Do We Deprive Prisoners of Certain Rights That We Could Take Away as a Specific Punishment While Not Incarcerating Them
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DO WE DEPRIVE PRISONERS OF CERTAIN RIGHTS THAT
WE COULD TAKE AWAY AS A SPECIFIC PUNISHMENT
WHILE NOT INCARCERATING THEM?
JAKUB DRAPAL
1. Introduction
Prison sentences carry the deprivation of various rights', in ad-
dition to the liberty of movement. While this is the case of most
countries in the world, there are other countries that employ the
so-called principle of normalisation. This means that prisoners
have the same rights as others except for the liberty of movement
and those rights directly linked to it.' The purpose of this article is
not to discuss whether such principle should or should not be the
main principle guiding decisions on what rights should be taken
away in prisons, but to consider the issue from a different per-
spective: Do we deprive prisoners of certain rights that we could
take away as a specific punishment while not incarcerating them?
The approach of this article is consistent with the sentencing
principle that, if the less intensive sanction is sufficient, the court
cannot impose a more harmful one.3 Such an approach also rep-
resents the principle of humanity: the state must not punish more
than is necessary, since otherwise, the punishment would be de-
liberate and not proportionate to the crime.4 The obligation of the
state is thus to search for the least harmful sanctions.
However, if a certain right is taken away from a prisoner, such
offender could have been deprived of this right separately with-
out being imprisoned. Every legal system needs to make a choice
concerning deprivation of individual prisoners' rights: it must ei-
ther label deprivation of prisoners' rights as cruel and unusual
punishment (or inhuman or degrading treatment) and forbid
them or allow such deprivation if society chooses to do so. In the
second case, there is nothing that can impede society from subse-
quently depriving such rights in the form of a separate sanction.
There cannot be a right that a prisoner is rightfully deprived of
in prison that this offender could not be separately divested by
the court.
In the following pages, I first consider what rights prisoners
are deprived of in order to determine what rights might be taken
away while keeping the offenders out of prison. Secondly, I dis-
1 The expression right is presented as something that a person has in contemporary society, and
it is notto be mistaken withhuman rights even though these two terms sometimes overlap.
2 Rentzmann, W. (1996). Prison Philosophy and Prison Education. 47JournalofCorrectionalEduca-
tion 58
3 s. 38/2, zjkon e. 40/2009, trestnizjkonmk [the Czech Criminal Code].
4 Novotny, Oto (1969).0 trestu a vizehstv. 2nd ed. Praha: Academia, p.119.
cuss whether such rights might constitute new forms of sanctions
and how such sanctions might look. While such approach might
be applicable worldwide, to provide specific examples, the situa-
tion relating to Czech prisoners is examined; prisoners in many
countries are deprived of similar rights, so the situation in other
countries should not differ.
2. What rights are Czech prisoners deprived of?
Let me first consider what rights prisoners are deprived of.' Pris-
oners cannot choose when to get up or what clothes to put on. Nor
can they choose whether they will stay in bed during the day; on
contrary, their beds must be properly made and their belongings
kept in order. Prisoners cannot choose what they eat for break-
fast or for any other meal during the day. The food is not always
as good as what they would like since limited means are provided
to the Czech Prison Service. They often cannot choose how they
will spend their days and if they have a choice, they often might
not find activities that they would enjoy. They cannot choose who
they will spend time with, visitors can come only for three hours
a month', and they might have to be pre-approved by the prison
service. Sexual intercourse is impossible for a vast majority of
prisoners.
The prisoners are sometimes provided with jobs, and with ris-
ing employment opportunities in Czech prisons,' almost every
prisoner who is capable of it works. However, the monthly wage
is extremely low (approximately 150 Euro8), and there is almost
no choice between various jobs. Most of the jobs are not intel-
lectually stimulating. Even if prisoners earn something, they can
use only a limited amount of the money they make. After working
hours, they cannot choose to do whatever they want. They cannot
drink alcohol or conduct other activities that are commonly con-
sidered to be detrimental in the outside world, such as smoking
marihuana or picking fights. At the end of a day, prisoners cannot
choose when to go to sleep, and they often sleep in the company
of several cellmates, sometimes even 12 prisoners sleep in one
cell.
5 Detailed enumeration of the rights and obligations of prisoners is available in the following leg-
islation: zjkon e. 169/1999 Sb., o vykonu trestu odnitisvobody, and vyhl6ka e. 345/1999Sb., kterou
se vydidv Ed vykonu trestu odnitRsvobody. Examples in this section are taken from this legislation.
6 s. 19/1, zkon e. 169/1999 Sb., o vykonu trestu odnitisvobody.
7 CTK (2017), Zamistnanost vziai poroste, zatm jich pracuje neceli polovina. E15.cz [online].
Available at: http://zpravy.el5.cz/domaci/udalosti/zamestnanost-veznu-poroste-zatim-jich-pracuje-
necela-polovina-1296040 [Accessed 22 Sept. 2017].
8 Vefejny ochrince priv (2016). Vznice [online]. Available at: https://www.ochrance.cz/fileadmin/
user upload/ochranaosob/ZARIZENI/Veznice/Veznice-2016.pdf [Accessed 22 Sept. 2017], p. 23.
[ombudspersons report on prisons].
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Do We Deprive Prisoners of Certain Rights That We Could Take Away as a Specific Punishment While Not Incarcerating Them
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