At Risk of Rights: Rehabilitation, Sentence Management and the Structural Violence of Prison

Abstract

Abstract This article explores governing through rights in a penal context by analyzing a recent case before the Supreme Court of the United Kingdom (the “Court” or “Supreme Court”), Brown v The Parole Board for Scotland et al. (UKSC 2017). The case involved a prisoner whose stay in prison was extended by several years beyond what the trial court ordered because he was unable to access offender behavior courses due to staffing shortages and waiting lists. In rejecting this as an arbitrary detention (in violation of Article 5 of the European Convention on Human Rights), the Supreme Court focused on the prisoner’s behavior as a justification for non-release. This article traces how the Court applied concepts of rehabilitation and sentence progression to shift focus from the state’s compliance with its rights duties to the prisoner’s deservingness of rights protection. Using frameworks of governmentality and structural violence, I explore how administrative processes, such as sentence management and rights litigation, facilitate and constitute prison violence. Specifically, rehabilitation provided the means of constructing the petitioner as a disobedient and undeserving subject, while simultaneously valorizing the penal authorities’ enlightened oversight of his sentence. Through such moves, the Court and, by extension, legal institutions, can inflict violence in three ways: first, by legitimating the extension of confinement using tools aimed at limiting detention; second, by imposing material and psychic burdens in the pursuit of legal claims, creating both hope and the basis of destroying it; and third, by obscuring and denying the disordered and inherently violent nature of the experience of imprisonment. The article seeks to expose how bureaucratic logics (like balancing tests), spaces (like appeal courts), and material practices (as in the temporal organization of “background facts” in legal judgments) are part of prison and the violence which characterizes the prison experience.

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