Problems Implementing Human Rights in Prison Practice

Problems Implementing Human Rights in Prison Practice

Kelly Hannah-Moffat gave the annual SCCJR lecture, Moving targets: Reputational risk, rights and accountability in punishment which explored the use of human rights in penal practice. In many ways the talk was troubling, demonstrating that human rights, while intended to be a framework for the protection of prisoners’ rights, had instead morphed into institutional risks to be managed.

Human rights law has become an important resource in the arsenal of penal reform groups across the globe, the key measure of what is and isn’t permissible in evaluating dimensions and experiences of punishment. In Canada, government legislators have shown a lot of good will towards the aims of human rights frameworks, Hannah-Moffat told us, and they have been proactive in integrating human rights into Canadian law.

This is a progressive step, a set of legal mechanisms many of us would readily welcome as means to increase humane treatment of prisoners. However, the key message from Hannah-Moffat’s talk stressed that to really understand the impact of prison legislation you must research it in practice. That even in a country like Canada, which enjoyed wide spread political support for human rights law, it can be misused, misadapted and misappropriated, resulting in very tragic consequences.

Hannah-Moffat told us the harrowing story of Ashley Smith, a 19 year old girl who died in prison after self-strangulating.  Ashley self-harmed with a frightening regularity and ferocity. However, she was deemed to be attention seeking, the view was that she used self-injurious behaviour as a means to be manipulative.  In a short space of time she was moved between prisons across Canada, in each she was held in segregation, however there was little communication between the various institutions about how long she had actually been in segregation beforehand.  Ashley was clearly someone for whom serious mental health intervention was required; however, as a prisoner her behaviour was viewed as disorderly, not disorder, and she was subject to the same operational procedures as any other prisoner. Following procedure of not wanting to physically handle her, when she died prison officers had been outside Ashley’s cell for 45 minutes waiting for her to stop breathing before they intervened.

How come a country with extensive human rights law could not prevent the very needless and tragic death of Ashley Smith?

Having the laws is simply not enough, we must be vigilant about the character they take on in practice. Prisons are active and adaptive institutions. Analysing the manner in which human rights were managed and recorded in Canada Hannah-Moffat illustrated that they had morphed into an organisational risk and Ashely’s situation became an event to be managed. The aim of human rights in practice shifted from a safety net for prisoners’ rights to an inventory framework against which to measure organisational reputation.

Human rights then became measured through audits and corporate risk assessments, giving the pretence of accountability which provided a protective framework for the organisation and served to legitimate even the most disturbing actions. So as was the case with Ashley Smith, 9000 pages of documents were produced which showed that laws and procedures had been followed and in her death Ashley’s human rights had not been violated because all human rights procedures had been adhered to.  As such, human rights had been used to create a complex web of bureaucracy which created an organisational blindness towards those who were actually in their care.

So in the case of Ashley, Hannh-Moffat said, ‘rule of law is absent, though the rules are everywhere’. It is not that we need more rules, rules had become part of the problem. As penal reformers we should not be sated when we hear confident assurances about progressive prison legislation. We must ensure that human rights are not merely performances but protection for prisoners.

 

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