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ABSTRACT
In and beyond anti-colonial struggles, the repressive institutions of prison are variously defined, contested, and recast by law, including through prisoner resistance. The likelihood of resistance and the necessity of the rule of law in prisons apply irrespective of whether people are incarcerated as criminals, terrorists, or political prisoners. The paper articulates four sets of relationships concerning law and prison: a normative aspiration to law as justice; the diversity of law; the necessity of universal rights irrespective of particular actors or institutions; and the role of prison-based struggles in challenging colonial, neo-colonial, and other legal regimes. The relationship between state power in constituting prison rule is considered through the work of John DiIulio’s endorsement of authoritarian prison governance and Giorgio Agamben’s dystopian concerns about zones of lawlessness applied to prisons. Various examples, including colonial Malaya, French Indochina, apartheid South Africa, Northern Ireland, Egypt, and the contemporary United States (including Guantanamo Bay), are considered in the paper to examine and develop arguments. These exemplars illustrate overlapping elements of prison repression and resistance vis-à-vis law despite very different contexts. The normative, theoretical, and empirical perspectives and cases underscore the need for universal rules to protect all prisoners. The goal of universal legal protections is highlighted in the 2015 ‘Nelson Mandela Rules’, an expansion of the United Nations’ ‘Standard Minimum Rules for the Treatment of Prisoners’. Mandela’s name underscores the role of resistance, including resistance through law and against law, to achieve at least minimum standards of treatment of all incarcerated people.
Acknowledgements
I am grateful beyond words to Helena Pinto Janeiro for extraordinary understanding and support in the development of this article. I also thank Tural Mammadli for research and editorial assistance in completing this article. I offer this article in memory of Barbara Harlow, although she would no doubt take issue with some of it. I miss Barbara deeply and will always cherish and be honoured to have had Barbara play such an important part in my life, as my teacher, mentor, and friend.
Disclosure Statement
No potential conflict of interest was reported by the author.
Notes
1 In addition to numerous other sources noted in this paper, other examples include: Abdo, Captive Revolution; Alexander, ‘Political prisoners’ memoirs’; Dikötter and Brown, Cultures of Confinement; and Mac Ionnrachtaigh, Language, resistance and revival.
2 Regarding Ho Chi Minh, Zinoman notes that ‘that up until the early 1990s, prolonged imprisonment during the colonial era was an experience shared by virtually every [Vietnamese Communist] Party secretary-general. … The lone secretary-general never incarcerated by the French was, oddly enough, Ho Chi Minh himself, a fact obscured by his highly touted bouts of imprisonment in Hong Kong and southern China.’ Zinoman, The Colonial Bastille, 300.
3 Writing of former Kenyan president Jomo Kenyatta, Koigi Wa Wamwere lamented that ‘Kenyatta’s government carted me away into indefinite detention without trial in the same prisons of Kamiti, Manyani and Hola where Kenyatta and his comrades had been detained, tortured and killed by colonial tyrants in the name of white supremacy.’ Wamwere, ‘President Jomo Kenyatta’, para. 10.
4 Given different temporal, legal, and national definitions of the word prison, prison in this paper may sometimes refer to forms of confinement, jailing, and detention that are not necessarily best, or primarily, referred to as imprisonment.
5 References to the neocolonial nature of the United States, especially regarding prisons and punishment, include: Delgado, ‘Rodrigo’s Portent’; Kersplebedeb, ‘Repression, Resistance, and the Neocolonial’; Saribal, ‘I am a Human’.
6 Borland et al., “The Irish in Prison,” 1–2.
7 Reiman and Leighton, The Rich Get Richer, 119. Regarding the United States, Reiman and Leighton comment that ‘the vast majority of the poor who are confined in our prisons are probably guilty of the crime for which they were sentenced.’ Ibid.
8 Stern, Sin against the Future, 114. Stern also discusses the particular vulnerability to imprisonment of immigrants, indigenous people, and former colonial subjects. Bosworth, Franco, and Pickering consider the way contemporary reactions against immigrants, refugees, and other non-nationals is reshaping aspects of criminal justice and imprisonment. Among their insights is that traditional penal rationales which emphasise the reintegration of offenders into communities increasingly co-exist with the rise of legal regimes which seek to expel foreigners. They refer to this as the ‘movement from the Panopticon to the Banopticon’. Bosworth, Franco, and Pickering, “Punishment, Globalization and Migration,” 43.
9 Garland, ‘Editorial’, 5.
10 Garland, Punishment and Modern Society, 14.
11 For example, see Bernault, History of Prison; Dikötter and Brown, Cultures of Confinement.
12 One means by which prisoners both use and challenge the law occurs when prisoners act as their own counsel, usually self-taught and without the benefit of formal training, often referred to as jailhouse lawyers (JHLs). Dragan Milovanovic and Jim Thomas argue that JHLs both aid inmates by allowing them to challenge ‘excessive control’ and ‘simultaneously function to legitimise’ the penal order including by ‘reinforcing the hegemonic domination of the law and its punitive practice.’ ‘Prisoners and staff both have an interest in maintaining effective, efficient, flexible, and stable prison communities, and prisoner litigation has been a significant factor in pursuing these shared goals.’ Milovanovic and Thomas, “Jailhouse Lawyers,” 494–5.
13 Aljuneid, “The Prison and the Anti-Colonialist,” 48.
14 Ibid.
15 I especially appreciate D’Amato’s point that ‘no one is likely to have the identical sense of justice as anyone else. But if everyone’s sense of justice were plotted out as circles on a plane, we would find that most people’s circles overlapped with most other people’s.’ D’Amato, ‘On the Connection Between Law and Justice’, 19.
16 Buchanan writes: ‘For most of the scholars writing out of critical and/or Third World approaches to international law, then, the law’s liberal promise has lost much, though not all, of its luster. Yet, without faith in that promise, how to “map the relation between critique, the other, and responsibility” is not at all clear.’ Ruth Buchanan, “Writing Resistance into International Law,” 447.
17 Schneider and Schneider, “The Anthropology of Crime,” 352; Merry, “Colonial and Postcolonial Law”; Gregory, “The Black Flag”.
18 Merry, “From Law and Colonialism,” 569. Merry’s comments are in the context of a reissue of Martin Chanock’s seminal book on colonial law in Malawi and Zambia, Law, Custom, and Social Order.
19 Ibid.
20 See, for example, Levin Institute, ‘Social Movements and NGOs’.
21 Hajjar, “Human Rights,” 593.
22 Davies, “Legal Pluralism”.
23 Calavita, Invitation to Law and Society.
24 Krygier, “The Rule of Law,” 23.
25 Dennehy and Nantel, “Improving Prison Safety,” 175.
26 Ibid., 176.
27 Guerette and Bosworth, “Snitch,” 908–9.
28 Khalili, Time in the Shadows.
29 Garland, “Editorial,” 5.
30 Gregory, “The Black Flag,” 415. The context of the quote referred to Guantánamo Bay’s prisoners, but the implication is arguably universal.
31 Merry, “Colonial and Postcolonial Law,” 575.
32 Ibid.
33 Darian-Smith, “Postcolonial Theories,” 249.
34 Delgardo, “Rodrigo’s Portent,” 1310.
35 Nichols, “The Colonialism of Incarceration,” 437.
36 Darian-Smith, “Postcolonial Theories,” 250. Literatures, theories, and debates on postcolonialism are among those that address this issue, but are beyond the scope of this paper.
37 As noted above, this paper focuses on prisons rather than punishment, a larger category that is beyond the scope of this article, but remains an important area to study. Samera Esmeir, for example, offers a case study of how colonial authorities in Egypt ‘managed agricultural labor through penal/administrative measures’. Esmeir, “Coloniality of Modern Law,” 19. Esmeir’s findings include that these measures involved fusing, ignoring, and rearranging different legal powers so that ‘the regulatory was transformed into the penal, the administrative into judicial.’ Esmeir, “Coloniality of Modern Law,” 27.
38 Zinoman, “Colonial Prisons,” 57.
39 Ibid.
40 Ibid., 92.
41 Cited in Zinoman, “Colonial Prisons,” 95.
42 Ibid., 59.
43 Ibid., 91.
44 ‘Poulo Condore, like the Thai Nguyen Penitentiary, indiscriminately grouped diverse categories of prisoners together in communal settings, forged powerful bonds between them and invested them with common grievances, identities, and political commitments.’ Ibid., 98.
45 Van Zyl Smit, “Normal Prisons, Abnormal Society,” 44.
46 Buntman, Robben Island.
47 Van Zyl Smit, “Normal Prisons, Abnormal Society,” emphasised the deference the courts gave to the apartheid authorities. See also Buntman, Robben Island.
49 Pete, “Apartheid’s Alcatraz - Part One,” 277.
50 Pete, “Apartheid’s Alcatraz – Part Two,” 308.
51 Ibid.
52 See, for example, Lindegaard and Gear, “Prison Makes Safe” and Steinberg, The Number.
53 Buntman, Robben Island.
54 Ibid.
55 Dilulio, Governing Prisons.
56 Agamben, Homo Sacer.
57 Agamben, State of Exception.
58 Dilulio, Governing Prisons, 236.
59 Ibid., 11–2.
60 Ibid., 241.
61 Ibid., 237.
62 Ibid., 235–6.
63 Limiting oversight of prisons and other correctional institutions is a core reality of US prisons, especially in the wake of the 1996 Prisoner Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. See, for example, https://www.hrw.org/report/2009/06/16/no-equal-justice/prison-litigation-reform-act-united-states.
64 Sykes, The Society of Captives.
65 Dilulio, Governing Prisons, 237.
66 Ibid., 105; 119. DiIulio compared three state prison systems: Texas’s top-down ‘control’ model Michigan’s ‘responsibility’ model, and California’s ‘consensual’ model. The responsibility model gave inmates some self-control over their lives and activities and the consensual model assumed that prison administration could only work if prisoners consented to their rule. DiIulio notes that although a philosophical basis of the consensual model was rooted in seeing prisoners as citizens, in practice the consensual model was in part a practical way to manage warring prison gangs through some co-option. Dilulio, Governing Prisons, 119.
67 Most notably Dreyer v. Jalet (1972) and repeated Cruz v. Beto trials and appeals (see, for example, Martin and Ekland-Olson, 1987).
68 Ruiz v. Estelle, 1295.
69 Ibid., 1298, 1265.
70 Agamben, State of Exception, 4.
71 ‘[T]he state of exception [is] … the hidden foundation on which the entire political system rested.’ Agamben, Homo Sacer, 9.
72 Humphreys, “Legalizing Lawlessness,” 678.
73 Moran, Carceral Geography, 2.
74 Anker, “Left Melodrama,” 143.
75 Gregory, “The Black Flag,” 406.
76 Agamben, Homo Sacer, 8; italics in the original.
77 Ibid., 20.
78 Ibid., 156–9.
79 Ibid., 183–4.
80 Gregory, “The Black Flag,” 411.
81 Ibid.
82 Exec. Order No. 66 F.R. 57833, 3 C.F.R. 57831–57836
83 Agamben, State of Exception, 3
84 Ibid., 3–4. Agamben continues
… The only thing to which it could possibly be compared is the legal situation of the Jews in the Nazi Lager [camps], who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews.
85 Ibid., 3–4.
86 Margulies, ‘A Prison Beyond the Law’.
87 Agamben, Homo Sacer, 114.
88 Margulies, ‘A Prison Beyond the Law’.
89 CNN.com, ‘Shackled Detainees Arrive in Guantánamo’.
90 Chemerinsky, ‘Enemy Combatants and Separation of Powers’, 73.
91 Cole, Engines of Liberty, 163.
92 Gregory, ‘The Black Flag’, 409.
93 See, for example, Slahi and Siem, Guantánamo diary; Habib and Julia, My story; Begg and Brittain, Enemy Combatant: My Imprisonment.
94 Gregory, “The Black Flag,” 421.
95 For somewhat overlapping typologies and analyses of prisoner resistance, see McEvoy, Paramilitary Imprisonment in Northern Ireland; Buntman Robben Island. For a general sociological overview of issues at state in defining resistance, see Hollander and Einwohner, Conceptualizing Resistance, 533–4.
96 Buntman, Robben Island, 265, emphasis in original.
97 Milovanovic and Thomas, ‘Jailhouse Lawyers’.
98 Regarding the PLRA especially, see, for example, Schlanger, ‘The Just Barely Sustainable California Prisoners’ Rights Ecosystem’. Regarding the importance of class action lawsuits for prisons and other situations of confinement, see, for example, Marcus, ‘The Public Interest Class Action’.
99 Buntman, Robben Island, 56–8.
100 Ibid., 56–8. The emphasis on winning their rights was that of Venkatrathnam as well as at least one other Robben Island prisoner, Dr. Neville Alexander. Interestingly, Dirk van Zyl Smit, expert on South African prison law, sees the litigation as having more mixed results. See Van Zyl Smit, “Normal Prison, Abnormal Society,” 41–2.
101 McEvoy, Paramilitary Imprisonment in Northern Ireland.
102 See, for example, Sanders, Inside the IRA.
103 McEvoy, Political Prisoners, Resistance and the Law in Northern Ireland.
104 Delisle, Leading to Peace.
105 Wright, The Looming Tower, 52.
106 Discussed further below.
107 Wright, The Looming Tower, 52.
108 Lanter, The Radicalization of Sayyid Qutb, 6.
109 Ibid., 35.
110 McCoy, “How the Islamic State,” para. 3.
111 Chulov, “Isis: The Inside Story,” para. 4.
112 http://www.sinnfeinbookshop.com/university-of-freedom/; Delisle, Leading to Peace, 5.
113 Al-Azraq, The Prison as University; Mencia, The Fertile Prison: Fidel Castro; Bady, Robben Island University, 106–19.
114 Kropotkin, “Prisons: Universities of Crime”.
115 Stephens, “Overcrowded Prisons “Act as a University.””
116 Leaman, “Judge Fears ‘University of Crime’.”
117 Godfrey, “Prisons Act as ‘uni of Crime’: NSW Govt.”
118 Aurelie Ouss used the title ‘Prison as a School of Crime: Evidence From Cell Level Interactions’ in a technical report cited by Stephenson, “Essays in Peer Effects,” 2016; see also The Economist, “America’s Prisons Are Failing.”
119 SpearIt, “Muslim Radicalization in Prison,” 49. SpearIt also notes that ‘the excessive scrutiny of Muslims manages to omit the positive aspects of Islam in prison, including those prison converts who have helped foil terrorist plots’. SpearIt, “Muslim Radicalization in Prison,” 48.
120 Steinberg, Nongoloza’s Children, 1.
121 ADL, White Supremacist Prison Gangs, 18.
122 Skarbek, Social Order of the Underworld; Lessing, “Counterproductive Punishment.”
123 Skarbek, Social Order of the Underworld.
124 Ibid., 33.
125 Ibid., 82.
126 Ibid., 132.
127 UNODC, “Nelson Mandela Rules”; Buntman, “Prison and Democracy.”
128 Hansford, “Nelson Mandela and the Lawyer,” 3.
129 UNODC, “Nelson Mandela Rules.”