Having presented detailed information about the numbers of people who are in prison across the world and recent trends in imprisonment levels, we turn in this section to a consideration of how people should be treated while they are in prison.

Overview

Liberty of the person is one of the most precious rights of all human beings. In certain circumstances, judicial authorities may decide that it is necessary to deprive some people of that right for a period of time as a consequence of the actions for which they have been convicted or of which they are accused. (In section III we will discuss the purposes of imprisonment. In the present section we are not concerned with this matter, only with the fact that people are sent to prison.) When this happens the persons concerned are handed over by the judicial authority to the care of the prison administration. In most countries the court which sentences a person to imprisonment will restrict itself to setting the length of time that a person should be held in prison before being released or considered for release, and will have little, if anything, to say about how that person is to be treated while in prison. Within very broad parameters, decisions about this are generally a matter for that part of the executive which administers prisons; although, as we shall discuss later, in recent years courts at different levels have become more involved in making judgements on unacceptable prison conditions.

What constitutes deprivation of liberty?

One matter which has never been conclusively resolved is what constitutes ‘deprivation of liberty’ in terms of imprisonment. One judgement on this was delivered by Judge Christian, in a case in Virginia in the United States in 1871, when he concluded that a convicted person ‘has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.’1 In terms of this judgement, those held in prison were to be regarded as ‘civilly dead’; they were in effect outside the law and the prison administration could do with them as it willed. Subsequent judgements in the United States have overtaken the 1871 Virginia judgement.