Abstract
The English and Dutch prison systems have long dominated the field of comparative penology. Being described as ‘Contrasts in Tolerance’ (Downes 1988), for long time they were treated as polar opposites in their use of imprisonment, treatment of offenders and recognition and protection of prisoner rights. The Dutch decarcerative penal policy and practice of humane containment contrasted with the English incapacitative penal policy and its practice of less eligibility. Whereas the idea of prisoner rights was recognised in Dutch official policy and practice as early as the 1950s, it was not until 2000 that prisoners’ rights received formal recognition in the English penal policy. Differences in the two countries’ political economies and legal traditions are cited as the reasons behind their contrasting approaches.
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Notes
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Described as ‘a spider in the web of the criminal justice system because of its wide discretionary powers, prosecution waivers rose from 34% in 1960 to 54% in 1970, and reached 57% in 1981 (Blakenburg and Bruinsma 1994: 53–54). The high number of prosecutorial waivers is seen as an expression of the Dutch concept of beleid, being itself another example of Dutch pragmatism. Beleid refers to public authorities’ rules, policies, procedures and standards, and is concerned with maximising their effective implementation. In this respect, to achieve optimum results, the Dutch approach would be to strike a balance between the letter of the law and its application through a less formalistic and rigid interpretation of its provisions. For instance, in case a rule was judged not to benefit the parties concerned in the long term, a way to circumvent it without giving rise to unlawfulness would be the preferred option (Blakenburg and Bruinsma 1994: 63–66).
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The rule of one prisoner to a cell was introduced in 1947 (Franke 1990: 86). It is worth noting that what underpinned the introduction of this humane indeed measure was pragmatism and custom rather than humanism. For Franke (1990: 87), it was a continuation of the long-established practice of solitary confinement, ‘the unintended result of historical developments and not of humane principles, stated explicitly’. Whereas Blakenburg and Bruinsma (1994: 50) argue that it aimed to reduce the risk of disorder and the spread of communicable diseases.
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In 2004 the National Offender Management Service (NOMS) was created. NOMS is responsible for the running of prisons and the delivery of punishment in the community by the probation service. It introduced the concepts of offender management and of an ‘end-to-end’ practice whereby the supervision of the offender and treatment of their needs is delivered in an uninterrupted and consistent manner through the different stages of their punishment through inter-agency work.
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Dutch male prisoners’ accounts on the distortion of their gender identity and resultant sexual disorientation due to the deprivation of sexual contact with the opposite sex began to surface from the early 1950s. By the end of the decade the liberalisation of morals in society at large brought this intrinsic pain of imprisonment (Sykes 1958: 289–290) to the spotlight. In the early 1960s, research by the Dutch Society for Sexual Reform focused on the ‘sexual need in judicial, penal and health institutions’ and a Ministerial Committee was set up to look into ‘conjugal visits in prisons’ (Franke 1995: 258–259). Dutch consideration of this important human rights issue for prisoners in terms of its early timing and actual implementation contrasts sharply with the state’s inattention to and inactivity in this aspect of prison experience in England and Wales.
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Based on Art 60 of the 1999 PPA this includes ‘an omission or refusal to take a decision. The taking of the decision shall be deemed omitted or refused if a decision is not taken within the statutory term, or, if this is lacking, within a reasonable term’. The Prison Rules and the behaviour of the governor and their representatives cannot, however, give rise to a complaint (Tak 2008: 167).
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These are the positive duty of care, proportionality, legality, legitimate aims and the margin of appreciation.
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These are supplemented with the incorporation of Art 1 (protection of property), 2 (right to education) and 3 (right to free elections, involving the right to vote) of the First Protocol to the ECHR, as well as of Art. 1 of the 13th Protocol (abolition of the death penalty).
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Based on the Constitution of the Kingdom of the Netherlands, these are the rights to equality and equal treatment, to association, assembly and demonstration, respect for one’s privacy, the inviolability of one’s person, petition, access to courts, legal representation and aid, and the right to property. In addition, it recognises the freedoms of expression and religious belief, the rights to vote and stand for elections, to education, medical care, and employment.
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The 1973 version of the EPRs and the 1955 UN Standard Minimum Rules for the Treatment of Prisoners informed prisoner entitlements stipulated in the 1951 Dutch Prison Act and 1953 Prison Rules (Franke 1995: 257).
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In their examination of the association between penal policy and political economy, Cavadino and Dignan (2006a, b) developed a typology of political economies with reference to a number of socio-economic and penal measures, such as a country’s political and economic orientation, social and economic levels of (in) equality and in/exclusion, and approach to punishment in terms of its aims, methods and administration. They argued that a country’s political economy impacted on the nature of its penal policy and subsequently its imprisonment levels. They identified four main political economies: neoliberal ones represented, for example by England and Wales and the United States; conservative corporatism followed by Germany and the Netherlands; social democratic corporatism exemplified by Sweden; and oriental corporatism represented by Japan (2006b: 15). The argument has been that the high prison population in England and Wales is principally the combined outcome of a neoliberal economic policy (free market capitalism) and law and order politics. Unrestrained economic competition, the privileging of private-led initiatives over state involvement in important spheres of social life (e.g. health, education and employment) and reduced state welfare have exacerbated socio-economic inequalities, thus engendering the marginalisation and exclusion of increasing numbers of people. In the highly and ruthlessly individualistic, consumerist and competitive neoliberal economic culture, those left behind by the unrelenting force of capitalism are labelled failures and are seen as personally responsible for their lack of economic and thus social success. Law and order politics help cementing such views, creating a platform for the expression and practice of retributive sentiments and attitudes to the treatment of all those who are not (seen) productive actors in the neoliberal capitalist order. In contrast, the low prison population in the post-war Netherlands can be seen as the outcome of a capitalist economic model that for the purposes of the national interest has tried to accommodate the competing interests of different social groups. Acting as a restraint on the excesses of a free-for-all capitalism, this state-driven accommodation of interests has enabled the development of more inclusive and caring social policies, shaping along the way societal expectations of the state’s role in relation to its citizens and attitudes to punishment. In this environment, the state has a responsibility to care for the less fortunate and the vulnerable through an adequate provision of state welfare, and thus to rehabilitate and reintegrate into society those who find themselves at its margins.
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Karamalidou, A. (2017). English and Dutch Prisons: ‘Contrasts in Tolerance’. In: Embedding Human Rights in Prison. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-58502-8_2
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