The right to hope and the humanity of people in prison

By Dr Molly Corlett, The Howard League for Penal Reform

In the 2013 case of Vinter v United Kingdom, the European Court of Human Rights found that life sentences with no chance of review or release violated Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 3 states that nobody should be subjected to torture and inhuman or degrading treatment. In the words of Judge Power-Forde, this ‘encompasses what might be described as “the right to hope”’:

The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change … To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.

Over the past eighteen months, it has been harder than ever for people in British prisons to maintain hope. Children and adults spent months locked in their cells for over 22 hours a day, with no meaningful human interaction or access to mental health support. In its most recent annual report on Young Offender Institutions, published in June 2021, the Independent Monitoring Boards predicts that the mental and physical health impacts of lockdown will continue to affect children’s experiences in custody for the foreseeable future.

Court backlogs have also prevented people from moving forwards with their lives. There has been a significant increase in the number of people in custody who are awaiting trial or sentence, including children (especially those with adult co-defendants). People who have been remanded to custody often have an especially difficult experience: they are not included in purposeful activity, receive little support and have a greater risk of suicide and self-injury.

The right to hope is a crucial benchmark for how people in prison are treated and how often their humanity is denied. This is especially important in the context of Covid-19 and the increasingly punitive nature of criminal justice policy.

Vinter did not get rid of whole life sentences in England and Wales. A later judgment found that they were compatible with human rights legislation after all, as people on whole life orders can theoretically be released under exceptional circumstances. As Mark Pettigrew has pointed out, nobody on a whole life order has in practice been released. Yet whole life orders remain lawful and are likely to be expanded, through the Police, Crime, Sentencing and Courts Bill, to young adults aged 18 to 21.

An eighteen year old who is going to spend their entire life in prison, and whose only chance of release is a terminal illness, has hardly retained the right to hope. But there are also broader questions, beyond those which can be raised in courts of law, about the relationship between hope, humanity and imprisonment. As Kimberley Brownlee has argued, a ‘hope standard for punishment’ – preventing punishment which takes away people’s hope – would promote desistance from offending as well as being far more ethical. All the available evidence suggests that people are more likely to stop offending if they are optimistic about the future and feel believed in.

I work at the Howard League for Penal Reform, which provides a specialist legal service for young people in custody. At the Howard League, I have helped to draw out the policy implications of issues which come up repeatedly in our legal work, as well as reflecting on the stories of the young people who we support.

Many of these stories amount to a relentless erosion of young people’s humanity and hope for something better, through day-to-day experiences of excessive restraints, unfair disciplinary hearings, inadequate sentence planning and – during the pandemic – the rushed but potentially retraumatising psychodrama of remote parole hearings.

These experiences only add to the structural and interpersonal harm which young people have been exposed to in the community: economic and racial inequality; flaws in the social care system; punitive treatment in schools; and the underfunding of vital support services (from youth work to CAMHS), all of which undermine their right to hope.

For example, the Howard League recently worked with Black Protest Legal Support and an expert advisory group to develop a practical guide for antiracist lawyers. The guide underlines how structural racism in and outside of the criminal justice system feed into one another, to create a status quo in which the humanity of Black people is routinely ignored in policing, courts, and prisons.

This status quo significantly shapes children’s experiences of the justice system, and particularly their experiences of custody: in 2019/20, twenty-eight percent of children in prison were Black and a further thirteen per cent were of mixed ethnicity (a category which is not broken down any further in youth justice statistics). Though the prison inspectorate does not publish data which is fully disaggregated by ethnic group, its surveys have found that Black and minority ethnic children report worse treatment in almost all aspects of prison life, from physical restraints to how often they are allowed to take showers and given clean sheets.

Children and young adults are still developing and have a significant capacity for change. This means that hope can be especially transformative for young people. Yet the system is designed to frustrate young people’s hopes for themselves and their future at every turn, particularly those who are from ethnic minority backgrounds. We recently helped a young Black man complain about a disciplinary hearing where the prison had overlooked his autism, even though he had raised it as an issue and was unable to effectively participate in the hearing.

These day-to-day injustices have a corrosive effect. They teach young people that rules and laws are only there to punish them and do not apply to authority figures. They reinforce the hopelessness which comes from expecting unfair treatment.

The ‘hope standard for punishment’ would require us to rethink the deliberately harmful expectations and practices which shape the current criminal justice system, instead taking the fundamental humanity of people in prison as a starting-point. Talking about hope can help us to understand the scale of the change which is needed, and the inhumanity of leaving things as they are.

In September 2022, the Howard League is hosting a conference on crime, justice and the human condition – including the role of hope in the penal system. More information about the conference is available here.