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THE FUTILITY AND NECESSITY OF HUMAN RIGHTS IN AN ERA OF CARCERAL INFLATION

Loc Wacquant University of California, Berkeley Centre europen de sociologie et de science politique, Paris
Keynote address to the Gendarmeria de Chile, Division of Human Rights, Santiago, Chile, 16 October 2013 - Gran Palace Hotel, Huerfanos 1178, Santiago Centro (from Orly Hotel, 7 metro stations, plus a short walk from metro Universidad de Chile to the Gran Palace Hotel).

I want to thank the Gendarmeria de Chile for this invitation. I am grateful to Alejandro Arevalo, Unit for Protection and Promotion of Human Rights, for involving me in this debate, and to Guillermo Sanhueza, for his tireless work. I have a chance to speak to the prison service of France, the Netherlands, Brazil and Argentina, and to engage officials concerned criminal justice at the UN, the OECD, and a number of regional and city governments (Barcelona). I welcome this opportunity for dialogue and mutual learning. First I am not here to accuse or disculpate the Gendameria de Chile, simply because sociologists are not moralists; not in the business of judging institutions, deciding whos innocent and whos guilty: were in the business of analyzing social institutions (operations, contradictions, effects). Second I am not here to teach lessons to the Gendarmeria de Chile: academics should always be very careful when addressing professionals. Academics live in an abstract world of texts, and retired from the urgency of practice. Professionals have their hands dirty from doing things. I have no experience running a prison, so I am badly placed to instruct others on how to run theirs. But here is the advantage of being retired from practice: you can study it, compare and contrast, learn from history and international comparison. The contribution the sociologist can make to this debate is to provide a broader outside view; bring the lessons of international experience; supply an analytic frame, that allows us to step back from the urgency of practice and to discover some of the hidden functions, unforeseen consequences and discreet contradictions of the institution; link this institution to other institutions. Different theoretical traditions provide difft linkages of punishment in relation to -the economy (Marxist tradition) instrument of class control (target is the poor)

-morality, community, identity (Durkheim) communication of emotions and norms (target is the law-abiding citizen) -professionals and bureaucracy, cultural sensibilities (Weber, Elias): civilizing -power and the docile/useful body (Foucault) -the self (Foucault,symbolic interactionist). -the state as a symbolic power (Bourdieu). An analytic frame, and warnings (about things that have not worked, will likely not work, may work and at what cost). 1) link human right and social rights; we raise the Q of HR behind bars when we fail to secure social rights beyond bars; 2) link criminal insecurity to social insecurity; 3) invite you to reduce the footprint of the prison on social body (and seek broad solutions to crime, if thats youre worry) because prison is a blunt, brutal and inefficient instrument which fosters illegality. OUTLAW, SOCIALLY DESTRUCTIVE/BIASED FAILING Yet we keep asking for more (we would not do this of firm, hospital, school: PERVERSE). A RUDIMENTARY HISTORICAL AND ANALYTIC FRAME 1-INCARCERATION IS A RECENT INVENTION Il faut d'abord rappeler qu'enfermer les gens pour les punir est une invention historique rcente. Cela surprend parfois car on sest tellement habitu emprisonner de nos jours que cela nous semble parfaitement naturel: la prison nous apparat comme une institution indispensable et immuable, donne depuis la nuit des temps. En ralit, prison was for most of its history a means to the end of punishment and not itself a punishment: eg, medieval goals. -invention late 16th century, Bridewell of London, Zuchthaus of Amsterdam, Hospital general in Paris, then became generalized late 18th c. jusqu la fin du dix-huitime sicle, les geoles ne servaient gure qu retenir les suspects ou coupables de crimes en attendant de leur administrer leur peine, qui consistait alors en chtiments corporels (fouet, pilori, enterrement, marquage au fer et mutilations, mise mort avec ou sans tortures) que venaient complter le bannissement et la condamnation au travaux forcs ou aux galres. La privation de libert nest en elle-mme devenue chtiment, le chtiment par excellence (au point quil est aujourdhui difficile de concevoir et de mettre en oeuvre dautres sanctions pnales sans quelles apparaissent demble comme insuffisamment svres), quavec lavnement de lindividu moderne suppos jouir de libert individuelle et dot dune sorte de droit naturel lintgrit corporelle

que ni la famille ni lEtat ne peuvent amputer sans motifs graves. Rappeler que la prison est une institution trs jeune lchelle de lhistoire humaine, cest indiquer que sa croissance et sa prnnit nont rien dinluctables. On a vcu sans prisons par le pass; rien nempche de concevoir de sen passer dans le futur. 2-INCARCER0 CAN FULFILL SEVERAL FUNCTIONS SAME TIME Deuxime point, l'emprisonnement, ds lors quil devient la norme en matire de justice pnale, peut remplir plusieurs fonctions la fois, successivement ou bien simultanment. La sociologue Claude Faugeron tablit une distinction utile entre ce qu'elle appelle l'enfermement de suret, visant empcher les individus considrs comme dangereux de nuire, de l'enferment de diffrenciation visant mettre lcart une population juge indsirable, et l'enfermement d'autorit dont lobjet est dabord de raffirmer les prrogatives et les pouvoirs de lEtat. On voit tout de suite que ces trois formes denfermement ne visent pas les mmes populations que lon pense aux pdophiles, aux immigrs dits clandestins et aux casseurs des manifestations et elles ne communiquent pas le mme message la socit. Cette pluralit de fonctions remplies par la prison nempche pas telle ou telle mission de prdominer. Ainsi aujourdhui dans les pays dEurope, lemprisonnement de diffrenciation sapplique avec une frquence accrue aux trangers non-europens (cest--dire aux immigrs de couleur issus des anciennes colonies du vieux continent), dont on marque ainsi quils ne font pas partie du corps social de lEurope naissante. Aux Etats-Unis, o la prison a succd au ghetto comme instrument de contrle et denfermement dune population considre comme une caste infrieure avec laquelle on ne doit pas se mlanger, ce sont les Noirs qui bnficient (si lon peut dire) dune politique daffirmative action carcrale qui fait quils sont aujourdhui massivement sur-reprsents aux sein des maisons darrt et de peines du pays: les afro-amricains psent 6% de la population nationale mais ils contribuent chaque anne plus de la moiti des nouveaux entrants en cellule. I will return to this question. 3-NOT SO LONG AGO THE PRISON APPEARED TO BE DOOMED Tell the story of the hope/prediction of vanishing 1975, Nation Without Prison; World without Prison

4-THE PRISON HAS MADE A STUNNING COMEBACK Third age of confinement (Mathiesen)
1-spectacular rise of incarceration rates among most member countries of the European Union over the past two decades: We see 3 groups of countries: -strong rise by about half (43 to 50%): France, Italy, Belgium -near doubling (70 to 115%): England/Wales, Sweden, Portugal, Greece -near quadrupling: Spain and Netherlands (long held as a model of humane penality). 2- The massive overrepresentation, within the carceral population, of non-European immigrants and of persons of colour, as well as of narcotics consumers and retailers, the homeless, the mentally ill and other rejects from the labour market. 3-The overcrowding of custodial establishments, which reduces detention to its function of warehousing. 4-The generalized hardening of penal policies, more openly turned towards incapacitation at the expense of rehabilitation, and the operation of prisons increasingly subjected to managerialist reform prioritizing cost and efficiency. Trends in the carceral evolution in Western Europe suggest that the third age of confinement is upon us (as feared by Thomas Mathiesen 20 years ago): with precious few exceptions (Germany, Austria, Finland and in part Denmark), we observe everywhere rising volume and rates of incarceration, overcrowding, disproportionate weight of foreigners and drug convicts, homeless and mentally ill, reduction of incarceration to warehousing. Worldwide, the prison population jumped from just over 8 million in 1998 to nearly 10M today (exclusive of administrative detentions in China, which approach 1 million). Yet the unforeseen and relentless rise in the carceral population is only one crude, surface manifestation of the expansion and exaltation of the penal state. Other indicators are: - the elevation of crime-fighting to the rank of government priority everywhere and the salience of insecurity (understood as criminal insecurity) in elections campaigns; -criminal hyperactivity on the legislative front: California passed a thousand laws extending the use of the prison in the 1980s. New Labour instituted a stunning 3,605 new offenses in the eleven years it was in power (more than one new crime for every business day in office: More than 3,600 new offenses under Labour). France has voted 23 laws pertaining to crime and insecurity in since mid-2002 and is presently examining a 24th. A crime-fighting program is no sooner launched that the need for another is announced. -diffusion of public discourse of vituperation of criminals and convicts:

Blair telling off the homeless in April 1997: It is important that you say we dont tolerate
the small crimes. The basic principle here is to say, yes it is right to be intolerant of homeless people on the streets (campaign statement of April 1997) Nicolas Sarkozy, promising the clean out the scum on the housing project of La

Courneuve with a power hose. -widening of the penal net through the growth of alternative sanctions, post-custodial schemes of control, and the exponential development of judicial databases and diversification of their uses. -mushrooming of administrative retention centers throughout Europe where tens of thousands of irregular migrants are detained (awaiting processing or expulsion). - the international diffusion of a new punitive common sense incubated in and disseminated by the US law and order thematics, theories(broken windows), slogans and policies (shock incarceration, youth curfews, mandatory minimums, etc.) All of these developments are disconnected from trends in crime: in the US, the carceral population quintupled while victimization rates were stagnant from 1975 to 1993 and then rapidly receding; in the UK carceral inflation took up after 1992, just as the incidence of crime declined for a full decade ; similarly in France, no connection between trends in crime, worry over crime, fear of crime, and carceral trends. WHY: 3 propositions in CASTIGAR A LOS POBRES 1-rise of social insecurity and ethnic anxiety 2-new policy of punitive management of poverty 3-building the neoliberal state PARADOXICAL GROWTH AND GLORIFICATION: WE NO LONGER KNOW WHY WE INCARCERATE

we are entangled in what the Scottish sociologist David Garland calls the crisis of penal modernism, and we will not emerge from it without a fundamental rethinking, a reflection that is political in the noblest sense of the term, without restraints or taboos, on the meaning of punishment and therefore of incarceration, and on the moral dilemmas these necessarily entail. 5 legal theories of punishment -deterrence: does not work from crimes of passion and minor theft -neutralization:does not work for drugs -rehabilitation: does not work -reparation -retribution? THE VECTOR OF PENALIZATION: always strikes the destitute and dishonored.

NOW WE COME TO HUMAN RIGHTS? Juridical question and moral question, not a sociological question. Why are human rights invoked: when social rights are weak and routinely violated. FUTILITY, because the prison is an OUTLAW institution (it functions exlex), it is a DAMAGING institution, and it is absurb to grant inside what is denied outside. Also we are talking about the civic rights of the poor (human rights of the rich are rather well protected: pensionato, special prisons for former junta rulers). UTILITY, because it can serve a guide and parameter to improve functioning and minimize damage, and we dont how to do better until we engage in a serious political reflection on punishment.
The French public sphere is periodically shaken by debates over conditions in the countrys prisons, which recurrently denounce overcrowding, the dilapidated state of the infrastructure, the routine denial of rights, and the poverty, violence, and sexual abuse imposed on convicts. 1999 book by Dr. Vronique Vasseur, Chief Physician at La Sant Jail, unleashed a torrent of journalistic reports, followed by the establishment of an official commission of inquiry and a raft of indignant prounoncements from parliament. You would like to be convinced that it is always better to talk about prison that not to talk about it, if only to break the omerta that protects the institution. Except that there are ways of talking about it that are ways of skirting it and that can ultimately turn out to be counter-productive, because they create the illusion that you are tackling the problem when in fact you are avoiding it. We may well ask what will remain on the beach once this media storm has blown over, not to mention the most astonishing of it all: to see the media elevate a quadroon of corrupt corporate heads and national politicians who spent brief stints behind bars under totally atypical conditions (protected in single cells with unusual comforts and wide access to lawyers, family, and journalists) to the ranks of Zorros of prisoners rights! In any case, three months after the controversy over Mdecin-chef la Sant, not a single concrete measure has been announced to correct the scandalous conditions she describes and, curiously, the parliamentary commissions which have rushed to take up the question have set themselves herculean tasks of inquiry and wont deliver their recommendations for another six months, when we already know everything we need to know in order to act. Amidst the uproar unleashed by the account of the scenes of everyday life in La Sant jail, which will have come as no surprise to anyone who has rubbed up close with the prosaic realities of incarceration, I note, first of all, that neither journalists nor policy makers who, in truth, never debate but among themselves have seen fit to read any recent social science research on the subject, even though there exists some fine studies based on detailed and methodical fieldwork, instead of fleeting personal impressions. This makes you wonder why the state pays sociologists! Next, I am struck by the moralising tonality of the debate. These people pretend to discover, and to denounce as deeply shocking, that French prisons are not worthy of the motherland of Human Rights when, by dint of the law itself, the penal institution functions

7 on the margins of legality, outside of all democratic control, in complete administrative arbitrariness against a backdrop of studious official indifference.

The prison is supposed to enforce the law but, by the very nature of its organisation (extreme power: Gresham Sykes), it operates exlex, in the manner of an outlaw institution. Promoted as a remedy for insecurity and marginality, it does little more than to concentrate and intensify them, but so long as it renders them invisible, we ask nothing more of it. EXLEX: constantly violates the laws it is supposed to uphold (even the best of them, Norways prison island). DAMAGING AND DESTABILIZING: impact is not just on the inmate, it is on -loved ones, kin (family, children) -neigborhood life and institutions -public institutions: schools, health, welfare -civic institutions (Amy Lerman: guards become less civic) -political system and values Penal escalation is targeted and becomes self-sustaining: US penal levitation! So how can we use HR to minimize damage and illegality? 3 Principles:
1-MINIMIZE THE FOOTPRINT OF THE PRISON 2-RELINK INSIDE AND OUTSIDE: the prison is not a closed institution, its walls are porous; tight link neighborhoods of relegation and the prison 3-TAKE INTO ACCOUNT LONG TERM IMPACT: ACROSS GENERATIONS

SOME PRACTICAL RECOMMENDATIONS

1-institute a cap and reduce overcrowding (charade of 118%: in Penitenciaria, 130% but 6 men where there should be at most 2) by uniform reduction of sentence length (for good behavior) and diversion progams (to minimize short-term sentences). Then set a policy of decarceration: Chile should return to a return of about 100 per 100k, similar to 1981; five percent reduction per year for 15 years. 2-move prison from Justice to Ministry of Social Development (where it belongs) and provide programs in

Health Marital and family counseling Job training Employment Under the 2 for 1 program: 2 for the neighborhood, 1 for the prison. Eg, construction jobs. This will provide social and economic rights INSIDE and OUTSIDE the prison; deflect the politics of resentment (zero-sum game) and create popular support for those programs. 3-reduce squalor of plant as part of housing program: Housing (improve plant and physical infrastructure: do not build more prisons, close old ones and open new ones; improve neighborhood housing) 5-integrate public services behind bars (eg, education, health) with public services outside: national service for teachers, nurses, doctors and psychiatrists to service 2 years behind bars; tuition credit for students to go to the university. Make literacy mandatory for all inmates to get out. 6-staff:overtrain and overpay the staff and teach respect of the law (procedural justice is why people obey the law). Train them in sociology, psychology and social work. 7-run a public information campaign on the failure of current policies (recidivism is rising) and their cost (so many schools not built). 8-triple budget and make prison more expensive so that budget minded politicians seek alternative solutions. This will not bring about human rights but it will minimize damage and illegality of the prison. Ultimately, we must question the division: HR for prisoners and CITIZENSHIP for all others. Ultimately you must push for social and economic rights of

HOW TO ESCAPE THE LAW-AND-ORDER TRAP Loc Wacquant 1-RECONNECT SOCIAL AND CRIMINAL INSECURITY It is an aberration to disconnect the politics and policies of criminal insecurity from the rise of the social insecurity that feeds it in reality as well as in collective representations. It is equally absurd to deal with minor illegalities with an instrument as crude and inefficient as the prison. And it is urgent that we take full stock of the perverse judicial effects and social harms caused by the undifferentiated reinforcement of penal sanction and the uncontrolled expansion of an already overloaded carceral apparatus that, in its day-to-day functioning, discredits the ideals of justice and equality it is supposed to uphold. It is not a matter of denying the reality of crime or the need to find responses to it, including penal ones where they are appropriate. Rather, it is a matter of properly understanding crime by re-embedding it in the complete system of social relations of which it is the expression, and which help explain its form and incidence as well as the hysterical reactions it provokes in the current historical conjuncture. For this, it is necessary to engage in a rational and informed debate on illegalities, plural, and not focus exclusively on street-level delinquency it is well known that the economic and social costs of white-collar and business crime in Europe and America is considerably higher than that of run-of-the-mill delinquency or even violent crime. A rational public debate on crime would differentiate between offences and rigorously measure their incidence and effects. It would eschew the short-term perspective and emotional cast of daily journalism to make a clear-cut differentiation between blips and groundswells, incidental variations from year to year and long-term trends. It would not confuse the rising fear of crime, intolerance of crime, or concern over crime with an increase in lawbreaking itself. And it would recognise that spikes in the fear of crime are generally a response to media campaigns or political crusades whereby officials seek to divert attention from more discomforting issues. But above all, an intelligent crime policy would recognize that delinquent acts are the product, not of a singular and autonomous individual endowed with a warped will or vicious aims, but of a network of multiple causes and reasons entangled according to various logics (predation, exhibition, alienation, humiliation, transgression, confrontation with authority, etc.). Such acts therefore call for

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remedies that are just as diverse and take full account of the congenitally low efficacy of the penal apparatus to put in place a plurality of mechanisms of reduction and diversion. Savoir pour prvoir, prvoir pour pouvoir (Know in order to predict; predict in order to act), said Auguste Comte, the forefather of modern sociology. Criminality is, in all societies, too serious a matter to be left to experts and ideologues, and even less to the police and politicians eager to exploit it. Instead, opposing the contemporary penalization of poverty and its correlates requires waging a triple battle. 1-First of all, at the level of words and discourse, one must fight to halt the seemingly harmless semantic drifts that shrink the space of the thinkable and hence the do-able (for instance, by arbitrarily restricting the meaning of the word security to the criminal sphere, disconnected from employment security, income security, housing security, etc.), and also contribute to the punitive treatment of tensions linked to the deepening of social inequalites. 2-Second, on the front of judicial policies and practices, it is necessary to block the multiplication of mechanisms that tend to widen the penal net and, in their place, to propose, wherever possible, an economic, social, health, or educational alternative by showing that each of these helps to tackle the problem at its roots, whereas punitive containment most frequently makes it worse. The predicament of poor persons suffering from severe psychological afflictions is a case in point: they should never be held in penal establishments when the fundamental reason for their arrest and incarceration is the lack of mental health care on the outside; the same is true for the homeless who find themselves thrown behind bars in increasing numbers due to the conjoint erosion of the low-wage and low-income housing markets, together with the apathy of governments in dealing with this derelict population. It is useful in this regard to stress unrelentingly the destructive conditions and effects of confinement, not only for the inmates, but also for their families and their neighbourhoods. The prison is not simply a shield against delinquency but a double-edged sword: an organism for coercion which, when it develops to excess, as in the United States over the past quarter-century or in the Soviet Union during the Stalinist period, mutates into an autonomous vector of pauperization and marginalization. Third, it is necessary to defend the autonomy and dignity of the occupations making up what Pierre Bourdieu calls the Left hand of the state, dealing with education, housing, health, and welfare. They must be given the budgetary and

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human resources needed to fulfill their mission and nothing but their mission. This is to say they must refuse to become an extension of the police or an annex of judicial administration under cover of better coordination between public services and bureaucratic efficiency. Synergies between public administrations are desirable in principle but, in practice, the key question is which of them imposes its logic, language, criteria for action, temporal horizon, and objectives: does partnership aim to increase the long-term social security of families and individuals facing hardships by affording them greater stability and capacity for managing their life, or to produce short-term gains in criminal security by forcing down the statistical indicators of recorded crime and make a show of paternalistic severity for electoral purposes? Finally, it is essential to forge connections between activists and researchers on the penal and social fronts, between members of unions and associations in the welfare, education, housing, and health sectors, on the one hand, and their counterparts mobilized around the police, justice, and correctional services, on the other. The double regulation of the poor through the conjoined assistantial and judicial wings of the state in the age of economic deregulation must be met by new alliances of analysts and militants taking account of the distinctive anatomy of the neo-liberal state. A formidable pool of theoretical and practical knowledge to be exploited and shared across Europe already exists: it must be utilised to dissect and remake the link between social justice and criminal justice. For the true alternative to the drift towards the penalization of poverty is the construction of a European social state worthy of the name. Three and a half centuries after the birth of the prison, the most effective way to diminish its power still resides in the expansion of social and economic rights.