Imprisonment

Abstract

Criminal law theorists have for the most part neglected the question of why imprisonment requires special legal safeguards for those targeted. The few scholars who have addressed this question have focused on how prison facilities restrict freedom of movement, control over one’s daily life, and access to particular human functioning, but they have ignored state measures that do not include confining individuals behind bars. I defend an alternative account: I argue that the use of prison facilities is part of a raft of state measures, which includes measures that have a relatively minor impact on individuals and others that are more severe. What matters, in deciding what legal safeguards individuals should have against what kinds of state imposition, is how severely a measure impacts on the normal life of those subjected to it. This impact-based approach enables us to decouple the concept of imprisonment from walls, locks, and political and social barriers, thereby highlighting atypical forms of imprisonment, such as open prisons, as well as potential forms of imprisonment to be employed outside of prison, including house arrest. For instance, a person confined to a prison facility can, to a certain extent, be free to take part in society, or a person subject to other state measures can reside at home but be constrained from carrying out a major part of her activities. The account I defend enables us to identify imprisoned individuals as well as those subjected to measures similar to imprisonment, which has potential consequences for their legal rights.