There is no uniform prison system. This is partly due to the variety of institutions that may be considered “prisons” in a broader sense, partly due to the classification of prisoners and the diversity within the prison as a system (see below).

The European “Prison Rules” (EPR), for example, “apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction. In principle, persons who have been remanded in custody by a judicial authority and persons who are deprived of their liberty following conviction should only be detained in prisons, that is, in institutions reserved for detainees of these two categories.” But the Rules also apply to persons “who may be detained for any other reason in a prison; or who have been remanded in custody by a judicial authority or deprived of their liberty following conviction and who may, for any reason, be detained elsewhere” (10.1–3). Addressing “persons deprived of their liberty”, the EPR speak of “prisons” as well as of “detention” and “custody”. The standards of the European Committee for the Prevention of Torture (CPT-Standards 2009) refer to any place “where persons are deprived of their liberty by a public authority”; the CPT’s mandate thus “extends beyond prisons and police stations to encompass, for example, psychiatric institutions, detention areas at military barracks, holding centres for asylum seekers or other categories of foreigners, and places in which young persons may be deprived of their liberty by judicial or administrative order”. Furthermore, Art. 10 of the International Covenant on Civil and Political Rights (CCPR) applies “to anyone deprived of liberty under the laws and authority of the State who is held in prisons, hospitals – particularly psychiatric hospitals – detention camps or correctional institutions or elsewhere. States parties should ensure that the principle stipulated therein is observed in all institutions and establishments within their jurisdiction where persons are being held” (United Nations Human Rights Committee: General Comment [GC] 21, par. 2). As for this article “prison” is understood in the sense of the EPR.

Referring to the prison “system” draws attention to its place in the criminal justice system on the one hand and to the construction and organization of the prison as a system on the other hand (Zedner 2004). Within the criminal justice system the prison plays different roles: providing custody for pre-trial detention, incarceration for post-trial punishment, detention for post-punishment incapacitation or confinement for ‘alternative’ corrections. What they all have in common is the fact of imprisonment, being locked up involuntarily in a closed institution for an often extended period of time (as opposed to short term arrests in police stations, for example). This is true for other forms of detention, confinement, custody, etc. outside the criminal justice system as well, such as secure psychiatric hospitals, some homes for senior citizens or homes for juveniles. These institutions are therefore partly confronted with similar ethical challenges and the focus of committees for the prevention of torture, but nevertheless not the focus of this chapter. The prison as a system refers to differences in size, distinction, types of detention, treatment and security, to questions of staffing, organization, bureaucracy or management as well as state vs. private facilities and authorities.

According to international rules, prisons shall be restricted to certain objectives: The penitentiary system shall comprise “treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation” (CCPR Art. 10 par. 3), which also means that “no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner” (GC 21 par. 10). In addition to the EPR that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life: “Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment” (EPR). Beyond the questions about why we legally punish people and for how long, however, there are many complex questions concerning how we should punish them: “We should structure prisons so that they afford inmates meaningful opportunities to live and act as responsible citizens, albeit citizens some of whose basic moral rights are legitimately and severely curtailed” (Lippke 2007).

We have to realize – in spite of all the well argued debates and even campaigns on abolition – that throughout most of the world the prison still is, and presumably will be for quite another while, not only the concrete symbol for at least the ‘ultimate ratio’ of criminal policies, but rather its ‘backbone’ (van Zyl-Smit and Dünkel 2001; Stern 2006). In societies where freedom is said to be the fundamental civil right, it is not surprising that detention is the fundamental punishment, not necessarily in terms of quantity but rather in terms of quality. Recently we have observed an overall increase in the rates of prisoners-per-population and a decrease in the rate of expenses-per-prisoner. At the same time expenses have been growing overall while budgets have been shrinking due to the described trends of relative mass imprisonment (van Zyl-Smit and Dünkel 2001; Downes 2001).

The traditional function of the prison, discipline and punishment through incarceration (Foucault 1995), was rationalized with ideas of correction and incapacitation (Zedner 2004; cf. Boonin 2008), but on a larger scale this does not make a difference: The role of the prison in the system of criminal policies seems to be more secure than ever – not anymore, however, only in terms of quality but more and more also in terms of quantity. Garland summed up what he called “the originating causes of mass imprisonment” as a result of the history of the closing decades of the 20th century: “anxieties about crime and violence; the demand for public protection; the notion that concern for victims excludes concern for offenders; political populism married to a distrust of the criminal justice system; the discrediting of social solutions to the problem of order; a stern disregard for the plight of the undeserving poor” (Garland 2001). However, the “perpetuating causes of mass imprisonment may be quite different”, he continues – and in reference to Max Weber’s work on “The protestant ethic and the spirit of capitalism” (from 1930) as well as his ideas on the “self-reproduction of institutions” identifies the outlines of a “new iron cage: It is quite possible that, given time, and the absence of concerted opposition, mass imprisonment will become a new ‘iron cage’ in Weber’s sense of the term. … The most striking example of this is the emergence of a penal-industrial complex, with newly vested interests in commercial prison contracts, and the jobs and profits they bring. … As the market in private security expands, the delivery of penal legislation speeds up, and the crime control culture reproduces itself, we face the real possibility of being locked into this state of affairs. After all, the new arrangements spawn institutional investments and produce definite benefits, particularly for the social groups who are at the greatest distance from them. They entail a way of allocating the costs of crime – unjust, unequal, but feasible nonetheless” (Garland 2001; Downes 2001; Sudbury 2004; McMahon 1997).

But these arrangements – “new economies” in the prison system (detailed in Pollähne 2010) – also involve serious social costs that will become increasingly apparent. These costs include, according to Garland (2001), “the allocation of state spending to imprisonment rather than education or social policy budgets; the reinforcement of criminogenic processes and the destruction of social capital, not just for inmates but for their families and neighbourhoods (Mahmood 2004); the transfer of prison culture out into the community; the discrediting of law and legal authority among the groups most affected; the hardening of social and racial divisions”. These are indeed at least five good reasons to argue against the perpetuating of the prison system in general and mass-imprisonment specifically, even if the arguments are not really new, the abolitionists would claim (Davis 2003). But how to achieve such goals seems to be more uncertain than ever. Nevertheless the discourse on the emergence of a security industrial complex in general and a “penal” (Beckett 1997) or rather “prison industrial complex” in particular, has become a main topic in scientific debate (Davis 2003; Sudbury 2004; Mehigan and Rowe 2007; Wacquant 2008). And still: “As the criminal justice system grows, the size, resources, and authority of the interest groups that benefit from its expansion are also augmented. These beneficiaries – including law enforcement, correctional workers, and a growing number of private firms – constitute what has become to be known as the ‘penal-industrial complex’ and are now mobilizing to ensure that the wars on crime and drugs continue” (Beckett 1997; Stern 2006; Sudbury 2004).

Prisons need to be understood as serving many functions, some of which are more obvious than others: “We need to describe the reality of the prison against the backcloth of contemporary sensibility. But these ideas about punishment and its purpose, and penal values, influence practice and constitute penal sensibility” (Liebling and Arnold 2004; Zedner 2004). In what way is the “carceral texture of society” related to the daily texture of the prison? Can prisons ever be anything other than places of punishment? (Zedner 2004, Christie 2000; on “punitivity” Kury and Ferdinand 2008; about “ethical dilemmas in the medical model”, Sissons 1976).

It is hard to be optimistic about the future of prisons: “Given their infamous track records, it would be easier to call for their abolition than reform. Yet as a practical matter, it is exceedingly unlikely that prisons are going to disappear any time soon. Besides, there are theoretical reasons for believing that we should retain them. We would do better, it seems to me, to rethink what we want them to do and how. It seems clear that we cannot continue to structure them so that they are deeply hostile to the nurture and exercise of those skills and dispositions constitutive of responsible citizenship. Many who enter prisons from less than reasonably just societies have weak capacities for responsible citizenship to begin with. It is simply implausible to believe that subjecting such individuals to harsh and restrictive conditions will strengthen those capacities. Indeed, it is far more likely that such conditions will erode the relevant capacities and convince many offenders that they have little to gain from law-abiding conduct” (Lippke 2007).

Ethics may be understood as “the moral principles governing or influencing conduct” (see the glossary in Kallert and Torres-Gonzáles 2006) – as if it was that simple to equalize ethics and morals. However, ethical guidelines for conduct are also not the same as lawful obedience: Obeying relevant laws – relevant especially in terms of the treatment of prisoners – should be regarded as one of the minimum ethical requirements; however, this does not mean that following lawful rules will fulfill these requirements and, even worse, might turn out unethical nonetheless. On the other hand, ‘obeying’ ethical guidelines may, in exceptional circumstances, lead to breaking the law, but will – in most cases – not serve as a legal justification.

Ethics is concerned with the study of “questions of right and wrong … good or bad” in terms of “moral judgments we assign to actions and conduct” (Banks 2009). Addressing actions and conduct “within” the prison system we may skip over metaethics and focus on normative ethics on one hand, concerned with “ways of behaving and standards of conduct”, and applied ethics on the other hand, solving “practical moral problems as they arise, particularly in the professions, such as medicine and law”. Both perspectives provide us with “a way to make moral choices when we are uncertain about what to do in a situation involving moral issues. In the process of everyday life, moral rules are desirable, not because they express absolute truth, but because they are generally reliable guides for moral circumstances” (ibid). We need a system of rules and principles to help guide us in making difficult decisions when moral issues arise: “If we cannot draw upon an ethical framework, we have to rely on emotion, instinct, and personal values, and these cannot supply an adequate answer to moral dilemmas”; and only through studying ethics is it “possible to define unethical behavior. A full understanding of ethical behavior demonstrates that it includes not only ‘bad’ or ‘evil’, but also inaction that allows ‘bad’ or ‘evil’ to occur” (Banks 2009).

Ethical systems provide “guidelines or a framework to which one can refer to in the effort to make a moral decision” (Pollock and Becker 1995). A discussion of ethical systems also demonstrates “that often there is more than one ‘correct’ resolution to a dilemma and more than one way to arrive at the same resolution” (Pollock and Becker 1995); such systems can be identified as religious ethics (what is good conforms to a deity’s will), natural law (what is good is what conforms to true human nature), ethical formalism (what is good is what is pure in motive), utilitarianism (what is good is what results in the greatest good for the greatest number) and the ethics of care (what is good is that which meets the needs of those involved and doesn’t hurt relationships, etc.). What is needed is a set of principles to which we aspire in law and in contemporary moral and political philosophy, first virtues, the foundation of our social life, and also virtues that human beings need (Liebling and Arnold 2004).

Focusing on the prison system as part of the justice system and the professionals within these systems, ethics is inevitably high up on the agenda, for the criminal justice system “comprises professionals who exercise power and authority over others and who in some cases are authorized to use force and physical coercion against them” (Banks 2009). The laws as well as other accepted standards of behavior impose ethical rules and responsibilities on these professionals, who must be “aware of ethical standards in carrying out their functions. Ethics is crucial in decisions involving discretion, force, and due process, because criminal justice professionals can be tempted to abuse their powers” (Banks 2009) – in short: “Studying and applying ethics is a prerequisite for any competent criminal justice professional” (Banks 2009). And this is even more so true for professionals in the prison system, no matter if their profession is law or medicine, corrections or psychiatry, management or psychology. “Relations where strong power differences exist, where conflicts of interest are likely, or where decisions are made in uncertain situations are all areas where particular attention to ethics is needed” (Banks 2009).

Law enforcement ethics is particularly germane for a number of issues “relevant to police, the discretionary nature of policing, the authority of police, that fact that they are not ‘habitually moral’, the crisis situations, the temptations, and peer pressure” (Pollock and Becker 1995) such as “gratuities, corruption, bribery, ‘shopping’, whistle-blowing and loyalty, undercover tactics, use of deception, discretion, sleeping, sex on duty and other misfeasance, deadly force, and brutality” (Pollock and Becker 1995). Officers’ codes of ethics know five common elements: “legality (enforcing and upholding the laws), service (protecting and serving the public), honesty and integrity, loyalty, and some version of the Golden Rule, or respect for other persons” (Pollock and Becker 1995). Good relationships between staff and prisoners may increase the chances of compliance with penal regimes, but they cannot guarantee it: “the sources of validity of value systems must be that they are ‘good’ and ‘right’ according to general conceptions of ‘what humans should try to achieve or preserve in their lives as a whole’. Values and general principles need something other than instrumental justification or sources of authority. Consequentialism is not enough.” (Liebling and Arnold 2004).

To return to the knotty relationship between ethics and law, we have to realize they are distinct. By law we generally mean “legislation, statutes, and regulations made by states and by the federal government on a host of subjects for the public good and public welfare” not intended to incorporate ethical principles or values, but sometimes – at least – “ethical standards will be reflected in laws” (Banks 2009). Legislation regulating the legal profession or other professions may give legal effect to certain professional codes of conduct, but ethical standards are not necessarily written down in form of laws or other rules. However, they should represent the collective experience of a society as they regulate the behavior of those who make up that society: “The fact that an ethical standard is not repeated or copied in a law does not affect the validity of that ethical standard” (Banks 2009) and sometimes, as mentioned earlier, laws can conflict with ethical standards, in a collective as well as in an individual perspective – civil disobedience may be one answer to this key ethical dilemma (Banks 2009). Somewhere in this triangle of morals, laws and ethics we will find the guidelines for conduct and the principles for the treatment of others – i.e.: prisoners. Discussing ethics within a social (sub-)system – i.e.: the prison – has to consider the practical philosophy of institutional philosophies as well as individual conduct.

“The degree of civilization in a society is revealed by entering its prisons” (Dostojewski 1860). Addressing ethics within the prison system we face ethical dilemmas and issues. The latter usually comprise issues of “public policy involving ethical questions” (see the summary in Banks 2009 and the material in Schmalleger and Smylka 2008), whereas an ethical dilemma is “the responsibility of an individual” and requires a decision to be made that involves “a conflict at the personal, interpersonal, institutional, or social level or raises issues of rights or moral character” (Banks 2009). Since there are many gray areas where there are no specific rules, laws, or guidelines laid out in advance, it is “not always easy to know which decision is the most ethical choice” (Banks 2009). To rely on or refer to “natural law” that represents “a search for moral absolutes that define what is ‘normal’ and ‘natural’”, may seem anachronistic, but nowadays, natural law arguments “have tended to gravitate towards arguments in favor of human rights” (Banks 2009).

From here on it does make sense to refer to international human rights standards, not merely in terms of “hard law” (conventions, covenants, treaties …), which should of course be obeyed, but especially in terms of the so called “soft law” (recommendations, standards, guidelines, etc.) issued by international renowned political (United Nations – UN; Council of Europe – CoE) and professional institutions (i.e. the World Medical Association – WMA). Returning to the categories of normative vs. applied ethics we should focus on standards for conduct on the one side and solutions for practical professional problems on the other. Addressing ethics within the prison system – and also “in correction” (Banks 2009) – means to outline standards for “guarding ethically” (Banks 2009). Arguing that “if offenders are to become responsible citizens, it was essential that they were treated in a civil manner by correctional authorities, whose task was to model good citizenship by protecting certain fundamental rights” (former commissioner of corrections in Massachusetts, Vose; Banks 2009), still holds true – unless we were not longer aiming for offenders and especially prisoners to become “responsible citizens”. This would, however, constitute radical social exclusion, incompatible with international human rights standards: “Treatment that is intended to degrade or dehumanize inmates is not authorized by the sanctions society has imposed on them” (Kleinig 2001 and Banks 2009) or rather: may not be authorized by any society without following unethical paths. More recently, however, human rights activists “have shown how brutalizing and degrading practices continue to exist in the prison system”; similarly it has been claimed that “anything posing as a correctional ethics is a nonsense” and that the operation of a humane correctional system “is rendered almost impossible” (Banks 2009). Perhaps “far too much debate is centered on the humanity of what goes on in prisons as a substitute for thinking about why prisons as a social institution should continue to exist” (O’Connor 2006).

What is problematic about “cruel and unusual punishment” is that it is inhuman and degrading, because it displays “a failure of regard for one of the basic requirements for human interaction: A basic moral requirement for our interaction with others is a recognition of their oneness with ourselves as feeling, perceiving, and reasoning beings, and giving their feelings, perceptions, and reasons the same weight that we give our own” (Kleinig 2008). Human dignity has its foundations in our capacity to frame for ourselves the choices we make, the paths we tread, and the goals we pursue: “To ‘carry oneself with dignity’ is not simply to have a particular standing but also to assert control over the terms of one’s self-presentation. The danger of imprisonment is that it will diminish both control and self-representation. It becomes an engine of degradation” (Kleinig 2008).

The notion that a guard’s authority over inmates can become corrupted is well established in correctional studies and is frequently referred to as a category of ethical misconduct: “In essence, ‘corruption of authority’ refers to a practice by guards of deliberately refraining from enforcing prison rules and regulations” (Banks 2009); they operate as agents of social control with a role ambiguity as “a result of having to perform both treatment and custodial roles” (Banks 2009). The most obvious fact about the prison environment is that guards are vested with power and authority over the prisoners and exercise that power to control them in accordance with prison rules and regulations: “It is the exercise of this power that creates ethical issues and dilemmas” (Banks 2009; Goffman 1968; Zedner 2004).

When staff respect prisoners, “they unlock them on time, they respond to calls for assistance, and they try to solve problems. Staff are more likely to take this approach when they feel treated with respect themselves”; being treated disrespectfully or without dignity generates negative emotions (anger, tension, indignation, depression, and rage; Liebling and Arnold 2004). Although guards’ discretionary powers have been curtailed over time, they nevertheless continue to exercise “significant discretion in carrying out their day-to-day tasks. Discretionary power can easily involve questions of ethical conduct, and some argue it is preferable to limit discretion even more by expanding the written rules and regulations of the prison” (Banks 2009). But discretion should be allowed “whenever there is an absence of policy or where the policy is vague or inconsistent, on the basis that full enforcement of prison rules, policies, and procedures is an impossibility. The discretionary power of guards is shaped less by formal rules than by ‘an explicit understanding of the shared operational values and ethical principles that govern correctional practice’” (Banks 2009 referring to Pollock 2004).

Under what conditions should prisoners be kept? First off, Kleinig answers, “we need to remind ourselves that people are sent to prison as punishment and not for punishment. Conditions need not be easy, but neither should they be unduly harsh” (Kleinig 2008; Zedner 2004). The doctrine of ‘penal austerity’ gets what plausibility it has from the idea that punishment is to be seen as an imposition, not a benefit: “But the imposition is constituted by the confinement. More significantly, because the choice to imprison gives the state almost total control over the conditions of a person’s life, the state also acquires the obligation to ensure that those conditions are acceptable and do not humiliate or degrade” (Zedner 2004; Goffman 1968). When the state incarcerates it assumes responsibility for the care of inmates: “First and foremost, that involves both a recognition of and a commitment to the preservation of their dignity”, which should not be compromised during the period of incarceration, but should be reflected “in care for prisoners’ physical and psychic well-being as well as concern for their better flourishing in future” (Goffman 1968). How material goods are delivered, how staff approach prisoners, how managers treat staff, and how life is lived, through conversation, encounter, or transaction, “constitute (above minimum threshold) key dimensions of prison life; these are the things that matter’” (Liebling and Arnold 2004). “We have used the term ‘moral performance’ in order to make our case that the prison is a moral place, and that prisons differ in their moral practices” (Liebling and Arnold 2004).

The ethical issue most commonly raised in relation to the provision of medical services to the inmate is “the question of interference with the prisoner’s right to treatment, no matter what his offence” (Sissons 1976). The root cause of poor medical treatment in the prison is not solely a result of deliberate misuse or the withholding of adequate services, it is often the result of a difficult question of priorities: “The competitive situation of medical services within the prison system is rendered ambiguous, however, by the fundamental confusion which exists between the provision of medical care for an inmate who is suffering from a physical complaint and the function of medicine in relation to the criminal when crime is identified as individual pathology” (Sissons 1976). But “prison health is public health” (Keppler et al. 2010). The “principle of equivalence” demands: Prisoners should have access to the same standard of treatment as patients in the community in terms of justice for the vulnerable who should not be subjected to additional punishment through deprivation from healthcare (Pont in Keppler and Stöver 2010). The opposite would be “deliberate indifference” to a prisoner’s health which may constitute “cruel and unusual punishment”, prohibited by, e.g., the Eighth Amendment of the United States Constitution (see UTMB Institute for Medical Humanities 2007). There is a significant empirical link between aspects of “a prison’s moral performance and (a) levels of psychological distress, anxiety, and depression found amongst prisoners; and (b) its suicide rate”; poor treatment leads to negative emotions – it is distressing and damaging for individuals (Liebling and Arnold 2004).