![Sample our Humanities journals, sign in here to start your FREE access for 14 days]({"type":"image" , "src" : "/sda/5939/TOC-Subject-Sample-2021-Humanities.jpg"})
Abstract
This paper addresses the question of prison inmates' right to privacy from an ethical perspective. I argue that the right to privacy is important because of its connection to moral agency and that the protection of privacy is warranted by different established philosophical theories about the justification of legal punishment. I discuss the practical implications of this argument by addressing two potential problems. First, how much privacy should be allowed during imprisonment in order to meet the criteria of respecting inmates as moral agents? Second, how should the conflict between privacy and other rights, including the rights of the public and the prison staff, as well as those of the prison inmates, be handled? Consequently, from an ethical perspective, the invasion of privacy should be minimized to the greatest extent possible without compromising other important values and rights to safety and security. In defending this position, I argue that respect for inmates' privacy should be part of the objective of creating and upholding a secure environment to better effect in the long run.
Notes
1 [I presented early versions of this paper at the Ethics Seminar at The Centre for Applied Ethics, Linköping University and at the Philosophy Seminar at the Royal Institute of Technology (KTH), Stockholm. I wish to thank the participants at both seminars for valuable comments and discussion. A special thanks also to Richard Lippke and to Till Grüne-Yanoff for generous comments and criticism on an earlier draft. Thanks also to the two anonymous reviews for Criminal Justice Ethics and to Jonathan Jacobs for their helpful comments and suggestions.] 1 There are two notable contributions. Margaret Falls-Corbitt argues for the importance of privacy in prison based on a retributivist theory that she calls the “moral accountability theory” (see Falls-Corbitt, “Prisons and Privacy”). Richard Lippke briefly discusses these issues from a retributivist perspective on imprisonment (see Lippke, Rethinking Imprisonment, 113–14). That prison inmates ought to have a right to privacy is also briefly acknowledged by John Kleinig (see Kleinig, Ethics and Criminal Justice, 225.).
2 Lippke, Rethinking Imprisonment, 1–2.
3 Easton, Prisoners' Rights, 60–8.
4 Hart, Punishment and Responsibility, 28.
5 See Damm, “Emotions and Moral Agency,” 275–92.
6 See Lyons, Ethics and the Rule of Law, 145–69.
7 Easton, Prisoners' Rights, 5.
8 See Von Hirsch, Doing Justice.
9 Falls-Corbitt, “Prisons and Privacy,” 316; Lippke, Rethinking Imprisonment, 114.
10 Lippke, Rethinking Imprisonment, 111.
11 Lippke, Rethinking Imprisonment, 111.
12 See Duff, Punishment, Communication, and Community, 4.
13 Bennett, Apology Ritual, 20–4.
14 Hampton, “Moral Education Theory,” 212.
15 For a critical discussion of the moral education theory of punishment, see Shafer-Landau, “Can Punishment Morally Educate?”
16 Duff, Punishment, Communication, and Community, 106.
17 See Ward, “Ethics of Punishment,” 244.
18 Morris, “Punishment and Loss of Moral Standing,” 55.
19 Morris, “Punishment and Loss of Moral Standing,”, 55.
20 See Solove, Nothing to Hide, 24–6.
21 Thompson, “Right to Privacy,” 295–314.
22 This definition resembles the one Falls-Corbitt adopts in her paper on privacy in prisons. According to her, privacy is the ability of being able to limit others' access to information about us, to intimacies of our lives, to our thoughts, and to our bodies. I agree with Falls-Corbitt that privacy involves many things beyond information, but control is different from the ability of limiting access. Privacy is not only a matter of being able to limit access, but also to be able to determine how information about us is distributed (i.e., control). Even in cases where I cannot reasonably limit others' access, such as in public spaces, I would hold that this does not mean that others have the right to distribute information extracted at public places (by CCTV cameras, for instance) about me in any possible ways. Rather, doing so could violate my right to privacy—understood as the right to control the access to me.
23 See Westin, Privacy and Freedom.
24 Shalev, Supermax, 28.
25 Kleinig, Ethics and Criminal Justice, 226.
26 See Nussbaum, Hiding from Humanity, 248.
27 Falls-Corbitt, “Prisons and Privacy,” 317.
28 I want to thank Professor Richard Lippke for making this point.
29 Falls-Corbitt, “Prisons and Privacy,” 318.
30 Lippke, Rethinking Imprisonment, 113.
31 Falls-Corbitt, “Prisons and Privacy,” 318.
32 Irwin and Owen, “Harm and the Contemporary Prison,” 97–100.
33 Lippke, Rethinking Imprisonment, 113.
34 Falls-Corbitt, “Prisons and Privacy,” 319.
35 Lippke, Rethinking Imprisonment, 114.
36 Lippke, Rethinking Imprisonment, 114.
37 Elsewhere, I have discussed whether electronic monitoring, when used as an alternative punishment to imprisonment for many types of offenses, could provide more privacy than imprisonment. See Bülow, “Electronic Monitoring of Offenders.”
38 Hoskins, “Punishment, Contempt, and Moral Reform,” 6.
39 Lippke, Rethinking Imprisonment, 107.
40 Falls-Corbitt, “Prisons and Privacy,” 320.
41 Easton, Prisoners' Rights, 71.
42 Easton, Prisoners' Rights, 71.
43 As was reported by the Swedish news magazine NyTeknik (April 7, 2012), the Swedish company SensAbues has recently developed a technology that indicates drug use by breath tests. The technology has been tested in Västervik Prison in Sweden. For more information about this technology, see also http://sensabues.com/.
44 Easton, Prisoners' Rights, 81
45 Solove, Nothing to Hide, 33–7.
46 In Sweden and Germany, prison inmates have single rooms. In Germany, the German Prison Act states that prison officers are obliged to knock before entering a prison inmate's cell. This is not motivated by recognizing the cell as a private sphere, but by respect for the prisoner's human dignity and his freedom of personality (see Lazarus, Contrasting Prisoners' Rights, 121). In the Netherlands, on the other hand, the entitlement to single rooms was phased out at the end of 2003 (see Easton, Prisoners' Rights, 93).
47 Easton, Prisoners' Rights, 78.
48 Lippke, Rethinking Imprisonment, 114. Among other things, Lippke also points out that convicted offenders may suffer from an inability to initiate any activities, chronic apathy, lethargy, depression, and despair as a result of their lack of control over many aspects of their lives.
49 See Bülow, “Electronic Monitoring of Offenders.”
50 Easton, Prisoners' Rights, 75.
51 See Husak, Overcriminalization.