Abstract
In my 2017 book on Torture and Its Definition in International Law: An Interdisciplinary Approach I presented a learning theory formulation of torture to highlight its core definitional characteristics from a behavioral science perspective. These include a) exposure to unpredictable and uncontrollable stressors that pose a risk of helplessness and hopelessness responses and b) such exposure takes place in a setting where the person is under the physical control of others or occurs as a consequence of actions who are in a position to exercise authority or control over the person. Based on a contextual, cumulative, and risk-based approach to torture, this formulation is helpful in understanding the nature of stressor events that pose a high risk of “severe pain or suffering” (a criterion for torture in international law) and the psychological mechanisms that mediate such pain or suffering. This formulation raises questions about the legality and morality of certain penal procedures, such as deprivation of liberty through imprisonment. The United Nations Convention Against Torture excludes “pain or suffering arising only from, inherent in or incidental to lawful sanctions” from the definition of torture. Such exemption appears to be based on (a) an understanding that deprivation of liberty through imprisonment is not inherently associated with “severe pain or suffering” and (b) that any pain or suffering caused by adverse prison conditions can be mitigated by observance of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). While these assumptions have not been subjected to rigorous scientific scrutiny, there is some evidence to show that deprivation of liberty per se, independent of adverse prison conditions, is an inherently traumatic event in involving loss of control over life in and out of prison. Furthermore, there is compelling evidence to show that the elements of dehumanization, deprivation, and threats to safety that characterize most prisons around the world are associated with serious risk of “severe pain or suffering.” While the Nelson Mandela Rules are consistent with a learning theory understanding of prison conditions, there are still outstanding questions about their wide applicability across prisons and countries and their potential to reduce “pain or suffering” to morally acceptable levels even when fully applied. Given the inherently traumatic nature of deprivation of liberty in any context, even without adverse conditions, it is difficult to imagine a satisfactory solution to this problem short of abandoning this penal sanction altogether. But as long as prisons remain a reality of our world, the gravity of the problem could at least be alleviated to some extent by an alternative model of penal confinement involving consistent adherence to learning theory principles.
Introduction
The United Nations Convention against Torture (UNCAT; UN General Assembly, 1984) defines torture as:
“…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
Although this definition, originally drafted with State-perpetrated torture in mind, has been widely accepted internationally, controversies on its various elements such as “torture means any act,” “severe pain or suffering,” “physical or mental,” “for such purposes,” “public official,” and “does not include pain or suffering only from lawful sanctions” have continued to date. These issues were reviewed by a group of behavioral science and international law scholars in my 2017 book on Torture and its definition in international law: An interdisciplinary approach (Başoğlu, 2017a). In the Introduction section I noted:
“Defining torture has traditionally been considered as a primarily legal matter falling into the domain of law. Torture, on the other hand, is a traumatic event and, like any other trauma, it has a psychological impact. Therefore, it is not possible to define torture without reference to “pain or suffering”- a construct that falls primarily into the domain of behavioral sciences. Furthermore, it is not possible to define torture in ways that afford maximum protection for people without an adequate understanding of the psychology of torture and the contextual processes through which it induces “severe pain or suffering.” Although behavioral sciences have much to contribute to such an understanding, much of the debate on torture over the last few decades has not been sufficiently informed by behavioral sciences for various reasons.”
In the opening chapter (Başoğlu, 2017b), I presented a scientific formulation of torture (based on learning theory) to highlight its core defining characteristics from a psychological perspective. It has two definitional elements:
(1) Exposure to an environment characterized by unpredictable and uncontrollable stressors, the cumulative impact of which poses an increased risk of helplessness and hopelessness responses and associated traumatic stress reactions and
(2) such exposure takes place in a setting where the person is under the physical control of one or more persons or occurs as a consequence of actions of others who are in a position to exercise authority or control over the person.
This formulation is not intended as an alternative definition of torture. It does not include references to “any act,” official involvement, purpose or intent and it represents a contextual, cumulative, and risk-based approach to torture. As such, it has a broader scope than the UNCAT definition of torture. Furthermore, in highlighting the psychological processes primarily responsible for traumatic stress, it provides information that is useful in assessing whether the psychological impact of various stressor events in different contexts or settings meets the criterion of “severe pain or suffering.” It is based on extensive evidence from research with animals and humans (reviewed in Başoğlu and Mineka, 1992 and Başoğlu et al, 2011) showing that stressor events are distressing or traumatic to the extent they are (or perceived as) unpredictable and / or uncontrollable.
There are certain human experiences in various situations or settings with contextual characteristics similar to those of torture, such as deprivation of liberty through imprisonment. The question that needs to be addressed in such cases is whether these experiences cause sufficiently “severe pain or suffering” to qualify as torture. In my book this issue was examined in a chapter by Craig Haney and Shirin Bakhshay (Contexts of Ill-Treatment – The relationship of Captivity and Prison Confinement to Cruel, Inhuman, or Degrading Treatment and Torture), which was intended as a ‘case study’ to demonstrate the conceptual overlap between torture and deprivation of liberty through imprisonment (Haney & Bakhshay, 2017). The present article was originally written as a chapter to accompany these authors’ chapter. Although it ended up not being included in the book for various reasons, parts of it were included in my concluding chapter where I reviewed various points raised by the other contributing authors. The entire article is presented here after some revision.
In their chapter Haney and Bakhshay (2017) describe the normative conditions of confinement in the United States and their mental effects and note that, in the “age of mass imprisonment,” the putative “lawfulness” of the sanction of penal confinement, including very severe forms, has rarely been called into question (p. 144). Their description of harsh prison conditions characterized by elements of dehumanization, deprivation, and threats to safety inevitably raises the question whether such conditions of confinement pose a significant risk of “severe pain or suffering” and thus meet the criteria for torture in international law. This question is worthy of further attention, from both psychological and legal perspectives, considering that in this “age of mass imprisonment” there are over 10 million prisoners worldwide, with a further 1 million added to this figure each decade (Fazel & Seewald, 2012). Drawing in part on the information presented by Haney and Bakhshay (2017), this article examines the traumatic nature of deprivation of liberty in an inherently coercive prison environment and what this implies for the exemption of “pain or suffering arising from, inherent in or incidental to lawful sanctions” from the definition of torture in Article 1 of the UNCAT (UN General Assembly, 1984). Although this issue has been much debated by international law scholars since the 1980s, it has not received much attention in the light of more recent advances in behavioral sciences that help us understand better the severity of “pain or suffering” induced by various captivity experiences and the psychological mechanisms responsible for such suffering.
The view that deprivation of liberty through imprisonment is lawful as long as it comports with international standards laid out by the most recent version of the United Nations Standard Minimum Rules for the Treatment of Prisoners (UN General Assembly, 2016), also called the Nelson Mandela Rules (hereafter the Mandela Rules) appears to be based on the assumption that these standards are likely to prevent further aggravation of pain or suffering inherent in deprivation of liberty. As this assumption has not been subjected to any theoretical or empirical analysis, this article examines its validity by a learning theory analysis of these international standards.
The term “severe pain or suffering” used in this article refers to not only the immediate physical and / or psychological impact of stressor events but also their wide-ranging long-term mental and physical health effects. Furthermore, conclusions regarding what constitutes torture are based on the learning theory approach to torture briefly summarized above.
Deprivation of liberty through imprisonment involves a wide range of stressor events, many of which have received attention in the literature on this subject (e.g. see Liebling & Maruna, 2011). Haney and Bakhshay (2017) provide a detailed account of the stressors experienced during imprisonment and their mental effects. These stressors can be considered broadly in two groups: (1) deprivation of liberty as a major stressor in itself, involving loss of control over life and its potentially detrimental effects on important areas of life (e.g. work, family, social life) and (2) other uncontrollable stressors experienced in an inherently coercive prison environment. Such a distinction is made for the purpose of examining their relative psychological effects, independent of each other. As captivity stressors interact and enhance the effects of each other, their cumulative effects in the long-term also need to be considered in assessing whether the whole experience amounts to “severe pain or suffering.”
In the context of deprivation of liberty, the term “loss of control over life” refers to an inability to deal effectively with a wide range of problems arising directly or indirectly from disruption of work, family, social functioning, and important life plans. Loss of control over life in prison, on the other hand, refers to loss of autonomy, independent decision-making under the physical control of others and an inability to avoid or effectively deal with uncontrollable threats to physical and psychological well-being in a coercive and potentially violent prison environment. It is important to note that stressor events may be uncontrollable in actual terms or perceived as such. The mental state of helplessness can arise from perceived uncontrollability of stressors, regardless of whether they are actually uncontrollable or not.
Deprivation of liberty as a stressor event
Artist: ORHAN TAYLAN (from the artist’s collection depicting his prison experiences as a political prisoner in the 1980s)
Deprivation of liberty is an inherently distressing event in involving loss of control over life. As evidenced in my book (Başoğlu, 2017b), helplessness responses arising from perceived lack of control over potential threats to physical or psychological well-being play a central role in torture-induced “severe pain or suffering.” Ability to exercise effective control over the environment and potential threats to safety is an evolutionarily determined need essential for survival in both humans and animals and, as such, their brains are wired to react to loss of control with intense distress, anxiety, or fear. In addition, imprisonment is a form of social rejection and exclusion that leads to considerable shame and humiliation and lowers one’s social status and standing in society. Such process, termed “social defeat” in evolutionary psychology, is known to induce intense emotional pain in both humans and sub-human species (see Björkqvist, 2017 for more detailed review of this issue).
Does such emotional pain amount to “severe pain or suffering,” independently of suffering caused by harsh prison conditions of the kind described by Haney and Bakhshay (2017)? A definitive answer to this question requires research examining the effects of deprivation of liberty alone, while controlling for the effects of other adverse confinement conditions. To the best of my knowledge, systematic studies with prisoners addressing this specific question are lacking. There is some evidence from our study of domestic violence (Şalcıoğlu & Başoğlu, 2017), however, showing that more extensive deprivation of liberty under the control of others (assessed with a quantitative measure) in the context of domestic violence is associated with greater risk of PTSD and depression, independently of other forms of domestic violence.
Certain legal procedures involving deprivation of freedom without prolonged exposure to adverse prison conditions allow an opportunity to examine the immediate psychological impact of deprivation of liberty per se. Some studies show that 20% of the subjects detained by the police for interrogation experience abnormally high levels of anxiety (Gudjonsson, 2003) and that some people develop PTSD after such an experience (Gudjonsson & MacKeith, 1982). Such intense anxiety is also known to lead to increased suggestibility in detainees (Gudjonsson, 1991; Gudjonsson & Clark, 1986). The inherently traumatic nature of deprivation of liberty is also evidenced by suicides that occur during confinement (Hayes 1989; Royal College of Psychiatrists, 2002; Stuart, 2003). Some studies in the United States have shown that suicides occur at a higher rate in prisons than in the general population (Bland, Newman, Dyck, & Orn, 1990; Hayes, 1989). It is estimated that suicide rates within prisons occur four to five times more commonly than in the general population (Fazel, Grann, Kling, & Hawton (2011). Most relevant to the issue at hand is a national study (Hayes, 1989) of jail suicides, which found that 50% of suicides occurred within the first 24 hours of confinement and a third occurred within the first three hours. The fact that such a substantial proportion of suicides occur before prolonged exposure to other adverse confinement conditions can be regarded as reflecting the powerful psychological impact of deprivation of liberty. Any stressor event that can drive some individuals to suicide could reasonably be regarded as being associated with “severe pain or suffering.” Possible factors that might conceivably modulate the severity of such traumatic impact, such as anticipated duration of imprisonment and conditions of confinement, need to be elucidated with further research.
The risk of serious mental pain or suffering associated with deprivation of liberty is also acknowledged in the Mandela Rules (relevant sections provided in footnotes). For example, Rule 3 acknowledges the “afflictive” nature of deprivation of liberty and “the suffering inherent in such a situation.”[1] The possible mental effects of confinement, including suicide and self-harm, are noted in Rule 30 (c)[2] and Rule 33.[3] The humiliating nature of the experience is implied in Rule 73[4] and the problem of social stigma faced by prisoners after release is noted in Rule 90.[5] Furthermore, in addition to ensuring the safety and security of prisoners and more “humane” conditions of life in prison, the rules, on the whole, appear to be designed primarily to reduce the “pain and suffering” of loss of control over life. To cite just a few examples, the rules encourage minimizing the differences between previous life and life in prison (Rule 5),[6] allocating prisoners to prisons close to their homes (Rule 59),[7] allowing contacts with the outside world (Rule 58),[8] providing legal aid (Rule 61),[9] allowing access to important news items in the media (Rule 63),[10] taking measures to avoid exclusion of prisoners from the community (Rule 88),[11] providing opportunities for work (Rule 96),[12] and providing assistance to maintain or establish relations with persons or agencies outside the prison (Rule 107).[13] All these measures are geared towards alleviating the helplessness effects of prison life and, as such, could be regarded as acknowledging, at least implicitly, the important role of loss of control over life in “severe pain or suffering.”
Conditions of confinement as mediators of severe pain or suffering
Turning to other stressor events or situations during confinement, Haney and Bakhshay (2017) provide a very informative account of normative conditions of confinement in the United States, describe in vivid detail the physical environment and social psychological dynamics of prison settings that lead to dehumanization, deprivation, and threats to safety, examine how unpredictable and uncontrollable stressors lead to helplessness, and review the evidence pertaining to the psychologically damaging effects of such conditions. They also describe the institutionalization or “prisonization” process (p. 155) brought about by adjustment to a life controlled by others and the internalization of the prevailing norms, values, or codes of behavior in the prison culture, noting that the damaging psychological effects of this process persist during life after prison causing further mental pain or suffering.
Do such conditions pose a serious risk of “severe pain or suffering”? Theoretical analysis and empirical evidence clearly imply an affirmative answer to this question. First of all, the contextual overlap between torture and confinement is self-evident; both involve a state of helplessness under the physical control of others. Second, they both involve elements of dehumanization, deprivation, and threats to safety. As Haney and Bakhshay (2017) rightly point out, many of the stressor events experienced by torture survivors (listed in Başoğlu, 2017b), such as restriction of movement, being stripped naked, humiliating treatment, denial of privacy, verbal abuse, exposure to bright light, deprivation of medical care, prevention of hygiene, are also experienced under harsh conditions of confinement. There is evidence from research studies (Başoğlu, 2007, 2009, 2017a) to show that these stressors induce as much pain or suffering as physical torture. Some other findings from our studies also suggest that confinement in conditions similar to those described by Haney and Bakhshay (2017) is associated with significant risk of “severe pain or suffering” and mental damage. For example, among 1,079 war survivors in former Yugoslavia countries, some of whom were held captive by the enemy but not subjected to torture, captivity ranked fourth among the most distressing war experiences (after rape, witnessing torture of close ones, and identifying bodies of close ones in mass graves) and 47% of survivors with a captivity experience developed PTSD, compared with 23% without such experience (Bașoğlu & Șalcıoğlu, 2011). This finding shows that perceived threat to physical or psychological well-being (or safety) alone, even without an actual experience of the threat, poses a significant risk of PTSD. Finally, the learning theory formulation of torture would predict an association between exposure to uncontrollable stressors of dehumanization, deprivation, and threats to safety in prison environments and greater risk of psychiatric morbidity among prisoners relative to general population. Indeed, reviews of research evidence by Haney and Bakhshay (2017) and others (e.g. Smith, 2006; Fazel & Seewald, 2012) support this prediction. In view of all these considerations and findings, the cumulative psychological impact of such “normative conditions of confinement” can be reasonably considered as amounting to “severe pain or suffering.”
Deprivation of liberty through imprisonment and legal criteria for torture
Does such suffering legally constitute torture? The legal definition of torture refers to four criteria: severe pain or suffering, purpose, intent, and official involvement. With respect to penal confinement, the elements of official involvement and purpose (i.e. punishment, as the term “penal confinement” implies) are clear. Regarding intent, however, it might be argued that the intent in imprisonment is not to torture. In their chapter on Evolving standards for torture in international law in my book (Mendez and Nicolescu, 2017), Juan Mendez, the then United Nations Special Rapporteur on Torture, and his co-author clarify this issue in their review of my theoretical formulation of torture (Başoğlu (2017b):
“…intent is the main definitional element of torture under the Convention, which requires pain and suffering to be intentionally inflicted upon a victim in order to qualify as torture. Although the requirement may appear stringent or prohibitive, it should be noted that the existing jurisprudence in practice infers intent from facts and circumstances that demonstrate the knowing infliction of pain or suffering, even when the perpetrator’s purpose was not, per se, to torture. Accordingly, while purely negligent conduct is not currently sufficient to qualify an act or omission as torture under international law, “recklessness” might suffice. In this sense, arguably “‘unintentional’ stressor events,” such as “deprivation of medical care” or “prevention of hygiene [and/or] exposure to infested surroundings,” or other similarly reckless conduct or omissions in custody could amount to torture when they are known or should be known to inflict severe pain or suffering.” (p. 243)
We understand from this explanation that intent for torture can be inferred when the “facts and circumstances” demonstrate that “severe pain or suffering” has been inflicted as a consequence of “reckless conduct” or “omissions in custody.” It could be argued that deprivation of liberty though imprisonment would constitute “reckless conduct,” if it is known (or should be known) to lead to “severe pain or suffering.” In this connection, Haney and Bakhshay (2017) forward a similar argument:
“…intentionality is implicit in the very nature of an official, state-sanctioned institutional context. That is, because of their typically elaborate and structured nature, conditions of involuntary confinement (including contexts of ill-treatment) must be intentionally created and consistently maintained. Rather than individual discrete acts that might be dismissed as ill-considered, inadvertent, or episodic, institutional settings are by definition configured and arranged environments that their creators have envisioned, implemented, preserved, and chosen not to make more benign. The level of foresight and premeditation required to create such an environment, the level of ongoing knowledge about what transpires inside it, and the willingness to tolerate the negative effects it inflicts on others seems to us to collectively moot the question of whether the painful and potentially damaging consequences are “intended” or not.” (p. 143)
Thus, if intent can be inferred from the “facts and circumstances” of a prison setting, even when the purpose is not torture per se, this inevitably leads to the conclusion that deprivation of liberty combined with harsh confinement conditions of the kind described by Haney and Bakhshay (2017) meet the definition of torture.
Implications for “Lawful Sanctions” exemption in definition of torture
In his report as the Special Rapporteur on Torture (UN Commission on Human Rights, 1997), Rodley noted that
“…. the “lawful sanctions” exclusion must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment, which is common to almost all penal systems. Deprivation of liberty, however unpleasant, as long as it comports with basic internationally accepted standards, such as those set forth in the United Nations Standard Minimum Rules for the Treatment of Prisoners, is no doubt a lawful sanction.” (p.6)
Nowak and McArthur (2008) argue that deprivation of liberty would not be in need of exception by the “lawful sanctions” clause, considering that “it is difficult to see how lawful imprisonment can amount to torture as defined in Article 1 CAT” (p. 83). Thus, despite their differences on the issue whether or not the “lawful sanctions” clause should refer to deprivation of liberty, they seem to agree at least on the point that lawful deprivation of liberty does not amount to torture. In view of the contextual and definitional overlap between penal confinement and torture, Haney and Bakhshay (2017) point to a problematic issue in this regard:
“Exempting forms of treatment causing pain and suffering that are “inherent in or incidental to lawful sanctions” from definitions of CIDT or torture could be especially problematic in the case of penal confinement, depending on how “lawful” is defined or interpreted. From a psychological perspective, the nature and degree of the harmful consequences inflicted are unrelated to whether the particular form of captivity is “lawful.” From a legal perspective, the putative “lawfulness” of the sanction seems precisely what is or should be at issue in determining whether or not the context of ill treatment constitutes CIDT or torture.” (p. 144)
This comment raises an important question. The Mandela Rules acknowledge the “afflictive” or inherently painful nature of imprisonment and prescribe rules to prevent aggravation of such pain (Rule 3). It is not clear (at least to the present author) whether international law considers such pain or suffering (without any aggravating circumstances) as lawful because it is deemed as not rising to the level of “severe pain or suffering” or irrespective of its severity. Rodley’s argument above would imply the latter explanation if the term “however unpleasant” can be taken to mean “however severe.” If, on the other hand, it is meant to refer to a merely unpleasant experience that would not rise to the level of “severe pain or suffering” when international standards are fully observed, then this would imply that the lawfulness of deprivation of liberty is equated with “less-than-severe” pain or suffering. This would in turn imply an assumption that full compliance with international standards would alleviate pain or suffering to merely unpleasant levels. Whichever might be the case, if such pain arising from deprivation of liberty in an inherently coercive nature of prison environment qualifies as “severe,” can its putative lawfulness be morally justified, even if the purpose is to deter crime and protect potential victims? From a legal perspective, prohibition of torture is absolute, regardless of its purpose. In this connection, Mendez and Nicolescu (2017) note that
“The intent that the definition requires is the intent to cause pain and suffering, whatever the purpose is (interrogation, punishment, discrimination, or even lofty purposes such as preventing a real or perceived larger harm). A purpose that is worthy is not relevant to the definition of torture if the perpetrator knows that severe pain and suffering will result…” (p.244)
Although the authors make this comment in reference to certain medical procedures that amount to torture in certain circumstances, there is no compelling reason to think that it cannot apply to conduct of certain penal procedures with intent “to prevent real or perceived larger harm.” If the legal analysis so far is correct, the “lawful sanctions” clause would mean that an exception to absolute prohibition of torture has been made. The question then inevitably becomes whether this would not open the logical gate to similar justifications of penal sanctions of different kinds, including corporal punishments.
One could of course also argue that the lawfulness of deprivation of liberty is justifiable when it comports with international standards, because these standards would reduce the pain and suffering inherent in deprivation of liberty in coercive conditions of confinement to less than “severe” levels. Such argument would have validity only in the presence of empirical evidence to this effect. In the absence of such evidence, one can only estimate the potential usefulness of international standards in the light of current theories of trauma.
A review of internationally accepted standards of imprisonment
It is clear from Haney and Bakhshay’s (2017) account of normative prison conditions that the problems are very complex and any proposed solution requires an adequate understanding of the contextual stressors that arise from the characteristics of the physical and social environment and cumulatively lead to “severe pain or suffering.” The learning theory analysis of the normative conditions of confinement briefly presented in this article sheds some light on the general principles of an approach that might conceivably alleviate the suffering inherent in imprisonment to a certain extent. Such an approach needs to be guided by three inter-related principles (or goals):
(1) allowing prisoners sufficient control over their life both in and outside prison so as to minimize pain or suffering induced by helplessness,
(2) complete eradication of all prison conditions and procedures leading to dehumanization, deprivation, environmental threats, and institutionalization, and
(3) minimizing the likelihood of recidivism and facilitating adaptation to society after release through other social and behavioral interventions. These interventions require first and foremost a physical environment specifically (and architecturally) designed in ways to allow implementation of the interventions required by the three principles.
Two issues need to be addressed with regard to the question as to whether the Mandela Rules can achieve these aims: the extent to which the rules are practicable in the real world and, when fully implemented, the extent to which they are likely to alleviate the pain and suffering of imprisonment. The Mandela Rules acknowledge that the rules may not be applicable “in all places and at all times,” considering “the great variety of legal, social, economic and geographical conditions in the world.”[14] More importantly, as noted in Preliminary observation 1,[15] the Mandela Rules is not meant as an alternative model of penal institutions. It is intended as a mere listing of rules aimed at securing “humane” conditions of confinement. Rule 4 defines the purpose of deprivation of liberty[16] and Rule 1 prescribes “humane” treatment of prisoners.[17] As noted earlier, some rules acknowledge the pain or suffering inherent in deprivation of liberty and prescribe measures to alleviate such suffering or loss of control over life, for example by minimizing the differences between previous life and life in prison (Rule 5), allocating prisoners to prisons close to their homes (Rule 59), allowing contacts with the outside world (Rule 58), taking measures to avoid exclusion of prisoners from the community (Rule 88). Other rules pertain to securing more humane conditions of life in prison with respect to accommodation, personal hygiene, clothing, bedding, food, exercise and sport, healthcare services, and various other measures aimed at facilitating reintegration into society.
While many of these rules are consistent with the principles of the learning theory model briefly summarized earlier, they are not informed by a theoretical model with clearly defined rationale, objectives, and guiding principles. As such, they do not reflect the true scope and breadth of changes in the prison systems required for a potentially effective approach to the problem. The model outlined above requires a fairly radical reform in prison systems and substantial changes in the physical and social environment of prisons. Without recourse to such a model, practices inconsistent with the desired outcomes are likely to arise, as will be discussed later.
The interventions implied by the first principle of the model are arguably the most important ones that need to be considered as a priority, as the second- and third-level interventions are not likely to succeed without first creating an environment that allows prisoners sufficient control (or sense of control) over their life both in and out of prison. The key issue here is to find an optimum balance between relaxing control over prisoners and maintaining order and security. This inevitably requires sufficient correction in the power imbalance between the prisoners and the administration. In their review of the social psychological dynamics of prison and detention settings, Haney and Bakhshay (2017) point to an important contextual characteristic of prison environments that need priority attention:
“We believe that the potential for significant abuse inheres in the very structure of a prison or prison-like environment. Indeed, the venerable Stanford Prison Experiment demonstrated the potentially destructive dynamic that is created whenever near absolute power is wielded over a group of derogated others…When that basic dynamic is amplified and intensified—for example, under especially severe, harsh, or otherwise “adverse” captivity conditions—and when there are no countervailing pressures introduced into the situation to effectively regulate or moderate the psychological forces that are present to facilitate and elicit mistreatment, abuse is nearly inevitable.” (p.147)
In an earlier analysis of the social psychological dynamics of captivity settings that facilitate torture (Bașoğlu et al, 2011), I had argued that the captor-captive relationship can be best conceptualized as a struggle for control between the two sides, noting that the captors attempt to remove total control from the captives for various purposes (which would be “maintaining order and security” in the case of prisons), while the captives struggle to maintain control to avoid total helplessness. An exercise of total control or domination inevitably involves actual or threatened violence. On the other hand, both humans and animals respond with anger, hostility, and aggression to uncontrollable threats to their physical and psychological well-being (Baron, 1977; Averill, 1982). Furthermore, the ability to aggress in such situations can dramatically reduce helplessness (Weiss, Pohorecky, Salman, & Gruenthal, 1976). Many examples of this phenomenon in detainees or prisoners are provided elsewhere (Bașoğlu & Mineka, 1992; see also an excellent learning theory analysis of captivity experiences in Guantánamo by Alexa Koenig, 2017). Thus, much of the violence in prisons displayed by the inmates (including violence directed to self in the form of self-mutilation or suicide) can be understood as attempts to regain sense of control or avoid total helplessness. This implies that violence is an inevitable outcome of the imbalanced power dynamics of prison settings (or any other contextually similar setting, for that matter). It also implies that violence suppressed by stricter controls and punitive actions is likely to lead to greater helplessness, which in turn would make further violence more likely. It is indeed no coincidence that various forms of violence, such as stabbings, attacks on staff, property destruction, collective violence, self-mutilation, and suicide are more prevalent in situations that induce greater helplessness, such as isolated prison housing (Haney and Bakhshay, 2017). This could also explain why “supermax” regimes have failed to reduce violence in prisons (Smith, 2006). This vicious cycle can only be reversed by correcting the power imbalance to such an extent that allows prisoners sufficient sense of control over their life to avoid total helplessness. An ensuing reduction in violence might then improve prison safety and security and thereby reduce the need for overly strict controls, punitive measures, and dehumanizing practices.
In the absence of an alternative model of penal confinement that minimizes the risk of conflict and violence, potentially traumatic restrictions, disciplinary actions, or sanctions allowed by the Mandela Rules in certain circumstances become inevitable. These include use of certain instruments of restraint (Rule 47), searches of cells and prisoners (Rule 50), strip and body cavity searches (Rule 51), and “involuntary separation” from other prisoners, such as solitary confinement (defined in Rule 44 as “confinement of prisoners for 22 hours or more a day without meaningful human contact”) not exceeding 15 consecutive days, isolation, and segregation (Rule 37). Although the Mandela Rules prescribes certain measures to reduce the likelihood of pain or suffering arising from these disciplinary actions or sanctions, such risk cannot be eliminated, particularly in vulnerable cases. This problem is also implicitly acknowledged in the Mandela Rules by reference to the “potential detrimental effects” of these measures (Rule 38[18] and Rule 46[19]). Also, it would not be realistic to assume full compliance with these measures at all times in prison settings. Even a momentary lapse in compliance could be enough to cause lasting psychological damage in a person. All this implies that a possible solution to these problems lies in an alternative model of penal confinement that eliminates, or at least minimizes, the need to resort to such measures.
Artist: ORHAN TAYLAN (from the artist’s collection depicting his prison experiences as a political prisoner in the 1980s)
Prescribing rules without recourse to a theoretical model can also lead to rules that are inconsistent with the desired outcome of penal confinement free from “severe pain or suffering.” For example, allowance of solitary confinement not exceeding 15 days goes against what we already know about the inherently harmful effects of solitary confinement in general. Such distinction from “prolonged solitary confinement” appears to be rather arbitrary, as there is no definitive evidence showing that periods less than 15 days do not pose risk of “severe pain or suffering” or lasting mental harm, even when compliant with the Mandela Rules. In an extensive review of the literature on solitary confinement, Smith (2006) concluded that individuals vary in their response to solitary confinement, severe health effects can occur after only a few days, and health risk rises for each additional day in solitary confinement. It is important to bear in mind that solitary confinement can have broadly two types of effects: (1) neurophysiological effects of deprivation of environmental stimulation (e.g. perceptual disturbances, hallucinations, psychotic reactions, withdrawal, etc.) and (2) traumatic stress reactions arising from the subjective meaning or threat value of the experience, such as intense distress, anxiety, fear, anger, rage, helplessness, hopelessness, depression and so on. While the severity of the first type of effects is likely to increase with duration of confinement, this association can also be modulated by the ‘threat value’ of both the experience of solitary confinement itself and its neurophysiological effects. Perceptual disturbances, hallucinations, psychotic reactions in a different context (such as when people take hallucinogenic drugs for “recreational” purposes) are not necessarily anxiety- or fear-evoking and can even be experientially pleasant. The subjective nature of the experience is also supported by Grassian’s (2006) review of experimental studies of isolation, which showed that “…an individual who receives clues which cause him to experience the isolation situation as potentially threatening is far more likely to develop adverse psychiatric reactions to the isolation experience” (p. 347). The fact that uncertainty regarding the duration of solitary confinement augments its effects (McCleery, 1961 and Toch, 1992, as cited in Shalev, 2008; Smith, 2006) also attests to the important role of threat appraisal in isolation-induced suffering. Furthermore, traumatic stress reactions are more likely to occur in the early stages of solitary confinement, when the person is least prepared for the experience. As evidenced in Başoğlu (2017b), cognitive factors, such as perceived threat associated with a particular stressor event and associated anticipatory anxiety or fear, can be as traumatic as the actual physical or mental effects of the event itself. In addition, longer duration of the experience might allow opportunities for some individuals to develop coping strategies that enable them to exercise more effective control over the stressors of solitary confinement (e.g., see the case of Albert Woodfox[20]) This is indeed one of the reasons why “objective” measures of stressor severity, such as duration, frequency, intensity of physical pain or injury suffered are not reliable indicators of the severity of pain or suffering (see Başoğlu, 2017b for a critique of individual-method-based approach to torture).[21] The notion that captivity stressors can be calibrated on the basis of objective measures of severity to avoid “severe pain or suffering” is not only a serious fallacy but also open to potential abuse, as the “torture memos” of the Bush era in the United States demonstrated (see Rubenstein, 2017 and Başoğlu, 2017c for a more detailed discussion of this issue). Considering that the early traumatic stress reactions induced by solitary confinement also constitute “severe pain or suffering,” not prohibiting solitary confinement for any period of time raises the same moral and legal issues as allowing prolonged solitary confinement.
It is rather curious that international law categorically prohibits various psychological forms of torture, such as fear-induction by threats or sham executions, but does not adopt the same stance towards solitary confinement, which is one of the most inherently painful and potentially traumatic forms of torture. Limiting its use to 15 days in “exceptional cases as a last resort, for as short a time as possible” and in cases without mental or physical disabilities (Rule 45)[22] does not really resolve the moral issue. The irony here is that brief exposures to solitary confinement, when too brief for a person to allow opportunities to overcome initial traumatic stress by developing effective coping strategies, might pose a greater risk of leaving the person at the end with lasting psychological damage (e.g. PTSD, depression, etc.) than relatively longer exposures.[23]
Furthermore, individuals without mental or physical disabilities are not necessarily immune to the pain or suffering inherent in solitary confinement. Grassian (2006) notes that solitary confinement can be intensely distressing and traumatic, even for highly resilient people. This is also supported by our own studies (detailed in Başoğlu, 2017b). Our study sample of 432 torture survivors from Turkey and former Yugoslavia countries included 74 highly resilient study participants with an experience of solitary confinement (resilience assessed on a scale of “psychological preparedness for torture”). Many of them were militant political activists with multiple experiences of detention and torture. Yet, 47% rated their experience of solitary confinement as fairly to extremely distressing – the equivalent of “severe pain or suffering” in international law. All this implies that even if it were possible and practically feasible to identify all vulnerable cases in prison circumstances and limit the use of solitary confinement to less vulnerable cases, the procedure would still pose a serious risk of “severe pain or suffering.”
Examples of theory-inconsistent practices can also be found in Scandinavian prison systems, which are often cited as examples of humane penal confinement. The so-called Scandinavian exceptionalism thesis is a controversial and much debated issue beyond the scope of this chapter, but findings from a recent study (Reiter, Sexton and Sumner, 2016) involving in-depth qualitative interviews in six Danish prisons and jails with prisoners, prison staff members, and senior-level Danish prison administrators and prison policy experts deserve attention here to demonstrate this point:
“Although Americans (and Brits) are both shocked and impressed by the humane prison conditions they see in prisons in Germany and Scandinavia, they are also quick to acknowledge the influence of differing social contexts. By drawing on data collected during 6 weeks of fieldwork in Denmark…we examine what happens below the flashy surface of Scandinavian prisoners’ apparent freedoms. First, we complicate the oversimplified characterization of Scandinavian prison conditions as consistently humane and relatively lenient. We build on the work of many in this volume who have argued that Scandinavian prisons fail to achieve their lofty humanitarian ideals, whether by forcing individuals to conform to a dominant concept of the normal…, stripping pretrial prisoners of their rights and isolating them…, or failing to provide adequate transitional and community services to former prisoners …But instead of focusing on failures per se, in this chapter we examine the tensions of adhering to the values of dignity and normalization in an inherently coercive institution. Indeed, our observations reveal that in some ways Danish prisons are not necessarily any less restrictive, coercive, or punitive than prisons in any other social and geographic context.”
Attempts to find a balance between “normalization” and an “inherently coercive institution” and allowing prisoners some “apparent freedoms” in open prisons and thereby some degree of control over their life are consistent with a learning theory approach to the problem. Other practices, such as solitary confinement, on the other hand, are not. Such conflicting practices suggest that Danish prison systems are not the end-product of a systematic approach driven by sound theory and evidence, which may well explain their failure, at least in part. Indeed, Smith (2012), in his critical review of Scandinavian exceptionalism thesis, notes that prominent examples of “humane” Danish practices, such as open prisons, came into existence coincidentally (due to problems in accommodating more than 40,000 detained alleged traitors and collaborators after World War II), rather than through carefully planned welfare state policies. The inconsistencies in the Danish prison systems demonstrate the importance of a sound theoretical framework in understanding mechanism of traumatic stress inherent in imprisonment and formulating possible solutions to the problem.
Concluding comments
Although the harmful effects of imprisonment have long been recognized, its conceptual, contextual, and definitional overlap with torture has received relatively little attention, perhaps reflecting in in part the socially and politically sensitive nature of the issue and the fact that it is common to most penal systems around the world. Does such definitional overlap raise questions about the morality of the “lawful sanctions” clause? The answer to this question depends on answers to three other questions. First, does deprivation of liberty per se, independent of conditions of confinement, pose a risk of “severe pain or suffering”? Learning theory suggests that loss of control over life through deprivation of liberty is an inherently traumatic event and available evidence supports this theory. There is even more compelling evidence that deprivation of liberty in coercive conditions of confinement poses a risk of “severe pain or suffering” to the extent conditions of confinement involve elements of dehumanization, deprivation, threats to safety, and institutionalization described by Haney and Bakhshay (2017).
Second, to what extent can adverse conditions of confinement of the kind described by Haney and Bakhshay (2017) be generalized to prisons around the world? We understand from Rodley and Pollard (2009) that international law does not demand a very high standard of treatment for prisoners “in view of the present state of the world’s prisons” (p. 381). If such adverse conditions of confinement characterize most prisons around the world, then there is certainly cause for moral concern.
Third, can international standards of “lawful” imprisonment be widely applied around the world and with satisfactory outcomes? As noted earlier, there are limitations in their wide-scale applicability. Furthermore, there is yet no evidence to show that, even when fully observed, these standards can reduce the pain or suffering of life in prison to morally acceptable levels. In the absence of such evidence, one can only speculate about their usefulness. Such uncertainty surrounding this question makes it difficult to rule out moral issues, considering that laws are useful only to the extent they achieve the desired results.
In view of these considerations, one could conclude that deprivation of liberty through imprisonment poses a potential moral dilemma for international law. Pointing to the commonalities between torture and a sanction common to most penal systems and widely deemed necessary for the “greater good” may come across to some as disturbing and objectionable. One might perhaps disagree with what these commonalities imply for international law but the fact that imprisonment can inflict as severe pain or suffering as torture cannot be easily disputed, particularly when deprivation of liberty as a major stressor event is accompanied by adverse prison conditions. This fact alone is enough to raise various moral issues for all parties concerned. For example, in the introduction to their book on The Effects of Imprisonment, Liebling and Maruna (2011) note:
“…if we want to reduce the harms (and the use) of imprisonment, we need strong, careful research evidence exploring different penal systems and practices, documenting not just ‘what works’, but ‘what hurts’, and uncovering means of alleviating these harms. Yet, conducting research of this kind does carry some risks…For instance, do we as prison researchers not lend legitimacy to an institution thought by many to be broadly illegitimate? After all, why focus research efforts on making imprisonment less painful when we should be using our efforts to tear prisons down altogether? Over 20 years ago, writing in The Pains of Imprisonment,,,Toch himself wrestled with these ethical tensions…Acknowledging that congested, undersupplied, ‘warehouse’ prisons are morally indefensible, Toch…asks, ‘Then why do we stipulate them? Are we gilding the lily on the corpse of civilized society? Do we compromise with evil when we talk of “coping,” “adaptation,” “amelioration” in prisons?” (p .20)
In view of the inherently painful nature of deprivation of liberty, such moral concerns are not entirely unfounded. Social scientists need to consider the fact that a viable solution to the problem is unlikely to exist, at least in the foreseeable future. Law professionals, on the other hand, need to consider the moral implications of the “lawful sanctions” clause, when social scientists describe prisons as “illegitimate,” “evil,” or “the corpse of civilized society.” Prescribing an arguably unattainable vision of a “humane” prison environment – a concept essentially not much different from the oxymoron of “lite torture” – does not resolve the moral issues around this problem.
If prisons still exist today in the name of preventing crime, this is because of the abject failure of humanity so far to create a “civilized society” largely free from serious crime in the first place. It might be argued that as humans we are still at the early stages of our evolutionary history where criminal justice systems have a role to play as a deterrent from crime. Such an argument might be viewed as carrying some weight, that is, if the sole purpose of justice systems is to deter crime. Indeed, as Robinson and Darley (2004) note, even rats are deterred by perceived threat. This does not necessarily justify it morally, however. One could also argue that humanity should concentrate its efforts to eliminate crime, at least to a significant extent, by eliminating its root causes, instead of resorting to inhuman punishments as a deterrent. What these root causes are and how they can be eliminated are complex but researchable issues that fall beyond the scope of this article. Scholars need to give these issues more attention if they want to avoid moral dilemmas of the kind pointed out by Liebling and Maruna (2011). Indeed, the long path to a “civilized society” goes far beyond tearing prisons down. If we want to get any closer to that truly civilized society of the future, the first action to take is to start calling the rose by its name.
Lastly, given the realities of today’s world, is there anything that can be done to alleviate the pain or suffering associated with current prison systems? As noted earlier, this might be possible to a certain extent by an alternative model of penal confinement based on a sound theory- and evidence-informed understanding of the contextual characteristics of prisons that lead to pain or suffering (e.g., see Başoğlu & Mineka, 1992; Başoğlu, 2017b, 2009 for a contextual analysis of captivity settings). The Scandinavian model, however imperfect, at least provides some clues about possible alternatives to current prison systems. Considering the evidence suggesting a strong association between lack of sense of control and mental problems in prisoners (Friestad, & Hansen, 2005; Başoğlu and Mineka, 1992) and research showing that traumatic stress can be reduced by interventions designed to enhance sense of control (reviewed in Başoğlu et al, 2011), restructuring all aspects of prison systems with consistent adherence to learning theory principles (thereby avoiding the imperfections of the Scandinavian model) could conceivably alleviate the suffering of imprisonment to a certain extent. However, this would require a radical paradigm change in penal systems, which would be no doubt a challenging task, with formidable socio-political forces acting against it. Such reform might perhaps not be entirely inconceivable in the future, if international law could take a stronger stand on possible solutions to the problem implied by current knowledge in social and behavioral sciences.
Footnotes
[1] “Imprisonment and other measures that result in cutting off persons from the outside world are afflictive by the very fact of taking from these persons the right of self-determination by depriving them of their liberty. Therefore the prison system shall not, except as incidental to justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a situation.”
[2] Particular attention shall be paid to: (c) Identifying any signs of psychological or other stress brought on by the fact of imprisonment, including, but not limited to, the risk of suicide or self-harm and withdrawal symptoms resulting from the use of drugs, medication or alcohol; and undertaking all appropriate individualized measures or treatment;
[3] The physician shall report to the prison director whenever he or she considers that a prisoner’s physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.
[4] When prisoners are being removed to or from an institution, they shall be exposed to public view as little as possible, and proper safeguards shall be adopted to protect them from insult, curiosity and publicity in any form.
[5] The duty of society does not end with a prisoner’s release. There should, therefore, be governmental or private agencies capable of lending the released prisoner efficient aftercare directed towards the lessening of prejudice against him or her and towards his or her social rehabilitation.
[6] The prison regime should seek to minimize any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.
[7] Prisoners shall be allocated, to the extent possible, to prisons close to their homes or their places of social rehabilitation.
[8] Prisoners shall be allowed, under necessary supervision, to communicate with their family and friends at regular intervals: (a) By corresponding in writing and using, where available, telecommunication, electronic, digital and other means; and (b) By receiving visits.
[9] 1.Prisoners shall be provided with adequate opportunity, time and facilities to be visited by and to communicate and consult with a legal adviser of their own choice or a legal aid provider, without delay, interception or censorship and in full confidentiality, on any legal matter, in conformity with applicable domestic law.
[10] Prisoners shall be kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications, by hearing wireless transmissions, by lectures or by any similar means as authorized or controlled by the prison administration.
[11] 1. The treatment of prisoners should emphasize not their exclusion from the community but their continuing part in it. Community agencies should therefore be enlisted wherever possible to assist the prison staff in the task of social rehabilitation of the prisoners.
[12] 1. Sentenced prisoners shall have the opportunity to work and/or to actively participate in their rehabilitation, subject to a determination of physical and mental fitness by a physician or other qualified health-care professionals.
[13] From the beginning of a prisoner’s sentence, consideration shall be given to his or her future after release and he or she shall be encouraged and provided assistance to maintain or establish such relations with persons or agencies outside the prison as may promote the prisoner’s rehabilitation and the best interests of his or her family.
[14] Preliminary observation 2: 1. In view of the great variety of legal, social, economic and geographical conditions in the world, it is evident that not all of the rules are capable of application in all places and at all times. They should, however, serve to stimulate a constant endeavour to overcome practical difficulties in the way of their application, in the knowledge that they represent, as a whole, the minimum conditions which are accepted as suitable by the United Nations.
[15] The following rules are not intended to describe in detail a model system of penal institutions. They seek only, on the basis of the general consensus of contemporary thought and the essential elements of the most adequate systems of today, to set out what is generally accepted as being good principles and practice in the treatment of prisoners and prison management.
[16] 1. The purpose of a sentence of imprisonment or similar measures deprivative of a person’s liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life; 2. To this end, prison administrations and other competent authorities should offer education, vocational training and work, as well as other forms of assistance that are appropriate and available, including those of a remedial, moral, spiritual, social and health- and sports-based nature. All such programmes, activities and services should be delivered in line with the individual treatment needs of prisoners.
[17] All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.
[18] 2. For prisoners who are, or have been, separated, the prison administration shall take the necessary measures to alleviate the potential detrimental effects of their confinement on them and on their community following their release from prison.
[19] 1. Health-care personnel shall not have any role in the imposition of disciplinary sanctions or other restrictive measures. They shall, however, pay particular attention to the health of prisoners held under any form of involuntary separation, including by visiting such prisoners on a daily basis and providing prompt medical assistance and treatment at the request of such prisoners or prison staff; 2. Health-care personnel shall report to the prison director, without delay, any adverse effect of disciplinary sanctions or other restrictive measures on the physical or mental health of a prisoner subjected to such sanctions or measures and shall advise the director if they consider it necessary to terminate or alter them for physical or mental health reasons.
[20] The case of Albert Woodfox, who spent 43 years in solitary confinement in a US prison is an example in this regard. From media accounts of his solitary confinement experience and mental status after his release, one gets the impression that, although he developed traumatic stress reactions, including nightmares, fear of closed spaces, and panic reactions, he coped relatively well with solitary confinement avoiding a total break-down. While this is attributable in part to his resilience as a political activist, the following quotation from his account published by Pilkington (2016) in the Guardian provides a good example of how perceived predictability of environmental events can enhance sense of control over even an extreme stressor situation: “Oh yeah! Yeah!” he says passionately when asked whether he sometimes misses his life in lockdown. “You know, human beings are territorial, they feel more comfortable in areas they are secure. In a cell you have a routine, you pretty much know what is going to happen, when it’s going to happen, but in society it’s difficult, it’s looser. So there are moments when, yeah, I wish I was back in the security of a cell.”
[21] This does not mean that objective measures of stressor severity are irrelevant in establishing a finding of torture. More severe ill-treatment in objective terms may not be a reliable predictor of long-term pain or suffering (e.g. PTSD, depression, etc.) but nonetheless it does pose a serious risk of severe pain or suffering during the experience. The important point here is that ill-treatments of relatively low objective severity can be as traumatic as ill-treatments of higher objective severity.
[22] 1. Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorization by a competent authority; 2. The imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures.
[23] It is important to note that the comparison here refers to the psychological outcomes of the experience when a person is released from solitary confinement. Such comparison by no means implies that prolonged exposure to solitary confinement is potentially less mentally detrimental than brief exposures. Its neurophysiological effects are likely to get worse with prolonged exposure. The term “relatively longer exposures” here does not refer to years of solitary confinement. It should be understood as “sufficiently longer than 15 days” to allow the person overcome the initial traumatic stress. The time needed for such recovery may vary from one person to another.
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