offenders with ADHD, focuses on a topic that is getting increased attention from philosophers, namely the role of medical interventions in criminal justice. In particular, focuses in this paper is on the provisions of medications to offenders with ADHD, a topic that has been subject to controversies in Sweden. The paper considers this question from the perspective of the communicative theory of punishment developed and defended by Antony Duff. This normative theory of punishment suggests that the justification for criminal punishment lies in its communicative purpose, wherein the justifying aim of punishment is to communicate to the offender the censure that he/she deserves for committing the crime. As a way of communicating the censure that an offender deserves, criminal punishment should understood as a form of secular penance, where the internal aim of punishment is to persuade the offender that what he has done was wrong. In doing so, punishment ideally focuses on fostering repentance, through which the offender will recognize the need for self-reform as well and to seek reconciliation from those whom he has wronged.

An important feature of this theory is how participation in certain rehabilitation programs are not merely therapy, but appropriate as a punishment. Duff’s own example is CHANGE, a program much similiar to IDAP, which is used in the Swedish Prison and Probation Service. Both programs are for offenders sentenced for domestic abuse, and how they assert that the offender is responsible for his violence as well as his need to change is what make them appropriate as punishment in Duff’s view. Yet, participating in such programs also requires that the offender can pay attention for longer periods, has a good working memory and self regulation, which are reduced in ADHD. As an aid, I argue that providing medical treatment for ADHD can be seen as a precondition for making these offenders more likely to both repent their crimes and to engage in self-reform. Thus, treatment should be seen as an aid for the secular penance in virtue of which punishment is justified for according to Duff. A criminal justice system based on this theory should therefore require the provision of such treatment.

Project managers

William Bülow O-Nils

Postdoc

Department of Philosophy

william.bulow@philosophy.su.se

See profile page for William Bülow O-Nils