The process of institutional and judicial control over many institutions and sectors is often described as an influential and spreading socio-legal trend which is contributing to the development and the reform of modern societies (Schwartz, 2010). This seems to be particularly the case for detention such as prisons, policy stations and other penal institutions, immigration centers and psychiatric hospitals as international bodies and the courts have tried to influence detention policies since the 1960s at least. UN (united Nations) and European judicial and inspectorate bodies that share the general principles and aims of what is now commonly referred to as ‘global justice’ have gained increasing prominence in the fields of detention and penal policy and practice over time and particularly in recent years, each of those bodies working in their diverse capacities to ensure that human rights legislation is observed and monitored inside the borders of each nation-state. While penal, prison and immigration policies have always been an exclusive competence and a monopoly exerted by national states, these policies have been progressively controlled, monitored and influenced by the UN and the European Union. This monitoring and supervision have been made through the lens of human rights. In this regard, upholding the rule of law, ensuring accountability for decisions made by penal and administrative bodies and the protection of fundamental rights are crucial aspects of democracy.
These foundational principles of public law are significant in the detention environment, where the potential for abuse has been well documented (Eason et al., 2018; Haney, 2008; Lynch, 2009; Rhodes, 2004; Rubin, 2017; Simon, 2007; Western, 2006; Zimring, 1995), where the legitimacy of authority can be fragile, and where detainees are considered to belong to marginalised and vulnerable groups that are weakly aware of the rights. Custodial institutions are a very specific context where constitutional and human rights are interpreted, and the meaning and effects of public law in them require particular attention and scrutiny. In this regard, international human rights frameworks underline the importance of accountability including inspection, monitoring and complaints mechanisms for protecting human rights and the rule of law. While scholars have pointed out the factors determining the impediments and efficacy of international human rights rules and norms (Blau and Moncada, 2007; Savelsberg, 2010 and 2015), poor attention has been paid by this literature to the study of human rights violations relating to custodial, prison, immigration and psychiatric detention. In this regard, a lack of intersection of policy spheres covering criminal and penal justice, immigration, mental illness and human rights may be acknowledged and should be filled.
Moreover, while academic attention has been recently paid to the impressive rise of the legal framework of human rights in the realm of penal, detention and prison policies (Feeley and Rubin 1998; Simon, 2014; Van Zyl Smit and Snacken, 2009; Cliquennois and de Suremain, 2017 and 2019; Daems and Robert, 2017), some significant issues have been neglected by the literature up to date. First, human rights conventions, their monitoring and their violations need to extend beyond documenting legal and policy issues in the American and European context. Second, this literature has overlooked some important countries such as Australia, Japan, Israel and Russia that is characterized by high rates of incarceration. In particular, Eastern countries such as Russia have been under-researched (Piacentini and Katz, 2016) while they are targeted by pilot judgments rendered by the European Court of human rights and by a specific monitoring from the Council of Europe and the UN concerning detention and prison overcrowding, inhumane detention and prison conditions, and the lack of healthcare and real and effective domestic remedies. Third, scholars have notably ignored fundamental issues such as efficacy and inefficacy of monitoring and judicial bodies charged with human rights violations, accountability and transparency of institutions dealing with detention. While the American scholarship literature focuses on the bad impacts (Eason, 2016; Schoenfeld, 2010 and 2018; Gottschalk, 2006; Guetzkov and Schoon 2015) and more rarely on the positive outcomes (Boyland and Mocan, 2014) of prison litigation on prison overcrowding, the ability of human rights law to limit and soften penal policies and the state’s right to punish have been overlooked. Access to justice for detainees and prisoners (notably through NGOs) in this context has been also under-researched. Fourth and last, the literature has neglected (as pointed above) the issue of detention as a whole covering not only prison but also immigration centers, prison stations and psychiatric hospitals.
This is why this symposium firmly covers the impacts of human rights law on penal, prison, immigration and psychiatric policies in broader countries such as Russia, Australia, Japan and Israel beyond the US and Europe. It also raises for the first time socio-legal debates about accountability, operational complexities, transparency, the ability to either limit or increase the state’s right to punish, efficacy of oversight bodies, the limits of human rights ‘law’ in this context, access to justice and legal aid for detainees and prisoners, persistence of violations in the face of reform. In particular, this symposium offers an opportunity to analyse the way the UN, the European court of human rights, national courts; the monitoring bodies and detainees (notably through NGOs) are able or not to challenge penal and detention policies and to soften them through the lens of human rights. This special issue intends therefore to demonstrate an engagement with existing scholarship in human rights, penal, detention, immigration and prison policies and punishment. It relies on theoretical and empirical socio-legal work that addresses these issues from a local, national, and global perspective. This special issue also challenges traditional socio-legal boundaries by taking into account and integrating the intersection of policy and sub-disciplines spheres that cover criminal and penal justice, immigration, psychiatric institutions and human rights. In this way, this special issue combines the study of these sociolegal fields and all places of detention (police stations, prisons, juvenile facilities, immigration centers, and psychiatric hospitals) with a view to analyzing the nature of relations between human rights and detention.
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