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The penitentiary system is a set of institutions designed to keep deviants in forced isolation, whose behaviour poses the greatest threat to society because they have committed ‘crimes’ declared by the state.
Such detention can be carried out both for the purpose of serving a criminal sentence already imposed by a court verdict and for the purpose of preventing escape from criminal liability, destruction of evidence, pressure on witnesses, etc. (at the stages of pre-trial investigation and trial). Penitentiary institutions are also used to detain persons detained because of an extradition request from another state and awaiting extradition. In times of war, penitentiary institutions may be used to hold prisoners of war.
The term ‘penitentiary’ is of Latin origin and means ‘penitence’. Penitentiary institutions with this name and a declared ‘repentance’ orientation have been widespread since the late eighteenth century, when the idea of ‘penitentiary’ – moral and religious correction – gained a monopoly in the philosophical and political justification of isolating the most dangerous deviants from society.
Due to the peculiarities of historical development and national legislation, the concept of ‘penitentiary system’ can be interpreted as a synonym for ‘prison system’ or ‘correctional system’, depending on the name of the institutions that form the penitentiary (prison) system (prison, jail, penitentiary, detention centre, correctional centre, correctional facility, detention facility, remand centre, remand prison, correctional institution, correctional labour institution, correctional labour colony, correctional labour camp, educational colony, penitentiary, prison, etc.)
The European Prison Rules use the term ‘prison system’, while the Explanatory Note to the European Prison Rules mostly uses the term ‘penitentiary system’, where it is noted that ‘terminology varies from country to country and prisons include, for example, penitentiaries and labour colonies and are therefore considered prisons for the purposes of these Rules’.
From an organisational point of view, in most modern states, penitentiary systems are subordinated to national ministries of justice. The Council of Europe has a standard that ‘prisons shall be under the authority of authorities separate from the military, police and prosecuting authorities’ (Rule 71 of the European Prison Rules).
The term ‘penitentiary system’ is used in two senses. In a narrow sense, it is a system of closed institutions designed to hold deviants who have committed ‘crimes’ in a state of forced isolation. In a broader sense, it includes other bodies that execute noncustodial criminal sentences, where such bodies are now universally referred to as the ‘probation service’.
In any state, the penitentiary system is formally declared as an apolitical institution whose mission is exclusively to forcibly isolate suspects and accused persons (at the stage of pre-trial investigation and trial) and to execute criminal sentences (mainly for the purpose of social rehabilitation of prisoners) in compliance with international, regional and national human rights standards. However, throughout the historical development of national penitentiary systems, they have often become symbols of political pressure and large-scale political repression (the USSR’s correctional labour system, the Nazi Germany’s concentration camp system, the North Korea’s system of penal camps, etc.), despite the formally declared goals of ‘correcting’ deviants and transforming ‘criminals’ into ‘law-abiding members of society’ ‘in accordance with the law’.
Modern penitentiary institutions (‘reformatory prisons’) emerged in Europe and the United States in the late eighteenth century to control the growing working class. The modern (‘correctional’) prison emerged alongside other institutions of social control (modern schools, hospitals, military barracks, psychiatric clinics), although the legal literature is dominated by the approach of ‘humanisation’ as the primary reason for the emergence of the ‘correctional’ prison.
With the spread of capitalist relations, not only were traditional instruments of social control strengthened, but new instruments were created. The new penitentiary idea was aimed at dispersing, expanding and penetrating social control (‘dispersion of discipline’), where the factory, school, plant, hospital, psychiatric clinic, barracks, military school, media, social assistance, etc. became elements of one system of social control.
The object of the modern (‘correctional’) prison was the production of new people – Homo Disciplinatus – who would be under the umbrella of comprehensive social control of a new type. The prison as a machine – after panoptic observation of the deviant and accumulation of knowledge about the deviant – was to turn an aggressive, restless, impulsive and uncontrollable ‘criminal’ into a ‘prisoner’, i.e. a disciplined subject. The poor, uncontrolled criminal was to be transformed into a socially secure proletarian.
The real function of the new (‘correctional’) prison was to constantly reproduce the new (bourgeois) social order, even in the most limited social spaces. The ‘correctional’ prison became a concentrated place where class hegemony, which in ancient and medieval times was exercised in ritual forms of punitive terror, began to develop rationally within networks of disciplinary relations of a new type.
The ‘correctional’ prison as an instrument of coercion and discipline had a specific purpose: to establish the bourgeois social order – a clear distinction between the world of the owners and the world of the poor. An uncontrolled deviant, and therefore dangerous to the social order, had to learn to accept the fact that he was poor and not to pose a threat to the property of the wealthy.
Despite the criticism of prisons as a destructive institution that leads to numerous negative social, criminological and economic consequences, the declared preference for alternative sentences to imprisonment and the strengthening of the role of probation services, the number of prisoners is growing.
The widespread use of penitentiary institutions by modern states as a mechanism of social control, regardless of their name, is evidenced by the consistent growth of the prison population at both the global and regional levels.
As of the beginning of 2022, almost 12 million people were held in penitentiary institutions around the world. Given that many states keep information about the number of prisoners in their national prison systems secret, the total number of prisoners may well exceed 12 million. The leaders in terms of the number of prisoners were: The United States – 1.8 million, China – 1.7 million (plus an unknown number of prisoners in pre-trial detention and other places of detention), Brazil – 0.84 million, India – 0.57 million, Russia – 0.47 million, Turkey – 0.29 million, Indonesia – 0.27 million, Thailand – 0.26 million, Mexico – 0.24 million, Iran – 0.2 million. Philippines – 0.165 million.
The legislation of modern states and international acts declare rehabilitation (re-socialisation, reintegration, social adaptation, re-education, etc.) of prisoners as the main goal of criminal punishment and the corresponding mission of the penitentiary system, although after the ‘crisis of the rehabilitative ideal’ that took place in the 1970s after the publication of the study ‘Nothing Works’ by the American sociologist R. Martinson’s ‘Nothing Works’ study, which refuted the success of any rehabilitation programmes in prisons, the traditional rehabilitative penitentiary paradigm was subjected to revision.
Nevertheless, the European Court of Human Rights emphasises the need to ensure that criminal sentences in prisons are exclusively or predominantly rehabilitative. At the same time, punishment (retribution) remains one of the purposes of imprisonment. Similarly, the main function of imprisonment is to protect society, including by preventing the commission of repeat offences. The legitimate penological grounds for imprisonment are punishment, deterrence, protection of society and rehabilitation (James, Wells and Lee v. the UK, para 209; Dickson v. the UK [GC], para 28; Murray v. the Netherlands [GC], para 100; Mastromatteo v. Italy [GC], para 72).
In the late twentieth century and early twenty-first century, the phenomenon of prison privatisation became widespread, when states (the United States, the United Kingdom, New Zealand, Australia, etc.) transfer their penitentiary systems at the national or regional level to private actors (mostly transnational corporations), relieving themselves of the day-to-day management of penitentiary institutions, but retaining the functions of monitoring the observance of human rights in the penitentiary system. The destruction of the state monopoly on the ‘right to punish’, which until recently was not questioned, makes the role and place of the state in shaping social control policies and implementing relevant supervisory and punitive practices less relevant.
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