walled up alive

“We, who have been walled up alive for the rest of our days at the most high-security prison in France (...) call for the death penalty to be reinstated in our cases. Stop the hypocrisy! Since we have been sentenced to life, with no hope of release at the end of our minimum sentence, we’d prefer to end our lives once and for all rather than to die a slow death, with no hope of a brighter future after at least twenty years of absolute misery. Unlike other European countries, France, which boasts of being the Republic of the Enlightenment and of Liberty, tortures and destroys us to this day, without compunction and in all legality, behind the grey walls of degrading prisons, ”in the name of the French people”. (...) What are minimum sentences for, if once their term is duly served, we have no hope of release? (...) Survivors will come out of such prison terms at best senile and utterly broken. In such circumstances, who can ever be truly socially rehabilitated? In fact, wouldn’t we be better off finding freedom in a quick death, which was our only choice prior to 1981? In recent years, walls, watchtowers, steel gates and many other constraints have been added to make us yield to our fate of being walled up alive (...) A so-called “democratic” society should not permit prison policy to be tinkered with to prolong sentences indefinitely, depending on the political situation, individual cases, or particular needs. Given the choice, we ask the French State, which boasts of championing human rights and liberty, to reinstate the death penalty in our cases rather than making us suffer a slow, programmed death.”

This petition, dated 16th January 2006, was signed by ten prisoners serving long sentences at the prison of Clairvaux, then leaked and widely featured in the media. It was a major political event. According to the terminology established by Jacques Rancière, it represents a sudden incursion of the political into the police order, which is the order of the visible and sayable. An “us” forms and produces speech where previously there was only silence or noise [1]. Through a singular process of subjectivation, the prisoners “walled up alive” make the particular harm they suffer visible — something which, obviously, is achieved neither by the various figures of monstrosity associated with serious criminals, nor by prison slang simply based on length of sentence, such as “lifers”. Likewise, they destabilise the whole body of evidence on which arguments for the abolition of the death penalty are most often based. In other words, they denounce a change in the way punishment is wielded — a change which is far less forward-looking than it appears: “instead of throwing to the Minotaur the bloodstained flesh of a convict cut in two, it is given lives that have been slowly cooked to death.” [2]

This article is an attempt to reconstruct the historical heresy that creates the conditions of such subjectivation. We have drawn on Charlotte Nordmann’s definition of “heresy” [3] as the product of an immanent contradiction in a given historical situation. Our hypothesis is thus that the process of subjectivation of the prisoners walled up alive originates as a result of the exacerbation of historical contradictions in the prison world. The Clairvaux petition thus represents an excellent approach to understanding the contemporary period with regard to prison — or at least one aspect of it, when the spectre of full-life tariffs raises its head once more in an institution that in fact claims to grant ever greater rights to those it keeps locked up.

Stating rights and constructing the concept of the “walled up”

In October 2006, the French government declared it had signed up to the European prison rules adopted in January 2006 by the Council of Europe’s committee of ministers. The French government thereby acknowledged the validity of a list of recommendations that aim to make European prisons conform to the European Convention of Human Rights, as interpreted by the European Court of Human Rights. The announcement followed numerous declarations by ministers on the necessity of subjecting prisons to the rule of law. But the ministry hastily withdrew the section of the European norm that guarantees the collective right of prisoners to give their opinion on the way life behind bars is regulated. It therefore ensured that future calls to action such as that of the Clairvaux Ten remain illegal. Neither did it mention the norms laid out by the Council of Europe that require member states to ensure that long term prisoners have a realistic chance of release and are able to prepare for it whilst in prison.

The reason is clear. The prisoners “walled up alive” reveal three contemporary trends in French penal policy: increasingly lengthy long sentences (in particular due to falling numbers of releases on life license), the development of analyses looking at release in terms of risk together with a zero tolerance approach to serious crime, and finally, bringing the first two trends together, the de-politicisation of collective demands for freedom, silenced by experts called on to carry out diagnoses of the risk posed by individual prisoners. This threefold trend is confirmed by the ever longer sentences served by life prisoners and opened the way for a solution put forward in the report Santé/Justice in 2005 and again more recently by senators. This involved the creation of a new type of incarceration for offenders who have completed their sentence and are due to be released, but who are still considered dangerous. The number of recidivists who go on to commit the most serious crimes after release is low, but numbers of prisoners sentenced to long terms who are not diagnosed as posing a risk to society are even lower. How can an offender prove he is not dangerous? And how can an expert shoulder the responsibility of guaranteeing that he is not dangerous when the system goes into emotional overload?

The subjectivation of the prisoners walled up alive should be read in the context of this specific tension between the parading of prisoners’ rights and the inherently arbitrary way crime is handled by the current government. It is all the more striking since, as the petition’s signatories point out, the indeterminate length of their sentence and the arbitrary nature of their release date take place within the context of a greater emphasis on security in prison policy, so that the arbitrary nature of prison life also becomes a focus for struggle. Until the start of the last legislature, in prisons like Clairvaux that house long-term prisoners, there was an unspoken acceptance that cell doors remained open during the day, so that prisoners could move about freely within their wing. In 2002, Dominic Perben decided to withdraw this privilege in several stages. Prisoners in Clairvaux, who were directly affected by this decision, reacted to this tougher stance by setting fire to the workshops. The rule was then enforced in other prisons, leading to more tension. Collectives were formed to defend the protesters with the slogan “long live the rebels!”. When the European Committee for the Prevention of Torture (ECPT) visited France the following year, it asked the government to rescind the decision [4], along with a minority union (the prison branch of the CGT), who compared the closed door policy to the much-hated old high security wings. The ministry refused, responding tartly to the CPT that it is free to do whatever it likes [5].

In November 2003, two prisoners at the maximum security prison in Moulins-Yzeure took a prison warden hostage in their workshop. They remained in the workshop with a number of other prisoners for some hours. There was no violence. The two prisoners demanded more respect, more activities, and the return of the “open door” policy. Shortly before, in conjunction with the decision to keep the doors closed, the national prison administration created regional intervention and security teams (ERIS, Equipes régionales d’intervention et de sécurité), consisting of elite prison warders, that, like the GIGN [6], receive special training and wear balaclavas to mask their features during operations. On November 24, they were called in, together with the GIGN. The hostage takers, satisfied that they had succeeded in drawing attention to their problem, surrendered and peacefully freed the hostages. That evening, the minister warmly congratulated the ERIS on the success of their first operation. The local public prosecutor, hastily sent to the prison, reported back to his bosses that the situation had been handled excellently. However, a few months later, the hostage takers asked their MP to contact the CNDS (Commission nationale de déontology et de sécurité, National Commission for Deontology and Security) on their behalf to launch an inquiry into the conditions in which the hostage crisis was brought to a conclusion. The accounts given to the commission at the prison were contradictory and obviously untrue, as the ERIS and the GIGN accused each other of violence. It was clear that the hostage takers had been badly beaten by individuals from both forces present, with the full knowledge of the prison authorities, who remained silent. The Commission demanded disciplinary action. The director was transferred. The hostage takers had already been judged and sentenced to a further 4 years imprisonment.

Two opposing visions of penal modernity

These accounts of mutiny and hostage-taking punished by physical violence are like any number of others, whenever the prison administration has faced acts of insubordination. And yet they are also thoroughly modern. The hostage crisis took place in a modern prison with the highest level of security in Europe, built especially to house long-term prisoners. It is not staffed with old-fashioned prison wardens who use their fists to solve problems, but a group of specially trained wardens. It came to public attention not through information leaked to break the silence surrounding the case, but through an official commission, created in 2000. The facts thus illustrate the ambivalence of the shifting relationship between the penal institution, prisoners’ rights, and violence. Although violence is against the professional code of ethics, it is no longer hidden, and yet it is deeply rooted in the relationship between offenders deprived of all hope in a prison system offering no room for negotiation, and balaclava-wearing wardens. Just as the penal administration was equipped with means of control (admittedly, largely against its will), some of its wardens were equipped with anonymity, which, as the CPT denounced, was likely to create a feeling of impunity leading to brutality.

The two decisions to close the doors and to create a squad of masked wardens go against the recommendations made by the Council of Europe, which underline the necessity of limiting the “de-socialising effects” of imprisonment, particularly for those serving long sentences. These recommendations are in line with those relating to penal policy and encourage member states to use parole to shorten prison sentences. They are in line not only in terms of intellectual consistency, but also in that they have a direct influence on life in prison. As a prison governor recently explained, the security constraints that must be imposed on a prisoner with a realistic perspective of being freed in decent conditions are much lesser than those required when locking up people who have no possible hope of being freed [7]. Even more so if priority is given to reducing prison escapes to zero. Current penal policy places prison administrations in charge of a policy of containment. In these circumstances, prison governors notified the administration of “tensions” and the unions representing the majority of wardens demanded supplementary safety measures, particularly prisons built specially for offenders placed in the “high risk” category. Their demands were granted when in 2002 plans were announced for two new extra-high-security prisons for high-risk offenders.

Where the prison administration is unable to offer release to offenders, good behaviour is rewarded

a)by not transferring the offender to a higher-security institution, which might in the future involve security constraints making it impossible for the prisoner to protest, and maybe even denying him all forms of contact (or constant transfers between prisons across France, or so-called “prison tourism”), or

b)by not placing the offender in isolation, which is a security measure which can last years and have a permanent negative impact on prisoners’ mental and physical well-being. This leads to a further aspect of the way prison law is brought into line with common law and prison administration. Since 1995, the range of decisions taken by the prison administration with no right of appeal to the administrative courts has narrowed. Decisions to send prisoners to disciplinary wings are now supervised by a judge, at least in part. Yet the prison administration is fighting every step of the way to exclude isolation and transfers from this progression in legislation. These are the two key ways offenders who represent a threat to the climate in the prison can be “managed”. The legal arguments can sometimes use underhand tactics. For example, the State Council’s decision in 2003 to place long-term isolation under the control of a judge made a decree on the use of isolation necessary. The decree promulgated in 2006 appeared to rectify the situation but in fact allowed prisoners to be held in isolation for even longer terms than previously. As another example, judges tend to consider that transfers from a prison to a remand prison should be supervised because they involve a change of type of detention. However, the two extra-high-security prisons that will be built will not officially be classified high-security wings, but rather ordinary prisons. This means offenders can be transferred to them as a punishment with no legal comeback. Similarly, in prisons that are supposed to prepare prisoners for release, different levels of detention have been reintroduced, including locking prisoners in their cells, making it possible to transfer prisoners arbitrarily from one wing to another within the same prison. Following the Clairvaux petition, the Justice Minister Pascal Clément began his initial statement with the question “if we took them literally, how many of them would really come forward?" This suggests an attempt to de-politicise the action by individualising the signatories: “how many of them would really come forward?” More concretely, it also suggests the rancour of one extreme of the political spectrum, that has never fully accepted the abolition of the death penalty. On October 20, 2006, for example, Charles Pasqua put forward a draft law in the Senate based on the grounds that “The abolition of the death penalty was voted in Autumn 1981 in the euphoric context of a state of grace which, it cannot be denied, went overboard in its optimism and its sympathies, which all pointed one way, towards showing clemency to criminals. Abolition was based on a doctrinal and unrealistic vision in which individuals are not responsible for their acts. The reasons given for the abolition of the death penalty are incompatible with republican humanism based on the principle of personal responsibility, which is the basis of human dignity”. Would this draft law logically lead to the reintroduction of the death penalty? No. It would “merely” increase the minimum sentence for certain crimes to thirty years, which offenders would almost certainly spend in one of the extra-high-security prisons. Those who remain stoutly in favour of the death penalty hope to use what practically amount to full-life sentences to gain revenge on those who argue against sentences with no hope of release.

By underlining the difference between the way they are treated and the treatment expected of a country that likes to boast of its human rights record, the petition’s signatories validate Michel Foucault’s laconic analysis when he declared on the eve of the abolition of the death penalty that “the real dividing line between penal systems is not between those which allow the death penalty and those which do not; it is between those which allow full-life sentences and those which do not” [8]. For the last twenty years, the European authorities have explained that full-life sentences are incompatible with human rights, and have been developing penal and prison norms which underline the necessity of preparing offenders for release, despite the damaging effects of long sentences, and of aligning the norms of prison life as closely as possible with the norms of common law. France’s penal policy raises the legal spectre of full-life sentences, and de facto imposes such sentences on a certain number of offenders who, although legally eligible for release, are in fact only released or considered for release when they are dying. France traps prisoners by pushing them to revolt, which is then picked up by the institution as evidence of the high risk they pose. But France still wants to boast of its reputation as a champion of human rights and does not wish to acknowledge that the laws governing its prisons and conditional parole conflict with the laws laid down by the European authorities. In speaking out openly and collectively, the Clairvaux Ten tore off this mask of imposture and espoused the values boasted by their country, hoisting the government on the petard of its own rhetoric and pointing out that talk of universal human rights in fact masks a real power struggle between two legal systems that are in contradiction as regards basic human rights.