Human dignity in the context of prison privatization

• Author: Ivica Pavic
• Position: Faculty of Law, Osijek, Croatia
• Pages: 6-30

Studies and Comments

Human dignity in the context of prison privatization

Ph.D. student Ivica PAVIĆ

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Abstract

This paper discusses the legal nature of human dignity as well as whether and in

what manner it merits consideration in the prison privatization decision-making process. The

first chapter grasps the complexity of the legal concept of human dignity by analyzing how it

is approached - its status, roles and content - in notable international and domestic

regulations, soft law, sociological and legal theories. Th e second chapter discusses the

qualitative characteristics of the decision to privatize prison s and argues that it is primarily

legal (constitutional) in nature, the importance of agent identity a nd its effect on conceptual

permissibility of prison privatization based on the rationale theory of conceptual limitation

to privatizing prisons by Dorfman and Harel, and finally, presents the institutional and

human rights aspects of prison p rivatization as discussed by Ba rak-Erez and Feeley

following the 2009 constitutional review decision of the Supreme Court of the State of Israel

which held prison privatization to be unconstitutional. The conclusion attempts to formulate

an acceptable legal definition of human dignity, gives a summary of author's opinions, and

assesses the influence of presented argumentation on recommendation of prison privatization

as long -term or sho rt-term so lution for add ressing human righ ts vio lations with

overcrowding as underlying cause.

Keywords: prison, privatization, human dignity, identity, core.

JEL Classification: K14, K15, K23, K38

1. Introduction

Prison sentence execution (imprisonment) is one of the most controversial

state prerogatives since it involves specific limitations to human rights, and can also

include various forms of (actual) coercion.

This paper will try to focus specifically on if and how human dignity of

prisoners (or perhaps the society as a whole) is affected by prison privatization

analyzed from the perspective of the decision whether to privatize prisons.

In order to attempt to answer this question, the paper will first give an

overview of the most likely answers to the following two further questions:

1. What is human dignity, what are its status, possible roles and content?, and

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Ivica Pavić - Faculty of Law, Osijek, Croatia, ipavic@pravos.hr

Juridical Tribune Volume 8, Issue 1, March 2018 7

2. Is the decision to privatize prisons a political or a legal decision, or perhaps

a combination of the two, and what would be the consequences of each of

those points of view?

Why did I point out exactly these two further questions?

The first further question is a direct consequence of the topic of this paper -

it would not be prudent discussing possible violations to human dignity without at

least roughly grasping just what it is - is it a value, a right, a standard, or something

else? The paper attempts to answer this question by analyzing human dignity

through: a) examples of significant international and national acts and soft law

documents mentioning human dignity, b) the way it is described in the Croatian

Legal Lexicon as the starting point for further theoretical analysis, and c)

sociological and legal theories on human dignity.

As for the importance and necessity of the second further question - should

we negate the legal aspect of the decision to privatize, we negate the possiblity that

private imprisonment could pose a violation of human dignity because we would

also negate the possibility of judicial review of the decision to privatize. Thus, the

first part of the chapter of this paper dedicated to answering this question will begin

with an introduction to the importance of characterizing the decision to privatize

prisons. The second part of the chapter will focus on the importance of identity of

prison sentence executioner (agent identity) in the context of the aims of prison

sentence. In the following part, I will discuss the differences in mindsets of a public

versus a private prison employee when approaching prison sentence exeuction and

whether or not one mindset can be applied to the other sector (public vs private),

largely based on the theoretical discussion by Dorfman and Harel. Finally, the last

part of the chapter will present an overview of Barak-Erez's two complementary

aspects of prison sentencing - institutional aspect and human rights aspect - as well

as Feeley's criticism that followed, all in the context of the Israeli Supreme Court

(sitting as High Court of Justice) case decision of 2009 in which prison privatization

in Israel was held unconstitutional.

2. In search of the definition, status and content of human dignity

2.1 Legal documents and human dignity

International acts and soft law documents give little to no contribution in

determining what human dignity is, its content or its status (roles). Vast majority, if

not all of them, only briefly mention it or refer to it either in preambles (more often

the case) or in normative sections of those acts, without describing what it is or what

other source to use as an interpretational guide. In those documents, human dignity

is either mentioned as something to which specific relations regulated by the act

should always stride, or it is expressly guaranteed, but in a similar sense.

Examples of such practice would be: a) the Preamble and Articles 1 and 22

of the 1948 Universal Declaration of Human Rights, b) the Preamble of the 1966

International Covenant on Civil and Political Rights, c) the Preamble and Article 1