The devastating impact of covid-19 on life in prison has been documented at length in many parts of the world. But what about the prison’s function and meaning in society during the corona pandemic?  In this blog post I offer a few reflections based on the vaccination strategy in my country, that is, Belgium.

Like in other parts of the world, the slow start and haphazard roll-out of the vaccination campaign in Belgium gave rise to major concern and debate: who will get priority in the vaccination campaign?  For some groups there was little discussion: people in the front-line fighting the pandemic (that is, health workers such as doctors and nurses) and those most vulnerable (in particular, older people in residential care) were the first to get the vaccine.  For other groups, however, this discussion was much less clear-cut.  At an inter-ministerial conference of 19 April 2021 it was decided that the Belgian Olympic athletes and people working in prison would get priority. Our athletes should have all opportunities to qualify for the Olympic Games, so it was argued.  Priority for prison personnel was justified as follows: “Prisons are closed collectivities where many adults live together on a restricted surface. The risk of infection and therefore sickness is higher here. Evidently, prison personnel cannot always keep sufficient physical distance from the inmates” .

But why was the same reasoning not applied to prisoners? Did this increased risk not apply to them too? Indeed, a few days before the inter-ministerial conference of 19 April both the minister of Justice and the trade unions had called for priority vaccination of personnel and inmates. The final decision to restrict priority access to the vaccine to personnel seemed therefore illogical: if you worked in prison you got priority, if you lived in prison you had to wait in the queue.

Why are two groups in a similar situation, facing similar risks, treated so differently? In a newspaper article disclosing some of the discussions that took place before the inter-ministerial conference we find part of the answer: on 17 March 2021, Flemish minister of Welfare Wouter Beke emphasized that it is “inexplicable that detainees can be vaccinated earlier than the general population” (DS 20 April 2021).

But why was the minister not able to explain this to the general population? The health risks were objectively measurable and prisons were hot spots in the pandemic, just like the plagued residential care centers. In view of the total nature of such institutions, this is not surprising: residents sleep, eat and live in the same closed place, in the presence of (many) others whom they have not chosen themselves, and they have to adapt to the daily rhythm of the institution. The grip of these institutions on the individual is overwhelming, as Erving Goffman explains. When the virus circulates in such a total environment, it requires such drastic organizational measures that residents are more or less put in a survival mode, as we have seen in residential care centers and prisons.

Priority in the vaccination campaign then seems a logical choice: “The prisons are currently collectivities in difficult circumstances. In terms of outbreak management, it would be better to vaccinate everyone right away”, said professor Isabel Leroux-Roels (DS 20 April 2021). For minister Beke, however, such arguments seemed to carry less weight. He could not explain to the general population “that detainees can be vaccinated earlier than the general population” (DS 20 April 2021). Decisive, it seems, is the tarnished, polluted status of prisoners: the minister cannot explain that this group would be given priority.

 “Dirt is matter out of place”, so Mary Douglas once argued. The deprivation of liberty as a purification ritual makes it possible to literally ‘place’ inmates together in a closed space and turn the prison in a modern ship of fools, which in times of a pandemic also becomes a place of infection and disease. This logic also resonates in the motivation of the inter-ministerial conference of 19 April to only prioritize prison staff: “It is clear that prison staff cannot always maintain sufficient physical distance from the detainees”. The danger only seems to come from one side.

These discussions also remind us of poor relief in nineteenth-century England. The principle of less eligibility dictated that the living conditions in the workhouses should be of a poorer quality than the conditions in which the lowest classes in free society lived. Deterrence was paramount: ‘lazy people’ should not find the workhouses more attractive than wage labour. In the history of the prison, too, such considerations regularly pop up: prisoners should be worse off than the hard-working law-abiding citizens in the outside world. In 1933, Georg Rusche argued that the less eligibility principle is the main obstacle for reformers to improve living conditions in prisons. Less eligibility is still a recurring theme today, for example in discussions about undisturbed visits, cell phones, internet in prison or – as now – access to decent healthcare and the vaccination campaign.

The Belgian Olympic athletes and prisoners have one thing in common: the decision on their place in in the vaccination programme had little to do with health arguments. For the first group the light went green because of bread and Games; for the other group the light remained red because of the persistent effect of less eligibility. Prison staff were – quite rightly – given priority, but this was mainly because prison officers can collectively raise their voice and exert more pressure by threatening with industrial action.

So much for the political logic. But what about the law?  Article 9, § 1 of the Belgian prison law gives direct expression to the classical dictum of Alexander Paterson (“Men are sent to prison as a punishment, not for punishment”): “The punitive character of the prison sentence consists solely in the total or partial loss of the freedom of coming and going and the inextricably linked restrictions of freedom”. Preventing and limiting the harm caused by detention should be the guiding principle: “Avoidable harm from detention must be prevented during the execution of the prison sentence or measure” (Article 6, § 2). This prison law does not stand on its own feet: the law of 17 May 2006 (external legal position) regulates all forms of release and for Flanders the decree of 8 March 2013 aims to “ensure the right of all detainees and their immediate social environment to integrated and high-quality aid and support” (Article 3).

In the fight against a deadly virus resolute action must be taken, but does that always justify the restrictions that prisoners have had to endure over the past fifteen months? The list is long: the right to (undisturbed) visits, aid and support, detention planning and preparation for release, prison leave, hygiene and physical activity, decent healthcare, and so on. The fight against covid in prisons sometimes seemed like a choice between two evils: fighting the virus through far-reaching restrictions and isolation.

Priority  in the vaccination campaign would have been perfectly logical and justifiable from a health and fundamental rights perspective. Indeed, the far-reaching restrictions could perhaps have been phased out at an earlier stage. But it would also have been a wise choice from a well-understood self-interest: despite extensive isolation, detainees also remain in contact with others in all kinds of ways during the pandemic, such as prison staff, lawyers, social workers, and so on. And sooner or later they return to free society and then everyone benefits from that vaccine: indeed, it is a shame that the prison time was not seen as an opportunity to sensitize a hard-to-reach group who may be more suspicious towards vaccination than many of us in the free world and to offer that vaccine immediately.

This blog post draws upon a lengthier op-ed that was published in May 2021 the Flemish Lawyers’ Newspaper “De Juristenkrant” (Daems, T., “Kiezen tussen pest en cholera: Rechten van gedetineerden in tijden van pandemie”, De Juristenkrant, issue 430, 26 May 2021,  pp. 10-11). If you understand Dutch and want to read it, you can find the full-text under the section ‘Op-ed’ on this website.

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