There are two ways to miss the political issue of prisoner’s rights: by believing it can be resolved automatically through real estate and “prison modernisation”, or by considering it harmless, since new rights so often tend to engender new forms of control. It is only beyond this or that concrete aspiration that the demand for rights starts to reveal a thing or two. By resisting them, it sheds light on the imperatives around which the prison system is organised (for discipline yesterday, security today), imperatives that are always leading it to quietly go beyond the simple deprivation of liberty.
To the many questions addressed to the Minister of Justice since 2002 on the subject of respect for human rights in prisons — by the opposition and occasionally by the majority — the same answer is tirelessly given. The plan launched in 2002 to construct 13,200 new places will solve a problem that is oh so worrying in this land of human rights. Equating rights to real estate has the advantage of seeming obvious. Evoking the indignity of prison life immediately calls to mind two particular characteristics: overcrowding (or overpopulation) which represents — quite rightly! — both a complete loss of intimacy and the fear of living with strangers in an enclosed space. And then there is the dilapidation and insalubrity that are, as the saying goes, a throwback to living conditions from another time or another place — the Middle Ages, the Nineteenth Century, or the Third World, it depends. So it isn’t surprising that the government responds to criticism with the prospect of new, clean prisons, where one person and one person only will have a place in a white cell fitted with a toilet, sink and shower. If you throw in a television, exercise room and two hours of walking, what more is there to say? This intuitive obviousness is backed up by an obvious calculation. At the beginning of the legislature, France had just under 50,000 prison places. Prison policies in effect since October 2001 have caused the number of prisoners to rise from just under 50,000 to more than 60,000. The prison authority believes 4,000 places in 25 rundown prisons should be closed. Round off the numbers, and there you have it.
Yet there is something doubly flawed in this equation. First of all because a headlong rush to punishment de facto shatters this arithmetical simplicity. The right intends to simultaneously increase the flow of new admissions to prison (by imposing compulsory strict sentences for repeat offenders) and the duration of detention (by imposing higher minimum penalties for repeat offences). With its conscious and explicit plans for an increase in the number of prisoners when construction of the prisons expected to house them has only just begun, this “real estate” dynamic recalls the impasse the Council of Europe has been highlighting for some time. In the absence of any reflection on how to prevent the prison population increase, a construction policy is condemned to chasing after overcrowding that can never be absorbed, as has been the case for the past thirty years.
And then behind the obvious, there is a veritable enigma. How can a right, or rights, or respect for the whole of people’s rights find a place between metres of concrete and layers of paint? Something else obvious (something imaginative this time) can be invoked to grasp why the rights of incarcerated people cannot be reduced to the material conditions of detention. You are shut up in your home, a home we’ll imagine is cosy enough. You want to see your family. It’s a shame they’ve lived far away ever since you were forced to move by an administrative decision that you were unable to contest before the law. At least they’ve come to visit; you don’t have much time together to say everything you want to say. It’s a shame someone is listening in on your conversation and observing your effusions. But it doesn’t matter, you take advantage of the moment, and when you have to part, you return home reinvigorated. It’s a shame your walk home is interrupted by a search to check that you haven’t been given any prohibited items, and even more of a shame that it’s a strip-search. Luckily you’re allowed to keep affectionate letters close to you, under your pillow. It’s a shame that while you were out, this home of yours was searched too. But after all, the letter may already have been read by the administration, just as they read the one you wrote in reply. There’s nothing left to do but take refuge in your privacy. At least that’s what you think until you notice that the door to your home is pierced by a little hole that makes the space fully visible at all times. Reflection, which is favoured by the 22 out of 24 hours spent without going outside, will eventually show you that accommodation does not alone produce rights.
This story could be long, even endless. Because what immediately conflicts with the common conception of rights, in this case the right to privacy, is not just dilapidation and overcrowding. The first hypothesis required to understand it goes by the name of discipline. To counter the confused idea that conceives of a prison that simultaneously respects people’s rights and imposes its will to rehabilitate, it is necessary to recall the original contradiction between discipline and rights. Setting out to transform people, in a constrained setting, imposes an irremediable power imbalance. It is inconceivable that a drill sergeant could have the same rights as a young recruit, a psychiatrist the same as his patient, more inconceivable still that warders’ and prisoners’ rights could be the same. Foucault, in Psychiatric Power, mentions a psychiatric cure based entirely on substituting the will of the carer for the unreasonable will of the patient, using the power imbalance induced by the asylum. This power play can conceal some treasures of adulteration and trickery, but it cannot escape its initial structure. The patient has been placed in an artificial setting in which everything must work either for or against this substitution of will. To return to our example, the conflict between discipline and the right to privacy and family life is blatantly clear. When prison reformers debate the degree of isolation necessary to get a delinquent full of remorse to reflect upon his actions, it is quite obvious that in one way or another they are deciding the number of personal visits necessary, or not necessary, for the prisoner. If isolation is judged to be conducive to reflection, and contact with friends and family corrupting, it is logical that those responsible for the amendment will ration time with family according to their technique, and not according to the person’s right to see his family. In light of this, one can understand the fact that it took 80 years to install visiting rooms without separation barriers, and that Family Visit Units, after a twenty-year freeze, are so few.
And yet this is to risk an anachronism. In fact, if prisoners do not see their families as often as they should, it is not (or is no longer) because some benefit is expected from isolation. It is not by virtue of a calculation loftier than their rights that enables the prisoner’s relationship with the outside world to be dosed out according to a rehabilitation strategy. Theoretically the disciplinary objective has been left behind. Its death warrant was signed by Giscard d’Estaing’s oft-repeated words from 1974: “Prison is the deprivation of the freedom to come and go, and nothing more”. In fact, these words were obviously a manifestation of the desire to soften prison punishment in its most shocking aspects following protests. But taken literally, it was no less the renouncement of making prison into a place of rehabilitation through discipline. That being the case, why is it that thirty years later we are so far from respecting article 8 (not to mention others!) of the European Convention on Human Rights: “Everyone has the right to respect for his private and family life, his home and his correspondence”? More widely, all reports and studies describe a prison world in which rights are the exception, arbitrariness the rule. In other words, it is a place where everything that is not explicitly allowed is prohibited, the opposite of common law. In France, this is what fuels the demand for a penal law that would codify rules that are still spread between the Code of Penal Procedure and the prisons’ own completely different internal regulations. But why have prisons been resisting such a law ever since Gisgard’s statement? The persistence of this lack of respect for rights, along with the collapse of all hope of rehabilitation, has oriented research toward a different kind of penitentiary arbitrariness: no longer as a therapeutic aim but as a pragmatic imperative, no longer as legitimised by the institution, but as a way of functioning .
This imperative, more solid than any ideological justification, can be broken down into two principles: maintaining order on the premises and preventing escape. The first principle is based on the observation that the institution is relatively weak compared to its residents. Even if the institution realises this, it cannot always impose its will to preserve order by means of physical constraint. It has to negotiate, in two ways: through threats and promises. Threats take the form of transfers, disciplinary quarters, isolation, and all of the discretionary harassment a closed, opaque world allows (for example banging on cell doors during night rounds). The promises are little favours (a shower, a cigarette), access to activities and work, family visits, and especially the prospect of freedom through sentence reductions. The second principle, which aims to reduce the number of escapes (if this is still an objective at prisons) is employed with varying intensity. It was emphasised less at moments when the prison system was being reformed, in order to appear to better conform to its objectives (after 1945, after 1975). It regained the upper hand at times when confinement was popularly viewed strictly as a means of protection (as during the Algerian War). It is ensured by a set of security systems (watchtowers, anti-helicopter ropes, metal detectors) and security practices (body searches, cell searches, general searches, and, again, placing prisoners in isolation, in the disciplinary quarters, and transfers).
Today this double imperative enables us to assess the value of the equivalence new prisons = human rights. In 2002, Dominique Perben, the new Minister of Justice, set the government the goal of further limiting the (rare) escapes, reinforcing security on the premises, and increasing the number of prisons. He neglected the issue of prisoners’ rights, but considerably developed the means of constraining challenges to the prevailing order. The prisons put under construction where conceived along those lines: ubiquitous security, minimal visiting rooms, work spaces neglected. So they’re places where violence does not regress. After looking at the state of premises whose construction was initiated by Albin Chalandron between 1986 and 1988, one study concluded: “These buildings were conceived with a great deal of concern about security. Whether it’s a matter of peripheral monitoring or the internal circulation and security of officers, specific systems were conceived and implemented to develop an important practical security. And yet what has happened is that these premises, far from being reassuring, seem to generate a chronic feeling of uneasiness in personnel and prisoners”, a consequence of “an atmosphere of latent violence”. The result: “in a quite unexpected way”, many of the prisoners “consider their placement at the establishment to be a disciplinary placement ”. In government language, this is all called “humanisation” and “modernisation”. Even if they know the disastrous effects these security measures have on people, they claim it is increasingly necessary, strengthening an ideology that is blind to the structural violence of the institution.
This combination of maintaining order and reinforcing security produces the exact opposite of a system of rights. Let’s return to the privacy example. For security reasons, a cell is not a private space. It has to be visible, and can be opened and searched at any time. And a visit from outside without any separation barrier entails the risk of prohibited items being passed, and this necessitates a body search. Today it is possible to visit with family without a separation barrier, but this is not really a right. It can be suspended by disciplinary action, and a suspension comes with every stay in disciplinary quarters. This means that in a closed system that puts its own security above all else, rights do not exist unless an institutional response allows them to fit, more or less comfortably, into the institution’s operating system. This is why visiting rooms without barriers come with more searches and infrared detection systems. Thus one can understand the reactions of warders and their representatives when new approaches are announced. They reject innovation out of fear that they might lose a particle of power. Once advantages gained have been integrated into prison operations, they become indispensable, and people no longer understand why warders opposed the introduction of television and, soon, Family Visit Units.
Yet just because prison rights tend inexorably to take their place in the operation of the institution (that is, to exude their share of arbitrariness), this doesn’t make them indifferent. On the one hand, it isn’t a matter of indifference whether the government sets itself the goal of eliminating escapes and forcefully quelling every gesture of protest, or instead makes room for dialogue and rejects the paranoid vision of an ubiquitous, permanent risk. It isn’t a matter of indifference whether prisoners are managed through threats — even through violence pure and simple — or instead by granting extensive work, education and family visit opportunities. It isn’t a matter of indifference whether they have the prospect of getting out, so that the opportunities offered in detention make at least some sense, or are instead condemned to an endless sentence, so that the institution thinks there is no other option but to keep them in a permanent state of tension. Nor is it a matter of indifference whether the discretionary power of the government should remain absolute and intact, or independent agencies should instead be able to intervene and promote a pro-rights perspective, even if this attempt is destined to be imperfect.
On the other hand, rights themselves are weapons that offer prisoners, their solicitors, or activist lawyers the possibility of turning the letter of the law against this penitentiary order. On 25 October 2006, a woman visited her partner on his deathbed. He was under detention at the Fresnes prison hospital. She brought some little things she hoped would make his last days easier (body cream, soft drinks, disposable razors, postcards). Prison officials noticed these objects and decided to suspend his visitation permit. This was picked up by the OIP, and five days later a court of administrative justice urgently overruled the decision, and allowed the person to visit the dying prisoner. It then officially overruled the decision, drawing attention to the fact that the suspension of the visitation permit represented an impingement of the right to carry out a normal family life. Taking the state of the prisoner’s health into account, and using European Human Rights Convention terminology, the suspension was qualified as “inhumane and degrading treatment ”. This is the reason why, far from being a lounge debate between prison reformers, the struggle for rights extends all the way from the opacity of the cells and passageways where the daily resistance against arbitrariness takes place, to the oversight and legal formalities of the European Court of Human Rights, passing by way of the national administrative courts, whose judicial precedents depend on prisoners’ complaints.
The demand for prisoners’ rights will always simultaneously be a struggle to change the administrative operation of prisons and a struggle against the prisons’ tendency to obstruct rights, in other words a struggle against the prison system itself. To appreciate how much the human rights riddle affects our conception of penal justice, it is important to resist the temptation to turn it into simple “humanitarian” discourse, which, along with “securitarism”, constitutes the “most commonly held view on penitentiaries ”. It is equally important to refuse to pretend that rights advance by way of “modernisation”, for example by making demands such as “one person, one place” (wrongfully identified with the right to privacy), in “compensation ” for the increase in the number of prisoners. But the most important task is not so much to denounce the collusion (certainly still possible) between a cheap activism and political propaganda, but to listen to what is at stake in prisoners’ demand for rights:
“Who do I think I am to try to defend my rights? Who do I think I am, this person who did so much harm? That’s the question: do I have the right to have rights? Do I have the right to have rights in terms of work? Do I have the right say what I think about a system that, instead of helping us, hopes to break us down and exterminate us? Because without rights there is no dignity, no possibility of relearning the fundamental values of France, which has given us a second chance by supplying an opportunity to really struggle with ourselves. (…) After long years of repentance and reflection, I am really moving onto a new path, even if what I did is always at the front of my mind. Now I understand that my actions can’t annihilate my rights, because by wanting to forget my rights, and by extension my very self, instead of forging ahead with rehabilitating myself, I tend to sink into a kind of depression, and take a step backwards. For me, not fighting against an institution that decides and thinks for me amounts to death. And yet I’m not dead, I’m still alive, so I have the right to be human even if I’ve done the worst. (…) But who do I really think I am? Have no fear, I am where I am, I’ve reached this point, but nothing can keep me quiet. (…) It’s about not being satisfied with doing work without rights, designed to keep us busy and push us to buy things, and about not feeling sorry for ourselves but reacting against a prison machine that wants us to rot down to the marrow. Yes, I still have rights .”
To show the political power of this kind of affirmation is to measure how much it is at once utopian in relation to our penal system, and the object of daily, endless struggles in our most modern prisons.
 Claude Faugeron, “Une théorie de la prison est-elle possible?”, in Claude Faugeron, Antoinette Chauvenet, Philippe Combessie (eds.), Approches de la prison, Paris, De Boeck et Larcier, 1996, pp. 15-42.
 Philippe Pottier, “Approche de la violence en établissement 13 000”, Violences en prison, GIP/Justice, 2005.
 Elenn Mouazan et Hugues de Suremain, “Hôpital pénitentiaire de Fresnes, un traitement inhumain reconnu et interrompu par le juge”, Dedans dehors, the journal of the OIP, no 60, March-April 2007.
 Alain Brossat, Pour en finir avec la prison, Paris, La Fabrique, 2001.
 As the expression is used by Bernard Bolze, organiser of the “Trop c’est trop! Pour un numerus clausus en prison” campaign (“Enough is enough! For a numerus clousus in prison”), in a question he asked Nicolas Sarkozy (Lyon, April 3, 2007) : “You’ve proposed a penal policy that would automatically increase the number of prisoners (minimum sentence, repeat offence law). In compensation, will you commit to respecting the standard that consists of putting only one person where there is only one place? And within what timeframe?”
 Testimony of a prisoner, published in Dedans dehors, no. 55, May-June 2006.