Inside Justice: A Comparative Analysis of Practices and Procedures for the Determination of Offenses against Discipline in Prisons of Britain and the United States

By Bayard Marin | Go to book overview

6 Hearings: Procedures

In criminal cases, governments possess tremendous power over the accused. Cases are entitled, for example, R. v. Jones, or People v. Jones, or United States v. Jones. Imagine, the whole political entity against a solitary defendant. He "stands relatively poor. . . . ,and, far more often than not, his case and personal problems arouse little general interest or concern."1 To counterbalance the chances of the individual against the wealth and power of the state, strict procedural safeguards are devised. The government must go to considerable trouble to punish a person through the criminal law.

As we have seen in chapter 3, the state, through the prison authorities, possesses even greater powers over prisoners than it generally has over free persons. Prison offenses make punishable behavior which is perfectly acceptable outside the prison. Nevertheless, the punishments which may result are often quite substantial.2 It would seem to follow that the procedures for determining offenses within the prison environment should at least approach those which support criminal enforcement. Indeed, the Home Office Working Party on Adjudication Procedures in Prisons (hereinafter referred to as "the Working Party") said:

This responsibility to establish what happened and why goes further than that of a criminal court which determines guilt or innocence on the basis of evidence put before it by the prosecution and the defence. The adjudicating body must establish the facts, evaluate the evidence and then apportion responsibility for an incident in a way which will be seen as just and fair by both sides of the prison community.3

But the procedures are not as protective as those of criminal courts.

The justifications for deviance from strict standards of criminal procedure show little concern for the rights of the individual against the state. Neither are punitive procedures always steeped in reason. Said an American judge:

There are types of authority which do not have as their sole or even principal constituent rationality. Parents, teachers, army commanders, and above all, prison wardens have the right to depend to a large extent (though not arbitrarily) upon habit, custom, intuition, common sense not reduced to express principles and other forms of judgment based more on experience than on logic. Life requires in some aspects another sovereign than reason. To rule is not to opine.4

The justifications consist of most of the bases which supposedly justify prison offenses and punishments: security, good order, control, administrative efficiency, and treatment.5

There are basically two arguments for application of nonadversarial procedural rules which emanate from security, good order, and control. The first is that to allow many of the elements of criminal procedure such as confrontation and cross-

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