Time and Punishment: New Contexts and Perspectives (Palgrave Studies in Prisons and Penology) [1st ed. 2022] 3031121074, 9783031121074

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PALGRAVE STUDIES IN PRISONS AND PENOLOGY

Time and Punishment New Contexts and Perspectives Edited by Nicola Carr Gwen Robinson

Palgrave Studies in Prisons and Penology

Series Editors Ben Crewe, Institute of Criminology, University of Cambridge, Cambridge, UK Yvonne Jewkes, Social & Policy Sciences, University of Bath, Bath, UK Thomas Ugelvik, Faculty of Law, University of Oslo, Oslo, Norway

This is a unique and innovative series, the first of its kind dedicated entirely to prison scholarship. At a historical point in which the prison population has reached an all-time high, the series seeks to analyse the form, nature and consequences of incarceration and related forms of punishment. Palgrave Studies in Prisons and Penology provides an important forum for burgeoning prison research across the world. Series Advisory Board Anna Eriksson (Monash University) Andrew M. Jefferson (DIGNITY - Danish Institute Against Torture) Shadd Maruna (Rutgers University) Jonathon Simon (Berkeley Law, University of California) Michael Welch (Rutgers University)

Nicola Carr · Gwen Robinson Editors

Time and Punishment New Contexts and Perspectives

Editors Nicola Carr Law and Social Sciences University of Nottingham Nottingham, UK

Gwen Robinson School of Law University of Sheffield Sheffield, UK

ISSN 2753-0604 ISSN 2753-0612 (electronic) Palgrave Studies in Prisons and Penology ISBN 978-3-031-12107-4 ISBN 978-3-031-12108-1 (eBook) https://doi.org/10.1007/978-3-031-12108-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 Chapter 7 is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/). For further details see license information in the chapter. This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Ruth Storey This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Nicola: In loving memory of Sirppa Glarin - Jag var nära jag var där, En stund på jorden Gwen: For Graham Gee - with thanks for his unwavering support and friendship through uncertain times

Preface and Acknowledgements

This collection began its life in 2019, when several contributors to this volume organised and contributed to a roundtable session at the 19th annual conference of the European Society of Criminology in Ghent, Belgium. The session, chaired by Kerstin Svensson, was entitled Doing Time: A Roundtable on Temporal Issues in Punishment. It included brief contributions from authors from five different countries. All of us had encountered time as an important issue in our ongoing research projects—most of which were not primarily focused on temporal issues. Thereafter, we developed this volume via a series of online workshops held in 2020–2021. Initially, we planned to meet in May 2020 at a workshop in Brussels, and secured funding from the University of Nottingham to that end. That plan of course proved unworkable due to the arrival of Covid-19, so—as with much else in our lives at that time—the event moved online. Thus, a group of us met in June 2020. We shared a draft literature review (the foundation of Chapter 1), the idea of an edited collection was discussed, and potential contributors were invited to outline their ideas and planned contributions. As scholars of punishment, we were all conscious that we were dipping our toes

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into somewhat new territory, and much of that first workshop was spent discussing concepts that we had each found while venturing separately into the substantial literature on the sociology of time. It was a stimulating event, at a time when we were each feeling the effects of a long period in relative isolation. The workshop concluded with an agreement to each work on our draft chapters, and to approach a handful of other potential contributors—some established; others at earlier stages in their careers—to build and diversify the collection. We met online again in September 2020, and for a third time in June 2021, on each occasion presenting and sharing more detailed feedback on draft chapters. Each meeting re-invigorated our interest, as we exchanged ideas and encouraged each other to keep moving forward, as much of the rest of our lives stood still. Meanwhile, we commissioned our friend, photographer and fellow member of the Probation Journal Editorial Board, Ruth Storey, to create an image for the cover of the book. The resulting volume includes contributions from most of the participants in the original roundtable event (Beyens, Carr, Morgenstern, Robinson and Svensson), along with others by colleagues who agreed to come on board at subsequent points on the journey. We are very grateful to everyone who has contributed to this book, and for keeping the project alive through some difficult and uncertain times. We dedicate this book to all of you. Nottingham, UK Sheffield, UK May 2022

Nicola Carr Gwen Robinson

Contents

1 Time and Punishment: An Introduction Nicola Carr and Gwen Robinson Introduction Time as a Structuring Logic Doing Time: Examining Carceral Experience Time and Space in Punishment Doing Time Beyond the Prison Time and Penal Practice Time and Histories of Punishment Structure of the Book Conclusion References 2 Time, Civilisation and Ultimate Penalities Christine Morgenstern Introduction Limits of Punishment: Studying the Role of Time Legal and Penal Theory Penology and Criminology

1 1 3 6 10 13 15 17 21 24 25 35 35 38 38 40

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Human Rights—Human Dignity Endless Punishment? Two Case Studies Germany Norway Conclusion References 3 Time and Solitary Confinement Ian O’Donnell Introduction Calling Time to Account Time Flies, in Retrospect Styles of Time Usage Clock Time and Prison Time Timetables and Ritual References 4

Unmarking Prison Time During the Covid-19 Pandemic Caitlin Gormley, James Reilly, and Ryan Casey Introduction ‘Unprecedented Time’: Uncertainty and Unpredictability in Crisis Prison Temporality and Coping with Prison Time Scotland in Lockdown Study Context Disorienting Temporalities Unmarking Prison Time Stuck in ‘the Precarious Now’ Valuing Temporality Cost of Time Lost Time Found Time Hollow Time Conclusion References

43 49 49 52 54 55 61 61 63 69 74 79 82 84 89 89 91 93 95 97 97 100 102 102 105 107 108 111 113

Contents

5 Time in Motion: Transport Between Prisons as Planned, Lived and Experienced Time Kerstin Svensson and Marcus Knutagård Introduction The Transport and the Study Three Ways of Understanding Temporality Planned Time Work-Life Balance Implementing the Detailed Schedule Flexibility in a Fixed System Lived Time Ambitions to Follow the Plan Avoiding Internal Hindrances Avoiding External Hindrances Experienced Time Interpersonal Aspects of Time Emotional Aspects Conclusion References 6 The ‘Reintegration Paradox’: Working Towards the Future While Standing Still Kristel Beyens, Lars Breuls, and Elli Gilbert Introduction Temporal Agency and ‘Doing’ Time in an Unsupportive Context From Prison to Society: A Gradual Release System Note on Methodology and Empirical Data The ‘Reintegration Paradox’ in Practice Prison Entry and Mid-Sentence Early Release, Anticipatory Waiting, Despair and Drop-out Getting Back in Sync After Release Conclusion References

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117 117 120 123 125 127 128 129 131 131 132 134 135 136 138 139 141 143 143 145 148 152 153 153 156 160 163 165

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7 Time After Time: Imprisonment, Re-entry and Enduring Temporariness Fergus McNeill, Phil Crockett Thomas, Lucy Cathcart Frödén, Jo Collinson Scott, Oliver Escobar, and Alison Urie Introduction Doing Time After Time Distant Voices: Context and Methods The Time TREE Her: Him: Us Travails of Synchrony, De-synchrony and Re-synchrony Travails of Readiness Travails of ‘Enduring Temporariness’ Conclusion: Reintegration as Time Travel References 8

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Probation Work in the Juridical Field: A Dance to the Music of Time Gwen Robinson Introduction Embedded Work and ‘Synchronisation’ Servants of the Court’s Clock Irrationality, Inefficiency, and the Production of ‘Dead Time’ Conclusion References Criminal Court Time and Social Work Time: Pre-sentence Reports and the Chronotope of Adjourned Supervision Nicola Carr and Niamh Maguire Introduction Pre-Sentence Reports and Adjourned Supervision Jurisdiction, Scale, and Governance Criminal Court Time Social Work Time

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Shifting Jurisdiction—The PSR Request as a Temporal Hinge Temporal Logics—Situating the Subject Redeeming the Future—Transforming the Subject The Chronotope of Adjourned Supervision Conclusion References Index

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Notes on Contributors

Beyens Kristel is a Professor of Penology at the Criminology Department of the Vrije Universiteit Brussel. She is a Member of the research group Crime & Society (CRiS), where she coordinates the research line Penality & Society. Her research interests include contemporary evolutions in penality, with special attention to penal decision-making and the implementation of prison sentences and community punishment from a cultural, organizational and social perspective. Breuls Lars is a Postdoctoral Researcher at the Criminology Department of the Vrije Universiteit Brussel. He is a Member of the research group Crime & Society (CRiS) and the research line Penality & Society. His research interests include practices of migration control, prison sentence implementation and penal and administrative decision-making. Casey Ryan is a Research Fellow at the University of Oxford and Research Associate at The Crichton Trust/University of Glasgow. She is also a Scottish Justice Fellow in the Scottish Centre for Crime and Justice Research. Her research interests are around how people feel about and live with digital technologies and data-driven practices in their everyday

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lives, particularly in the context of punishment and in/justice. Ryan was a Research Assistant in the Criminal Justice stream on the Scotland in Lockdown project. Gilbert Elli is a Postdoctoral Researcher and was a Member of Criminology Department of the Vrije Universiteit Brussel until 2021. Her research interests include the lived experiences of punishment. Carr Nicola is a Professor in Criminology in the University of Nottingham, UK. She is the editor of the Probation Journal and coeditor (with Gwen Robinson and Ebony Ruhland), of the Routledge Studies in Probation and Community Sanctions series. Nicola was previously a co-convenor of the European Society of Criminology’s Working Group on Community Sanctions and Measures. She is currently coinvestigator on an ESRC-funded project Rehabilitating Probation which is exploring recent probation reforms in England and Wales. Cathcart Frödén Lucy is a researcher, linguist and community musician. She recently completed her Ph.D. at the University of Glasgow. Entitled ‘Echolocations’, her study explored integration and the ethics of participation through collaborative songwriting and involved working with people affected by the criminal justice and asylum systems. Collinson Scott Jo is a Reader in the School of Business and Creative Industries at the University of the West of Scotland. She is a musicologist and multi-instrumentalist singer-songwriter (working under the name Jo Mango). Her research interests include popular music pedagogy, popular music analysis, practice-led research in songwriting and performance (especially in participatory community contexts), music and mental health, music and criminal justice, music festivals and the environment, creativity studies and community-based participatory research methods. Crockett Thomas Phil is an academic, artist and writer based in Glasgow. Between 2017 and 2021 she was the Research Fellow on the ‘Distant Voices: Coming Home’ project. Currently, she is undertaking an Independent Social Research Foundation Fellowship. Her project is called ‘Prison Break: Imagining Alternatives to Prison in the UK.

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Escobar Oliver is a Senior Lecturer in Public Policy at the University of Edinburgh, where he co-directs CRITIQUE (Centre for Ethics and Critical Thought) and is the Lead on Democratic Innovation for the Edinburgh Futures Institute. He combines research, teaching and practice across various policy and community contexts. Gormley Caitlin is a Lecturer in Criminology within the School of Social and Political Sciences at the University of Glasgow and within the Scottish Centre for Crime and Justice Research. Prior to this role, she taught sociology within prison-based education. Her research interests are around the experience of punishment, discrimination of marginalised populations in justice processes and inclusive research practices. She has explored people with learning disabilities experiences of prison life and disabled people’s experiences of accessibility and fairness at court as defendants. She was a Co-Investigator on the Scotland in Lockdown study and co-led the Criminal Justice stream of research. Knutagård Marcus is an Associate Professor at the School of Social Work, Lund University, Sweden. His research interests include housing policy, homelessness and the importance of place for how social work is organised—its moral geography. He is involved in several research projects on homelessness, including: Scanian homes: Reception, settlement or rejection—Homelessness policies and strategies for refugee settlement. Maguire Niamh is a Senior Lecturer in Law at the South East Technological University, Ireland. She has published widely on sentencing, penal decision-making, prison use, probation and community sanctions and comparative criminal justice processes. She was a co-founder of the ESC Working Group on Sentencing and Penal Decision-Making. Niamh co-edited the book The Enforcement of Offender Supervision in Europe: Understanding Breach Processes published by Routledge in 2018, which provides a comparative analysis of the process of breach in community supervision in ten different European jurisdictions. She is currently the lead investigator on a Judicial Council commissioned project exploring judicial views on sentencing guidelines and the sentencing of relationship violence.

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McNeill Fergus is a Professor of Criminology & Social Work at the University of Glasgow where he works in the Scottish Centre for Crime and Justice Research and in Sociology. His work explores institutions, cultures and practices of punishment, rehabilitation and reintegration. Morgenstern Christine is a Professor of Criminal Law and Legal Gender Studies at the Freie Universität Berlin. She works at the intersection of penal law, human rights and criminology with a focus on the situation of women. Her research interests include penal theory, sentencing, criminal procedure and access to justice for vulnerable groups. She is particularly keen on covering comparative and European aspects of these topics and contributing not only to European research but also to European penal policies. O’Donnell Ian is a Professor of Criminology at University College Dublin. His latest book is Prison Life: Pain, Resistance, and Purpose (NYU Press). He is a Member of the Royal Irish Academy and an Adjunct Fellow of Linacre College, Oxford. Reilly James was awarded a Masters in Philosophy from the Open University in 2018 and has research interests in social justice and in particular the communication of punishment. James is active in social justice movements within Scottish justice and is a Member of Scottish Prisoner Advocacy and Research Collective (SPARC), a community of interest group, which was a project partner on the Scotland in Lockdown study. His passion for researching in this area stems from personal experiences as a prisoner from 2008 to 2020. Robinson Gwen is a Professor of Criminal Justice at the University of Sheffield, UK. She is co-editor (with Fergus McNeill) of Community Punishment: European Perspectives (2015, Routledge) and co-author (with Joanna Shapland and Angela Sorsby) of Restorative Justice in Practice: Evaluating What Works for Victims and Offenders, 2011, Routledge). Most recently her research has examined the consequences of the Transforming Rehabilitation reforms for probation in England & Wales, including its impact on probation work in courts in England & Wales.

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Svensson Kerstin is a Professor in Social Work, Lund University, Sweden. Her research concerns organisations and professions of welfare practices, which include how everyday work is organised and performed. Discretion is a recurrent theme in her work, where she develops understanding of how people work in different settings as well as of how governance, regulations and knowledge from all involved parties form the practices. Her field of study is social work, often with a connection to the criminal justice system. Urie Alison is a community development practitioner and leader, pioneer and decent generalist. In collaboration with others, she founded Vox Liminis and has led it since 2013. She has written, presented and published on creative community work, collaborative research, integration and reintegration, hospitality and youth and community work.

Abbreviations

AI ECHR ECtHR EM FARC FCC GC LSI-R NPS PPS PSR RNR

Artificial Intelligence European Convention on Human Rights European Court of Human Rights Electronic Monitoring Fuerzas Armadas Revolucionarias de Colombia Federal Constitutional Court Grand Chamber Level of Service Inventory—Revised National Probation Service Prison and Probation Service Pre-Sentence Report Risk-Need-Responsivity

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1 Time and Punishment: An Introduction Nicola Carr and Gwen Robinson

Time is such an obvious factor in social science that it is almost invisible. (Adam, 1990: 3)

Introduction Texts on the sociology of time typically begin by lamenting a failure to recognise time as a key variable in sociological work. For example, in an early contribution, Lewis and Weigert (1981: 432) suggested that if N. Carr (B) University of Nottingham, Nottingham, UK e-mail: [email protected] G. Robinson University of Sheffield, Sheffield, UK e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1_1

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time received the attention it merited, “no study of human organization and interaction would be considered reasonably complete unless it examined their temporal organization”. If sociological studies have failed to adequately reflect on temporality, scholarship pertaining to punishment and criminal justice is even more guilty of this neglect. As Sarah Armstrong has observed, time is “both a central concern and a banal quality of contemporary punishment” (2014: 393). In other words, concepts of time are integral to considerations of punishment, but they have only rarely been the explicit object of research attention. In her influential study of Time and Social Theory, Barbara Adam similarly notes the ‘taken for granted’ nature of time despite its integral part in our lives. She notes the extent to which different academic disciplines have approached time, with often little reading across disciplinary boundaries. Anthropologists have explored the cultural meaning of time, historians have explored the past, while sociologists have explored people’s organisation of time, the effect of life events on the structuring of people’s lives and the control of people’s time (Adam, 1990). It is not hard to see from this cursory categorisation of disciplinary approaches that all of these perspectives have potential relevance to the study of time and punishment. Adam observes that “time is the lacuna, the forgotten dimension of social theory” (1990: 13) and one of the reasons that scholarship has generally failed to properly theorise time is its complexity. She argues that we can only grasp this complexity: …if we seek the relations between time, temporality, tempo and timing, between clock time, chronology, social time and time-consciousness, between motion, process, change, continuity and the temporal modalities of past, present and future, between time as resource, as ordering principle as becoming of the possible, or between any combination of these. We need to stand back and get a wider perspective on the matter. (Adam, 1990: 13)

In this introductory chapter, we attempt to address this wider perspective and to delineate the field of ‘time and punishment’ studies. We do this via a review of the extant literature, which is disparate and which, to the best of our knowledge, has not previously been brought

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together. Our review does not claim to be complete or exhaustive: for example, it includes only Anglophone literature, and thus inevitably privileges work emanating from specific regions. Nonetheless, it provides the reader with an initial orientation to the subject; a guide to understanding where and how time and temporality have featured as more or less prominent variables in theoretical and empirical studies of punishment. What follows is structured in five main sections. We begin by considering the significance of time in the ‘structuring logics’ of punishment, including the sentencing philosophies which animate penal sanctions. Next, we introduce the literature on subjective experiences of carceral punishment, and in carceral geography’s focus on time and space, before moving on to consider examinations of time and temporality in the context of non-custodial sanctions. In the penultimate section our focus is time in relation to penal practices, and finally we turn our attention to approaches to time in consideration of histories of punishment. The chapter concludes with an introduction to the contributions to this volume, which we attempt to map in relation to the themes in our review.

Time as a Structuring Logic Criminal sanctions are usually measured in time, and we routinely use temporal categories to delineate different forms of punishment (e.g. life sentences, indeterminate sentences and extended prison sentences). But the language used to describe these sentences simultaneously illuminates and obfuscates their temporal dimensions. What for instance is a life sentence—presumably the length of a life? Yet we know that the execution and implementation of life sentences vary across time and space (van Zyl Smit & Appleton, 2016); and so too does life expectancy. Furthermore, indeterminacy implies the lack of a fixed ending, where the penalty is potentially elastic, thereby stretching or contracting its temporal dimensions. And while the language of time is quite familiar in relation to prison sentences, for other types of sanction the concept of time is more obscure, even though most forms of punishment are meted

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out in units of time.1 Probation orders have fixed time limits, unpaid work is measured in hours and electronic monitoring is also governed by hours of curfew. There are a number of ways in which time features, more or less visibly, in the structuring logics of punishment. Perhaps the most obvious starting point is the various rationales for punishment (punishment philosophies) which have underpinned penal sanctions since time immemorial. In retributive theory, the quantum of punishment is a key issue: punishment should be meted out in proportion to the degree of wrong. This requires measurement and the idea of a tariff, which acts as “an essential restraint on the infliction of pain” (Zedner, 2004: 85) and in this context, time is understood as a resource which a person may rightly be deprived of by the state, in proportion to their wrongdoing. When a person loses or is deprived of their liberty, this entails liberty to spend time doing what they would wish, where and with whom they would wish to do it. Hence the expression ‘doing’ or ‘serving’ time has been characterised as the “conventional temporalization of criminal punishment” (Valverde, 2014). The idea of time as a resource also characterises rehabilitation, which seeks to work on the person’s character or behaviour, with the objective of preventing future offending and social reintegration. Incapacitation implies ‘time out’ from society, offering protection from potential harm for a specified (or sometimes indeterminate) period. In deterrence theory, the celerity of punishment is prized, alongside its certainty and severity. The assumption here is that the swiftness of the imposition of punishment is important, and that “the more promptly and the more closely punishment follows upon the commission of a crime, the more just and useful will it be” (Beccaria, 1986 [1764]: 36).2 Time is also a central part of the critique of these consequentialist theories, which suggests that they

1 Financial penalties are a notable exception, but even so there is usually a requirement for payment to be made within a specified time frame (O’Malley, 2013). 2 Despite the popularity of this maxim, it has been observed that celerity is the least discussed of the deterrence principles (Pratt & Turanovic, 2018). It is also, they go on to argue, the least well established in empirical research, of both criminological and psychological/experimental hues.

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pay insufficient attention to the time dimension of punishment: incapacitation, deterrence and rehabilitation all condone (in principle) the imposition of punishment for as long as it might take to achieve the desired end result: namely, the prevention of future crime. They have thus been criticised for opening the door to sentences of indeterminate length (e.g. American Friends Service Committee, 1971; Rotman, 1990). Reparative and restorative justice are also notable in respect of time. Reparation signifies making up for harm, and this may entail the giving of one’s time to a victim or the wider community. Meanwhile, processes of restorative justice—albeit not always rightly situated in a punishment frame—have been conceived as means of “thinking forward through the past” (Crawford, 2015). This idea is also echoed—albeit in a radically different way—in conceptions of preventive justice, where the concern is to control or ‘colonise’ the future in the name of public protection. Here, technologies of risk assessment are deployed to make predictions about future behaviour that are typically based on actions in the past and characteristics of the person that are immutable (Ashworth & Zedner, 2014). In the sociology of time, a fundamental distinction is drawn between the Greek concepts of Chronos and Kairos. These concepts represent (respectively) ideas about scientific, logical and ‘clock-time’ and ‘existential time’ as it is actually experienced by individual human subjects (Hassard, 1990). When we apply these concepts to penal philosophies, we see an overriding concern with the former: time tends to be treated as a resource, with measurable, quantifiable units to be meted out, taken away or exchanged in the pursuit of different varieties of ‘justice’. But what of ‘existential time’? Studies of the subjective experience of punishment among penal subjects has fuelled a powerful critique of the principle of proportionality in retributive theory. For Armstrong, the problem with the ‘temporality of proportionality’ is that it “uncritically employs a uniform measure of time” in which all prison sentences (or probation hours) of the same length incur the same amount of pain, “no matter to whom, how often or in what order they are applied” (2014: 394). Her research on subjective experiences of punishment among a mixed sample with a variety of punishment experiences revealed that their experience of ‘penal time’ “contradicted in almost every way

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the time assumptions of proportionality theory” (2014: 395—see also Armstrong & Weaver, 2013).3 Research on ‘penal subjectivities’ (Sexton, 2015) thus suggests that in the context of punishment, ‘existential time’ is an important and necessary consideration (e.g. see Armstrong & Weaver, 2013). In the next three sections, we review research on experiences of ‘penal time’, which have revealed that many of the assumptions about time in penal philosophy are not mirrored in the subjective experiences of penal subjects.

Doing Time: Examining Carceral Experience As noted above, notions of punishment as ‘doing’ or ‘serving’ time are commonplace, and these familiar colloquialisms are most often applied to the prison experience (e.g. Matthews, 2009; Ugelvik, 2014). And to the extent that experiences of punishment have been considered in relation to their temporal dimensions, the lion’s share of attention has fallen on the experience of ‘carceral time’. In Sykes’ (1958) classic study Society of Captives, five pains or deprivations of imprisonment were identified, and these included the deprivation of autonomy (i.e. of freedom to determine one’s own schedule). Similarly, in Psychological Survival: The Experience of Long-Term Imprisonment, Cohen & Taylor (1972) identified the passage of time as one of the five major concerns of the men in their sample at Durham prison. Here the emphasis is on time that is not one’s own: Time presents itself as a problem. It is no longer a resource to be used, but rather an object to be contemplated – an undifferentiated landscape that has to be marked out and traversed. (Cohen & Taylor 1972, reproduced in Hassard 1990: 187)

A number of sociological studies of imprisonment direct attention towards temporality as a key dimension of the function, organisation 3 For different critiques of time in retributive theory, which focus (respectively) on sentencing and parole, see Roberts (2019) and Dagan (2022).

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and experience of imprisonment. As we have noted, time is the unit in which the period of confinement is measured, and as such the notion of ‘doing time’ is integral to our understanding of the nature of imprisonment (Matthews, 2009; O’Donnell, 2014). A range of research has documented the fact that prison regimes are managed according to strict timetables that govern activities and bodies in space, for instance specifying when prisoners can eat, sleep, wash, exercise, associate and receive visits (Cohen & Taylor, 1972; Martel, 2006; Sparks et al., 1996). Further research has also explored prisoners’ subjective experiences of time, although as O’Donnell (2014) observes, despite the fact that time is central to prison experience there is relatively little research literature focusing specifically on how prisoners negotiate time, and that prison autobiographies have tended to provide more insights into this area. Some of the research which has explored experiences of time in prison notes the temporal disorientation experienced by prisoners at different stages of their sentence, as well as the paradoxical nature of time in prison. This is encapsulated in accounts which describe the grinding monotony of the everyday and a sense in which time passes interminably slowly, in parallel with a sense of the compression and acceleration of the same periods of time when recalled in memory (O’Donnell, 2014). In his study of Prisoners, Solitude and Time, O’Donnell (2014) charts the stratagems deployed by prisoners to mitigate the harmful effects of time (his specific focus is on time spent in solitary confinement). These include techniques of ‘rescheduling’, ‘reduction’ and ‘reorientation’, and for some include a ‘knifing off ’ from the past and outside world in order to cope better with the temporal pains of confinement.4 Research which has addressed the experiential aspect of ‘prison time’ has noted the extent to which experiences are differentiated by factors such as sentence-length, age at imprisonment, gender and the institutional environment (e.g. Cope, 2003; Crewe et al., 2020; Jewkes, 2005; 4 O’Donnell (2014) enunciates seven stratagems that prisoners use to mitigate the harmful effects of time in solitary confinement: (1) Rescheduling; (2) Removal; (3) Reduction; (4) Reorientation; (5) Resistance; (6) Raptness and (7) Reinterpretation. He also proposes an eighth possible strategy—Reverie—but notes that ‘…prisoners fear that once it becomes established it may herald psychological collapse. When observed in others it speaks not of survival, but of capitulation’ (O’Donnell, 2014: 225).

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Mann, 2012; Marti, 2017; Medlicott, 1999; Middlemiss & Smiley, 2016; Wahidin 2002). A recent study by Crewe et al. (2020) exploring the experiences of life imprisonment from young adulthood describes young people’s experiences of temporal vertigo when they are sentenced to life imprisonment. For some this included feelings of shock and difficulties in conceptualising the amount of time that they would serve, particularly when the sentence they received was longer than the time they had been alive. The strategies that these young adults devised to manage time were differentiated by sentence stage. Those in the early stage of a sentence found ways to deny, compress or suppress time, for example by using alcohol or drugs to accelerate the passage of time.5 As their sentences progressed, the young people in Crewe et al.’s (2020: 306) study engaged more agentically with time, for instance by carrying ‘precise temporal maps’ in which they plotted the passage of their sentence and envisaged their journey towards eventual release. The sense in which prison time intersects with the temporality of the life course is conveyed vividly in Crewe et al.’s (2020) study of young people, who at the outset struggle to even find the ‘temporal yardsticks’ to conceptualise time, and for whom a key stage of their life will be spent in prison. The intersection of the life course with the prison experience, and the manner in which time is a constituent part of gendered prison identities has also been explored in the context of older women prisoners. Wahidin and Tate (2005: 65) describe the gendered nature of penal time as a ‘somatic identity cipher’, whereby prison time and mediated experiences of time outside become central to the construction of older women’s sense of identity as ‘servers’, ‘losers’ and ‘resisters’ of time. The intersecting dimensions of the life course, gender and time is also explored in relation to the experience of transgender prisoners in the United States by Rosenberg (2017), who notes that the prison uses both ‘disciplinary and heteronormative time’ to discipline the bodies of transgender prisoners by the limits placed on the expression and embodiment of gender identities within the prison context. This includes policies restricting prisoners’ access to gender transition services. In this respect, 5

A similar finding is reported by Cope (2003) in research on young male prisoner’s experiences of time and cannabis use in prison.

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Rosenberg (2017) describes the ‘colliding temporal orbits’ of gendered pasts, the present of incarceration and the possibility of imagined futures. The theme of time has also been explored in relation to the ‘secondary effects’ of imprisonment. In research conducted in the United States, Comfort (2008) describes the families and loved ones of people in prison ‘doing time together’. The focus of this work is on the female partners of male prisoners and the extent to which the imprisonment of a partner “infiltrates and distorts women’s personal, domestic, and social worlds” (Comfort, 2008: 7). In a detailed analysis, and adopting Clemmer’s (1958) concept of prisonization, Comfort (2008) demonstrates how the regulation applied to prisoners permeates beyond the prison leading to the secondary prisonization of partners on the outside. The degree of secondary prisonization—where “wives and girlfriends yield their bodies and homes to penal management in efforts to ‘do time’ with their loved ones”—is linked to the length and depth of incarceration (Comfort, 2008: 14–15). In other words, it is inextricably bound to both the quantum and experiential nature of time. The impact of the temporal pains of imprisonment on family members is further explored by Kotova (2019) in the context of the experiences of the partners of long-term prisoners in the United Kingdom. This follows in the vein of earlier work on the secondary effects of imprisonment but extends this with a consideration of the sociological literature on ‘family time’. As Kotova (2019: 481) explains: A long sentence represents a significant period of time being taken away from the prisoner…Yet it makes no sense to see time as belonging purely to the individual. Our subjective temporal landscapes are often entwined with those of other people, hence the categories of family time, work time, leisure time etc.

This study, and a wider body research which has explored the impact of imprisonment on partners and children of prisoners (e.g. Jardine, 2017; Minson, 2019; Moran et al., 2017), observes that while prison visits facilitate contact between prisoners and their families, such contact is by its nature limited, structured and often stressful and typically does

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not allow for the more mundane and spontaneous expressions associated with family time. This lack of temporal synchronicity between the everyday of family life and prison time further served to accentuate the temporal pains of imprisonment.

Time and Space in Punishment The themes raised in this literature exploring prisoners’ families and relationships, and the context of prison visits in particular, points to the differentially experienced nature of time, and the interrelationship between time and space. As Jewkes and Laws (2021: 395) observe prison is a liminal space occupying a ‘betwixt and between’: “…that differs – physically, temporally and emotionally – from the world before and after the carceral experience”. Arguably the context of confined temporality (and the associated pains) become potentially more pronounced in an era of accelerated change. Rosa (2014) describes the phenomenon of ‘social acceleration’ as being characterised by technological advances, an increased pace of life and profound social change.6 These changes to the temporal dimensions of society have also transformed our space–time regimes, that is the perception and organisation of space and time in social life (Harvey, 1990; Rosa, 2014). Considerations of the interrelationship between time and space, and the intersections with emotions, have been explored within carceral geography. Drawing on the concept of TimeSpace, Moran (2012a) argues that space and time are analytically inseparable and calls for carceral geographers to engage more meaningfully with literature on time. In so doing, she points to some of the scholarship on prison sociology which has explored the experiential and embodied nature of prison time and its variabilities in terms of age and gender such as that described above (e.g. Cope, 2003; Wahidin, 2002, 2006). Moran (2012a) notes the potential analytical utility of viewing time and space as co-constitutive, through for instance illuminating wider aspects of agency within the carceral 6 Some of these themes have also been addressed in criminological studies such as Young’s (2007) Vertigo of Late Modernity.

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setting and advancing understanding of the embodied experiences of incarceration. The embodied experiences of imprisonment as ‘prison time’ inscribed on the body are explored by Moran (2012b) in a study of women’s experiences of incarceration and reintegration in the Russian Federation. Here, Moran (2012b) extends the analytical lens from the prison to women’s return to the community and observes that the experience of reintegration after release is similarly embodied and corporeal. She demonstrates that the TimeSpace of imprisonment impacts on women’s conceptions about the passage of time on the outside and their anxieties about release, while specific aspects of imprisonment including the rigid timetables and communal dormitories affect women’s sleeping patterns after their release from prison. The passage of time on the body, and the impact on dental health as a result of imprisonment leaves women with conspicuous markers (loss of teeth) that are embodied signifiers of stigma following their release. Further work which has explored the interrelationships between time and space includes research on the movement of prisoners through the practice of prison transfer in the British penal estate. Follis (2015) demonstrates that the extensive use of prison transfers represents the way in which “movement and mobility become embedded components of the prison sentence binding time, space and movement into a progressive sequence” (p. 949). The movement of prisoners as part of ‘regimes of circulation’ is an important element in the exercise of penal power and the operation of the power to punish, but this aspect of time/space mobility, that is the time and spaces in-between, tends to be neglected in penological scholarship. In a similar vein, Eife and Kirk (2021) have explored the process of transport from jail to electronic monitoring in community settings as a key moment of punishment and the exercise of power. Their research in Illinois revealed that sheriff ’s officers involved in the transport process exercised the power to punish via a number of strategies including the manipulation of time and space: officers wielded control over the individuals’ time and space in three ways: through forced waiting, by choosing to drop individuals off in the middle of the night, and through disorientation. In this way, people released

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to EM were reminded of their subordinate status to the state and these officers, even as they were returned to their homes. (Eife & Kirk, 2021: 75–76)

This theme is also picked up by Armstrong (2018), who argues that insufficient attention has been paid to the temporal-spatial dimensions of imprisonment beyond the prison cell. As a “readily legible symbol of enforced boredom and stillness” (Armstrong, 2018: 136), the imagery of the cell foregrounds our conception of prison as place in which “time should be done and not merely passed” (2018: 137) and is therefore bound to particular ideas about the purposes of punishment (rehabilitation, retribution and so on). Such a narrow purview, Armstrong (2018) argues, limits our capacity to understand the multiple spatio-temporal dimensions of imprisonment, and their diverse disciplinary effects that extend beyond prisoners to those working in prison and to families of prisoners. Decentring the cell from the penal imaginary, she explores corridors within the prison as sites of circulation with disciplinary effects (Armstrong, 2018; Deleuze, 1992).7 Time and space are also central concepts in recent research on the subjective experience of waiting to enter custody in the ‘imprisonment queue’ which is the norm in Norway and other Scandinavian countries. Laursen et al. (2020) found that, while the typical wait to begin a prison sentence is neither intentionally nor officially defined as punishment (and indeed has been understood as a humane strategy to avoid prison overcrowding), it can be experienced as a painful, uncertain and even paralysing period, which disrupts the ‘ground projects’ (i.e. the activities and pursuits) that those who wait to wish to be moving forward. Several interviewees in this study described the waiting period as ‘a sentence 7 It is worth noting that issues of temporality and some of these broader themes have also been noted in analogous places of detention. For example, Turnbull (2016) has explored the challenges of waiting and uncertainty in immigration detention and Gashi et al. (2021) describe experiences of time and coping strategies in immigration detention centres, that are similar to some of the strategies explored in the prison literature. A recent edited collection by Bhatia and Canning (2021) documents the temporal dimensions of state violence in relation to migration. Meanwhile the temporal dimensions of other areas of the criminal justice system, such as detention in the police station, albeit for a much shorter period, have also been explored (see: Skinns & Wooff, 2020).

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before a sentence’; a period during which they were officially at liberty, but at the same time constrained and restricted psychologically.

Doing Time Beyond the Prison While research on the experience of carceral time has a relatively long span, it is only recently that research attention has been directed to understanding the temporal experience of sanctions that are served in the community (Durnescu et al., 2013; Hayes, 2018). Part of the explanation for this neglect could be that community sanctions have traditionally been considered to involve the productive use of time, in the pursuit of goals like rehabilitation and reparation. However, many jurisdictions have seen a rhetorical shift towards retributive and/or more punitive rationales, according to which the deprivation of ‘free time’— “forcing offenders to submit to the time demands of others, regardless of their own time-styles and desires” (Nellis, 2002: 75)—becomes more prominent. In this context researchers have begun to explore the ‘pains’ of community sanctions, echoing explorations of the carceral experience. Research of this type originates with Durnescu’s (2011) study of the ‘pains of probation’ in Romania, which found that the ‘deprivation of time’ was experienced by probationers as one of six pains of supervision. A similar English study identified time as an aspect of the deprivation of liberties experienced by a small sample of probationers (Hayes, 2015). In a Scottish study, Weaver and Armstrong (2011) compared the subjective experiences of people who had experienced both short-term prison sentences and community sentences, and found that while experiences of ‘doing time on the outside’ were generally the more positive, they were sometimes characterised as instances of wasted or misused time (e.g. when community service entailed a lot of ‘sitting around’, or where peoples’ existing skills were not utilised, or work shifts were cut short due to shortages of supervisory staff ). A more recent penal innovation in the community context, which shines a bright light on both the ‘when’ and ‘where’ of punishment, is the curfew, which requires people to stay in a specified space (usually at home) for certain hours of the day/night. Research on experiences of

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curfews, both as stand-alone sanctions and as measures imposed after incarceration, has revealed a mixed picture of positive and negative aspects—among them being the positive and potentially rehabilitative promise of time for reflection (e.g. Gainey & Payne, 2000). In this respect, a curfew can be said to mirror the experience of imprisonment for some as a time of value (e.g. O’Donnell, 2014; Schinkel, 2015). However, those subject to curfews have also reported the deprivation of autonomy to determine their own schedule and activities—again, paralleling the experience of prisoners. Curfew subjects in Canada, Belgium and Scotland have also referred to the stress-inducing experience of having to be hyper-vigilant about time and their management of time so as to ensure compliance with a curfew (Gacek, 2019; Roberts, 2004; Vanhaelemeesch et al., 2014). This suggests a more conscious awareness of and personal responsibility for time management (and the costs associated with losing sight of time) than in the carceral context. In an innovative comparative study of supervisees’ experiences of a variety of community sanctions and measures, participants in England, Scotland and Germany were invited to take photographs to represent their experiences, and then to reflect on the images produced in focus groups (Fitzgibbon et al., 2017). Time emerged as one of five central themes8 in the analysis. Among the photographs there were several images of clocks and watches, and these conveyed a strong sense of supervisees ‘doing time’, and of time suspended, wasted or lost. Several participants explained their choice of time-related images in relation to experiences of their own time being devalued in the supervision process, where ‘waiting to be seen’ was a common experience. For example, one of the English participants represented her experience with a photograph of a sofa in the women’s centre she attended for supervision. The sofa was adorned with a large image of clock faces. She talked about having spent much time there, waiting for meetings or transportation to meetings with other services elsewhere, but also waiting for her life to move on. She names her picture ‘Borrowed Time’ (Fitzgibbon et al., 2017: 312).

8

Other themes were constraint, waste, growth and judgment.

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Time and Penal Practice Surprisingly little empirical research has addressed the temporal orientations of penal practice, and most recent examples have done so only indirectly. For example, in her study of prison officers’ work, Crawley (2004) found some evidence of ‘spillover’ into officers’ private lives, whereby they came to rely on routines and timetables at home to reinforce a sense of ontological security. Westaby et al. (2016) similarly found evidence of ‘spillover’ in the lives of probation workers, which included perceptions of the porous boundary between work and private time. These findings echo concepts of ‘private-time’ and ‘public-time’ that were elucidated in Zerubavel’s (1979) classic work on the ‘bureaucratic segmentation’ of the individual in modern societies. There is however a longer tradition of ‘time and motion’ studies (see Miles, 1969) in penal settings which have tended to be framed by the sociology of work (e.g. DeMichele & Payne, 2017; Rokkan et al., 2015). These kinds of studies have analysed the quantitative distribution or ‘budgeting’ of clock-time across the working day. Tending to chart the rise of routinisation and paperwork, and reduced time for face-to-face work with service users, these studies speak to Weberian concerns with bureaucratisation and managerialisation in a range of professional settings. These same concerns have also found expression in Foucauldian-inspired theorising pertaining to criminal justice practice. In the mid-1990s, Feeley and Simon’s new penology thesis described the rise of ‘actuarial justice’ centred on the efficient processing of more or less risky penal subjects through a system preoccupied less by rehabilitation than management and containment (Feeley & Simon, 1992). This suggested that concerns with temporality in criminal justice were undergoing a shift, away from ideas of facilitating individual transformation or change over time, in favour of more short-term concerns with system performance: Instead of social norms like the elimination of crime, reintegration into the community, or public safety, institutions begin to measure their own outputs as indicators of performance. Thus, courts may look at docket flow. Similarly, parole agencies may shift evaluations of performance to,

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say, the time elapsed between arrests and due process hearings. (Feeley & Simon, 1992: 456)

Imperatives towards speed and efficiency and their impacts on criminal justice systems, and on those who work within them, have been explored in a range of studies. Most of this research has focused on case processing at the earlier stages of the criminal justice system where there has been a most emphasis on speed, i.e. in relation to police activity, prosecutorial decision-making and court processing (see for example: Mack & Roach Anleu, 2007; Myhill & Bradford, 2012; Robinson, 2018; Welsh & Howard, 2018). However, it is notable that while attention has been paid towards acceleration and speed in the earlier stages of the criminal justice process, serving a propelling logic, the temporal dimensions of the administration of punishment have received much less attention. An exception however is Nellis’s (2002) paper ‘Community Justice, Time and the New National Probation Service’, which drew on the sociology of time to develop a powerful critique of the construction of time in the probation context (see also: Davies, 2009). Central to Nellis’s analysis was the notion of ‘managerial time’: he described a gradual shift towards a dominant understanding of probation practice as an activity that can be broken into amounts of ‘clock-time’ required to achieve predetermined objectives. Drawing on Biesecker, Nellis argued that this top-down construction of time (in particular the value accorded to speed) was an expression of managerial power over both workers and those under their supervision which was at odds with the notion of individualised ‘process time’ (Davies, 1994) based on the perceived needs of the service user. It was also at odds with the well-established idea that meaningful change for offenders can be a slow and halting process and is unlikely to be successfully ‘choreographed’ via the administration of standardised packages of treatment in the form of Cognitive Behavioural Therapy programmes, which were becoming the orthodox intervention in the late 1990s and early 2000s, when Nellis was writing. Nellis suggested that the increasing orthodoxy of managerial time in the probation context was evidence of a decisive shift away from concern with care and towards control—a move inconsistent with emerging ideas

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about ‘community justice’, which Nellis saw as requiring “a more flexible, fluid and open-ended conception of time” (Nellis, 2002: 60).9 Nellis’s comments about community justice are echoed in subsequent research and scholarship on desistance from offending, and the development of a desistance paradigm for probation practice (e.g. McNeill, 2006, 2016; Weaver, 2019). The desistance paradigm has come to challenge orthodox contemporary ideas about rehabilitation which are exemplified in the ‘Risk-Need-Responsivity’ (RNR) model (Bonta & Andrews, 2007). The RNR model constructs rehabilitation as a process which begins with a professional assessment of risks and needs, proceeds to prescribe and deliver interventions designed to reduce those risks/needs and dispenses a transformed subject. We may think of this as a chrononormative understanding of how behavioural change occurs; one which privileges the intervention of a professional helper to produce change, but which is at odds with the temporal realities of desistance for many former offenders.10

Time and Histories of Punishment Time is invariably a consideration in accounts of crime, punishment and penal change, albeit amid some concerns that a great deal of criminological scholarship operates within what Rock (2005: 473) characterised as ‘temporal lacunae’. Writing in the mid-2000s and based on an analysis of citations of British criminologists, Rock (2005) decried the chronocentrism of contemporary criminological scholarship, observing the fact that patterns of citations tended to privilege the new over older scholarship. 9

See also Yuill & Mueller-Hirth (2019) on the contradictory temporalities of ‘paperwork time’ and ‘compassionate time’ in social work practice. 10 In the analogous field of social work, there has been some consideration of the time orientation of social work practice. This literature has explored the ‘Kantian imperative’ of social work, i.e. ‘that people can become more than they currently are, that their lives hold the possibility of being improved and transformed’ (Yuill & Mueller-Hirth, 2019: 1533). This has led to a characterisation of social work as ‘future work’ (Fahlgren, 2009), i.e. work that is predicated on the desire for a more desirable future, and/or the attainment of more desirable states of being: “This time orientation involves an understanding of time that is linear and progressive, envisioning a binary transition, for service users, from being damaged and incomplete to becoming repaired and complete functioning members of society” (Yuill & Mueller-Hirth, 2019: 1533).

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Notwithstanding Rock’s (2005) general observations, some of the foundational literature on crime and punishment includes a specific focus on the temporality of punishment both in terms of histories and trajectories of crime control over time as well as the extent to which changing conceptions of time have been integral to the emergence of different forms of punishment. In one of the earliest works exploring the links between punishment and political economy, Rusche and Kirchheimer (1939) observe that the change towards the quantum of deprivation of liberty as a form of punishment is made possible by the transformation in economic structures, whereby human labour comes to be measured in time: …for it to be possible for the idea to emerge that one could make recompense for an offence with a piece of abstract freedom determined in advance, it was necessary for all concrete forms of social wealth to be reduced to the most abstract and simple form, to human labour measured in time. (Rusche & Kirchheimer, 1939, 1968: 181)

Other work in this vein explores the links between industrialisation and the rise of the prison (e.g. Ignatieff, 1978). Melossi and Pavarini (1977/1981) for instance draw very explicit links between the development of capitalist accumulation and forms of punishment in The Prison and the Factory. Alongside their argument that one of the functions of the prison is to deal with the problem of excess labour, a topic also mined by Simon (1993) in his study of history of parole in California, they also note how the temporal order of the factory inflects the working of the prison. In Discipline and Punish, Foucault (1977) also identifies such temporal ordering as one of the key disciplinary features of the contemporary carceral system. Foucault’s ‘history of the present’ approach involving archaeological and genealogical methods deployed in Discipline and Punish also draws our attention towards a different temporal register. Garland’s trilogy on crime and punishment (1985, 1990, 2001) further adopts the ‘history of the present’ method to chart the changing nature of penal policies and practices over time in the Anglo-American sphere and an

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increased (perhaps resurgent) interest in histories of crime and punishment is evident in recent scholarship (Churchill, 2019; Churchill et al., 2022; Guiney, 2020; Yeomans et al., 2020).11 Wider scholarship in criminology, particularly in the sociological vein, still draws on work concerned with explaining significant social change in the context of industrialisation in the late nineteenth and early twentieth centuries (Marx, Weber and Durkheim) (Yeomans et al., 2020). Analyses of contemporary histories of punishment and penal policy demonstrate the contingency between agency and social structures (Guiney, 2020). For example, a recent body of work demonstrates the legacy of the Thatcherite ‘New Right’ economic and social policies implemented in the 1980s on subsequent elevated crime rates in the late 1980s and early 1990s (Farrall & Hay, 2014). Farrall et al. (2017) use the concept of social and economic ‘storms’ to convey the immediate effects of profound economic and social change and to model these effects over time. Drawing on Durkheim’s anomie theory, and its later application in the work of Merton (1938) and Agnew (1985), this body of work has noted the links between significant economic and social change and rises in crime rates, specifically property crime (Farrall et al., 2016a; Jennings et al., 2012), as well as the eventual ramifications on the politics of law and order (Farrall et al., 2016b). Debates about the reach of historical enquiry, including the extent to which certain periods can be considered distinct units of analyses (Churchill, 2019; Hay & Farrall, 2011), or whether criminological scholars integrate historical methods and perspectives sufficiently, are lively sources of discussion (Bosworth, 2001; Loader & Sparks, 2004; Yeomans et al., 2020). Drawing on the motif of the pendulum, itself a signifier of time, Goodman and colleagues are critical of reductive analyses that view changes as swings back and forth between different poles:

11

In a recent volume on ‘Historical Criminology’, Churchill and colleagues outline an approach which “grounds historical criminology in a certain conception of historical time” (2022: 6). They elaborate to identify five specific qualities of ‘historical time’: (1) as a Time of Change; (2) as an ‘eventful’ time; (3) as a ‘time of flow’; (4) as a ‘tensed time’ and (5) as an ‘embodied time’.

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The historical record, however, shows that claims of radical regime change (or swinging) are misleading and blind us to the blending of penal orientations, policies, and practices, as well as the struggle between actors within and beyond the penal filed that limits wholesale transformations in regimes. (Goodman et al., 2017: 2)12

Goodman et al. (2015, 2017) propose a break with the pendulum metaphor, favouring a more ‘agonistic perspective’, which aims both to integrate macro-level theorisations with case-level empirical analyses, and to thereby provide a more nuanced explanatory framework for penal change. The ‘agonistic’ element of their account refers to the ongoing contestations between different actors in the penal field. They argue that consensus (as portrayed in grand narratives, such as the ‘collapse of the rehabilitative ideal’), is illusory and that enduring struggle “periodically escalates to seismic events and long-term shifts in penal orientations” (Goodman et al., 2015: 315). While the image of the pendulum is too reductive, their analysis suggests the need both for different metaphors and scales for temporal analysis.13 In pointing to particular texts it is worth noting important sites of contestation, including in relation to methods, conclusions and a tendency to over-generalise from the specificities of particular geographical regions to a wider sphere. We could also raise “sociology of knowledge-type questions” (Loader & Sparks, 2004: 8) as to why specific works become influential, and which areas dominate scholarship; we have for example earlier noted the tendency of the prison to dominate the penal imaginary and considerations of temporalities in punishment. Further still, Franko Aas’s (2012), reminder that ‘the world is not one’ points to the myopic geographical purview within much extant criminological scholarship, and the extent to which many historical accounts privilege particular geo-political spaces, actors and identities. 12

This ‘blinding effect’ echoes Armstrong’s (2018: 134) observation about the blinding effects of the dominance of the iconography of the cell: “The cellular mode of ‘seeing’ prison thereby ignores many other prison waiters – inmates who come and go, staff and visitors – and blinds us to seeing the range of ways prison can harm and help those within them”. 13 Rubin (2017: 192) has also argued for the need for a longer historical view that takes into account the layering and ‘prehistory’ of penal innovation—“the ideational period in which an idea is created at the margins of criminal justice before manifesting on a wider scale”.

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We would also add particular temporalities. Recent work exploring the links between penal power and colonial rule (e.g. Brown, 2014, 2017) and the legacies of post-coloniality (e.g. Brangan, 2020), and work on Southern Criminology, which has sought to disrupt the hegemonic epistemology of the Global North (e.g. Carrington et al., 2019) opens up the potential for the wider critical considerations of temporality—not least a recognition that “time is a fundamental dimension of all thought…but also that ideas ebb and flow in time” (Ganguly, 2006: 162).

Structure of the Book The contributions to this volume have been organised to reflect the structure of this introduction, such that they follow the sequence of the domains we have outlined above. Firstly, in Chapter 2, Morgenstern addresses time as structuring logic in her discussion of contemporary forms of potentially endless imprisonment: the life sentence and preventive detention. Drawing on Norbert Elias’s work on the ‘civilisation’ of punishment, and concepts of human rights and human dignity, Morgenstern argues that time limits are—or should be—an essential element of modern civilised punishment. Morgenstern’s argument is a particularly important one in light of the swell of support for preventive strategies in many jurisdictions in Europe and beyond, where endless incapacitation appeals as the ultimate antidote to the risks posed by so-called ‘dangerous’ populations. Chapters 3 and 4 both deal with the carceral experience, each considering the passage of time under extreme conditions. In the first of these, in an adapted chapter from his book Prisoners, Solitude and Time, O’Donnell discusses the experiences of people subject to extended periods in solitary confinement. Drawing upon published accounts of prolonged isolation, O’Donnell seeks to discern the strategies, or ‘styles of time work’, that individuals develop to cope with this extreme experience, and in particular the burden on time as yet unserved. He suggests that, in order to alleviate the pains associated with extended periods of time in isolation, individuals adopt an orientation that focuses on the present, and to speed the passage of time they devise ways of introducing

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routine complexity to their daily lives: they learn to pass, do, make, fill and kill time as well as to wait. In Chapter 4, Gormley, Reilly and Casey introduce us to the recent phenomenon of ‘lockdown’ in prison during a global pandemic. Drawing on original empirical research with prisoners in Scotland, they consider how individuals experienced dramatic changes to institutional regimes which were designed to prevent the spread of Covid-19. While experiences of ‘pandemic time’ varied, for the majority the experience of being confined to a cell for 23.5 h per day exacerbated the everyday pains of imprisonment and interrupted many of the strategies they were accustomed to using to manage time in detention. Drawing upon Scott’s (2018) sociological work on nothing , they develop the concept of ‘hollow time’ to describe the burden experienced by prisoners during lockdown, and the attendant feeling that they did not matter. Chapter 5 takes us into the domain of time and space in punishment. In this chapter, Svensson and Knutagård introduce us to the routine but overlooked practice of transporting prisoners between establishments in the Swedish penal estate. Every day, they explain, the equivalent of the population of one prison is ‘on the move’. Focusing on the perspectives of the transport staff, they develop Henri Lefebvre’s concepts of perceivedconceived-lived space to analyse the experience of ‘time in motion’ for those who drive and escort prisoners between locations in a territory spanning many hundreds of miles. Svensson and Knutagård offer a rare insight into how the transport staff and those they escort ‘do time together’ on the move. The next pair of chapters consider the experience of time for prisoners as they plan for their return to the community. In Chapter 6, Beyens, Breuls and Gilbert explore the ‘reintegration paradox’ which confronts prisoners in Belgium (and other jurisdictions) who must choose between ‘maxing out’ their sentence or negotiating a cumbersome early release procedure in the absence of effective support. Drawing on interviews with individuals with lived experience of these processes, they explore the dilemma faced by those eligible for early release, in a context where limited temporal agency strongly militates against the active, future-oriented approach required to successfully prepare for ‘re-entry’. Chapter 7, by McNeill, Crockett Thomas, Cathcart Frödén, Collinson

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Scott, Escobar and Urie, uses original data from an arts-based project in Scotland to explore the experience(s) of ‘coming home’ and anticipating that transition from incarceration to the community. They identify three particular temporal challenges faced by people preparing for release, which relate to the ‘de-synchrony’ between time inside and outside prison, the demonstration of ‘readiness’ for progression and release, and a perception of ‘enduring temporariness’ that pervades their experience. The process of ‘reintegration’, thus, involves travel through time(s) as well as through space. These two chapters fall within the domains of both the carceral experience and doing time beyond the prison. In Chapters 8 and 9, our attention turns to the work of probation services in the criminal courts, in two jurisdictions where time and penal practice interact very differently. In the first of these, Robinson considers the impact of moves towards ‘speedy justice’ in the English and Welsh magistrates’ courts on the experience of probation workers in specialist court teams. Drawing on ethnographic fieldwork, the chapter centres on the particular ways in which the probation workers were adapting their practices (including the central activity of preparing pre-sentence reports) to synchronise with the court’s timetable, with its focus on the speedy disposal of cases. Robinson demonstrates how the values of speed and efficiency impacted on the production and format of reports, as well as how the spatio-temporal embeddedness of the probation teams in the magistrates’ courts shaped the working lives of the probation workers. Chapter 9 takes us to the neighbouring jurisdiction of Ireland, where Carr and Maguire consider the particular Irish practice of adjourned probation supervision, which often follows on from a court’s request for a pre-sentence report. Using concepts from the work of Mariana Valverde, they characterise the court’s request for a pre-sentence report as a ‘hinge’ between the jurisdictions of ‘court time’ and ‘social work time’, enabling ‘time out’ from the typically fast pace of criminal court processing. Adjourned supervision, they demonstrate, can be understood as a ‘chronotype’; a particular form of constructive delay designed to facilitate progression towards desistance, and the exercise of a particular form of power over the individual in the space between the finding of guilt and sentencing.

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Conclusion The various contributions to this edited collection cover a range of countries and use different methods and approaches to explore the temporal dimensions of punishment. These include analysis of legal judgements, analysis of biographies of prisoners, ethnographic studies, interviews and documentary analysis as well as creative methods such as songwriting. These diverse approaches surface insights about temporal logics, experiences and practices of punishment. The chapters also draw on different theoretical strands including foundational scholars who have explored time and social theory such as Barbara Adam as well as theorists who have explored dimensions of temporality in their work. As with any edited collection the coverage of topics is necessarily partial. There are many other areas in the wide (and expanding) field of the sociology of punishment that could be considered through a temporal lens. The increased focus on technological forms of punishment and control is one of the most obvious areas. Increased technological capabilities used to track people across time and space extend the carceral net and facilitate ways in which people can be spatially and temporally governed that extend well beyond Bentham’s panopticon imaginary. The increased emphasis placed on ‘technological’ innovations in punishment has also been informed by developments in Artificial Intelligence (AI), which are often accompanied by claims to increase efficiency and reduce administrative burdens. Some even promise to eliminate the fallacy of human bias in decision-making through algorithmic functions; although such claims regarding reduced bias have been routinely debunked (Harcourt, 2007; Ugwudike, 2022). Nonetheless, it is evident that wider societal changes regarding the use of technology, a phenomenon Rosa (2014) has linked to experiences of ‘alienation and acceleration’, will inevitably also have profound impacts on the administration and experience of criminal punishment, including its temporal dimensions. This emphasis on accelerated change has also been brought sharply into focus by the COVID-19 global pandemic. Requirements to work from home (for those able to do so), and the range of limits and constraints that were placed on people’s lives can be viewed as a form of

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‘hysteresis’ (Graham, 2020), understood in Bourdeusian (2000) terms, as a disruption between field and habitus. Shifts in temporal orderings are evident in changing ways of working within the criminal justice system, and the introduction of ‘Exceptional Delivery Models’. For instance, probation services in many countries moved to remote modes of supervision and the suspension of certain activities such as unpaid work (Carr, 2021). In many countries, (and as Gormley and colleagues’ chapter in this edition documents), prisons also imposed even more restrictions on prisoners’ lives, including significantly reduced time out of cells and limiting family visits (Dunkel et al., 2022). While during the most intense phases of ‘lockdowns’ there may have been a sense of ‘we are all in this together’, as public health restrictions continue to be lifted more widely, many prisons remain in a state of stasis with continued restrictions, increasing the temporal dissonance between prison and the outside world (Dunkel et al., 2022). Elsewhere in the criminal justice system significant backlogs in courts have led to measures to address this, through for instance the introduction of special sittings and increased use of remote hearings (Baldwin et al., 2020). The temporal dimensions of these responses, and the extent to which ‘emergency’ measures introduced in a time of crisis revert to becoming the norm merit further attention. The contributions to this book are from a small number of European countries and while they convey a diversity of approaches and differences in practice and experiences, even among ostensibly similar jurisdictions, the reach of coverage is necessarily limited. There are many other areas and aspects of criminal justice that would benefit from analysis. We hope that this book and the contributions herein stimulate further consideration of the temporal dimensions of punishment.

References Aas, K. F. (2012). The Earth is one but the world is not’: Criminological theory and its geopolitical divisions. Theoretical Criminology, 16 (1), 5–20. Adam, B. (1990). Time and social theory. Polity Press.

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Agnew, R. (1985). A revised strain theory of delinquency. Social Forces, 64, 151–167. American Friends Service Committee. (1971). Struggle for justice. Hill & Wang. Armstrong, S. (2014). Response 1: Rethinking the time of punishment: A response to Valverde. Criminology and Criminal Justice, 14 (4), 392–398. Armstrong, S. (2018). The cell and the corridor: Imprisonment as waiting, and waiting as mobile. Time and Society, 27 (2), 133–154. Armstrong, S., & Weaver, E. (2013). Persistent punishment: User views of short prison sentences. Howard Journal, 52, 3. Ashworth, A., & Zedner, L. (2014). Preventive justice. Oxford University Press. Baldwin, J. M., Eassey, J. M., & Brooke, E. J. (2020). Court operations during the COVID-19 pandemic. American Journal of Criminal Justice, 45, 743– 758. Beccaria, C. (1986 [1764]). On crimes and punishments. Macmillan. Bhatia, M., & Canning, V. (2021). Stealing time: Migration, temporalities and state violence. Palgrave. Bonta, J., & Andrews, D. A. (2007) Risk-need-responsivity model for offender assessment and rehabilitation. Public Safety Canada. Bosworth, M. (2001). The past as a foreign country? Some methodological implications of doing historical criminology. British Journal of Criminology, 41(3), 431–442. Bourdieu, P. (2000). Pascalian meditations. Stanford University Press. Brangan, L. (2020). Exceptional states: The political geography of comparative penology. Punishment & Society, 22(5), 596–616. Brown, M. (2014). Penal power and colonial rule. Routledge. Brown, M. (2017). Postcolonial penality: Liberty and repression in the shadow of independence, India c. 1947. Theoretical Criminology, 21(2), 186–208. Carr, N. (2021). Probation in a pandemic. Probation Journal, 68(1), 3–7. Carrington, K., Dixon, B., Fonesca, D., Rodriguez Goyes, D., LIU, J., & Zysman, D. (2019). Criminologies of the global south: Critical reflections. Critical Criminology, 27 , 163–189. Churchill, D. (2019). History, periodization and the character of contemporary crime control. Criminology and Criminal Justice, 19, 475–492. Churchill, D., Yeomans, H., & Channing, I. (2022). Historical criminology. Routledge. Clemmer, D. (1958/1940). The prison community (2nd ed.). Holt, Rinehart and Winston. Cohen, S., & Taylor, L. (1972). Psychological survival: The experience of longterm imprisonment. Penguin Books.

1 Time and Punishment: An Introduction

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Comfort, M. (2008). Doing time together: Love and family in the shadow of the prison. University of Chicago Press. Cope, N. (2003). It’s no time or high time”: Young offenders’ experiences of time and drug use in prison. Howard Journal, 42(2), 158–175. Crawford, A. (2015). Temporality in restorative justice: On time, timing and time-consciousness. Theoretical Criminology, 19 (4), 470–490. Crawley, E. (2004) Doing prison work: The public and private lives of prison officers. Willan. Crewe, B., Hulley, S., & Wright, S. (2020) Life imprisonment from young adulthood: Adaptation, identity and time. Palgrave MacMillan. Dagan, N. (2022). Overcoming penal boundaries: Exploring the evolution of retributive time through parole decision-making. British Journal of Criminology, 62(1), 37–54. Davies, K. (1994). Time tensions in care work. Time and Society, 3(3), 277– 303. Davies, K. (2009). Time and the probation practitioner. British Journal of Community Justice, 7 (3), 47–59. Deleuze, G. (1992). Postscript on control societies. October, 59 (Winter), 3–7. DeMichele & Payne. (2017). Taking officer time seriously: A study of the daily activities of probation officers. Probation Journal, 65 (1), 39–60. Dunkel, F., Harrendorf, S., & van Zyl Smit, D. (Eds.). (2022). The impact of Covid-19 on prison conditions and penal policy. Routledge. Durnescu, I. (2011). Pains of probation: Effective practice and human rights. International Journal of Offender Therapy and Comparative Criminology, 55 (4), 530–545. Durnescu, I., Enengl, C., & Grafl, C. (2013). Experiencing supervision. In F. McNeill & K. Beyens (Eds.), Offender supervision in Europe. Palgrave Macmillan. Eife, E., & Kirk, G. (2021). “And you will wait …”: Carceral transportation in electronic monitoring as part of the punishment process. Punishment & Society, 23(1), 69–87. Fahlgren, S. (2009). Discourse analysis of a childcare drama: Or the interfaces between paradoxical discourses of time in the context of social work. Time and Society, 18(2–3), 208–230. Farrall, S., Burke, N., & Hay, C. (2016b). Revisiting margaret thatcher’s law and order agenda: The slow burning-fuse of punitiveness. British Politics, 11(2), 205–231. Farrall, S., Gray, E., Jennings, W., & Hay, C. (2016a). Thatcherite ideology, housing tenure, and crime: The socio-spatial consequences of the right to

28

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buy for domestic property crime. British Journal of Criminology, 56 , 1235– 1252. Farrall, S., & Hay, C. (Eds.). (2014). The legacy of thatcherism: Exploring and theorising the long-term consequences of thatcherite social and economic policies. Oxford University Press. Farrall, S., Jennings, W., Gray, E., & Hay, C. (2017). Thatcherism, crime and the legacy of the social and economic ‘storms’ of the 1980s. The Howard Journal, 56 (2), 220–243. Feeley, M., & Simon, J. (1992). New penology: Notes on the emerging strategy of corrections and its implications. Criminology, 30 (4), 449–474. Fitzgibbon, W., Graebsch, C., & McNeill, F. (2017). Pervasive punishment: Experiencing supervision. In M. Brown & E. Carrabine (Eds.), Routledge handbook of visual criminology. Routledge. Follis, L. (2015). Power in motion: Tracking time, space, and movement in the British Penal Estate. Environment and Planning D: Society and Space, 33(5), 945–962. Foucault, M. (1977). Discipline and punish. Allen Lane. Gacek, J. (2019). Stuck in the carceral web: Prisoners’ experiences of electronic monitoring. Criminological Encounters, 2(1), 35–52. Gainey, R. R., & Payne, B. K. (2000). Understanding the experience of house arrest with electronic monitoring: An analysis of quantitative and qualitative data. International Journal of Offender Therapy and Comparative Criminology, 44 (1), 84–96. Ganguly, K. (2006). Temporality and postcolonial critique. In N. Lazarus (Ed.), The Cambridge companion to postcolonial literary studies (pp. 162–180). Garland, D. (1985) Punishment and welfare: A history of penal strategies. Gower. Garland, D. (1990). Punishment and modern society: A study in social theory. University of Chicago Press. Garland, D. (2001). The culture of control: Crime and social order in contemporary society. Oxford University Press. Gashi, L., Pedersen, W., & Ugelvik, T. (2021). The pains of detainment: Experience of time and coping strategies at immigration detention centres. Theoretical Criminology, 25 (1), 88–106. Goodman, P., Page, J., & Phelps, M. (2015). The long struggle: An agonistic perspective on penal development. Theoretical Criminology, 19 (3), 315–355. Goodman, P., Page, J., & Phelps, M. (2017). Breaking the pendulum: The long struggle over criminal justice. Oxford University Press. Graham, H. (2020). Hysteresis and the sociological perspective in a time of crisis. Acta Sociologica, 63(4), 450–452.

1 Time and Punishment: An Introduction

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Guiney, T. (2020). Excavating the archive: Reflections on a historical criminology of government, penal policy and criminal justice change. Criminology and Criminal Justice, 20 (1), 76–92. Harcourt, B. (2007). Against prediction: Profiling, policing and punishing in an actuarial age. University of Chicago Press. Harvey, D. (1990). The conditions of postmodernity: An enquiry into the conditions of social change. Blackwell. Hassard, J. (1990). Introduction. In J. Hassard (Ed.), The sociology of time. Macmillan. Hay, C., & Farrall, S. (2011). Establishing the ontological status of thatcherism by gauging its ‘periodisability’: Towards a ‘cascade theory’ of public policy radicalism. The British Journal of Politics and International Relations, 13, 439–458. Hayes, D. (2015). The impact of supervision on the pains of community penalties in England and Wales: An exploratory study. European Journal of Probation, 7 (2), 85–102. Hayes, D. (2018). Experiencing penal supervision: A literature review. Probation Journal, 65 (4), 378–393. Ignatieff, M. (1978). A just measure of pain. Macmillan. Jardine, C. (2017). Constructing and maintaining family in the context of imprisonment. British Journal of Criminology, 58(1), 114–131. Jennings, W., Farrall, S., & Bevan, S. (2012). The economy, crime and time: An analysis of recorded property crime in England and Wales 1961–2006. International Journal of Law, Crime and Justice, 40 (3), 192–210. Jewkes, Y. (2005). Men behind bars: “Doing” masculinity as an adaptation to imprisonment. Men and Masculinities, 8(1), 44–63. Jewkes, Y., & Laws, B. (2021). Liminality revisited: Mapping the emotional adaptations of women in carceral space. Punishment and Society, 23(3), 394– 412. Kotova, A. (2019). ‘Time…lost time’: Exploring how partners of long-term prisoners experience the temporal pains of imprisonment. Time & Society, 28(2), 478–498. Laursen, J., Mjåland, K., & Crewe, B. (2020). ‘It’s like a sentence before the sentence’—Exploring the pains and possibilities of waiting for imprisonment. British Journal of Criminology, 60 (2), 363–381. Lewis, J. D., & Weigert, A. J. (1981). The structures and meanings of socialtime. In J. Hassard (Ed.), The sociological study of time (pp. 77–101). Palgrave Macmillan.

30

N. Carr and G. Robinson

Loader, I., & Sparks, R. (2004). For an historical sociology of crime and policy in England and Wales since 1968. Critical Review of International Social and Political Philosophy, 7 (2), 5–32. Mack, K., & Roach Anleu, S. (2007). ‘Getting through the list’: Judgecraft and legitimacy in the lower courts. Social & Legal Studies, 16 (3), 341–361. Mann, N. (2012). Doing harder time? The experiences of an ageing male prison population in England and Wales. Ashgate. Matthews, R. (2009). Doing time: An introduction to the sociology of imprisonment. Palgrave Macmillan. McNeill, F. (2006). A desistance paradigm for offender management. Criminology and Criminal Justice, 6 (1), 39–62. McNeill, F. (2016). The fuel in the tank or the hole in the boat? Can sanctions support desistance. In J. Shapland, S. Farrall, & A. Bottoms (Eds.), Global perspectives on desistance: Rethinking what we know and looking to the future. Routledge. Martel, J. (2006). To be, one has to be somewhere: Spatio-temporality in prison segretation. British Journal of Criminology, 46 (4), 587–612. Marti, I. (2017). Doing (with) time: Dealing with indefinite incarceration in Switzerland. Tsantsa, 22, 68–77. Medlicott, D. (1999). Surviving in the time machine: Suicidal prisoners and the pains of prison time. Time & Society, 8(2), 211–230. Melossi, D., & Pavarini, M. (1977/1981). The prison and the factory: Origins of the penitentiary system. The Macmillan Press. Merton, R. K. (1938). Social structure and anomie. American Sociological Review, 3(5), 672–682. Middlemiss, K. M., & Smiley, C. (2016). Doing a bid: The construction of time as punishment. The Prison Journal, 96 (6), 783–813. Miles, A. P. (1969). Time studies in probation and parole. Crime and Delinquency, 15, 259–266. Minson, S. (2019). Direct harms and social consequences: An analysis of the impact of maternal imprisonment on dependent children in England and Wales. Criminology and Criminal Justice, 19 (5), 519–536. Moran, D. (2012a). “Doing time” in carceral space: Timespace in carceral geography. Geografiska Annaler: Series B, Human Geography, 94 (4), 305–316. Moran, D. (2012b). Prisoner reintegration and the stigma of prison time inscribed on the body. Punishment and Society, 14 (5), 564–583. Moran, D., Hutton, M., Dixon, L., & Disney, T. (2017). ‘Daddy is a difficult word for me to hear’: Carceral geographies of parenting and the prison visiting experience. Children’s Geographies, 15 (1), 107–121.

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31

Myhill, A., & Bradford, B. (2012). Can police enhance public confidence by improving quality of service? Results from two surveys in England and Wales. Policing and Society, 22(4), 397–425. Nellis, M. (2002). Community justice, time and the new national probation service. Howard Journal, 41(1), 59–86. O’Donnell, I. (2014). Prisoners, solitude and time. Clarendon Press. O’Malley, P. (2013). Monetized justice: Money and punishment in consumer societies. In J. Simon & R. Sparks (Eds.), The Sage handbook of punishment and society. Sage. Pratt, T., & Turanovic, J. (2018). Celerity and deterrence. In D. Nagin, F. Cullen, & C. Jonson (Eds.), Deterrence, choice and crime volume 23: contemporary perspectives. Routledge. Roberts, J. V. (2004). The virtual prison: Community custody and the evolution of imprisonment. Cambridge University Press. Roberts, J. V. (2019). The time of punishment. In M. Tonry (Ed.), Of oneeyed and toothless miscreants: Making the punishment fit the crime? Oxford University Press. Robinson, G. (2018). ‘Delivering McJustice?’ The probation factory at the Magistrates’ court. Criminology and Criminal Justice, 19 (5), 605–621. Rock, P. (2005). Chronocentrism and British criminology. British Journal of Sociology, 56 (3), 473–479. Rokkan, T., Phillips, J., Poldena, S., & Kensey, A. (2015). How was your day? Exploring a day in the life of probation workers across Europe using practice diaries. European Journal of Probation, 7 (3), 201–217. Rosa, H. (2014). Alienation and acceleration: Towards a critical theory of latemodern temporality. NSU Press. Rosenberg, R. (2017). When temporal orbits collide: Embodied trans temporalities in U.S. prisons. Somatechnics, 7 (1), 74–94. Rotman, E. (1990). Beyond punishment: A new view of the rehabilitation of offenders. Greenwood Press. Rubin, A. (2017). The prehistory of innovation: A longer view of penal change. Punishment and Society, 20 (2), 192–216. Rusche, G., & Kirchheimer, O. (1939/1968). Punishment and social structure. Russell and Russell. Schinkel, M. (2015). Hook for change or shaky peg? Imprisonment, narratives and desistance. European Journal of Probation, 7 (1), 5–20. Scott, S. (2018). A sociology of nothing: Understanding the unmarked. Sociology, 52(1), 3–19.

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Sexton, L. (2015). Penal subjectivities: Developing a framework for penal consciousness. Punishment and Society, 17 (1), 114–136. Skinns, L., & Wooff, A. (2020). Pain in police detention: A critical point in the ‘penal painscape’? Policing and Society. https://doi.org/10.1080/10439463. 2019.1706506 Simon, J. (1993). Poor discipline: Parole and the social control of the underclass 1890–1990. University of Chicago Press. Sparks, R., Bottoms, A. E., & Hay, W. (1996). Prisons and the problem of order. Clarendon Press. Sykes, G. M. (1958). The society of captives: A study of a maximum security prison. Princeton University Press. Turnbull, S. (2016). ‘Stuck in the middle’: Waiting and uncertainty in immigration detention. Time & Society, 25 (1), 61–79. Ugelvik, T. (2014). Power and resistance in prison: Doing time, doing freedom. Palgrave. Ugwudike, P. (2022). Predictive algorithims in justice systems and the limits of tech-reformism. International Journal for Crime, Justice and Social Democracy, 11(1), 85–99. Valverde, M. (2014). Studying the governance of crime and security: Space, time and jurisdiction. Criminology and Criminal Justice, 14 (4), 379–391. van Zyl Smit, D., & Appleton, C. (2016). Life imprisonment and human rights. Hart Publishing. Vanhaelemeesch, D., Vander Beken, T., & Vandevelde, S. (2014). Punishment at home: Offenders’ experiences with electronic monitoring. European Journal of Criminology, 11(3), 273–287. Wahidin, A. (2002). Reconfiguring older bodies in the prison time machine. Journal of Aging and Identity, 7 (3), 177–193. Wahidin, A. (2006). Time and the prison experience. Sociological Research Online, 11, 1. Wahidin, A., & Tate, S. (2005). Prison (e)scapes and body tropes: Older women in the prison time machine. Body and Society, 11(2), 59–79. Weaver, B. (2019). Understanding desistance: A critical review of theories of desistance. Psychology, Crime and Law, 25 (6), 641–658. Weaver, B., & Armstrong, S. (2011) User views of punishment. SCCJR report 03/2011. Welsh, L., & Howard, M. (2018). Standardization and the production of justice in summary criminal courts: A post-human analysis. Social and Legal Studies, 28(6), 774–793.

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Westaby, C., Phillips, J., & Fowler, A. (2016). Spillover and work–family conflict in probation practice: Managing the boundary between work and home life. European Journal of Probation, 8(3), 113–127. Yeomans, H., Churchill, D., & Channing, D. (2020). Conversations in a crowded room: An assessment of the contribution of historical research to criminology. The Howard Journal, 59 (3), 243–260. Young, J. (2007). The vertigo of late modernity. Sage. Yuill, C., & Muller-Hirth, N. (2019). Paperwork, compassion and temporal conflicts in British social work. Time & Society, 28(4), 1532–1551. Zedner, L. (2004). Criminal justice. Oxford University Press. Zerubavel, E. (1979). Private-time and public-time. In J. Hassard (Ed.), The sociology of time. Macmillan.

2 Time, Civilisation and Ultimate Penalities Christine Morgenstern

Introduction In ‘An Essay on Time’ (1994), Norbert Elias tries to find an answer to the question ‘what is time?’ from the perspective of a social philosopher: ‘… the word “time” is a symbol of a relationship that human beings who are equipped with the capacity for memory and synthesis establish between two or more continua of changes, using one as a frame of reference or standard of measurement for the other or others’ (Elias, 1994: 12). More generally, ‘[…] time is precisely that: a means of orientation’ (Elias, 1994: 2).1 In his essay, he identifies a ‘methodical, disciplined temporal habitus’

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Quoted from the German edition, author’s translation into English.

C. Morgenstern (B) Freie Universität Berlin, Berlin, Germany e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1_2

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(Tabonni, 2001: 5) as a significant element of individual self-control in a civilised society. Elias (]) links this understanding of time to his theory of civilisation, in which he describes the creation of the modern state with the monopoly of legitimate physical violence. Here, he shows how the development of modern sensibilities led to more individual self-control and internalised restraints and to equal restraints for state punishment that followed suit (Elias, 1997 [1939]: 330 ff.) Modern criminology has interpreted these ideas as a quest for an ongoing process of developing more differentiated and milder—more civilised—systems of punishment (Garland, 1990: 220, Pratt, 2016). Both aspects in Elias’ work can be combined as the starting point for this chapter: managing time for the individual and penal moderation for the modern state are understood as achievements of civilisation. The chapter will deal with punishment that is not measured in exact temporal units and which does not or may not have an end: lifelong imprisonment. All forms of life sentences are by nature both indefinite and at the outset endless. Often, this kind of sentence is referred to as an ‘extreme’ (Klimczak & Niełaczna, 2020; Nellis, 2021) or ‘ultimate’ penalty (van Zyl Smit, 1999: 5; Dubber & Hörnle, 2014: 40; van Zyl Smit & Appleton, 2019: 320). Under this label it was discussed by Shakolsky Sheleff (1987). Besides capital punishment, he considers life imprisonment and physical torture to be ‘ultimate penalties’ because the latter two can serve as alternatives to the death penalty. He argues (referring to the 1970s and the U.S.) that the movement to abolish the death sentence has not seriously confronted the problems of life sentences as the widely accepted alternative. While his suggestions on how to find a way out of the dilemma, including letting prisoners choose between a life sentence and an execution, are highly problematic (McCall Smith, 1988), he is one of the scholars who has pointed out that life imprisonment inflicts pain that may even exceed the suffering in capital punishment because of its prolonged nature. This is an argument which had already been made by Cesare Beccaria who speaks of prisoners for life as individuals ‘reduced’ to a ‘dreary and pitiable state’ (Beccaria, 1966

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[orig. 1764]).2 Beccaria therefore sees it as a harsher penalty than the death penalty, even better suited to deter people from crime. Beccaria— in the eighteenth century, trying to convince his contemporaries to turn away from the death penalty—saw this harshness as an advantage over the death penalty. ‘Endless punishment’ in this chapter refers first and foremost to life imprisonment in various guises. Life sentences as punishment exist in two main forms—either as ‘true life’ or ‘whole life’ sentences in which parole is not foreseen and the convict must serve until the end of his or her life, or as life sentences where parole is possible or even probable. The latter are indefinite sentences of their own kind when release on parole after a certain guilt-related term (or tariff) depends on the assessment that a person is no longer dangerous. Besides life imprisonment, another type of potentially lifelong detention can be found in the criminal justice systems of many states, as post-conviction, or post-sentence preventive detention. It is normally dependent on the dangerousness of convicted persons and potentially lasts until their death. In their landmark book ‘Life Imprisonment: A Global Human Rights Analysis’, Van Zyl Smit and Appleton (2019: 70) call these sanctions ‘informal life sentences’. All these forms of endless detention can leave those affected in a state of precariousness and hopelessness. For them, the passage of time is nothing to count on—it is either irrelevant because a sentence is given for the remainder of a person’s life, or its termination is hard to foresee and to influence. This is not to say that the need for time limits does not apply to other sentences, namely extended supervision orders in the community, or to so-called collateral consequences like criminal records, entry bans or other citizenship-related measures. However, the combined loss of personal liberty and freedom, the pains of imprisonment and the lack of time restriction add up to ‘unique pains of life imprisonment’ (Van Zyl Smit & Appleton, 2019: 207). My chapter could therefore be safely located in this book’s section on ‘time and penal practice’— nevertheless it is precisely the overarching theme of ‘time as a structuring logic’ that is important here: time limits are essential for modern civilised punishment. 2

Quoted from the German edition (Beccaria, 1966: 43), author’s translation into English.

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To demonstrate this, I will first explore how time plays a role in legal and penal theory, what penology and criminology have to say about the pains of endless imprisonment and what this means for human rights and human dignity. I will do so from my academic background as a German socio-legal scholar who works comparatively. The theoretical framework is then applied in two case studies tracing contemporary forms of endless punishment—i.e., life sentences and preventive detention—in Europe. The last part of the chapter discusses alternatives: is it better to have a system that consists only of fixed-term sentences, avoiding the insecurity of timelessness but increasing the risk of applying very long sentences?

Limits of Punishment: Studying the Role of Time Legal and Penal Theory The idea that time restricts and measures legal action and tames state power is prevalent in legal and penal theory. Points of time and definite terms are markers of legal certainty. Legal certainty (Rechtssicherheit ) is acknowledged by modern civil and common law systems as a foundational rule of law value (Fenwick & Wrbka, 2016; Radbruch, 2011 [1932]) and generally entails that the law must be sufficiently clear. It must equip those subject to legal norms with the means to regulate their own conduct; they must know what is expected from them and what the consequences of their behaviour may be. As such, legal certainty has played a vital role in determining the space of individual freedom and the scope of state power and grasp. Several elements are acknowledged, among them predictability of state action by way of formulating clear, definite, accessible laws and decisions, and the prohibition or at least strong limitation of retroactive laws. The latter is an example of the time-relatedness of the principle and is specifically applied in criminal law (Article 7 European Convention of Human Rights [ECHR]): a given point of time decides whether a law can be applied against a person because it prohibits the imposition of ex post facto laws. Another time-sensitive example in this context is the ne

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bis in idem or double jeopardy principle (to be found in many jurisdictions, for example Article 103 (3) of the German Constitution, Article 50 of the Charter of Fundamental Rights of the European Union; in the United Kingdom it is spelled out in Connelly v DPP [1964] AC 1254 and Criminal Justice Act 2003, ss 75–79, Double Jeopardy (Scotland) Act 2011). It prohibits, in principle, retrials when a person has been tried and convicted already. In most cases, it also prohibits a retrial following an acquittal (Chalmers & Leverick, 2011; Lindemann & Lienau, 2020). For the state this means: it’s over when it’s over, there is no second ‘time’. Similarly, the state is not endlessly allowed to enforce its laws and to prosecute in a criminal case: when a certain period of time, defined as the statute of limitations, expires in a criminal case, the courts no longer have jurisdiction. While England and Wales have few rules governing limitations in that sense (Wilson et al., 2020), other jurisdictions provide for a comprehensive system. In Germany, for example, the statute of limitation for most offences is five to ten years. The more serious the crime, the longer the statute—for murder it was abolished altogether in 1969. The justifications for this restriction of the state’s ability to bring a person to justice are interesting in the context of this chapter: even if the understanding of time differs between social or cultural groups and may depend on the specific social activity (MacCormick, 1995), we often find the notion of the ‘power of time’ (Asholt, 2016: 102). It is argued that this power can extinguish the offending quality of a crime because its memory fades away, or that the power of time can extinguish the inner bond between offender and offence: in short, that it obliterates the pertinence of specific wrongdoing (Asholt, 2016). If time can do this, further state action is not required and therefore would be arbitrary. Time therefore constitutes a sense-giving dimension in legal theory and serves as a structuring element to translate legal certainty into practice and to restrict state power. This is even more evident in penal theory: whenever retributive elements are incorporated in penal doctrine, some form of measurement needs to be included, too. The harm done, or the amount of wrongdoing must be represented in the amount of punishment (Carr & Robinson, this volume). Even if a plainly retributive theory of punishment is rejected in modern systems because it disregards the past and

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future of the offender’s behaviour, it is acknowledged that a retributive approach to punishment has inherent limits and therefore also sets limits to the penal power of the state (Roxin & Greco, 2020; Von Hirsch & Ashworth, 2005; Zedner, 2004). The quantification of punishment in time units is the method of choice in systems worldwide, in particular for more serious crimes that are punished by periods of time in prison. Constitutional or human rights-related theories of punishment equally rely on concepts that mete out punishment as proportionate reaction, but with the important addition that generally criminal punishment must be the ultima ratio of state reactions (Roxin & Greco, 2020; Van Kempen, 2019). This, in turn, paves the way to add consequentialist or purpose-related aspects: punishment as ultima ratio means that a sanction may only be applied if milder means do not promise sufficient success (success in this case being both justice done and prevention of further wrongdoing by the offender). Usually, the scale-oriented approaches are interpreted in a way that very serious crimes may legitimately be punished very seriously. In their logic, ultimate crimes may legitimately be punished with ultimate sentences. Retributive theory never struggled to justify life sentences (replacing the death penalty) as adequate for the most heinous crimes (Dubber & Hörnle, 2014, Melissaris, 2014, Van Zyl Smit & Appleton, 2019). The scalability of punishment in time units here seems to reach its limit. It has been left to other, namely rehabilitation- or desistance-oriented theoretical approaches and to human rights theory (see below) to include other aspects to limit the use of life sentences for serious crimes. This, however, requires that all these approaches acknowledge that time limits apply.

Penology and Criminology The meaning of time for those affected has been researched extensively by penologists in studies on the effects of long-term imprisonment (for example Liebling [2011]; Crewe [2011]; Dudeck et al. [2011]; and more recently, Crewe [2020]; Marti [2021]; Wright et al., 2022; Van Zyl Smit & Appleton [2019] provide an overview for life imprisonment). Scholars have tried to assess the harms done by extended periods of detention.

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From the point of view of long-term prisoners, tight control by others, high levels of security concerns, the constant threat of risk assessments, low levels of trust in the prison system and/or prison staff contribute to the pains of imprisonment. Feelings of uncertainty and hopelessness aggravate these pains. Particularly alarming are findings that seem to confirm the idea that life imprisonment, at least in forms that exclude parole or make it very unlikely, equals a death penalty in instalments: particularly when this form of imprisonment is combined with solitary confinement, prisoners may lose their will to live and self-harm and suicide rates are high (Haney, 2003; O’Donnell, 2014). In Italy, hundreds of prisoners requested to reintroduce the death penalty instead of the life sentences they were serving, because they were ‘tired of dying a little bit every day’,3 and a similar initiative was started in France (Vannier, 2016). Another concerning and well-established finding is that those prisoners who are imprisoned indefinitely often try to make themselves immune to the aggravated pains by cutting their bonds to families and the outside world or even avoiding going to the courtyard of the prison because there they would see too much of the outside world (Liem et al. [2016] in a Dutch, Marti [2021] in a Swiss study, O’Donnell, this volume). Against this background it is not surprising that scholars from early on (for example Liepmann, 1912; see also Van Zyl Smit & Appleton, 2019) suspected that not only the death penalty but also life imprisonment may destroy a person. Whether this is the case is not answered in a uniform way and empirical findings are ambiguous (Van Zyl Smit & Appleton, 2019). There seems to be growing consensus that it depends on various circumstances, namely the conditions of imprisonment, the prison climate, gender (Einsele, 1972; Jewkes & Laws, 2021; Nellis, 2021) and the individual prisoner’s resilience and capacity to adapt (for example Rasch, 1981, O’Donnell 2014 Liebling et al., 2019). The damaging effects seem to be even more likely when an indeterminate, potentially life-long sentence is served (Einsele, 1972; Mauer et al., 2004; Toch, 1995; Van Zyl Smit & Appleton, 2019).

3

http://news.bbc.co.uk/2/hi/europe/6707865.stm (accessed 7 January 2021).

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Criminological research offers additional insights into the practice of life sentences, the development of their use and how criminal policy deals with them. Comparative approaches have shown that the recourse to life sentences worldwide has increased rather than the opposite, with few exceptions (for an overview, see Van Zyl Smit & Appleton, 2019; Penal Reform International & Thailand Institute of Justice, 2021). In Europe, the number of states that abstain from including life sentences in their sentencing systems has shrunk in the last decade: almost all succession states of the former Yugoslavia that traditionally rejected life sentences have now introduced them—Serbia being the most recent, in 2019 adding not only the possibility of life imprisonment (instead of a maximum sentence of 40 years) to its system, but a life sentence without the possibility of parole (Turanjanin, 2021). In the same way as in Spain, where reducible life sentences were reintroduced in 2015 after they had been abolished in 1928, public pressure and receptive politicians have proven to be stronger than traditions (Miró-Llinares & Gómez-Bellvís, 2021; Turanjanin, 2021). Where life sentences are available, they are used variably, depending for example on the offences for which life sentences are available. Both the number of persons receiving life sentences and the number of lifers in prisons are increasing in many criminal justice systems (Van Zyl Smit & Appleton, 2019; Penal Reform International & Thailand Institute of Justice, 2021). In Europe, this is particularly visible in England and Wales (Appleton & Van Zyl Smit, 2016), but also—on a quantitatively lower level—in Poland (Klimczak & Niełaczna, 2020), Italy or the Netherlands (Van Hattum & Mejer, 2016).4 The reluctance to use life imprisonment where it has been newly introduced (Van Zyl Smit & Appleton 2019 reported no cases for Spain and Slovenia until 2016), seems to have vanished, as the Spanish example shows: as of October 2021, 28 people have been sentenced to ‘prisión permanente revisable’, a revisable life sentence. In Slovenia, however, even 13 years after it was

4

Data available from the Council of Europe’s Annual Penal Statistics, see https://wp.unil.ch/ space/space-i/annual-reports/ (accessed 10 January 2022).

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introduced, it has still been used only once (Filipˇciˇc, 2019).5 In both states, attempts to abolish life sentences again have failed. Findings on the growing use of life imprisonment in the form of life imprisonment and indeterminate imprisonment conform to general observations on criminal justice systems in an age of prevention (Ashworth & Zedner, 2014; Garland, 2001). Drawing on examples like the (now abolished) sentence of Imprisonment for Public Protection in England and Wales (Ashworth & Zedner, 2014; Jacobson & Hough, 2010) or preventive detention and post-sentence supervision in Germany (Morgenstern, 2018), criminal justice systems are described as risk-averse, investing in preventive infrastructure and basing their decision-making increasingly on the notion of dangerousness. Growing recourse to indeterminate sentences gives rise to the assumption that for many modern criminal justice systems the role of time limits and legal certainty is less relevant than the possibility to permanently incapacitate the dangerous.

Human Rights—Human Dignity Human Rights provisions all over the world prohibit torture and “cruel, inhuman or degrading treatment or punishment”, as in Article 5 of the Universal Declaration of Human Rights or “inhuman or degrading treatment or punishment” as in the wording of Article 3 of the European Convention on Human Rights (ECHR). In the ambit of the Council of Europe, of which 47 European States are members and for which the Convention is binding law, the European Court of Human Rights (ECtHR) has ruled that degrading treatment is that which ‘humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’ (for example Price v. The United Kingdom, no. 33394/96, §§ 24–30 and Valašinas v. Lithuania, no. 44558/98, § 117). It is important to note that 5

A first conviction for a triple murder was handed out in December 2021, https://sloven iatimes.com/triple-murderer-sentenced-to-life-in-prison/, 6 December 2021 (accessed (January 2022).

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this definition entails not only esteem by others but also self-esteem. The question here is in how far endless punishment may violate Article 3. It is acknowledged that a violation of Article 3 ECHR requires a minimum level of severity. Apart from this quantitative threshold, the ECtHR has held that ‘the suffering and humiliation involved must […] go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element’ (for example, Kudła v. Poland [Grand Chamber, GC], no. 30210/96, §§ 92–94). Although, in principle, Article 3 ECHR is stated in absolute and unqualified terms, this creates room for interpretation and proportionality considerations. In the rich jurisprudence of the court, the court nevertheless reminds states that they ‘must ensure that a person is detained under conditions which are compatible with respect for his human dignity … [not] exceeding the unavoidable level of suffering inherent in detention’ (for example, Kafkaris v. Cyprus, no. 21906/04, § 96). Starting with decisions in the late 1990s, meanwhile, a large corpus of jurisprudence exists to clarify how high levels of overcrowding, small and dilapidated cells, insufficient hygiene, lack of healthcare or not enough out-of-cell time may, particularly when these conditions cumulate, constitute inhuman and degrading treatment in the sense of Article 3 (Van Zyl Smit & Snacken, 2009). For sentencing itself it is acknowledged that a ‘grossly disproportionate’ punishment could lead to a violation of Article 3 ECHR, but no such cases have been found by the Court so far. This concept, however, helped the court to conclude that only those life sentences that are reducible and provide ‘both a prospect of release and a possibility of review’ are compatible with Article 3, as the Grand Chamber of the Court stated in its landmark judgement on whole life sentences in 2013 (Vinter and others v. The United Kindom [GC], no. 66069/09, 130/10 and 3896/10, § 110). The Court provided four lines of argument. Firstly, reviews are necessary to see how far the initial reasons given for the penal objectives of the punishment in a given case are still valid, as the dynamics of individual and social developments change—‘the primary justification for detention at the start of the sentence may not be [the same] after a lengthy period into the service of the sentence. It is only

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by carrying out a review of the justification for continued detention at an appropriate point in the sentence that these factors or shifts can be properly evaluated’ (ibid., § 111). The second argument has penological and legal-theoretical undertones. Without prospect of release there is no chance for the prisoner to ever ‘atone for his offence: whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence’. Even if at the time of conviction, the sentencing decision was justified by legitimate aims of punishment, the court adds that ‘with the passage of time it becomes […] a poor guarantee of just and proportionate punishment”. Indeed, a prisoner without the chance of being released eventually will not be motivated to deal with his or her behaviour and crime if nothing follows from these undertakings (ibid., § 112). The third argument links the prospect of release to the concept of human dignity. While none of the articles of the ECHR explicitly mentions human dignity, a synopsis of all provisions in the Convention shows that its ‘very essence […] is respect for human dignity’ (for example Pretty v. the United Kingdom, no. 2346/02, § 65). Referring to a decision by the German Federal Constitutional Court (see below III. 1), the Grand Chamber argues that it would be incompatible with the concept of human dignity to endlessly detain a person without the chance to someday regain freedom. Equally, the chance of rehabilitation is ‘required in any community that established human dignity as its centrepiece’. This argument is valid independently of the crime committed and release only for those who are ‘infirm or close to death’ is not sufficient (Vinter and others v. The United Kingdom [GC], no. 66069/09, 130/10 and 3896/10, § 113). Finally, a fourth argument refers to a growing consensus ‘in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved’. While retribution remains ‘one of the aims of imprisonment, the emphasis in European penal policy is now on the rehabilitative aim of imprisonment, particularly towards the end of a long prison sentence’ (ibid, §§ 114, 115). The

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Chamber underlines this argument with examples of domestic practices as well as European legal instruments such as the European Prison Rules. It rounds it up by quoting Article 10 § 3 of the International Covenant on Civil and Political Rights, binding more than 170 states worldwide, that acknowledges reformation and social rehabilitation of prisoners as an essential aim of the penitentiary system (ibid., § 117). The Chamber concludes that ‘in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him […] to be considered for release’ (ibid., § 122). This means that all prison sentences, including life sentences, must be reducible. Referring to domestic practices in Europe and international law, the court indicated that the minimum term before said review—and with it the possibility of being released—must not be longer than 25 years to be a meaningful tool. It pointed out that in many European states this period is significantly shorter, typically 15–18 years (ibid., § 68 and 118, see also Van Zyl Smit & Appleton 2019). Additionally, the review must be undertaken by an independent and impartial body, usually a court (see, for example, T. v. the United Kingdom [GC], no. 24724/94, § 121). The decision in Vinter—followed by others referring to life sentences (for example László Magyar v. Hungary, no. 73593/10, and Murray v. The Netherlands, no. 10511/10)—was widely embraced and influential (Morgenstern, 2014, Van Zyl Smit & Appleton, 2019). These decisions led, for example, to an intensified debate in the Netherlands. Even if life sentences are relatively rare, until recently they were executed until the end without further procedural provisions, unless a prisoner was pardoned by royal decree (which is even rarer, see Van Hattum & Mejer, 2016). Since 2017, in reaction to the decisions of the ECtHR, there is an independent review after 25 years.6 In Estonia, life sentences are reducible, but since 2019 the minimum period to be served before becoming eligible for parole has been reduced from 30 to 25 years (Aebi & Tiago, 2021). The decisions were also relevant for judicial cooperation because according to the ECtHR, Article 3 also prohibits 6

https://www.rechtspraak.nl/Themas/Levenslang (accessed 2 January 2022).

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extradition to states where irreducible life sentences lurk (Graham, 2020; Morgenstern, 2021). The court’s jurisprudence was, however, also met with scepticism or outright rejection. The Hungarian practice, for example, still has not changed, although the country was convicted by the ECtHR twice in this matter (László Magyar v. Hungary, no. 73593/10 and T.P. and A.T. v. HUNGARY, nos. 37871/14 and 73,986/14; Novoszádek, 2018). Notwithstanding the judgement, the overall practice regarding life sentences became and continues to become harsher in many states: even where parole is possible, the chances are slim for lifers in an increasingly punitive climate—this is reported for example for France (Vannier, 2016) and Poland (Klimczak & Niełaczna, 2020). Critics argue that the decisions by the ECtHR are not implemented in substance—giving prisoners real prospects and hope—but in a way that mainly considers the procedural requirements (Appleton & Van Zyl Smit 2016 for the United Kingdom). This reflects wider concerns about the proceduralisation of human rights in the context of punishment (Snacken, 2015; Armstrong, 2018; Van Zyl Smit & Morgenstern, 2020). It can be said, however, that the decisions also led to a renewed interest in questions about the compatibility of life sentences with human dignity. This leads back to the issue of time and human dignity. While human dignity remains a contested concept, it has been discussed widely in the context of punishment in recent years (for example Snacken, 2015). In these discussions, we typically find attempts to determine human dignity based on possible violations as discussed in the case-law of the ECtHR: cramped conditions are inhuman, not providing sanitation or basic health care is inhuman treatment, etc. While this often refers to basic needs, it is acknowledged that human dignity entails far more than that. In the German legal debate, respect for human dignity is characterised as respecting autonomy and refraining from treating a human being as a mere object or tool of the state; ‘each person must always be an end in himself ’ (for example BVerfGE 45, 187 at 227). Much of this debate remains abstract, but the discussion of life imprisonment and its compatibility with human dignity has added some substance: explicitly or implicitly human—and humane—existence is connected to possibilities of personal development over time. Alfred

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Adler as the founder of the school of individual psychology identified the striving for a personal goal as essential for a human being’s inner life and individuality (Adler ). Striving for such personal development behind bars without prospects to ever lead a life outside prison is deemed all but impossible; penological research as mentioned above has confirmed this assumption and has informed the human rights debate. Consequently, it seems self-evident to many that endless imprisonment is inhumane. Below I outline three examples to illustrate this. First, as early as 1884, the Portuguese parliament agreed that, in the words of the then Minister of Justice, life sentences ‘can be written off our national legislation without inconvenience’ (Sampaio e Mello, quoted in Horta Pinto, 2016: 292). He considered life imprisonment to be the imperative to ‘abandon hope all ye who enter here’ (ibid, referring to Dante Alighieri’s Divine Comedy in its part on the inferno). The abolition of life imprisonment was agreed because it was considered ‘unfair as punishment, excessive as a means of intimidation and opposed to the man’s moral nature to which the improvement of evil tendencies and the regeneration of spirits, even the most perverted ones, are always presumptively possible’ (ibid). The rejection of this kind of imprisonment was so strong that it found its place later in the Portuguese Constitutions, including the current Constitution of 1976. It states, drawing on the concept of social reintegration, in Article 30 (1) that ‘punishment that involves deprivation or restriction of liberty may not be for life, nor be of unlimited or indeterminate duration’. According to Article 41 of the Portuguese Penal Code, no prison sentence may last longer than 25 years. Second, in an English case, judges had to decide upon the extradition of a person likely to be convicted to a whole life order. While the judges dismissed the appeal, they were very critical of the sentence itself: it was stated that the ‘supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip service to the value of life; not to vouchsafe it’ (Lord Justice Laws in the High Court [2007] EWHC 1109 (Admin)). Third, in a concurring vote to the Vinter decision by the ECtHR, one of the judges felt obliged to stress that ‘Article 3 encompasses what might

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be described as “the right to hope”. It goes no further than that. The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. … To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading’ (Vinter and others v. The United Kingdom [GC], no. 66069/09, 130/10 and 3896/10, Concurring Opinion of Judge Power-Forde). Time plays an important role in all these arguments because it is essential for development, autonomy and hope: a prisoner profits from the passage of time because it reduces the amount of time he or she must still serve, enables development and brings him or her closer to freedom. Planning for the future, however, requires autonomy and a certain degree of control, including control over time. To achieve this, time must be measurable, even if in large quantities. Respect for human dignity therefore requires a clear temporal orientation for prisoners.

Endless Punishment? Two Case Studies Germany In the literature and European jurisprudence, Germany is often presented as forerunner of a life sentence regime that is compatible with human rights principles (Van Zyl Smit, 1999, Morgenstern, 2014, ECtHR in Vinter and others v. The United Kingdom [GC], no. 66069/09, 130/10 and 3896/10, §§ 69). The Federal Constitutional Court (FCC) in its famous life sentence case of 1977 (BVerfGE 45, 187) drew on Article 1 of the German Constitution, guaranteeing the respect of each individual’s human dignity. In applying the ‘object formula’ already mentioned above, the FCC found that the State could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth. The only constitutional way of enforcing a sentence of life imprisonment therefore is where the

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prisoner is given ‘a concrete and realistically reachable chance’ to regain his freedom eventually (BVerfGE 45, 187 at 227, my translation). The popularity of this decision among penological scholars also stems from the fact that the FCC connected this argument to the prisoner’s constitutional right to (a chance of ) social rehabilitation (Morgenstern, 2015), adding that the state was constitutionally obliged to strive towards the re-socialisation of all prisoners, including lifers. It further stipulated that only a judicial procedure for release decisions could guarantee these rights properly. As we have seen, Portugal has—starting from the same assumptions— outlawed life imprisonment in its current and earlier constitutions, making ‘the prohibition of life sentences part of the Portuguese constitutional tradition’ (Horta Pinto, 2016: 293). The FCC, however, did not want to go as far. It recognised that, for an offender who remains a threat to society, the goal of rehabilitation might never be fulfilled; in that case, the personal circumstances may rule out successful rehabilitation rather than the sentence of life imprisonment itself. The court concluded that life imprisonment for murder was not a senseless or disproportionate punishment when it was regulated and enforced as outlined. The legislator implemented the judgement: a life sentence is the most serious punishment available; it is mandatory for murder. Release on licence for lifers is possible after 15 years unless the court finds a particularly high level of culpability (often for multiple murders or particularly cruel killings). In these cases, release is only possible after an additional period of imprisonment and a specific additional court procedure (see Dessecker, 2016 for a full account). In all cases, release depends on an assessment of eligibility—those who are still deemed dangerous to the public will not be released. In practice, the numbers of life sentences handed out per year in Germany have been relatively stable for a long time. They are between 70 (in 1981) and 137 (in 2010); in 2019 the number was 119 (Morgenstern, 2021). The number of prisoners serving a sentence of life imprisonment increased steadily between 1990 and 2011 but it has been in decline since then. In March 2020, 1,899 out of approximately 46,000 prisoners were lifers. The time spent in prison can only be determined for those who have left the prison—because they were released, because they

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were pardoned for compassionate grounds, because they were expelled or because they died. Taking 2020 as an example, we can see that the majority of prisoners left the prison because they were released on licence (68 out of 119). Typically, they had spent 15–20 years in prison (the median for 2002–2020 was 17 years), with the largest group being released after 15 years. In 2020, 26 lifers—more than 20%-died in prison, five of them by suicide. Apart from the group of foreigners that will be expelled, often around or even before the 15 years threshold, a group remains that leaves prison only after very long periods of incarceration time—the longest-serving person in 2020 was released after 44 years (all data obtained from Dessecker & Rausch, 2021). Release after 15 years therefore is typical, but by no means the rule, as the public and media in Germany often assume (and decry as too lenient). All these findings are, again, relatively stable over the years. They show that despite the constitutional restraints the German tradition is to make use of life sentences—perhaps not excessively, but consistently. They also show that for many prisoners it is hardly foreseeable when they will be released, and if at all. Calls to abolish life sentences in favour of a 25-year maximum sentence are rare (Höffler & Kaspar, 2015) and currently not on the political agenda. What is more—life sentences as punishment are not the only form of life imprisonment: Germany is one of the European states that has a ‘dual track’-system for criminal sanctions. They differentiate between punishments that relate to the offender’s culpability and ‘measures’ that relate to future dangerousness. Sometimes, these measures are considered to be forms of punishment as well; sometimes—as in Germany—they are considered to be something different: ‘measures of correction and prevention’ (literally ‘betterment and security’). This legal distinction which is dear to the German legal system is particularly difficult to explain in the case of the measure of preventive detention (Dessecker, 2016, Drenkhahn et al., 2012). It can be ordered to follow a long sentence for a serious crime for criminally responsible dangerous offenders, and normally is handed out at the same time as the initial sentence.7 7 It should be noted that the German criminal justice system also applies indeterminate deprivation of liberty for those dangerous offenders who are criminally not responsible, but they are held in psychiatric hospitals and are therefore not discussed here.

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Until recently, preventive detention was served in prisons, and it was said that after the initial sentence was fully served, some prisoners simply would have the doorplate changed from ‘prisoner’ to ‘detainee’. After interventions by the ECtHR and the German FCC, this regime has changed (Drenkhahn & Morgenstern, 2021) and they are detained in specialised institutions, usually separate wings of prisons, under a more therapeutic regime. After giving up a ten-year maximum duration for preventive detention in 1998, the German law now allows for indeterminate detention. Release, in principle, is possible and the aim of eventual social reintegration prevails. While in the early 1990s the number of detainees was in the single digit range, more than 500 persons are now held in preventive detention. Because of the measures being part of the criminal justice system as ‘informal life sentences’ (Van Zyl Smit & Appleton, 2019), they must be added to the number of lifers. Even if the annual number of orders has somewhat declined in recent years, the number of preventive detainees is constantly growing (Morgenstern, 2021). No release figures are available, but it can be assumed that the growing number of preventive detainees is due to a restricted release practice—for many of these detainees, imprisonment will be endless.

Norway Another European example often presented as exemplary is the Norwegian system. Although others have stated that this may be an idealisation (Ugelvik, 2016), Scandinavian penal cultures overall are still more liberal than others, including their stance on life sentences (for an overview see Lappi-Seppälä, 2016). Following the critique of indeterminate sanctions, Norway abolished the life sentence in 1981 (Lappi-Seppälä, 2016) and the maximum duration of a prison sentence was set to 21 years (Article 79 Norwegian PC) of which usually not more than 15 years are served. With an amendment of the Penal Code in 2015, the maximum was raised to 30 years for exceptional crimes like genocide. In practice, prison sentences are typically less than one year. But in January 2020, about 10% of all prisoners were serving a sentence of more than 10 years, of

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whom 14 prisoners were serving a sentence of 21 years (Aebi & Tiago, 2021). As in Germany, the Norwegian system additionally includes a sanction for those offenders who have committed serious crimes and are deemed dangerous. Norwegian preventive detention (forvaring ), however, is not treated as a separate category but as one type within the catalogue of criminal penalties. When a court deems imprisonment to be ‘insufficient to protect the life, health or freedom of other persons’, it can order forvaring instead of a prison sentence (Article 40 Norwegian PC; Article 39a in the old version). The liberal reform mentioned abolished life sentences because they were indeterminate but failed to include preventive detention. It seemed to be outmoded and was—as in Germany—rarely used in the late 1970s and 1980s (Lappi-Seppälä, 2016). Forvaring is usually restricted to 15 years, in exceptional cases to 21 years (and 30 years in the case of genocide), but it can be prolonged. The court initially must determine a minimum period to serve which may not exceed 10, in some cases 14 years, after which a judicial review must take place in case detention should continue. In these judicial reviews, an extension of a maximum of five years can be ordered. There is no limit to the repetition of this procedure, which means that forvaring can last forever. Preventive detainees are housed in high security prisons. Currently, 119 persons are serving forvaring and since 2002 (58 persons) there has been a steady upward trend (Lappi-Seppälä, 2016; Norwegian Prison Statistics, 2021).8 After the attacks of Oslo and Utøya in 2011, the perpetrator (under the old legal scheme) was sentenced to 21 years of forvaring. It is important to note that even in the discussions following the attack, a reintroduction of life sentences was rejected (Seierstad, 2016). Nevertheless, it is not expected that the perpetrator will have a chance to regain freedom any day soon, especially as he clearly identified himself as a neo-Nazi prone to violence in the first judicial review in September 2021.9 8

https://www.ssb.no/en/statbank/table/10531/tableViewLayout1/ (accessed 11 January 2022). https://www.sueddeutsche.de/panorama/terrorismus-hitlergruss-vor-gericht-breivik-verhan dlung-in-norwegen-dpa.urn-newsml-dpa-com-20090101-220118-99-747851 (accessed 11 January 2022). 9

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Conclusion Nearly all European states currently have some type of formal or informal life imprisonment as ultimate punishment. Croatia and Bosnia Herzegovina, which have not, have very long maximum penalties instead: 40 years and 45 years, respectively, which can be regarded extreme sentences as well. Portugal remains the only exception with the constitutional prohibition of all life and indeterminate sentences and measures and a maximum prison sentence of 25 years. This shows that the temporal dimension of punishment has not become more restricted over time, but the contrary. In addition, life expectancy is much higher today than when life sentences were introduced. In the English case quoted above, it was suggested that ‘[…] the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live’ (Lord Justice Laws in the High Court ([2007] EWHC 1109 (Admin)). This argument is strengthened by the fact that today a convict aged 25 years may serve 50 or 60 years, if no mechanisms are in place that allow for release. After release, potentially life-long supervisory measures are provided in many places that may result in a recall to prison. In sum, temporal limits of state power are weaker than they used to be in many jurisdictions. Hardly anyone affected by life sentences will have a realistic expectation of the time they will remain in prison when they start serving their sentence, and only some of them will develop a clear prospect in due course. This finding is independent from systems and penal aims behind the sentence, whether it be punishment or prevention, whether it is called a prison sentence or a measure of preventive detention. Hence, most of these lifers will be in prison for many years not knowing if they will ever be free again. This is aggravated, of course, for everyone who serves a whole life sentence, even if procedural safeguards exist that make release at least a remote possibility. Time, for these prisoners, is uncontrollable. Going back to Elias, this means that an important element of human orientation, rightly characterised as civil achievement and resource, is taken away by the state as part of the punishment. This loss of temporal control therefore is an inherent part of penal suffering, striking at the heart of human dignity.

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What is to be done? Have all the human rights deliberations been useless endeavours? There is good reason to argue that they have helped to achieve a certain penal moderation because they have identified life sentences as ‘ultimate’, ‘extreme’, exceptional; perhaps even abnormal. They have raised awareness that it is very difficult to justify them. On the other hand, the court decisions mentioned above have justified life sentences. The procedural safeguards now built into systems may help to control their overall use, but they often do not help in individual cases. It is also doubtful that we can count on restraint in their use in the future given the steady expansion indicated above. Indeterminate detention for preventive reasons, exemplified here with the German and Norwegian examples, is available nearly everywhere—either as part of a life sentence beyond a culpability-related tariff or as sanctions in their own right. The ‘preventive urge’ (Conninx, 2016, referring to Switzerland, similarly Vannier, 2016 for France) is strong. The abolition of life sentences bears the risk of introducing either very long maximum sentences and/or circumventing strategies, such as replacing life sentences with indeterminate detention orders outside the criminal justice system, for example placements in psychiatric institutions. Nevertheless, human temporal exigencies as part of the human dignity concept require that all life sentences should be abolished. According to Elias’s thinking, a system that is insensitive to these changing temporal dimensions of punishment shows no progress towards a more humane and more civilised criminal justice system. The Portuguese system should be followed—it is as simple as that. ‘Ultimate’ and ‘extreme’ suggest the outer limit: the harshest possible sentence for the most serious crimes. There is no reason why it could not be 25 years.

References Adler, A. (2007/1927). Menschenkenntnis, Jörg Ruedi (Ed.). Vandenhoeck & Ruprecht. Aebi, M. F., & Tiago, M. M. (2021). SPACE I - 2020 – Council of Europe Annual Penal Statistics: Prison populations. Council of Europe.

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Appleton, C., & Van Zyl Smit, D. (2016). The paradox of reform. Life imprisonment in England and Wales. In D. Van Zyl Smit & C. Appleton (Eds.), Life imprisonment and human rights, pp. 217–240. Hart Publishing. Armstrong, S. (2018). Securing prison through human rights: Unanticipated implications of rights-based penal governance. The Howard Journal of Crime and Justice, 57 (4), 401–421. Asholt, M. (2016). Verjährung im Strafrecht. Mohr Siebeck. Ashworth, A., & Zedner, L. (2014). Preventive justice. Oxford University Press. Beccaria, C. (1966/1764). Über Verbrechen und Strafen. Übersetzt und herausgegeben von Wilhelm Alff. Insel. Chalmers, J., & Leverick, F. (2011). When should a retrial be permitted after a conviction is quashed on appeal? The Modern Law Review, 74 (5), 721–749. Conninx, A. (2016). Life without parole for preventive reasons? Lifelong postsentence detention in Switzerland. In D. Van Zyl Smit & C. Appleton (Eds.), Life imprisonment and human rights, pp. 435–460. Hart Publishing. Crewe, B. (2011). Depth, weight, tightness: Revisiting the pains of imprisonment. Punishment & Society, 13(4), 509–529. Crewe, B., Hulley, S., & Wright, S. (2020). Life imprisonment from young adulthood. Palgrave. Dessecker, A (2016). Constitutional limits on life imprisonment. In D. Van Zyl Smit & C. Appleton (Eds.), Life imprisonment and human rights, pp. 411– 434. Hart Publishing. Dessecker, A., & Rausch, E. (2021). Die Vollstreckung lebenslanger Freiheitsstrafen. Dauer und Gründe der Beendigung im Jahr 2020. KrimZ, https://www.krimz.de/forschung/strafen/lebenslange.html (accessed 10 January 2022). Drenkhahn, K., Morgenstern, C., & Van Zyl Smit, D. (2012). What is in a name? Preventive detention in Germany in the shadow of European Human Rights Law. Criminal Law Review, 3, 167–187. Drenkhahn, K., & Morgenstern, C. (2021). Preventive detention in Germany and Europe. In A. Felthous & H. Sass (Eds.), The wiley international handbook on psychopathic disorders and the law (pp. 87–107). Wiley. Dubber, M., & Hörnle, T. (2014). Criminal law. A comparative approach. Oxford University Press. Dudeck, M., Drenkhahn, K., Spitzer, C., Barnow, S., Kopp, D., Kuwert, K., Freyberger, H., & Dünkel, F. (2011). Traumatisation and mental distress in long-term prisoners in Europe. Punishment & Society, 13(4), 403–423.

2 Time, Civilisation and Ultimate Penalities

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Einsele, H. (1972). Zur lebenslangen Freiheitsstrafe – Erfahrungen in einer Frauenstrafanstalt‘. In T. Würtenberger & H. Müller-Dietz (Eds.), Die Reform der lebenslangen Freiheitsstrafe (pp. 25–34). Enke. Elias, N. (1994). Über die Zeit. 5th ed. Suhrkamp. Elias, N. (1997/1939). Über den Prozess der Zivilisation. Zweiter Band Wandlungen der Gesellschaft. Entwurf zu einer Theorie der Zivilisation. Neuausgabe 1997. Suhrkamp. Fenwick, M., & Wrbka, S. (2016). The shifting meaning of legal certainty. In M. Fenwick & S. Wrbka (Eds.), Legal certainty in a contemporary context (pp. 1–6). Springer. Filipˇciˇc, K. (2019). Life Imprisonment in Slovenia. CRIMEN, 10 (3), 225–238. Garland, D. (1990). Punishment and modern society. Clarendon Press. Garland, D. (2001). The Culture of Control. Oxford: Oxford University Press. Graham, L. (2020). Extradition life sentences and the European convention. Judicial Review, 25 (3), 228–234. Höffler, K., & Kaspar, J. (2015). Plädoyer für die Abschaffung der lebenslangen Freiheitsstrafe. Goltdammer’s Archiv für Strafrecht, 162(8), 453–462. Horta Pinto, I. (2016). Punishment in Portuguese criminal law: A penal system without life imprisonment. In D. Van Zyl Smit & C. Appleton (Eds.), Life imprisonment and human rights, pp. 289–306. Hart Publishing. Haney, C. (2003). Mental health issues in long-term solitary and ‘Supermax confinement.’ Crime and Delinquency, 49 (2), 124–156. Jacobson, J., & Hough, M. (2010). Unjust deserts: imprisonment for public protection. Project Report. Prison Reform Trust. Jewkes, Y., & Laws, B. (2021). Liminality revisited: Mapping the emotional adaptations of women in carceral space. Punishment & Society, 23(3), 394– 412. Klimczak, J., & Niełaczna, M. (2020). Extreme criminal penalties: Death penalty and life imprisonment in the Polish penal and penitentiary system. Archiwum Kryminologii, 42(1), 225–252. Lappi-Seppälä, T. (2016). Life imprisonment and related institutions in the Nordic Countries. In D. Van Zyl Smit & C. Appleton (Eds.), Life imprisonment and human rights, pp. 461–505. London: Hart Publishing. Liebling, A. (2011). Moral performance, inhuman and degrading treatment and prison pains. Punishment & Society, 13(4), 530–550. Liebling, A., Laws, B., Lieber, E., Auty, K., Schmidt, B., Crewe, B., Gardom, J., Kant, D., & Morey, M. (2019). Are hope and possibility achievable in prison? Howard Journal of Crime and Justice, 58(1), 104–116.

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Liem, M., Kuijck, Y., & Raes, D. (2016). Detentiebeleving van (levens)langgestraften. Delikt En Delinkwent, 48(2), 10–22. Liepmann, M. (1912). Die Todesstrafe. Ein Gutachten. Verhandlungen des 31. Deutschen Juristentages. Guttentag. Lindemann, M., & Lienau, F. (2020). Mechanisms for correcting judicial errors in Germany. Erasmus Law Review, 13(4), http://www.erasmuslawreview.nl/ tijdschrift/ELR/2020/4/ELR-D-20-00024 MacCormick, N. (1995). Time, narratives, and law. In J. Bjarup & Blegvad, M (Eds.), Time, law, and society. Proceedings of a nordic symposium held May 1994 at Sandbjerg Gods, Denmark, pp. 111–125. ARSP-Beiheft Nr. 64. Steiner. Marti, I. (2021). Sensing freedom: Insights into long-term prisoners’ perceptions of the outside world. Incarceration, 2(2), 1–20. Mauer, M., King, R. S., & Young, M. (2004). The meaning of “life”: Long prison sentences in context. The Sentencing Project, https://www.sentencin gproject.org/publications/the-meaning-of-life-long-prison-sentences-in-con text/ (accessed 7 January 2022). McCall Smith, A. (1988). Book review: Ultimate penalties. Capital punishment, life imprisonment, physical torture by Leon Shaskolsky Sheleff. The International Lawyer, 22(3), 867–870. Melissaris, E. (2014). Theories of crime and punishment. In M. D. Dubber & T. Hörnle (Eds.), The Oxford handbook of criminal law (pp. 355–378). Oxford University Press. Miró-Llinares, F., & Gómez-Bellvís, A. (2021). Does public opinion matter for criminal law? Revisable life imprisonment in Spain and its relationship with social demands. In J. Becerra (Ed.), Criminal Law-Making (pp. 109–125). Springer. Morgenstern, C. (2014). Ein Recht auf Hoffnung aus Art. 3 EMRK: Lebenslange Freiheitsstrafen in Europa. Rechtswissenschaft, 5 (2), 153–188. Morgenstern C. (2015). „Der Resozialisierungsgrundsatz“– Social Reintegration as the dominant narrative for community punishment in Germany?. In G. Robinson, & F. McNeill (Eds.), Community Punishment. A European Perspective, pp. 72–94. Routledge. Morgenstern, C. (2018). Risiko - Prävention - Prognose: Im Zweifel Kontrolle. Das Beispiel der Führungsaufsicht, in: Strafverteidigervereinigungen (Hrsg.): Räume der Unfreiheit - Ergebnisband des 42. Strafverteidigertags in Münster, 2.-4. März 2018. Strafverteidigervereinigungen, pp. 171–202. Morgenstern, C. (2021). Die lebenslange Freiheitsstrafe: Klassische Probleme und aktuelle Befunde. Juristische Ausbildung, 43(2), 156–169.

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Nellis, A. (2021). In the extreme: Women serving life without parole and death sentences in the United States. The Sentencing Project, https://www. sentencingproject.org/publications/in-the-extreme-women-serving-life-wit hout-parole-and-death-sentences-in-the-united-states/ (accessed 7 January 2022). Novoszádek, N. (2018). Denying the right to hope – whole life sentence in Hungary. The European Implementation Network. https://www.ein network.org/ein-voices/2018/7/9/denying-the-right-to-hope-whole-life-sen tence-in-hungary (accessed 7 January 2022). O’Donnell, I. (2014). Prisoners, solitude, and time. OUP. Penal Reform International and Thailand Institute of Justice. (2021). Global Prison Trends 2021. London/The Hague: Penal Reform International, https://cdn.penalreform.org/wp-content/uploads/2021/05/Globalprison-trends-2021.pdf (accessed 8 January 2022). Pratt, J. (2016). Norbert Elias, the Civilizing Process, and Punishment. Oxford Handbooks Online. Subject: Criminology and Criminal Justice, Punishment Theories. Oxford University Press, https://www.oxfordhandbo oks.com/view/10.1093/oxfordhb/9780199935383.001.0001/oxfordhb-978 0199935383-e-139 Radbruch, G. (2011/1932). Rechtsphilosophie. Studienausgabe. 2nd ed. C.F: Müller. Rasch, W. (1981). The effects of indeterminate detention: A study of men sentenced to life imprisonment. International Journal of Law and Psychiatry, 4 (4), 417–431. Roxin, C., & Greco, L. (2020). Strafrecht. Allgemeiner Teil. Band 1: Grundlagen. Der Aufbau der Verbrechenslehre. 5th ed. C.H.Beck. Seierstad, A. (2016). Einer von uns. Kein und Aber. Shaskolsky Sheleff, L. (1987). Ultimate penalties. Capital punishment, life imprisonment, physical torture. The Ohio State University Press. Snacken, S. (2015). Human dignity and/or human rights for prisoners? Neue Kriminalpolitik, 27 (2), 181–189. Tabonni, E. (2001). The idea of social time in Norbert Elias. Time & Society, 10 (1), 5–27. Toch, H. (1995). The long-term inmate as a long-term problem. In T. J. Flanagan (Ed.), Long-Term Imprisonment (pp. 245–248). SAGE. Turanjanin, V. (2021). Life imprisonment without parole: The compatibility of Serbia’s approach with the European convention on human rights. Liverpool Law Review, 42(1), 243–274. https://doi.org/10.1007/s10991-020-09269-6

60

C. Morgenstern

Ugelvik, T. (2016). Prisons as welfare institutions? Punishment and the Nordic model. In J. Bennett, Y. Jewkes & B. Crewe (Eds.), Handbook on prisons. Routledge. Van Hattum, W., & Mejer, S. (2016). An administrative procedure for life prisoners: Law and practice of royal pardons in the Netherlands. In D. Van Zyl Smit, & C. Appleton (Eds.), Life imprisonment and human rights, pp. 141–165. Hart Publishing. Van Kempen, P. H. (2019). Criminal justice and the ultima ratio principle: Need for limitation, exploration and consideration. In P. H. Van Kempen & M. Jendly (Eds.), Overuse in the criminal justice system. On criminalization, prosecution and imprisonment, pp. 3–22. Intersentia. Vannier, M. (2016). A right to hope? Life imprisonment in France. In D. Van Zyl Smit & C. Appleton (Eds.), Life imprisonment and human rights, pp. 189–214. Hart Publishing. Van Zyl Smit, D. (1999). Life imprisonment as the ultimate penalty in international law: A human rights perspective. Criminal Law Forum, 9 (1), 5–54. Van Zyl Smit, D., & Appleton, C. (2019). Life imprisonment. A global Human Rights Analysis. Harvard University Press. Van Zyl Smit, D., & Morgenstern, C. (2020). Internationale Menschenrechte im Justizvollzug – Wo stehen wir im Jahr 2020?. In K. Drenkhahn, B. Geng, J. Grzywa, S. Harrendorf, C. Morgenstern & I. Pruin (Eds.), Kriminologie und Kriminalpolitik im Dienste der Menschenwürde: Festschrift für Frieder Dünkel zum 70. Geburtstag. Forum, pp. 861–931. Van Zyl Smit, D., & Snacken, S. (2009). Principles of European Prison Law and Policy - Penology and Human Rights. Oxford University Press. Von Hirsch, A., & Ashworth, A. (2005). Proportionate sentencing: Exploring the principles. Oxford University Press. Wilson, S., Rutherford, H., Storey, T., Wortley, N., & Kotecha, B. (2020). The English legal system (4th ed.). Oxford University Press. https://doi.org/10. 1093/he/9780198853800.001.0001 Wright, S., Hulley, S., & Crewe, B. (2022). Trajectories of hope/lessness among men and women in the late stage of a life sentence. Theoretical Criminology. https://doi.org/10.1177/13624806211067770 Zedner, L. (2004). Criminal justice. Oxford University Press.

3 Time and Solitary Confinement Ian O’Donnell

Introduction The passage of time can feel painful when we lose the wherewithal to impose our own stamp on it. Prisoners feel this pain sharply because they, more than most, have lost sovereignty over time. A prisoner’s relationship to time is sundered by his or her imprisonment. Time has been taken from them along with their freedom, but unlike liberty it can never be won back. It is no longer a resource that they decide how to deploy but a burden that they must learn how to discharge. Time is over-abundant. It must be frittered away in large quantities so that it does not become This chapter is a slightly abbreviated (and renamed) version of chapter 8 of Prisoners, Solitude, and Time published by Oxford University Press in 2014 as part of the Clarendon Studies in Criminology series. It is reproduced with permission of the Licensor through PLSclear.

I. O’Donnell (B) University College Dublin, Dublin, Ireland e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1_3

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excessively onerous. Despite its centrality to their lived experience, little is known about how prisoners negotiate time. When this critical aspect of the captive life is addressed, it is often either implicitly or superficially. It is surprising how many scholars appear to have been deaf—or indifferent—to the heroic efforts made by prisoners to effect mastery over an aspect of their lives that cannot be seen, tasted, touched, smelled or heard but that nevertheless bombards, and threatens to overwhelm, the senses. Solitary prisoners, with little to distract them, feel time’s passage all the more acutely. The experienced among them, who know what lies ahead in all of its suffocating bleakness, feel that they are being buried alive. This is hibernation, but without the accompanying revivification. It is a deep sleep, without the repair that usually follows. As Abbott (1981: 44– 45) put it: ‘Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you’. For Gomez (2006: 61), writing of life on the Marion control unit in Illinois, this was akin to existing in ‘a breathing coffin... a space of permanent living death’. Koestler (1942: 107) also drew on the image of the grave to describe his time in solitary confinement: ‘The cell was like a vault enclosed in threefold armour-plating; the three-fold wall of silence, loneliness and fear’. Piercing this armour-plating was an enormous challenge. The sense of being entombed dates back to the origins of the penitentiary. As Dickens (2000: 113) observed of the solitary prisoner in Philadelphia’s Eastern State Penitentiary: ‘He is a man buried alive; to be dug out in the slow round of years; and in the mean time dead to everything but torturing anxieties and horrible despair’. The pain of isolation is exacerbated by the burden of time and vice versa. The latter presses down more heavily on an individual who is otherwise unoccupied and temporal pressures build, unabated by many of the usual sources of distraction. Jackson (1983: 75) cited Richard Korn’s expert evidence in litigation taken by Canadian prisoners about their experiences of solitary confinement: ‘Prison time is almost palpable. It... has mass and weight. Too heavy a sentence can suffocate... [In solitary confinement] time stops and begins to crush and you have that suffocation, you have the tiny space, the relative inaction, and that crushing experience and then the mind begins to play its tricks to save

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itself ’. One of these ‘tricks’ is to drag one’s temporal focus to the present and to avoid the backward or forward glance.

Calling Time to Account It is discombobulating for prisoners to view time in linear terms, relentlessly advancing, as this only serves as a reminder that their own development has been frozen. Their lives have been put on hold; they cannot share in the futures of those they care about as they unfold, so forward thinking is best avoided. Meisenhelder (1985: 53) captured it well when he noted that, ‘the most significant aspect of the lived temporality of prison is its lack of a future’. Grey (1988: 136) described how he smoothed out the major fluctuations in mood that characterized the early months of his captivity: ‘I gradually learned to throw my hopes and expectations further forward so as to avoid the bitter disappointment of nothing happening over and over again’. Reflecting this temporal reorientation he lost interest in the past even to the extent of ceasing to read back through entries made in the diary he concealed from his guards. This disregard for past and future is typical. ‘The future is blank, there is no present, and the past is dead’ was Wilfred Macartney’s (1936: 37) lament after his appeal failed and he waited in London’s Wandsworth prison to be sent to Parkhurst on the Isle of Wight to begin his sentence. This indicates massive temporal dislocation which if not addressed will compromise successful adjustment and threaten psychological survival. Serving a 58-year sentence for possession of guns and explosives, Susan Rosenberg (2011: 200) was well aware of the dangers of retrospection: ‘I knew that unless I was actively engaged in the business of living, my past would become all-consuming’. But she also knew that adopting a forward perspective was likely to be counterproductive: ‘To live for the future made no sense to me, but to live in the present with ongoing meaning demanded that I effect change in myself ’ (p. 202). Temporal reorientation is not easy, but it is essential. As Rosenberg elaborated: ‘These lines of demarcation [i.e., knifing-off the past and future] functioned to limit my emotions of joy and agony, happiness and sadness’

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(p. 287). The highs and lows of euphoria and despair are sacrificed for the safety of monotony. Emotions are flattened when the amount of time spent alone is prolonged; this is life lived parenthetically. Based on an analysis of prisoner writings from the late nineteenth and early twentieth centuries Brown (2003: 31) argued that the relatively static nature of prison life, where each day unfolded like its predecessor, ‘resulted in a perception of the present which was considerably extended and which increased the burden of imprisonment’. She went on to observe that: ‘One repercussion of this was to increase the strain and frustration inherent in a long sentence and to increase the likelihood of prison disorder’ (p. 31). This analysis is moot. There is no disputing that prisoners live in an extended present, but it could be argued that this reduces the burden of imprisonment. Looking backwards to a non-prison past becomes increasingly difficult, even if it is still desired, as time spent in custody increases, and a forward orientation is fraught with anxiety as too many of the variables required for effective planning lie outside the prisoner’s direct control. For this reason the past becomes an undifferentiated prison past as time progresses, and the future is eschewed. Stretching the present and remaining within it is an important form of adaptation. Such a temporal orientation does not appear to increase the inherent stresses of a long sentence or to make disorder more likely. Indeed, the opposite seems to be the case, with prison life being most comfortable for the person who has managed to refocus his or her attention on the present and has found a way to allow the days to slip by, almost unnoticed. It is prisoners serving short sentences for whom temporal reorientation is not a priority, or those in the early or final stages of a long sentence where a focus on the past or future is unavoidable, whose equilibrium is most affected and for whom ‘strain and frustration’ are increased. The desire to avoid contemplating an uncertain future or drawing attention to the contrast between the bleakness of what is and the richness of what might have been means that the options for reflection are limited to the present or the past. If a prisoner is serving a long sentence the currency of the past is soon spent and this means either submitting to the despondency of retrospection or, the route more often taken,

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becoming immersed in the present. Even prisoners who are equipped with prodigiously well-stocked minds find that, with time, the furrows of their previous lives can no longer be ploughed with profit. The past cannot be relived, and the official version of it that has set the prisoner’s course is difficult to challenge. Neither can the future be contemplated without anxiety. As a result, much of the richness of human life, which involves re-narrating one’s past and re-imagining one’s future, is negated by imprisonment. At a fundamental level therefore, prisons will always be dehumanizing, no matter how good the physical conditions or the relationships between prisoners and staff, because they curtail the individual’s capacity to look ahead, to plan, to efface the marks of the past, to wonder, to project themselves into new futures. They become tied to an interpretation of their life based on their criminal character and rooted to an unpromising present. Molineux (1903: 24) captured this shift in temporal perspective when he wrote of his time in the hushed solitude of death row in New York’s Sing Sing, where guards and prisoners alike wore felt-soled shoes to muffle the sound of their movement, as a ‘sort of noiseless purgatory in which, as the months go by, past experiences, the hopes and fears and happinesses which were, grow fainter and fainter, till, like the future, they inspire us with nothing but indifference, leaving only the present to be endured’. Waite (1994: 297) came to realize the necessity of seeking refuge in the present during his time as a hostage in Lebanon: ‘It’s probably better not to worry too much about release. What I need to do is accept the moment for what it is’. Similarly, Ward and Kassebaum (2009: 296) described how in Alcatraz, ‘many prisoners developed a coping strategy that involved focusing on the here and now’. This involved cauterizing contacts with the outside world and redirecting their focus to the minutiae of prison life, where daily activities were imbued with new intensity. This attempt to live within a prison-present is a strategy that has long been favoured by canny prisoners. It becomes a more pressing consideration when the denial of human company is protracted. Schroeder (1976) describes the importance of shutting down the remnants of life outside in the interests of avoiding the distress associated with trying to live

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(emotionally) in two places at once. The sooner this is done, he argues, ‘the sooner your time eases into that long, mindless lope which makes a year only marginally longer than six months’ (p. 136). This ‘long, mindless lope’ is the preferred stride pattern of the prisoner serving a lengthy or indeterminate sentence who needs to be parsimonious about the expenditure of energy because there is a long road ahead. Timerman (1988) coped with confinement by deliberately avoiding any speculation about his fate, the safety of his family or the wider political context, and refusing to contemplate anything that might bring his real life to mind. He kept his gaze on the immediate context, recalling in his memoir that: ‘Memory is the chief enemy of the solitary tortured man’ (p. 36). By disconnecting himself from any consideration of the past or the likely turn of events in the future his task was reduced to manageable proportions. If he could direct all of his energy to the current moment he would be carried forward to the next one and so on and so forth. But a relentless focus on the present can be accompanied by a sense of time dragging. Time repays close attention by slowing down and speeds up if it is ignored. Thus, another ‘trick’ the solitary prisoner must master is that of speeding time’s passage. In his essay on the perception of time, William James (1890: 624; emphasis in original) observed with his usual limpidity of expression: In general, a time filled with varied and interesting experiences seems short in passing, but long as we look back. On the other hand, a tract of time empty of experiences seems long in passing, but in retrospect short. A week of travel and sight-seeing may subtend an angle more like three weeks in the memory; and a month of sickness hardly yields more memories than a day. The length in retrospect depends obviously on the multitudinousness of the memories which the time affords. Many objects, events, changes, many subdivisions, immediately widen the view as we look back. Emptiness, monotony, familiarity, make it shrivel up.

This captures the prison experience superbly: it is arid ground upon which to expect to cultivate a fertile supply of memories from which to chronicle a life. It is the shrivelling up of time that the prisoner seeks. This becomes easier with advancing years because, as James explained, ‘The same space of time seems shorter as we grow older —that is, the days,

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the months, and the years do so; whether the hours do so is doubtful, and the minutes and seconds to all appearances remain the same’ (p. 625; emphasis in original). The reason for this is that for a ten-year-old, one year is one-tenth of his or her life, whereas for a fifty-year-old the same interval is only one-fiftieth of life. Also, an individual has most new experiences early in life and over time many of these become routinized and are no longer worthy of notice; the days meld, the weeks merge and, as James expressed it, the lack of variety and content cause the years to ‘grow hollow and collapse’ (p. 625). As we get older and there is less variety in our environments, time seems to speed up (see also Draaisma, 2004). This process is accentuated in prison where a backward glance reveals that time has flown and there is little to show for it. Flaherty (1999: 13) is critical of James, noting that his model omits the important fact that, under certain conditions, a busy interval of time can seem to pass slowly giving a sense of ‘protracted duration’. There is an exception to the rule that when we are absorbed in what we are doing time passes quickly. When attention is focused to a very intense degree on an activity the opposite happens and time slows down. During highly stressful or highly eventful situations the seconds expand and the lived experience of time slackens. The individual becomes preoccupied with time which, as a result of the close attention it is given, is experienced in slow motion. Examples include witnesses to serious crimes who tend to overestimate how long the incident lasted, and top sportspeople such as racing drivers for whom time is elongated (Taylor, 2007: 88–91). When we attend more than we ordinarily would to what is (or is not) going on around us the experience of duration is protracted. This applies as much to a stimulus-rich situation where a dramatic sequence of events is unfolding as it does to the excruciating bleakness and boredom of a solitary cell. To make sense of how time is lived and felt requires the incorporation of a subjective dimension. This allows for the possibility that time is perceived to pass slowly when the level of overt activity is abnormally high or when it is abnormally low. The causes of protracted duration are: (i) suffering and intense emotions; (ii) violence and danger; (iii) waiting and boredom; (iv) altered states of consciousness; (v) concentration and meditation; and (vi) shock and novelty (Flaherty, 1999: 43).

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What unites the various elements of the foregoing list is that they are all departures from ordinary circumstances, characterized by individuals becoming engrossed in what they are doing. When these conditions are in place time is magnified and people report that what they knew to be brief episodes felt like they had a greatly extended duration. These elements are present for the first-time prisoner and it is only when they have waned, and the individual is back in synchrony with objective time, that it is possible to devise methods for dealing with the temporal challenge of continuing imprisonment. The key to understanding why some busy intervals are experienced as passing quickly and others as passing slowly is to grasp that there are two qualitatively different kinds of busy time. The first is what Flaherty characterizes as ‘routine complexity’ (p. 106). This is the kind of activity that, even if it requires a high level of skill, has become habitual for the individual and can be executed without much emotional or cognitive involvement. Time passes quickly under such circumstances. The second is ‘problematic complexity’ (p. 109) which requires that more than normal attentional resources are brought to bear. Under such conditions, the experience is one of protracted duration. For the isolated prisoner who can introduce a level of routine complexity into his or her day, time will pass more easily. Prisoners who survive, or even thrive, in solitary confinement manage to do this. The prisoners who fare worst are those who keep on attending to time, who mark the days on the wall, who watch the minutes crawl past. They are saturated by an awareness of time and feel powerless to do anything to accelerate its passage. Winston Churchill recalled of his brief stay in a Boer prison how: ‘The minutes crawl by like constipated centipedes’ (cited in Kurki & Morris, 2001: 401). George Foote (1886: 116), imprisoned for 12 months for blasphemy, described how when he began his sentence, the absence of external stimulation bore down on him and the passage of time had a viscous quality: ‘How the time crawled, weary hour on hour, like a slow serpent over desert sands’. A prisoner who spoke to Medlicott (1999: 220) put it as follows: ‘Literally, the seconds ticking away, that’s the Chinese water torture of what it’s like’. By paying such close attention to time these inexperienced prisoners extended its duration. Koestler (1942) was vividly aware of this

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phenomenon, describing how during a period of illness he was unable to read, write or otherwise distract himself. This meant that he could not ignore time but rather became painfully aware of its dreadfully slow progress, concluding that ‘an inexorable law prevails: increasing awareness of time slows down its pace’ (p. 155). If prisoners succeed in ignoring time they can create a context where they are so busy that they might need a watch to keep track of the routine complexity that they have laid on top of an environment free of social distractions. Under these circumstances the timepiece loses much of its power to tyrannize.

Time Flies, in Retrospect One of the key paradoxes of time is that intervals that seem to drag as they pass appear to have flown in retrospect. According to Flaherty (1999: 104–12) temporal compression is greatest when activities are habitual, the process being further intensified by the erosion of episodic memory. For the long-term solitary prisoner whose days are defined by unchallenging and unremarkable repetition, and where there are few external activities to recollect, the past contracts rapidly. An unchanging routine leaves but a faint trace in memory or, as Victor Serge (1970: 101) expressed it: ‘The bitter minute drags on eternally; the empty months fly, leaving no more than a bit of dust in the soul’. Tenzin Palmo, a Buddhist nun, spent 12 years meditating in a tiny cave (six feet wide and six feet deep) in the Himalayas. She had no bed, spending most of her time in a meditation box measuring two feet six inches square. Every day she ate the same meal of rice, lentils and vegetables supplemented by bread and the occasional piece of fruit. The last three years were spent in complete reclusion without any human contact. Tenzin Palmo spoke afterwards of how, looking back, time seemed to have flown: ‘The thing that struck me most was where had all the time gone? Time just condensed. The last three years in particular just flew past. It seemed like four months at most’ (cited in Mackenzie, 1998: 146). Periods of profound boredom generate few memories, so when looked back upon there is little to distinguish them from the similarly empty

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periods on either side. In Klein’s words (2006: 124): ‘Time changes as we look back on it. Expanses of time that once seemed endless get so compressed as to be nearly unrecognizable. An experience that went by like nothing balloons in our memory’. Each solitary prison day feels excruciatingly long in the absence of a ‘programme of distraction’ (Macartney, 1936: 194). But in retrospect even the years seem to have flown past. Because of the unchanging external environment long periods appear to merge. This pattern is commonly found in the autobiographical writings of prisoners. It is also to be discovered in other literary forms, with a particularly apposite example being the exploration of time, and its elastic nature, in The Magic Mountain, from which the following passage, redolent with psychological insight, is taken: In general it is thought that the interestingness and novelty of the time-content are what ‘make the time pass’; that is to say, shorten it; whereas monotony and emptiness check and restrain its flow. This is only true with reservations. Vacuity, monotony, have, indeed, the property of lingering out the moment and the hour and of making them tiresome. But they are capable of contracting and dissipating the larger, the very large time-units, to the point of reducing them to nothing at all. And conversely, a full and interesting content can put wings to the hour and the day; yet it will lend to the general passage of time a weightiness, a breadth and solidity which cause the eventful years to flow far more slowly than those poor, bare, empty ones over which the wind passes and they are gone. (Mann, 1996: 104)

The author continued: ‘Great spaces of time passed in unbroken uniformity tend to shrink together in a way to make the heart stop beating for fear; when one day is like all the others, then they are all like one; complete uniformity would make the longest life seem short, and as though it had stolen away from us unawares’ (p. 104). These excerpts capture the twin terrors of solitary confinement as it is lived (painfully slow—when will the day end?) and as it is remembered (agonizingly quick—where did the months go?). Koestler (1942: 120; emphasis in original) was impressed by The Magic Mountain and described the paradoxical nature of his time in solitary confinement during the Spanish Civil War in words similar to Mann’s:

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Time crawled through this desert of uneventfulness as though lame in both feet. I have said that the astonishing and consoling thing was that in this pitiable state it should pass at all. But there was something that was more astonishing, that positively bordered on the miraculous, and that was that this time, these interminable hours, days and weeks, passed more swiftly than a period of times has ever passed for me before.

The time that was felt to drag on account of its dreary uneventfulness was remembered as having rushed past. When Koestler arrived at this insight, he drew solace from it: ‘There was a bizarre consolation in the knowledge that these interminable, torturing hours, as soon as they had ceased to be the present, would shrink to nothing, like an indiarubber pig when the air escapes from it with a squeak’ (p. 121). Echols (2013) spent 18 years in prison awaiting execution for crimes he did not commit. Much of this time was spent in solitary confinement and he recalled how: Time has changed for me. I don’t recall exactly when it happened, and I don’t even remember if it was sudden or gradual. Somehow the change just crept up on me like a wolf on tiptoe. Hell, I don’t even remember when I first started to notice it. What I do remember is how when I was a kid every single day seemed to last for an eternity … I swear to God that I can remember a single summer day that lasted for several months … Now I watch while years flip by like an exhalation, and sometimes I feel panic trying to claw its way up into my throat … I truly don’t understand how it happened. How it continues to happen. (pp. 206–207; emphasis in original)

The ‘wolf on tiptoe’ analogy is apt. By the time one becomes aware of the danger it may be too late to take evasive action. So too is the image of years flipping by ‘like an exhalation’, the solitary prisoner gasping in the realization that so much life has slipped by beneath awareness and that it cannot be recovered. Ingrid Betancourt (2010), another innocent person who was coercively confined, gives an excellent sense of how time is distorted in captivity. The transition in her case was particularly traumatic. As a presidential candidate in Colombia she was captured by the FARC and held

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in the jungle for six years in conditions of dreadful, and unrelenting, hardship. She spent long periods chained by the neck to a tree and forbidden to speak to any of the other hostages. A life that had been defined by public service, politics, family commitments and a whirlwind of activity became stagnant overnight: I was aware of how distorted my sense of time had become. In ‘civilian life’ . . . the days had gone by with staggering speed and the years had passed slowly, giving me a sense of accomplishment, of leading a full life. In captivity my perception of time was the exact opposite. The days seemed endless, stretching cruelly and slowly between anguish and boredom. In contrast, the weeks, months, and, later on, years seemed to accumulate at breakneck speed. (p. 120)

The finding that monotony stretches time as it passes and squeezes it on reflection is robust. In his study of philosophical approaches to boredom, Svendsen (2005: 55) captures the same idea thus: ‘Because time is not filled out in boredom, the boring span of time appears afterwards to be short, while it is experienced as unbearably long during the actual span of time. Life becomes short when time becomes long’. When a monochrome existence is interrupted by a burst of colour, the vivid details are remembered long after; novelty dilates time. There is a soporific quality to sameness which adds to the inertia that characterizes many isolated prisoners. ‘The flatness of life, the boredom, time that was forever starting over again just the same – it all acted like a sedative’ according to Betancourt (2010: 494). After three and a half years as a hostage of the Islamic Jihad, Anderson (1994: 292) mused: ‘The days go so slowly, yet pile up so quickly. It’s hard to conceive of forty-two months just gone, evaporated’. Time seems to accelerate in a monastery just as it does in a prison where the unchanging routine lends an impression of speed. As Leigh Fermor (2004: 38) put it, based on his experience as a lay person who regularly availed of the hospitality of monks: Time passes in a monastery with disconcerting speed. Except for the great feasts of the church, there are no landmarks to divide it up except the cycle of the seasons; and I found that days, and soon weeks, were passing

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almost unperceived. The speed of this temporal lapse is a phenomenon that every monk notices: six months, a year, fifteen years, a lifetime, are soon over.

In an exploration of the relationship between mood states and perceptions of duration Wittmann (2009) noted that individuals with depression reported a slowing down of the pace of time. The argument is that their psychological distress makes it difficult to focus on meaningful thoughts and actions; all that is left to attend to is time creeping slowly past. The relationship between time perspective and different forms of psychiatric disorder is discussed by Melges (1982: 135–136) who argues that ‘it is possible to look at temporal disintegration as either a manifestation or mechanism of psychotic illness’ and that ‘once a time distortion takes place, whatever its underlying cause, it alters the organization of consciousness at the psychological level’. These findings are of relevance to the prisoner. Those held in solitary confinement routinely exhibit symptoms of depression such as withdrawal, poor sleeping and fatigue and this can be expected to impact on their time perception by stretching the empty moment. Similarly, boredom-prone individuals are more likely to overestimate the duration of time intervals. The young men who end up in prison are often distractible, become bored easily and need diversion. Again, this can be expected to elongate their perception of time’s passing. As Andrew and Bentley (1976: 179) put it in their survey of young offenders: ‘For delinquents, time seems to pass slowly’. Finally, following Melges, by adjusting their temporal horizons unwary prisoners may be inviting adverse mental health effects. One of the prisoners Dickens (2000: 117) met in Eastern State Penitentiary, whose release after two years of separation beckoned the following day, pronounced that the time had passed ‘pretty quick— considering’. Dickens seemed sceptical of this account, judging that the man found it easy to speak uncritically of the system that he was about to leave and that his excitement at the prospect of putting it behind him was causing him to be unduly positive about his prison experience. However, it is perfectly plausible, as made apparent by so many other prisoner accounts, that a backward glance over a period of time undifferentiated

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by novelty gave the impression that it had raced past. Although Dickens would likely have found it difficult to accept, given his abhorrence of the Pennsylvania system, hours that seem to unfold in interminable, excruciating succession are looked back upon as having tumbled swiftly along, giving way to a rapid passage of days, weeks and months. Another of the prisoners Dickens met had built himself a clock out of odds and ends with a vinegar bottle as its pendulum. He cut a pathetic figure, with trembling lip and quiet, deliberate speech. When asked if time passed quickly, he replied to his visitors, ‘Time is very long, gentlemen, within these four walls!’ (p. 114). But these are not irreconcilable perspectives. For the second prisoner, who had served six years and had a further three ahead of him, and whose attention was focused on his homemade clock, each tedious solitary day was a test of endurance. For the first man, on the cusp of release and looking back on his sentence, time seemed to have collapsed. This perceptual distortion has implications for understanding specific deterrence. It is only when an individual actually returns to prison that the unbearable weight of the empty moment is once again fully felt. This helps to explain why long prison sentences do not necessarily deter. The corollary is that a sentence packed with varied and interesting activities would seem longer upon reflection and might thereby exercise greater influence on ex-prisoner decision-making. There is a delicious irony here about how lengthy, austere and monotonous prison terms, beloved of law and order politicians, collapse when reviewed by those subjected to them and so seem to have flown, thereby diminishing their potential deterrent value.

Styles of Time Usage Brian Keenan (1992: 69) wrote that during the three months of isolation that marked the beginning of more than four years spent cheek-byjowl with fellow hostage John McCarthy he began to think about time in a new way: ‘The idea, the concept of time enthrals me... Time is different now. Its flux and pattern is new, seeming so clear, so precise, so deeply understood yet inexplicable’. This is a good example of how

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when people begin to think hard about something that they have long taken for granted it remains understood at one level but becomes impossibly complex at another. This is St Augustine’s dilemma—‘What, then, is time? If no one ask of me I know; if I wish to explain to him who asks, I know not’—expressed by a hostage in Beirut 1,600 years later. While the nature of time remains elusive, we can learn something about how it is deployed from work carried out in non-penal settings. In a study of patients in a rehabilitation institution in San Francisco, Calkins (1970: 494–500) identified six distinct styles of time usage. The variety of styles reflected the mixed nature of the population which included the physically handicapped, alcoholics, old and senile patients, and a number of volatile young adults with learning difficulties. The average age was 59 years. The prison social context is quite different in that the population tends to be younger and less infirm, the degree of coercion is greater, and there is little that most prisoners can do to influence the timing of their release through participation in rehabilitation programmes. Nonetheless, Calkins’ scheme is a useful way of thinking about the range of opportunities that people have to interact with time when it is abundant and they are sequestered from normal life. Her styles can be summarized as follows: 1. Passing time. The individual accepts the imperatives of the institution’s schedule and finds activities within it to fill the day, without reference to the achievement of future goals. 2. Waiting. The institution and its staff are held in disdain, activity is avoided and the day is spent observing (self and others) and daydreaming. 3. Doing time. Little is done beyond that which the institution demands. The individual sits and waits, often solitary and sullen. 4. Making time. This is the option chosen by the institutional entrepreneur, the opportunist for whom time is a resource. Tasks are completed at speed so that new ones can be taken on. An effort is made to exert control over one’s own outcomes and to be recognized as so doing.

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5. Filling time. This is a hybrid style. The priorities of the institution and its programmes are accepted half-heartedly, empty time is not considered aversive, little effort is directed towards rehabilitation. 6. Killing time. Disruption and subversion are of central importance. The values of the institution are rejected and the approval of staff is not sought. Crises are generated, rules are broken and attempts are made to buck the system. Prisoners also pass, do, make, fill and kill time as well as waiting. Like the patients studied by Calkins they evince a variety of styles, but the more repressive nature of their confinement generates responses to time management that are more extreme in range (from catatonic withdrawal to violent rebellion), more variegated in expression (the entrepreneurial prisoner can make time through devotion to intellectual pursuits in ways that were not open to Calkins’ sample), more uniform in motivation (the overwhelming need is to drag one’s temporal orientation to the present) and more potentially life-enhancing in outcome (the rewards that accompany self-examination can be substantial). Lauer (1981) set out an approach to the study of social time that viewed it as having three aspects that required analysis, namely, pattern, orientation and perspective. Temporal pattern comprised the five basic elements of duration, tempo, sequence, timing and periodicity. The value of such an approach is that it moves attention away from a preoccupation with time as a unit of measurement. It also highlights how different prison time is to time in the free world. To a great extent duration, or the length of time devoted to an activity, is determined by others for prisoners. Where they have room to manoeuvre is in terms of how duration is perceived and it is the manipulation of perceived duration that is central to the solitary prisoner’s existence. Prisoners remain largely oblivious to changes in tempo, or the speed at which activities take place. The acceleration of time which technological innovation has allowed—and the accompanying intensification of experiences—has barely penetrated the penal realm, where prisoners are ‘cavemen in an era of speed-of-light technology’ (Johnson, 2005: 263). The idea of prisoners remaining in a time warp is captured by a poignant photograph in Still Life: Killing Time, a photographic essay on a wing

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for elderly prisoners in an English prison, which depicts an illustration that has been cut from a newspaper showing how to make sense of the new price system that accompanied the introduction of decimalization (Clark, 2007: 60). The clipping carries the legend, ‘cut out and keep for handy reference’, advice which the prisoner to whose cupboard it was neatly affixed has clearly taken to heart. The photograph was taken more than 30 years after the currency changeover, suggesting that the clipping had been kept carefully by an individual for whom coinage that had long disappeared from circulation continued to be significant. This did not appear to be an exercise in nostalgia but rather, a desire to keep in touch, however tenuously, with a world that had, in many important ways, changed beyond recognition. Goffman (1961: 63) described how, for the duration of their sentences, inmates felt ‘exiled from living’; this elderly prisoner is in just such an exile. When it comes to the sequencing of activities, again prisoners fare poorly compared with their peers outside. They cannot reorder what they do to take account of shifting priorities. For example, a prisoner could not decide to go to the yard earlier one day so as to have more time for leisure in the evening or to ‘multi-task’ during the day so as to make simultaneous progress on several fronts. Nor is the prisoner free to determine the timing of his or her activities so that they are in synchrony with others. They are locked into a timetable that has changed little in its essentials over almost two centuries. Finally, when consideration turns to periodicity, or the rhythm of an activity, prisoners are once again at a relative disadvantage, having little scope to deviate from patterns that are prescribed for them. For all of these reasons there are few opportunities for prisoners to engage in the types of ‘time work’ that people are so adept at when it comes to sloughing off external constraints and customizing their temporal experiences. The prospects are more severely reduced again for the individual in solitary confinement who must confront a penal juggernaut that flattens the scope for individual decision-making. As Austin Bidwell (1897: 459–460) expressed this relationship in the closing years of the nineteenth century, the prison can be viewed as ‘a vast machine in which a man counts for just nothing at all... Move with it, and all is well. Resist, and you will be crushed as inevitably as the man who

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plants himself on the railroad track when the express is coming. Without passion, without prejudice, but also without pity and without remorse, the machine crushes and passes on’. But as Frankl (2004) has shown, no matter how steeply the odds are stacked against them, prisoners retain the capacity to make decisions, even if these are simply choices between equally unattractive options; their agency is crushed but not completely obliterated; their repertoire of responses is limited but not non-existent. Prisoners in solitary confinement come up with a variety of ways to put their own stamp on their temporal lives, particularly how they experience duration. They do this because the stakes are so high; to relinquish the belief that one can continue to engage with time is to give up hope and to be diminished as a human being. Solitary prisoners strive to be survivors, not victims, of circumstance. Given the vast scale of the institution’s power over the individual there are many aspects of temporality where any attempt to wrest back control is predictably futile. But this is not always the case. Prisoners work hard to make intervals feel shorter than the clock or calendar would suggest and in this respect they meet with a measure of success. In the words of Flaherty (2011: 23): ‘In manifold circumstances, human beings wield the weapons of creativity against the forces of time’. In the stimulus-poor environment of the solitary cell these weapons are used first to focus the temporal gaze firmly on the present and secondly to truncate perceived duration. Other dimensions of temporality are usually predicated on interaction, on the coordination of activities with others, so they are of limited relevance to the isolate. So, too, they involve the introduction of temporal variety, not something that necessarily appeals to the solitary prisoner for whom one eventual payoff of relentless sameness is a feeling that time has rushed past. Finally, people try to tweak time in an effort to make the most of a scarce resource, often to find a temporal niche for themselves among many competing obligations. Again, this is not a major consideration for the prisoner who exists in an abundance of time. In other words, of the various dimensions of time that are open to manipulation such as sequence, timing, tempo and duration, it is how duration is perceived that is of greatest moment for the prisoner in solitary confinement. The individual may not be in a position to determine how long he or she spends in isolation but there is scope to influence

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how this feels. Cohen and Taylor (1972: 51) noted that: ‘Prison involves an involuntary migration to a region in which the dislocations of life are not necessary costs of the move, but are rather deliberately engineered insults to the self ’. One of the most significant of these insults is the removal of control over how to spend one’s time and the negation of any value associated with time. For the prisoner in solitary confinement the lack of meaningful engagement with others may add injury to insult.

Clock Time and Prison Time In a classic paper, Sorokin and Merton (1937) offered a conception of time that stressed the importance of social phenomena, and the relationships between them, as temporal measures that could take precedence over days, weeks, months and years. ‘Social time’, they argued, ‘expresses the change or movement of social phenomena in terms of other social phenomena taken as points of reference’ (p. 618). Social time can be contrasted with astronomical time in that it has a strong qualitative dimension: ‘these qualities derive from the beliefs and customs common to the group and... serve further to reveal the rhythms, pulsations, and beats of the societies in which they are found’ (p. 623). As the field of interaction of the group expands, the need to coordinate activity between the different elements of a wider society becomes more pressing, and this leads to the adoption of a common and mutually understood means of designating time intervals, based on the certainty provided by the calendar and the clock. Local time systems, with their idiosyncratic emphases on events of local significance, conflict with the kind of synchronization and predictability required by differentiated industrial societies and so, over time, they are effaced. It might be hypothesized that social time would remain relevant in prisoner societies given their smallness of scale, lack of geographical mobility, homogeneity in terms of class background, relative lack of internal differentiation and paucity of opportunities to interact with other groups. And indeed prisoners do mark time by reference to events, rather than simply by the accumulation of days, weeks, months and years. The arrival of a new warden, an outbreak of violence, a period

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of lockdown, a concert; these are all important markers of time for the community that experiences them. They might be thought of as ‘time anchors’ that act as points around which to gather recollections. Their precise location on the calendar, or the actual duration of the intervening intervals, is of no great significance. Because prisoners are constrained in the extent to which they can determine the occurrence of the kinds of social activities they deem to be important, it is challenging for them to impose their own social time on top of the clock time that sets the rhythm of their days and the calendar against which their sentences are plotted. There are practical problems too. Social time depends on a degree of population stability and reciprocal trust that is not always found in prisons. Where there is a high turnover of inmates the opportunity to share significant experiences and commit an agreed version to institutional memory is severely limited. Nonetheless, the qualitative attractions of social time remain relevant—especially when a release date is some way distant and purely quantitative measures are overwhelming—but the fact that prisoners are forced to march to the institution’s disciplinary cadence means that the challenges associated with maintaining parallel time-reckoning systems are not inconsequential. Where prisoners live together for prolonged periods, shared conceptions and a sense of social time, are more likely to be found. Hans Castorp, the hero of The Magic Mountain, learns from the older sanatorium inhabitants the importance of marking time by events rather than by days and weeks: ‘Christmas, like other holidays in the course of the year, served them for a fulcrum, or a vaulting-pole, with which to leap over empty intervening spaces’ (Mann, 1996: 270). This image of a vaulting-pole is a useful one. Many prisoners learn to measure their sentences by the occurrence of regular events from each of which they leap forward to the next, soaring over—and indifferent to—the expanse of time beneath. This allows a sense of easy velocity, a feeling of covering ground without being unduly distracted by the terrain. Reflecting on many years in isolation on death row, Echols (2013: 276), observed how ‘each moment is meaningless because it has no context’. As the quantity of unremarkable days piles up prisoners become oblivious to each new increment. It is events that pattern time and synchronize memories;

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these are the time anchors that become part of the prisoner’s subjective calendar. For men and women in isolation time has a treacle-like quality that makes its presence felt by preventing an easy passage through the day. A determined effort is required to trudge through the morass and to add meanings and milestones to a journey that would otherwise become arduous in the extreme. Describing a period of solitary confinement as a political prisoner in Argentina in 1977, Timerman (1988: 5) recalled that time became ‘that dangerous enemy of man, when its existence, duration, and eternity are virtually palpable’. The same author described life in his isolation cell thus: ‘only time remained, all of time, time on all sides and in every cranny of the cell, time suspended on the walls, on the ground, in my hands, only time’ (p. 37). Grey (1988: 225) recounted how after six months he began ‘to find the weight of isolation pressing on me increasingly’. Waite (1994: 204) described the boredom of his daily life as a hostage held in extreme isolation for years as ‘crushing’. As well as compressing the mind the lack of stimulation is felt as a physical burden; more and more effort is required to stand up and face the day. Simple tasks take longer to execute and are disproportionately wearying. Unless the prisoner takes decisive action the weight of inertia will grow as the isolation is prolonged; body and mind will lose vim and vigour together. While difficult, the prisoner’s plight is not hopeless. Those who have the resources to create complex but unproblematic routines for themselves, whether rooted in their exterior or intrapsychic worlds, find it possible to speed time’s passage. For those who do not develop this talent, or whose routines remain problematic, time crawls and madness beckons. There is also what might be described as ‘spiritual time’, a concept that has been defined by someone with many years of experience living in isolation in a cell in the following terms: ‘I am so many years of age.’ What does such a statement mean? It means only this: that the earth has gone round the sun so many times since I came into the world. That is the normal measure of what the world calls time. But there is another ‘age’ which consists in interior movement and progress proper to each individual, as opposed to periodic movements

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which are from without, and are the same for all. Our real age depends on the interior events which have taken place within the soul, upon their rhythm, and upon the greatly varying reactions, entirely personal and unique resulting from them. That is our true age, and it is an age which varies with each individual. (A Carthusian, 1975: 38–39)

This is time marked by the metronome of experience, which beats differently for each person. It differs from chronological time with its fixed intervals, and from social time with its emphasis on events and other people. It is time without obvious anchors. This is the preserve of the committed solitary.

Timetables and Ritual The prison timetable, while resented because it is inflexible and imposed, also offers a kind of refuge. The endlessly repeated cycle of doors being unlocked and locked, of mealtimes, of counts, of exercise periods, provides a skeleton to support each day. Because today is the same as yesterday and tomorrow will mirror today, life can be lived according to the rhythm of these repetitions, which start afresh each morning. Rather than moving forward the prisoner is static, spinning on the spot, the aim being nothing more grandiose than to spin on the same spot again the next day. Like his Victorian predecessor on the tread wheel, much effort is expended to no net effect, but too little effort will be harmful. Breytenbach (1984: 143) commented on the value of routine in the following terms: ‘the same events coming around again, the rhythms being repeated, the familiarity of your situation—these deaden you to the passing of time’. Timetables are important because they allow prisoners to avert their gaze from the future. They offer certainty when much is uncertain and give a direction, however monotonous and unwelcome, to the day. They provide staging points for the prisoner who might otherwise flounder and so offer a deadening solace. Breytenbach captured the sense of how the rigid structure afforded by the timetable can threaten to smother those upon whom it acts while simultaneously offering protection and

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support: ‘Rhythms, routines, elements of your understanding and experiencing the self and the environment; fetters which make you weaker: but, as always, within the weakness the strength already lies—and so they become the ways in which you destroy time’ (p. 150). By reducing uncertainty, the structuring of time helps prisoners to navigate their sentences. But there are dangers. As Zeldin (1995: 356) expressed it: ‘Habits are comfortable, but when they fossilise, the humanity is gradually drained out of human beings’. A detailed daily schedule serves four purposes. First of all it breaks the monotony and coordinates activities across the institution. Secondly, it allows for staff rosters to be drawn up and for staff time to be planned and paid for. Thirdly, it contributes to the imperative of security by ensuring that the whereabouts of each prisoner can always be ascertained; the timetable is as much a device for pinpointing prisoners’ locations as it is for scheduling their activities. Fourthly, it emphasizes where the balance of power lies—namely with those who determine how time is allocated and for what purposes. The subversive possibilities offered by sloth and deliberate delay which are open to those occupying low social strata in the world at large do not exist to any great extent for the prisoner (or, on the occasions where they might, the punitive consequences of availing of them are disproportionately large). The timetable is the regulatory device par excellence. Martel (2006) shows how the prison timetable becomes vital to prisoners as a framework within which they can express a measure of agency. While fixed schedules are alienating in the sense that they constrain human activity, those subjected to them always retain some decisionmaking potential, even if this is no more than deciding not to avail of recreation when it is offered, forgoing visits, or declining to eat at prison mealtimes, preferring instead to buy food for consumption when desired. According to Martel: ‘However rigid, dominating and time-consuming it may be, the carceral schedule becomes vital to prisoners, as it gradually becomes familiar and provides much needed reference points to those estranged from their habitual environment in the community’ (p. 597). One of the prisoners interviewed by Medlicott (1999: 223) gave a good illustration of how he strove to bring outside life into synchrony (even harmony) with life inside, as to attempt the opposite would have

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been futile: ‘I telephone the wife every day, and twice at weekends. We get up at 5 a.m. and write to each other. Then we have a cup of tea together at about 8 o’clock. She’s changed her mealtimes, so that we eat together at lunch and tea’. Both husband and wife derived comfort from the fact that although forced to live apart they could create a common life (or at least an imitation of one) by sharing a schedule. Echols (2013) came up with a similar scheme during his time in solitary confinement on death row in Arkansas. On the night of every full moon he positioned a container full of water in his cell so that it caught the moon’s reflection. Before sunrise he moved it to another location in the cell where direct sunlight would never reach it. His wife followed the same procedure and at the same time each night they would take a sip of ‘moon water’ while thinking of each other: ‘In that moment we were united, no matter how far apart we might be’ (p. 391). One clear advantage of routinization is that time passes more quickly. Predictability, stability and sameness speed time along. According to Serge (1970: 116), ‘The mechanical rhythm of each day, repeated ad infinitum, leads to an almost painlessly automatized existence’. This emotional numbness is welcomed because it makes life bearable but feared at the same time because it might usher in a form of passivity and institutionalization that proves difficult to shake off. In conclusion then, prisoners in solitary confinement are engaged in an ongoing tussle with time. To make it less abrasive they adopt an orientation that focuses on the present, and to speed its passage they devise ways of introducing routine complexity to their daily lives. They learn to pass, do, make, fill and kill time as well as to wait. The fact of their incarceration means that the schedules they live by are externally imposed and inflexible. But, nevertheless, they strive to exert control over, and extract meaning from, this most restrictive lifeworld.

References A Carthusian. (1975). They speak by silences. Darton, Longman and Todd. (Originally published in 1955 by Longmans, Green and Co. Ltd.).

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Abbott, J. H. (1981). In the belly of the beast: Letters from prison. Hutchinson. Anderson, T. (1994). Den of lions: Memoirs of seven years. New York: Ballantine Books. (Originally published in 1993 by Crown). Andrew, J. M., & Bentley, M. R. (1976). The quick minute: Delinquents, drugs and time. Criminal Justice and Behavior, 3, 179–186. Betancourt, I. (2010). Even silence has an end: My six years of captivity in the Colombian jungle. Virago. Bidwell, A. (1897). Bidwell’s travels, from wall street to London prison—Fifteen years in solitude. Bidwell Publishing Company. Breytenbach, B. (1984). The true confessions of an Albino terrorist. Faber and Faber. Brown, A. (2003). English society and the prison: Time, culture and politics in the development of the modern prison 1850–1920. The Boydell Press. Calkins, K. (1970). Time: Perspectives, marking and styles of usage. Social Problems, 17 , 487–501. Clark, E. (2007). Still life: Killing time. Dewi Lewis. Cohen, S., & Taylor, L. (1972). Psychological survival: The experience of longterm imprisonment. Penguin. Dickens, C. (2000). American notes for general circulation. Penguin Classics. (Originally published in 1842 by Chapman and Hall). Draaisma, D. (2004). Why life speeds up as you get older: How memory shapes our past. Cambridge University Press. Echols, D. (2013). Life after death: Eighteen years on death row. Atlantic Books. (Originally published in 2012 by Blue Rider Press). Flaherty, M. G. (1999). A watched pot: How we experience time. New York University Press. Flaherty, M. G. (2011). The textures of time: Agency and temporal experience. Temple University Press. Foote, G. W. (1886). Prisoner for blasphemy. Progressive Publishing. Frankl, V. E. (2004). Man’s search for meaning (translated by Ilse Lasch). Rider Books. (Originally published in 1946 by Verlag für Jugend und Volk). Goffman, E. (1961). On the characteristics of total institutions: The inmate world. In D. R. Cressey (Ed.), The prison: Studies in institutional organization and change, pp. 15–67. Holt, Rinehart and Winston. Gomez, A. E. (2006). Resisting living death at Marion penitentiary, 1972. Radical History Review, 96 , 58–86. Grey, A. (1988). Hostage in Peking. Weidenfeld and Nicolson. (Originally published in 1970 by Michael Joseph).

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Jackson, M. (1983). Prisoners of isolation: Solitary confinement in Canada. University of Toronto Press. James, W. (1890). The principles of psychology (Vol. 1). Henry Holt. Johnson, R. (2005). Brave new prisons: The growing social isolation of modern penal institutions. In A. Liebling & S. Maruna (Eds.), The effects of imprisonment, pp. 255–284. Willan. Keenan, B. (1992). An evil cradling. Hutchinson. Klein, S. (2006). Time: A user’s guide making sense of life’s scarcest commodity (translated by Shelley Frisch). Penguin. Koestler, A. (1942). Dialogue with death (translated by Trevor and Phyllis Blewitt). Macmillan. Kurki, L., & Morris, N. (2001). The purposes, practices, and problems of supermax prisons. In M. Tonry (Ed.), Crime and justice: A Review of Research (Vol. 28, pp. 385–424). University of Chicago Press. Lauer, R. H. (1981). Temporal man: The meaning and uses of social time. Praeger. Leigh Fermor, P. (2004). A time to keep silence. John Murray. (Originally published in 1957 by John Murray). Macartney, W. (1936). Walls have mouths: A record of ten years’ penal servitude. Victor Gollancz. Mackenzie, V. (1998). Cave in the snow: A western woman’s quest for enlightenment. Bloomsbury. Mann, T. (1996). The magic mountain (translated by Helen Tracy Lowe-Porter). Minerva. (Originally published in 1924 by S. Fischer Verlag). Martel, J. (2006). To be, one has to be somewhere: Spatio–temporality in prison segregation. British Journal of Criminology, 46 , 587–612. Medlicott, D. (1999). Surviving in the time machine: Suicidal prisoners and the pains of prison time. Time & Society, 8, 211–230. Meisenhelder, T. (1985). An essay on time and the phenomenology of imprisonment. Deviant Behavior, 6 , 39–56. Melges, F. T. (1982). Time and the inner future: A temporal approach to psychiatric disorders. John Wiley and Sons. Molineux, R. B. (1903). The room with the little door. G. W. Dillingham. Rosenberg, S. (2011). An American radical: Political prisoner in my own country. Citadel Press. Schroeder, A. (1976). Shaking it rough: A prison memoir. Doubleday. Serge, V. (1970). Men in prison (translated by Richard Greeman). Victor Gollancz. Sorokin, P. A., & Merton, R. K. (1937). Social time: A methodological and functional analysis. The American Journal of Sociology, 42, 615–629.

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Svendsen, L. (2005). A philosophy of boredom (translated by John Irons). Reaktion Books. (Originally published in 1999 by Universitets Forlaget, Oslo). Taylor, S. M. (2007). Making time: Why time seems to pass at different speeds and how to control it. Icon Books. Timerman, J. (1988). Prisoner without a name, cell without a number (translated by Toby Talbot). Vintage Books. (Originally published in 1981 by Alfred A. Knopf ). Waite, T. (1994). Taken on trust (with a new postscript). Coronet Books, Hodder and Stoughton. Ward, D., & Kassebaum, G. (2009). Alcatraz: The gangster years. University of California Press. Wittmann, M. (2009). The inner experience of time. Philosophical Transactions of the Royal Society–B 364, 1955–1967. Zeldin, T. (1995). An intimate history of humanity. Minerva. (Originally published in 1994 by Sinclair-Stevenson).

4 Unmarking Prison Time During the Covid-19 Pandemic Caitlin Gormley, James Reilly, and Ryan Casey

Introduction In March 2020, time gave the illusion of stopping in Scottish prisons as the Covid-19 outbreak was declared a global pandemic. The ‘first wave’ of the pandemic led to an emergency lockdown in prisons between March-September 2020, as all programmes, external services, outside visits, recreation, and purposeful activity were withdrawn or suspended. People in prisons were essentially placed under conditions of solitary C. Gormley (B) School of Social and Political Sciences, University of Glasgow, Glasgow, Scotland, UK e-mail: [email protected] J. Reilly Scottish Prisoner Advocacy and Research Collective, Glasgow, Scotland, UK R. Casey University of Oxford, Oxford, UK

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1_4

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confinement, locked in cells for 23.5 hours per day (Gormley et al., 2020). Although lockdowns, and other qualities of ‘pandemic time’, are not new in prisons, this chapter explores how the deterioration of time and routine intensified punishment in prison. The chapter seeks to draw out some of the immeasurable temporal aspects of the changed rhythms of prison life under a seemingly perpetual lockdown and state of nothingness (Scott, 2018). Drawing from one of the authors’ experiences of life in an open prison during lockdown alongside letter and survey data from people in Scottish prisons during the pandemic from the Scotland in Lockdown study (see Scotland in Lockdown Team, 2020), we aim to demonstrate how the temporal experience of life in prison changed during the Covid-19 pandemic. The chapter begins with an overview of ‘unprecedented time’ as it relates to marginalised groups of people and prison crises, followed by a discussion of prison temporality literature. We then discuss temporal disorientation through the unmarking of prison time, exploring participants’ experiences of stopped time under an imposed total lockdown. Uncertainty about the unknown stretch of time ahead, along with the loss of routine, led to temporal disorientation as prisoners felt trapped in an extended present (Brown, 1998; O’Donnell, 2014) or ‘precarious now’ (Kaun & Stiernstedt, 2020) which blurred the future and unanchored traditional markers of time’s passage. The even harsher, more restrictive regime flattened multi-temporalities into an imposed communal time: locked up, locked away, and feeling forgotten. We then explore the changing value and elasticity of time in prison due to suspension and interruption of regime and routines, programmes, and progression. Normative and socially recognised markers of prison time (Cohen & Taylor, 1972; Wahidin, 2006) were abstracted through the loss of routine and absence of social contact both in prison and with loved ones outside. As meaningful time became more valuable but scarce, we explore how time was both lost and found. Finally, we introduce the idea of ‘hollow time’ to conceptualise the complexities of time in prison during the pandemic and make sense of experiences of time that are both empty and heavy. Temporal changes to the prison regime limited the ways in which people could fill up their days, as there were no activities to participate in, little to no contact with people inside or outside

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prison, and little information shared about what was happening and when it would end. Strategies for coping and the resources that make prison survivable were not readily available. Drawing upon Scott’s (2018) sociological work on nothing , we argue that hollow time was a crushing burden that made prisoners feel that their time did not matter, and, in turn, that they did not matter.

‘Unprecedented Time’: Uncertainty and Unpredictability in Crisis In the United Kingdom during the height of the Covid-19 pandemic, political messaging communicated through mass media repeatedly circulated the message ‘we’re all in this together’, invoking an ambiguous sense of togetherness and the crisis—seemingly—as an equaliser of experience (see: Sobande, 2020). Yet, global crises are never experienced equally and there is strong growing evidence that the Covid-19 pandemic has reinforced intersectional dynamics of precarity, vulnerability, and human suffering for groups of people already experiencing social inequalities (Jefferson et al., 2021; Lawrence, 2020; Scotland in Lockdown Team, 2020). These inequalities were most prominently felt by those considered to be more vulnerable and while the pandemic introduced new forms of hardship, more significantly, it amplified and deepened existing struggles and experiences of marginalisation. The urgency and universality of the Covid-19 crisis diverted attention and resources away from other facets of social life and ‘at-risk’ groups of people (Jefferson et al., 2021). During this time, there was a lack of governmental attention and scrutiny towards institutional penal confinement and other restrictions of liberty despite worsening conditions in prisons. Yet, prisons in the United Kingdom are not unfamiliar with crises, as the conditions within have long been considered a crisis in their own right. King and McDermott (1989) documented the ‘everdeepening’ crisis of British prison regimes over time and argued that issues of overcrowding and poor sanitation could not be fully explained by a scarcity of resources. Although the material conditions of prisons have largely improved with time, softer and more diffuse forms of power

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hold a tighter grip over prisoners as penal policies increasingly emphasise psychological assessment, compliance, and self-responsibilisation under more securitised conditions (Crewe, 2011a: 524). Prisons are still faced with a crisis of legitimacy despite that soft power operates through subtle governance ‘at-a-distance’ (Crewe, 2011b) which is distinct from the brutal and authoritarian strategies that shape King and McDermott’s (1989) work. While the Covid-19 pandemic was unprecedented, prison crises are not, and, therefore, do not justify the worsening conditions inside Scottish prisons during this time. In many ways, lockdowns are not new to prison environments either. Estate wide lock-up, or ‘bang-up’, is often used as an operational response (UNODC, 2015) and as a fundamental aspect of everyday life in prison (Herrity, 2020). Segregated regimes are used for the ‘protection’ of prisoners considered to be vulnerable for offence- and non-offence-based reasons (Cornish, 2019) and individual lock-up and subjection to solitary confinement are often used as additional punishment (O’Donnell, 2014; Haney, 2003; Toch, 2001). While the Covid-19 pandemic was certainly unprecedented and lockdown a new experience for many people in the community, lockdowns were used in Scottish prisons to suppress the virus by segregating prisoners in place, restricting movement within the estate, and isolating and quarantining symptomatic individuals to avoid transmission (Maycock & Dickson, 2021). Goffman’s (1961) work on ‘total institutions’ locates prisons among other closed sites of confinement and instruments of state power which are characterised by their highly disciplinary structures. He argues that power operates through the insular nature of ‘total institutions’ marked by mortifications and disempowerment as well as geographical and psychological distancing from the ‘home world’ (Goffman, 1961: 23). Whether institutions are indeed ‘total’ has long been challenged by carceral geographers and prison sociologists given the porous nature of such spaces which are rarely entirely apart from the community (Baer & Ravneberg, 2008; Moran, 2014). However, the institutional response in Scottish prisons to the Covid-19 pandemic meant that prison took on more ‘total’ characteristics than ever before as movement between the prison and community ceased entirely apart from essential operational services.

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Prison Temporality and Coping with Prison Time Within the context of prisons, time can be used as a mechanism and rationality of control. Foucault (1977) famously argues prisons are a disciplinary technology which controls its subjects through training the body and mind how to behave when one is being watched, rather than through direct force or coercion. Temporal subjectification is one of the many ways that the prison apparatus regulates and exerts power over people (Portschy, 2020). Prison schedules, timetables, and organised activities are examples of how time is broken up into smaller units of measurement and flows of prison populations are made orderly. Wahidin (2006) has demonstrated that these obligatory structures of prison time train the body through routine, synchronisation, and rhythms of order. This is one of the ways prison takes hold, as it imposes ‘markers’ of time (Cohen & Taylor, 1972) and inscribes new temporal norms into the body. However, the temporal disciplinary function of prison is not an exercise of total domination. ‘Active subjectivity’ is a process in which people construct themselves as subjects shaped by social and moral dimensions embedded in the institution (Foucault, 1982; Garland, 1997). For example, people in prison may choose to align their rationalities and actions with the regime and timetable of prison to make life inside easier and to survive (see Wahidin, 2006). This process of active subjectification also highlights how people negotiate and internalise the social and moral dimensions of ‘doing time’, such as the imperative to spend time ‘easy’, ‘well’, ‘productively’, or ‘efficiently’ (Portschy, 2020; Scarce, 2002). Time is not only a structuring component of the prison regime but implicit in the subjective experience of carceral punishment. Temporal metaphors, communicated through the action verb forms in the gerund tense such as ‘doing’, ‘spending’, ‘killing’, ‘wasting’, and ‘whittling’, serve as organising or framing devices for depicting coping strategies for dealing with time while in prison (Jamieson & Grounds, 2005: 51; and see chapter by O’Donnell in this volume). It is well documented that prison time represents a diverging but nevertheless intersecting temporality from ‘normal’ everyday time which

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affects both people in prison and people in contact with someone in prison (see Armstrong, 2018; Kaun & Stiernstedt, 2020; Kotova, 2019; Medlicott, 1999; Meisenhelder, 1985; Wahidin, 2006). The timetables and regimes of prison impose certain conditions on people which serve to restrict autonomy (O’Donnell, 2014: 194), reifying the highly disciplinary nature of the institution at the granular level through regimented conformity (Goffman, 1961). In this way, there is a balancing act of timelines, as people in prison, and their loved ones, negotiate multiple temporalities which includes schedules and timetables but also the subjective experience of time’s passage (Kotova, 2019). Time spent in prison is depleted time in the context of the finitude of the life-course and ‘being-toward-death’ (Heidegger, 1962), as it represents time that is ‘wasted or destroyed or taken from one’s life’ (Goffman, 1961: 66). Dealing with ‘lives being foreshortened’ by coercive confinement, Jewkes (2005: 372) argues that life-sentenced prisoners are confronted with the feeling of ‘time being stolen from them’. Time in prison becomes precarious when confronted with temporality that is finite (Cohen &Taylor, 1976). The notion of time as a series of ‘successive “nows”’ (Baugh, 2000: 75, cited in Jamieson & Grounds, 2005: 53) adds a profound gravity of the weight of time as ‘being-toward-death’ (Heidegger, 1962). Strategies for coping with the burden of time (Meisenhelder, 1985: 44), especially unstructured or context-collapsed time, require different types of ‘time work’ (O’Donnell, 2014: 194) to manage its passage. Cohen and Taylor (1976: 155) explore ‘reality slips’ and ‘escape routes’ (ibid.: 173–174) to forge sociotemporal distance from reality by ‘going away’, ‘going inside’, and ‘going above’ or, rather, psychological techniques of escapism that draw the imagination ‘away’, introspection ‘inward’, or transcendence ‘above’. Phenomenologically, the essential characteristics of time and temporal experience are shaped by how ‘institutional confinement changes the ways in which time is experienced’ (Matthews, 2009: 38). Lives ‘on hold’ become temporally unmarked as time and tempo are destabilised and desynchronised; although ‘marked time’ can be clearly identified with action, activities, and strategies, the ‘void of circumstantial nothingness’ that forms unmarked time is misconstrued as empty or bereft time (Scott, 2018: 12–13).

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Just as prisons are embedded in broader social networks, prison time is also impacted and shaped by other temporalities and time imaginaries. Kaun and Stiernstedt (2020) argue that the ‘smartification’ of the criminal justice system and introduction of smart technologies into penal institutions and practices can be experienced as a temporal desynchronisation. The future-oriented pace at which data and digital technologies move stands in direct contrast to the way a prisoner slowly serves a sentence. This is perhaps how we can begin to think about the ways in which the Covid-19 pandemic similarly, and more abruptly, desynchronised the prison regime.

Scotland in Lockdown Study Context The experiences discussed in this chapter represent a snapshot of life under lockdown for people living in Scottish prisons between MarchOctober 2020. This chapter draws on data from a wider research project, the Scotland in Lockdown study, which was funded by the Chief Scientist Office (Scotland), as part of its Rapid Research in Covid-19 Programme completed between July and December 2020. The wider study explored how Covid-19 suppression measures, and lockdown in particular, were experienced by four groups of people already experiencing marginalisation prior to the pandemic, including people affected by criminal justice control; disabled people and those with long-term health conditions; refugees and people seeking asylum who were at risk of facing destitution; and survivors of domestic abuse or sexual violence (see Scotland in Lockdown Team, 2020). The Scotland in Lockdown research was completed by a large team of social science researchers from the University of Glasgow in collaboration with 20 partner organisations from the third sector across Scotland, and ethical review was approved by the College of Medical, Veterinary and Life Sciences at the University of Glasgow. To understand the experiences and impacts of lockdown, service provision availability, and information about Covid-19, we used a range of methods including qualitative interviews with affected populations and the people who support them; social media analysis; an online survey for service providers; a prison-based

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survey and letters from prisoners; and additional ‘consultation’ material created by partners through focus groups, interviews, and letters. All three authors were centrally involved in the Scotland in Lockdown study comprising part of the sub-team of seven researchers and six community-based organisations overseeing the ‘criminal justice’ stream of research, one as a co-investigator and criminal justice stream co-lead, one as a research assistant, and one as a project partner with Scottish Prisoner Advocacy and Research Collective (SPARC). This chapter focuses exclusively on 100 items of written qualitative data (86 survey responses and 14 written communications) from people living in Scottish prisons at the time of the research along with one of the authors’ reflections of preparing for release from the open estate during the research period. The written communications include five letters received in response to an advert the study team placed in the August edition of the Inside Time newspaper, and a further nine letters were de-identified and shared by partner organisations from their contacts in prison at the time. All participant information has been fully deidentified and an alphanumeric code has been used below to denote respondents with Prison Survey (PS), Community Consultation (CC), or Inside Time letter (ITL). The prison-based survey was designed in continuous consultation with project partners, seeking to ensure that it was effective, succinct, maximally accessible, and minimally intrusive to demands on staff time. The final version was approved by the Scottish Prison Service (SPS) Research Access and Ethics team, who kindly agreed to circulate 250 survey packs (including the survey instrument, information for participants, and a pre-stamped self-addressed return envelope) randomly across the estate among sentenced prisoners in 14 of Scotland’s 15 prisons (no surveys were sent to the open prison at Castle Huntly). The survey included one open question which asked, ‘How has your life changed under lockdown?’ along with four closed questions asking respondents to rate: sources of information about Covid-19; ability to adhere to public health guidance about Covid-19 suppression as well as maintaining positive mental wellbeing; and how much various aspects of prison life had changed during the pandemic.

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Surveys were sent and responses received within September 2020 with 86 responses from 73 people identifying as male, 11 as female, and 2 who preferred not to say. Responses to closed questions were collated and analysed via Excel while open survey responses were thematically analysed within NVivo software using an ‘iterative categorisation’ coding framework (Braun & Clarke, 2006; Neale, 2016; and for further information, see Armstrong et al., 2022).

Disorienting Temporalities This section draws out some of the more immeasurable temporal aspects of the changed rhythms of life under lockdown. If time in prison is something to be ‘marked out and traversed’, then time in prison during the Covid-19 pandemic was time unmarked (Cohen & Taylor, 1972: 104). Schedules of eating, sleeping, exercising, socialising, and showering were dramatically upended which impacted not just the structural organisation of time, but also the subjective experience of it. The temporal landscape of prison became disorienting as people endured excessive periods of isolated lock-up and felt trapped in the unrelenting circumstances of the present.

Unmarking Prison Time Prison sentences, and the conditions of prison life more broadly, became more severe and restricted during the early stages of the Covid-19 pandemic, largely attributed across our data to the cessation of regime and loss of routine. The rhythm of daily life stalled as prisoners reported being permitted to leave their cells for no more than 30–90 minutes per day over a six-month period, with little opportunity for social engagement or ‘purposeful’ activity (see Gormley et al., 2020): The lockdown has totally changed the routine an’ the whole dynamics of the prison system. At the beginning we were basically locked up 24/7 only getting let out for a 10-minute shower an’ straight back to the cell and some [time] for phone calls. Everything stopped, there was no visits,

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gym, exercise or education and no access to healthcare services, nothing! (CC03)

As the traditional markers of the passage of prison time disappeared, time in prison gave the illusion of stopping as the short time out of cells became for essential purposes only. There was no longer the option of moving between spaces throughout the day for meals, work, education, exercise, visits, and programmes, and time ‘presents itself as a problem […] no longer a resource to be used but an object to be contemplated’ (Cohen & Taylor, 1972: 104). Participants discussed feeling adrift and unanchored as their lives and coping strategies were upended by the drastic changes to, and lack of, routine: My routine has been smashed to pieces because it’s always changing. They are coming up with more rules on a daily basis. Telling us what not to do always. The staff don’t have a clue what they are doing at the moment. (PS021)

The prison lockdown procedure was implemented to prevent the spread of the virus, yet with minimal information provided by the prison regime to prisoners and their loved ones (see Gormley et al., 2020). As such, the institutional response felt to many like additional punishment as most people were living in conditions of excessive security. These conditions can be likened to life in solitary confinement for many months; prisoners felt the passage of time, and especially time alone, more acutely due to the loss of ‘sovereignty over time’ (O’Donnell, 2014: 176). We heard from just one person on remand awaiting trial, whose experience seemed distinct from others given the unknowable stretch of time ahead as all court business was suspended, yet they too were subject to 23.5-hour lock-up: Never know what happens next. Every morning I don’t know what’s going to happen to me. (CC09)

Court dates, earliest dates of liberation, progression milestones, and daily activities help people navigate the ‘temporally undifferentiated’ nature

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of prison time (Cohen & Taylor, 1972: 93). As opposed to calendars and clocks, these markers of time convey temporal moods, feelings, and meaning (ibid.: 7). Without subjective scheduling and a sense of when the conditions of lockdown might end, some people felt a sense of ‘disorientation’ as an excess of unmarked time stretched out ahead (Medlicott, 1999: 227). With an abundance of ‘backstage’ time spent alone, or with a cellmate, participants seemed to be longing for the frontstage arena as lengthy lock-up meant interaction of any kind with any other person was limited (Goffman, 1959). Prisoners became extremely socially isolated due to restrictions on social interaction or tactile connection with family and peers. There was significantly less time, or means, to use much coveted communal phones (before mobile phones were issued across the estate) to speak with family and friends outside, and recreation time was cancelled. As the quote below demonstrates, time out of cells became extremely valuable because it was so limited and had to be used for so many things: Life has been worse during lockdown, being locked in your cell longer and getting limited time for showers and to use the phone and not getting to speak to and hang about with other prisoners. (PS081)

The distance from outside life also became more substantial as life inside became increasingly inhibited and temporally ‘unstructured’ (Cohen & Taylor, 1972: 96). The imposition of an unmarked, compressed, communal time lacking routine flattened the multiple temporalities that intersect within and beyond prison. Paradoxically, one participant felt that prison lockdown was manageable because it meant people in prison were being treated the same as those in the community: The only difference [is] being locked up all the time but people outside [were in] lockdown so it’s fine ok. (PS039)

During the lockdown, the normal rhythm of the day stopped for people both inside and outside, traditional markers of time disappeared, and the multiple temporalities that are normally negotiated were flattened.

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In both settings, people were exposed to new and amplified forms of temporal deprivation.

Stuck in ‘the Precarious Now’ Lockdown exacerbated the loss of temporal autonomy in prison, leaving people feeling trapped in the ‘precarious now’ as it dragged on endlessly (Kaun & Stiernstedt, 2020: 1596). The cessation of normal daily life in prison put prisoners’ lives, and futures, on hold, creating ambiguity and anxiety around what this meant for them and how long it would last. This led one participant to comment: My life has stopped. My anxiety is all over the place not being able to have visits like normal not knowing if family are safe, putting on weight, no exercise […] Mental health is shocking, full of dread, and it might be another lockdown. (PS049)

Many participants drew comparisons to life in prison prior to lockdown, some commenting that there had been no noticeable change aside from being locked up ‘earlier’: Everything has pretty much [stayed] the same apart from getting dinner earlier and locked up earlier at night. (PS050)

The indistinguishability of conditions in a crisis demonstrates how the ‘before’ bleeds into the ‘now’, creating an extended prison-present (Brown, 1998; O’Donnell, 2014: 178). Although participants may have been somewhat familiar with lengthy time in cells pre-Covid, days blurred and the subjective experience of time became unpredictable and disorienting (Medlicott, 1999: 227). The notion of ‘earliness’ suggests that days were, or needed to be, shortened to cope with a changed sense of temporality. The tempo of prison life discussed through ‘earliness’ implies a sense of time being depleted, creating an urgency in the ‘now’: As everything got restricted, I also noticed that because the earlier lockup times and repeated incidents with fellow prisoners, tempers have been

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snapping faster resulting in fights and arguments which affect everyone in the vicinity. (PS070)

The experience of facing additional time curtailments within a temporally regulated and highly disciplinary environment, within the context of a global health crisis, amplifies the temporal pains of confinement As disrupted time cannot be reoriented without access to resources (O’Donnell, 2014), particularly where there has been loss of control over ‘time-structure’ or time of one’s own (Adam, 1990), some participants used sleep to survive the seemingly endless days and avoid the harmful effects of the institutional response to the pandemic: Only the time in your cell yourself you start to feel more anxiety as Covid19 hits your thoughts, so depression sets in. But [I] have to sleep early not to think much about the day. (PS088)

Sleep, as a means of escape or preservation of the self (Cohen & Taylor, 1972), became one of the few ways people felt they could escape the ‘precarious now’ (Kaun & Stiernstedt, 2020: 1596). Prisons are sites of temporal ‘multidimensionality’ (Kaun & Stiernstedt, 2020: 1596) where the ‘landscape of time, the past and the future, and the actual significance of the present moment insistently occupy the mind’ (Cohen & Taylor, 1972: 89). The absence of temporal anchors during lockdown made it even more challenging to ‘differentiate or divide’ time (Cohen & Taylor, 1972: 93). One participant discussed the felt experience of unstructured and precarious present time: I feel like my pain and mental health problems have got worse. I think this is because there is nothing to take my mind off them, also the routine keeps changing so you can’t relax. (PS077)

The abundance of present time flattened the complexity of temporal layers, concentrating conflicting temporalities into what Simmel refers to as an ‘eternal present’, or endless presentness (see Frisby, 2013; Schaff, 2005) from which there is no reprieve. Goffman (1961: 67) notes that

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time is ‘bracketed off for constant conscious consideration’ for the duration of ‘exile’, just as Brown (1998: 100–101) argues that an ‘extended sense of the present’ is inescapable in prison because of institutionally imposed monotony, regulation, and repetition.

Valuing Temporality Time in prisons, and particularly, time in and out of the cell took on a more material value during the Covid-19 lockdown. If time becomes a commodified ‘currency’ under a seemingly normal prison regime (Wahidin, 2006), then prisons in lockdown create the conditions for a hyperinflation of that currency. Under lockdown, temporal autonomy was limited to extremely small windows of time which made those minutes precious and valuable. This impacted everyday life as time in the cell felt like a wasteful surplus, while time outside the cell felt like it had to be used well but quickly. Yet, the cost of present time impacted possibilities of future time as well, since sentence progression was largely suspended during lockdown. Participants overwhelmingly expressed the many ways in which the pandemic prison time was costing them opportunities, freedom, futures, and even time alive with their loved ones as the pandemic left them—and all of us—with a more urgent and profound understanding of lifetime.

Cost of Time In the day-to-day life of someone in prison during lockdown, time out of one’s cell was typically limited to a small and precious window that was measured in minutes. As groups of prisoners shared these windows of temporal autonomy, it was tense and desperate: Everything that we need to address has to be done during our 90-minute open time when you can make sure what you are asking to be done is being done and when nearly 100 guys are trying to get things done in a such a short period of time the tension rises rapidly. (CC08)

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Time out of the cell was commodified and extremely valuable. It was in high demand and in short supply. Those daily 90 minutes of ‘open time’ were the only minutes people could use or spend how they liked and which provided a sense of autonomy albeit in a highly concentrated dose, whereas the remaining 1350 minutes of ‘closed time’ had no meaningful value. Yet, the limited window of opportunity and crowdedness of everyone trying to do everything at the same time, meant prisoners had to make impossible decisions about what they spent that valuable time doing or not doing (Gormley et al., 2020). Lockdown in prison cost time not just in minutes of the day, but in months and years as well. Temporal elasticity is a subtle but central feature of long-term prison sentences (i.e. more than four years) in Scotland, as ‘progression’ hinges on undertaking programmes and performatively demonstrating readiness for release (see Beyens et al., this volume; HMIPS, 2011). These progression activities reflect key structural milestones in the journey towards freedom beyond carceral punishment. Progress may be hindered through disengagement with programmes or technical non-compliance resulting in a security downgrade, meaning that the individual must restart the progression process, and, in turn, time spent in prison is stretched out. During lockdown, all progression programmes were suspended and opportunities for movement from closed to open conditions were paused. One participant shared frustration at people being ‘held back from progression because of the lockdown, as the movement grind[s] to a halt’ (CC03). Cessation of these programmes created a temporal threat, of dragging out and elongating the process, as this participant outlines: Lockdown has stopped me progressing twice. Once at the start when we went into full lockdown, another time just recently. My parole date for oral hearing has been rescheduled twice due to lockdown. (CC02)

Time is a valuable commodity in prison, especially where there is little control over how it may be spent and when confronted with its potential loss (Wahidin & Tate, 2005: 70). Regime interruption and programme suspension magnified the value of time, as prisoners dreaded additional time in prison because of delays in reaching progression milestones.

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Additional time in prison came with the ancillary threat of lost time outside or depleting time of one’s own (Wahidin & Tate, 2005); time’s value increased as wasted time was measured against the life-course. One respondent was close to completing a long-term sentence when the pandemic began, but felt that progression delays would ‘cost me time behind bars’: I’ve got 17 weeks left, I’ve spent 6 years inside out of 7 years, no progression, hope took away for me. (PS085)

Being denied forward motion, a time to look forward to, meant more time locked up and away. Those impacted by progression delays were stuck in a hopeless suspension of uncertainty and the frustrating derailment of plans, ‘saturated by an awareness of time and feel[ing] powerless to do anything to accelerate its passage’ (O’Donnell, 2014: 182). Lockdown restrictions across the prison estate and wider community shifted the goalposts of an already challenging and testing system. Those towards the end of their long-term sentences, preparing for or subject to the progression process, felt adrift as their time inside stretched out ahead of them: Some of us in top end1 feel left in limbo land, not being able to progress and get out. It’s like our sentence has frozen... (PS065)

Time is experienced in place (Medlicott, 1999; Wahidin, 2006) and the extract above highlights feeling trapped both in place and in time. Limbo, or the liminal space, represents a void bereft of motion in the intended direction. Liminality assumes eventual linear movement from point A to point B (Turner, 1967, 1969), yet, without information about plans to resume progression, there was no guaranteed point B during lockdown. Being held in suspension meant people were made 1

The ‘top end’ refers to the National Top End which forms part of the progression toward release process for people serving long-term sentences (i.e. more than four years). Once at the ‘top end’, prisoners move to a separate part of a closed prison under less secure conditions with controlled access to the community through day release permissions or community-based work placements.

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significantly more vulnerable to the effects of punishment. One of the authors spent most of lockdown living in open conditions preparing for release and noticed that while progression-towards-release stopped due to Covid restrictions preventing movement within the prison estate, ‘knock-backs’, or downgrades back to closed conditions, continued for those not complying with open conditions. With the potential of years being added on, the high-stakes nature of this wait demonstrates the ways in which waiting time, as Armstrong (2018) argues, can be conceived of as elastic and mobilised rather than static and stuck.

Lost Time Moreover, many participants experienced a loss of valuable time which was largely centred on family time. As most prison-based survey responses were received in September 2020 (after six months of restrictions), many respondents had not seen or been able to maintain remote contact with their loved ones for the duration of this period. Almost all respondents who answered the open-ended question mentioned missing family, noting that the time apart was made harder by the pandemic: Going from being in a close family see each of my 3 brothers and 2 sisters weekly to no’ seeing them at all has been a nightmare then to get hit with lockdown due to COVID 19 made it even worse... (PS046)

Family time was discussed as moments of togetherness and connection, and those moments lost were felt as temporal deprivation (Cohen & Taylor, 1972; Kotova, 2019). Just as Covid-19 restrictions cost or wasted time, missing out on milestones and mundane moments with family was time lost (Alheit, 1994): It’s hard because you can’t social distance and can’t maintain family contact and it’s having a massive effect on my mental health and am worried about my daughter forgetting who I am and catching COVID 19. (PS044)

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The extract above highlights the pandemic-specific ways that lost time operates across intersecting temporal axes; the respondent is torn between present and more profound loss of time as ‘time exacerbates all of the deprivations’ of life in prison (Flanagan, 1981: 212). Not only was time lost, but they feared they would be lost with it. Some participants discussed dealing with bereavement during the pandemic, without access to mental health support, grief counselling, or the guarantee of regular contact with loved ones and a loss of time never to be returned: If COVID-19 wasn’t bad enough in here I unfortunately lost my dad during it and having to deal with the loss of him on my own has broken me to the point it takes me to have the motivation to even get out of bed each day, it cost too much in phone calls to try and keep in contact with my family and there is no extra support in this hell that they call HMP [Prison]. (PS046)

In response to disrupted family contact and suspended visits, the official prison rules were amended in June 2020 to allow virtual visits, using video conferencing technology within visit rooms. This amendment also permitted prisoners to be issued heavily restricted mobile phones, pre-loaded with approved contacts and a monthly call time limit of 300 minutes (see SPARC, 2021). Although both measures were welcomed by many participants as an essential lifeline for maintaining family contact, they were not without technical and logistical problems (see Gormley et al., 2020) that made the time apart more painful: [B]ecause it’s a new phone, they don’t have a charger for me so I’m stuck all over the lockdown worrying sick about family and not being able to contact nearly anyone, it’s been so bad on my mental health. (ITL01)

There were issues with phone chargers, signal reception, temporal restrictions on when mobile phones could be used (i.e. time slots), and connection issues with virtual visits where the video would freeze. One of the authors reflects on opting out of virtual visits as the emotional labour of dealing with technical glitches eating into precious family time became too much for himself and his loved ones. Beyond the technical

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and logistical problems, some respondents highlighted privacy issues and were concerned that these technologies would be used against them: It’s been very hard not seeing my family. I didn’t take virtual visits as I didn’t agree with the fact they were being recorded like an evidence video.2 Image as well as sound. I feel that was an invasion of privacy. The socially distanced visits weren’t any better. The way the tables were set up, I was sat closer to the other person’s visitors than I was to my own. The staff from different households would be sat in pairs talking, so [it] was hard to hear each other from such a distance, but it felt unfair as the staff weren’t distancing and chatting close to your table. Again, I stopped taking visits as felt it was a waste of time. (CC04)

While the introduction of video conferencing technologies and restricted mobile phone usage enabled connection between people in and outside of prison, it sometimes further exacerbated the feeling of missing out. Prison regulation and control over contact between family members, both virtually and socially distanced, also felt frustrating or invasive. The participants’ experiences discussed above demonstrate that the experience of temporal deprivation of missing and missing out was acutely painful during the pandemic (Cohen & Taylor, 1972; Kotova, 2019).

Found Time A minority of respondents shared feeling a sense of ‘reprieve’ and calm during the imposed lockdown time. Discussing the same period and duration of time as those who felt its loss, this group also reflected on ‘wasted time in prison’ but in a forward focussed trajectory. Some people found their own ways to make meaning from this time and take time back through various ‘survival tactics’ (Cohen & Taylor, 1976). For example, the abundance of time alone was enjoyable for those who preferred their own company and time-consuming solo activities:

2 Virtual visits were monitored both electronically and in-person by prison staff who could terminate the visit if there was a breach of the code of conduct (for more information, see SPS, 2020).

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Being in a single cell alone I’m used [to] and like the peace. The extra time locked up due to the COVID 19 […] I don’t mind the solitude to do more art and creative writing (time to concentrate more). (PS072)

This extra time was time found for those who could cope in isolation, or who struggled in group settings, and had artistic pursuits to fill the day that required very few materials. Whereas previous temporal regimes may have interfered with their concentration, this uninterrupted time alone was modified into productive and creative time. For others, the time away from other prisoners and the social life of prison provided an opportunity to make lifestyle changes and think about the future: Since lockdown began, I have used it to my advantage to totally abstain from drugs after a 20-year drug addiction and now I feel I am in the best I have ever been physically and mentally. I have used the lockdown period to my own advantage. (PS009)

This survey respondent mobilised lockdown time, or unexpected ‘found’ time, to recover from long-term substance use and improve their physical and mental wellbeing. Using this time to their ‘advantage’ demonstrates how some prisoners made ‘secondary adjustments’ to recast what this time meant (Goffman, 1961). These constitute examples of ‘make-do’s’ in which people modify the resources around them to improve their conditions, and ultimately, to help them survive (ibid.: 187). Using time out as a reprieve gave a minority of respondents the opportunity to plan for the future and to make this ‘my last ever time in prison’ to ‘spend as much time as possible with my mam’ (PS078). Such a forward focussed trajectory demonstrates how having nothing to do, for a few, became something quite significant.

Hollow Time This chapter has so far explored the temporal conditions of Scottish prisons during the Covid-19 pandemic and lockdown. The structuring of prison life dramatically changed as lockdown removed traditional

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temporal markers as well as the resources people had come to rely on to pass time. Although virus suppression was the overarching goal, the institutional response to the pandemic was to restrict movement by imposing enhanced security and control over prison populations which, in turn, imposed a seemingly endless time-scape of the flat and precarious present. While a minority of people described examples of temporal ‘make-do’s’ to transform this abundance of lock-up time, most people struggled to find meaning in the everyday because there was nothing to do. If time is something to be filled (O’Donnell, 2014), like a vessel, then we argue time in Scottish prisons during the pandemic was time hollowed out. Temporal changes to the prison regime limited the ways in which people could fill up their days, as there were no activities to participate in, little to no contact with people inside or outside prison, and little information shared about what was happening and when it would end. Strategies for coping and the resources that make prison survivable were therefore not readily available. Hollow time can be characterised by profound emptiness and monotony as depicted in our participants’ accounts discussed throughout this chapter. In an earlier analysis of this data, we describe the experience of being in prison during the pandemic as ‘deeper’, ‘heavier’, and ‘more crushing’ (see Gormley et al., 2020: 66; Casey et al., 2021) informed by Crewe’s (2011a) work on ‘depth’, ‘weight’, and ‘tightness’ (see also Crewe & Ievins, 2021). Although hollowness may seem oppositional to the sense of heaviness, these concepts are intertwined through the burdensome nature of unstructured time locked in the present, alone and apart. People in prison had an abundance of valueless time, a disorienting amount of nothingness which made time lose its meaning: Well, it has turned a confined existence into an even more confined one being locked in a cell for long periods and your regime turned upside down. (CC03)

Scott (2018) argues that nothing is not the absence of something, but rather, the unmarked abundance of social actions and phenomena that come from not-doing and not-being. In this sense, hollow time is ‘upside

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down’ (CC03) because it represents the inverse of doing something, being someone, and having something (Scott, 2018). Having nothing to do for an indefinite period of time under confined conditions is a heavy and crushing experience. Time became hollow of meaning and while nothing was happening, people worried, hoped, waited, and suffered: Everything that was bad about the prison like drug use and the way it has affected people’s mental health has been [multiplied] times by a 100 there has been more of everything it’s the obvious result of a sudden routine change and being so confined for long periods of time there has been people losing their minds and suicides. (CC03)

The monotony of hollow time had damaging effects on many people’s wellbeing. It was like a ‘temporal vacuum’ (Scott, 2018: 12) which amplified the ways in which prison is already harmful and damaging. The temporality of this lockdown regime stripped away the resources and support prisoners needed to cope and survive, while enhancing the precarity of their situations. Many participants expressed that this created a tense atmosphere in the prison environment: Most of the time in this prison at the moment the air could be cut with a knife as there is absolutely nothing for the guys to get involved in which is why the prison is like this at the moment. (CC08)

The hollowing out of daily life contributed towards an atmospheric ‘background’ of rising tensions, frustrations, anxieties, and anger (Brekhus, 1998; Fraser & Matthews, 2021). Hollow time became burdensome, which some participants felt was excessively oppressive and maliciously enforced by an uncaring institution: It seems like staff and other officials are saying “They’re only prisoners if they get COVID 19 then that’s one less prisoner to deal with in an overcrowded jail.” Staff are only protecting themselves, it’s ridiculous. (PS052)

The notion that prisoners felt their lives no longer mattered as much demonstrates how intertwined having time (as an object) and doing time

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(experientially) are to people’s constructions of self (Scott, 2018). Hollow time ontologically threatened one’s sense of self, as temporal emptiness was imposed and internalised: It wouldn’t be so bad if we had some support. It’s like we don’t exist the screws don’t care about anything but themselves. We are getting exercise but it’s not enough, I am honestly really close to doing something to get me out of this place. (PS021)

This abundance of hollow time left people in prison feeling devalued and ‘forgotten’ (Gormley et al., 2020: 58). In the above survey respondent’s case, it was met with desperation and an urgent feeling to attempt escape. The empty and monotonous regime imposed on prisoners made them feel their time did not matter, so in turn, they did not matter. This shows how profound doing time and having something to do is to surviving and coping in prison. Nothingness filled the negative space left behind by changes to the temporal regime of prison, subjecting prisoners to the heavy burden of hollow time.

Conclusion This chapter set out to explore the temporal experience of lockdown in prison during the Covid-19 pandemic. Although lockdowns, and other qualities of ‘pandemic time’, are not new in prisons, this chapter revealed how the disruption and disorientation of time and routine intensified punishment in prison through the burdensome, but hollow, nature of time alone and apart. In drawing on experiences shared through survey responses and letter correspondence data from people living in Scottish prisons during the pandemic, we have evidenced some of the immeasurable changes and challenges of disrupted prison temporality. For many people, their lives and livelihoods ground to a halt as the resources, activities, and interactions that make everyday life survivable stopped and as future-oriented progression programmes were suspended. The routinised temporal structure and subjective experience of prison time changed as the ordinary rhythm of prison life disappeared with

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people being confined to their cells for far longer periods than ever before. Time was abstracted as movement between spaces within the prison became more limited and the physical flow of people, goods, and services between the community and prison stopped entirely. However, the introduction of digitally mediated interaction with family outside through video and mobile phones revealed a more complex understanding of the porous nature of prisons in a time of crisis. The experiences shared above point towards an unbearable abundance of time, awareness of its finitude, and a sense of being stuck in a never-ending ‘now’ while, at the same time, desperately trying to navigate the unsettling and disorienting nature of a compressed and communal temporality. We demonstrated the changing value of time as a commodity, as the extremely limited time out of cells—measured in mere minutes of a day—was coveted for survival within a context that threatened more profound temporal losses and missing out on time never to be returned. Amidst the empty rhetoric of being ‘resilient’ and ‘in this together’, we introduced the concept of hollow time because strategies for coping and the resources that make prison survivable were taken away during the Covid-19 pandemic. Prisoners’ daily lives were hollowed out from above, with uncertainty bearing down on them and enveloping them in a ‘misty abyss’ once filled with ‘meaningful’ activity (Cohen & Taylor, 1972: 95; Crewe, 2011a). The experience of carceral punishment became harsher and sharper through this temporal elasticity and disorientation. Time filled with ‘nothing’ is time hollowed out, rather than empty time; it is burdensome, hangs heavily, and is filled with anxiety of what is to come (Brown, 1998; Goffman, 1961; Meisenhelder, 1985). Though prison time is often considered as time lived across multiple temporalities, the pandemic restrictions gave the impression of time stopping and people living in prisons started to feel that their time was worth less as they were made more vulnerable to the harms of penal confinement. Funding Information This work was part of the “Scotland in Lockdown: Health and Social Impacts of Covid-19 Suppression for Vulnerable Groups in Scotland” and was supported by Chief Scientist Office (Scottish Government) funding, Grant Number COV/GLA/20/12.

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References Adam, B. (1990). Time and social theory. Polity Press. Alheit, P. (1994). Everyday time and life time: On the problems of healing contradictory experiences of time. Time & Society, 3(3), 305–319. Armstrong, S. (2018). The cell and the corridor: Imprisonment as waiting, and waiting as mobile. Time & Society, 27 (2), 133–154. Armstrong, S., Barkas, B., Casey, R., Cornish, N., Gormley, C., McNeill, F., & Schinkel, M. (2022). Prisoner experiences of Covid-19 restrictions in Scotland during 2020. Available at: https://scotlandinlockdown.files.wordpress.com/ 2022/03/prisoner-survey-briefing-final.pdf (Accessed 04 April 2022). Baer, L. D., & Ravneberg, B. (2008). The outside and inside in Norwegian and English prisons. Geografiska Annaler: Series B, Human Geography, 90 (2), 205–216. Braun, V., & Clarke, V. (2006). Using thematic analysis in psychology. Qualitative Research in Psychology, 3(2), 77–101. Brekhus, W. (1998). A sociology of the unmarked: Redirecting our focus. Sociological Theory, 16 (1), 34–51. Brown, A. (1998). ’Doing time’: The extended present of the long-term prisoner. Time & Society, 7 (1), 93–103. Casey, R., McNeill, F., Barkas, B., Cornish, N., Gormley, C., & Schinkel, M. (2021). Pervasive punishment in a pandemic. Probation Journal . https://doi. org/10.1177/02645505211050871 Cohen, S., & Taylor, L. (1972). Psychological survival: The experience of longterm imprisonment. Penguin. Cohen, S., & Taylor, L. (1976/1992). Escape attempts: The theory and practice of resistance to everyday life. Allen Lane. Cornish, N. (2019). Vulnerability and the protection of prisoners in Scotland and England. Howard League ECAN Bulletin, 41(1), 17–23. Crewe, B. (2011a). Depth, weight, tightness: Revisiting the pains of imprisonment. Punishment & Society, 13(5), 509–529. Crewe, B. (2011b). Soft power in prison: Implications for staff–prisoner relationships, liberty and legitimacy. European Journal of Criminology, 8(6), 455–468. Crewe, B., & Ievins, A. (2021). ‘Tightness’, recognition and penal power. Punishment & Society, 23(1), 47–68.

114

C. Gormley et al.

Flanagan, T. (1981). Dealing with long-term confinement: Adaptive strategies and perspectives among long-term prisoners. Criminal Justice and Behavior, 8(2), 201–222. Foucault, M. (1977). Discipline and punish: The birth of the prison. Allen Lane. Foucault, M. (1982). The subject and power. In H. L. Dreyfus & P. Rabinow (Eds.), Michel Foucault (2nd ed.). Chicago University Press. Fraser, A., & Matthews, D. (2021). Towards a criminology of atmospheres: Law, affect and the codes of the street. Criminology & Criminal Justice, 21(4), 455–471. Frisby, D. (2013). Fragments of modernity: Theories of modernity in the work of Simmel, Kracauer and Benjamin. Routledge Revivals Series. Routledge. Garland, D. (1997). ’Governmentality’ and the problem of crime: Foucault, criminology, sociology. Theoretical Criminology, 1(2), 173–214. Goffman, E. (1959/1990). The presentation of self in everyday life. Penguin Press. Goffman, E. (1961/1991). Asylums: Essays on the situation of mental patients and other inmates. Penguin Press. Gormley, C., Schinkel, M., Barkas, B., Casey, R., Cornish, N., & McNeill, F. (2020). Criminal justice involved. In Scotland in Lockdown Team (Ed.), Left out and locked down: Impacts of Covid-19 lockdown for marginalised groups in Scotland (pp. 57–66). Available at: https://scotlandinlockdown. co.uk/project-report/ (Accessed 14 November 2021). Haney, C. (2003). Mental health issues in long-term solitary and “supermax” confinement. Crime & Delinquency, 49 (1), 124–156. Heidegger, M. (1962). Being and time. Harper & Row. Herrity, K. (2020). Hearing behind the door: The cell as a portal to prison life. In J. Turner & V. Knight (Eds.), The prison cell (pp. 239–259). Palgrave Studies in Prisons and Penology. Palgrave Macmillan. HM Inspectorate of Prisons Scotland. (2011). Review of the arrangements for progressing prisons from closed to open conditions: Thematic report. Available at: https://www.prisonsinspectoratescotland.gov.uk/publications/reviewarrangements-progressing-prisoners-closed-open-conditions (Accessed 16 November 2021). Jamieson, R., & Grounds, A. (2005). Release and adjustment: Perspectives from studies of wrongly convicted and politically motivated prisoners. In A. Liebling & S. Maruna (Eds.), The effects of imprisonment (pp. 33–65). Willan Publishing. Jefferson, A. M., Caracciolo, G., Kørner, J., & Nordberg, N. (2021). Amplified vulnerabilities and reconfigured relations: COVID-19, torture prevention and human rights in the Global South. State Crime Journal, 10 (1), 147–169.

4 Unmarking Prison Time During the Covid-19 Pandemic

115

Jewkes, Y. (2005). Loss, liminality and the life sentence: Managing identity through a disrupted lifecourse. In A. Liebling & S. Maruna (Eds.), The effects of imprisonment (pp. 366–388). Willan Publishing. Kaun, A., & Stiernstedt, F. (2020). Doing time, the smart way? Temporalities of the smart prison. New Media and Society, 22(9), 1580–1599. King, R. D., & McDermott, K. (1989). British prisons 1970–1987: The everdeepening crisis. British Journal of Criminology, 29 (2), 107–128. Kotova, A. (2019). ‘Time … lost time’: Exploring how partners of long-term prisoners experience the temporal pains of imprisonment. Time & Society, 28(2), 478–498. Lawrence, B. D. (2020). An avoidable crisis: The Doreen Lawrence review. Available at: https://www.lawrencereview.co.uk/ (Accessed 14 November 2021). Matthews, R. (2009). Doing time: An introduction to the sociology of imprisonment (2nd ed.). Palgrave MacMillan. Maycock, M., & Dickson, G. (2021). Analysing the views of people in custody about the management of the COVID-19 pandemic in the Scottish Prison Estate. International Journal of Prisoner Health, 17 (3), 320–334. Medlicott, D. (1999). Surviving in the time machine: Suicidal prisoners and the pains of prison time. Time & Society, 8(2), 211–230. Meisenhelder, T. (1985). An essay on time and phenomenology of imprisonment. Deviant Behavior, 6 (1), 39–56. Moran, D. (2014). Leaving behind the ‘total institution’? Teeth, transcarceral spaces and (re)inscription of the formerly incarcerated body. Gender, Place and Culture, 21(1), 35–51. Neale, J. (2016). Iterative Categorization (IC): A systematic technique for analysing qualitative data. Addiction, 111(6), 1096–1106. O’Donnell, I. (2014). Prisoners, solitude and time. Clarendon Press. Portschy, J. (2020). Times of power, knowledge and critique in the work of Foucault. Time & Society, 29 (2), 392–419. Scarce, R. (2002). Doing time as an act of survival. Symbolic Interaction, 25 (3), 303–321. Schaff, L. A. (2005). The mind of the modernist. Time & Society, 14 (1), 5–23. Scotland in Lockdown Team. (2020). Left out and locked down: Impacts of Covid-19 lockdown for marginalised groups in Scotland . Available at: https:// scotlandinlockdown.co.uk/project-report/ (Accessed 14 November 2021). Scott, S. (2018). A sociology of nothing: Understanding the unmarked. Sociology, 52(1), 3–19.

116

C. Gormley et al.

Scottish Prisoner Advocacy and Research Collective (SPARC). (2021). Covid19 updates. Available at: https://scottishprisoneradvocacy.com/covid-19-upd ates/ (Accessed 17 November 2021). Scottish Prison Service (SPS). (2020, June 10). Virtual visits—Frequently asked questions. Available at: https://www.sps.gov.uk/Corporate/Information/cov id19/Information-for-families-and-friends.aspx (Accessed 8 March 2022). Sobande, F. (2020). ‘We’re all in this together’: Commodified notions of connection, care and community in brand responses to COVID-19. European Journal of Cultural Studies, 23(6), 1033–1037. Toch, H. (2001). The future of supermax confinement. The Prison Journal, 81(3), 376–388. Turner, V. (1967). The forests of symbols: Aspects of Ndembu ritual . Cornell University. Turner, V. (1969/1995). Ritual process: Structure and anti-structure. Adeline de Gruyter. UNODC. (2015). Handbook on dynamic security and prison intelligence. United Nations. Wahidin, A. (2006). Time and the prison experience. Sociological Research Online, 11(1), 104–113. Wahidin, A., & Tate, S. (2005). Prison (e)scapes and body tropes: Older women in the prison time machine. Body & Society, 11(2), 59–79.

5 Time in Motion: Transport Between Prisons as Planned, Lived and Experienced Time Kerstin Svensson and Marcus Knutagård

Introduction While the prison has been said to mirror society, the system of transporting prisoners reflects the prison system. Yet, a prison is a place where you stay during a certain time, while transport is a question of motion, both in time and space. Mobility is an essential part of contemporary everyday life (Urry, 2007) but prison is supposed to prevent mobility, and this is why we tend to associate the prison with immobility. This, however, is not fully reflected in practice. Prisoners are continuously moved within the prison system. Armstrong (2018) has shown that this is also relevant to the prison per se, since the corridor and the movements K. Svensson (B) · M. Knutagård School of Social Work, Lund University, Lund, Sweden e-mail: [email protected] M. Knutagård e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1_5

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therein are essential elements of daily life in prison. In this chapter, we focus on mobility between prisons. Prisoners are transferred to maintain differentiation and security, to break unsolicited cultural rules and rituals that are developing among the prisoner population, as well as to prepare for release. As prisoners are by definition, not allowed to control their movements, a transport system is needed. Michel Foucault (1979) has described prison transport as an “apparatus of correction” (p. 264); a metaphorical description of a prison in motion that is anonymous and secretive to the outside, but with the ability to transform the prisoners inside the vehicle. He emphasises the parallel process where the vehicle moves in the landscape, and the prisoner is transferred from one role to another. It could be a question of moving from being the leading person in the wing in one prison, to being in solitary confinement in another prison. It could also concern moving from being a prisoner among others into being an active individual subject participating in treatment. Each transport means an incarcerated person is moved from one context into another. In each context, the roles available differ. Thus, the outer movement relates to inner movements for the prisoners in transit. Both these processes are essential for the prison system and could be regarded as a way to uphold a strictly controlled mobility. Prison transport and movement could be understood from the perspective of carceral geography (Moran, 2012, 2015). However, it is not only a question of spatial movement; time plays a central role in the transportation of prisoners. Time is, as we will show, the governing principle for the transport, which in a wider sense, helps inform understanding of the prison system as such. Andrew Abbott (2001) argues that sociology has focused too much on causal processes with fixed entities and attributes and a monotonic causal flow. This is also how time is administered within the prison system. In life, subjects and events are more important, as well as the narratives that give meaning to processes. Abbott distinguishes between Time and Event, where Time is connected to the causal order and Event to the real-life world. The prison system and its planners focus on Time as they arrange the activities in a specific order. But for those who experience transport, it has values more akin

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to an Event. In the Event, in real life, things happen, with or without a specific order. A transport could be seen as something “between” two phases, a stepping-stone in a causal chain. If the event is in focus, the transport has a more definitive meaning in and of itself. In this chapter, the staff members responsible for prison transport are in focus, those for whom these transports are an everyday practice, day after day. We do not, or cannot, say anything about this practice from the perspective of those who are being transported. Thus, this chapter is based on the perspective of the staff. This is a perspective from those who could be seen as governing the situation, but, as we will show, are also themselves subject to governance. While transported prisoners are “doing the time” of their sentence, those transporting them are “doing their working” hours. Both parties can be seen as products of the system they are in, even if they are there under different conditions. We will discuss how discretion operates even in a very strict scheme, showing how staff reason about flexibility and managing time and events. While the prison system regards the transport as a planned order of things, those who perform the transport tell stories about events. By drawing on Lefebvre’s (2011) concepts of space, we use a time-triad to analyse the transporters’ reasoning on time and discretion. Planned time is described and contrasted with narratives on flexibility, and how the controlled schedule continues to be strict, even if it is constantly changing. Lived time involves narratives about internal and external complications resulting from the requirement to follow strict plans, but also stories about being in command of and managing time. Experienced time is understood from narratives about interpersonal and relational aspects of transport, including long-lasting relations with colleagues and short and intense meetings with clients. The aim of this chapter is to analyse and discuss how time is organised, performed and perceived during prison transportations. We analyse the narratives of transporters on how time is planned, lived and experienced. We will show the contrast between the three aspects of time connected to the narratives of time in relation to the prison transport.

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The Transport and the Study As prisons reflect society, and the transport system is part of the prison system, ways of transporting prisoners vary between countries as well as over time in each specific setting. This chapter is based on how prisoners are transported in Sweden and on an empirical study conducted in 2016–2017. In Sweden, the system for transporting incarcerated persons is organised as a unit in the national and integrated Prison and Probation Service (PPS). This unit is responsible for transporting people who are sentenced and remanded to prison. Moreover, they are also responsible for transporting people from the Swedish Migration Agency, the Swedish National Board of Institutional Care (which is responsible for the compulsory care of youth and of individuals with serious alcohol and drug abuse problems) as well as persons in compulsory psychiatric care. Each year, the National Transport Unit transports almost 100,000 persons of whom almost 80 per cent are within the PPS. Each day more than 200 prisoners are transported, which is equivalent to the population of one prison on the road every day. The numbers in daily transport can be viewed alongside a total daily prison population in Sweden of around 5,000 sentenced and 2,000 remand prisoners in prison (Kriminalvården, 2020). Most transports are carried out in the transport service’s minivans. At first sight these vehicles resemble an ordinary minivan with three rows of seats. On closer inspection, you can see the logotype for the Prison and Probation Service on the side of the vehicle (see picture below), and inside, several security arrangements are evident. Nevertheless, in the minivan, the transporters and the transportees sit together and there could be up to four persons from each category. There are no secluded areas within the van, instead each person that is to be transported is assessed according to whether s/he could be in the vehicle together with others.

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Photo The Swedish Prison and Probation Service Sweden’s geography and climate can be a challenge, as the distances can be very long, and winter can be very cold. Sweden has a length of more than 1,500 kms and a width of up to 500 kms. The long distances might include overnight stays, or transfer of transportees from one vehicle to another. Due to the distances, transports are in some situations conducted by aeroplane, where the transporters escort the prisoner on regular flights. In this study, these are only included to the extent that the minivans bring the transportees and their escorts to the airport. Many of the transports include pick-ups on the way during about a three hours’ drive to a central site. At that site some of the persons being transported can be picked up by transport units from another region to continue the ride, while the first unit returns, picking up and depositing other persons on their way back. In this way, the staff could travel back and forth, on a regular working day. Our study included two days of field work at the national coordination centre, ten days of field work in transports and 14 individual interviews with transporters. The transporters are correctional officers and had between 2.5 and 40 years of experience of work within PPS. All but two had been working in prisons before they came to the transport unit. The transport unit is an attractive workplace within PPS and all interviewees talked very positively about their work. Quotes are

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presented with the number of the interview, as (1), (one number for each respondent). No other distinctions are made between the different individual transporters. In this text, we regard them all as representatives of their occupational group. Three explanations reoccurred in the stories of why they had changed work and started working with transports: To come out of prison, “it is more freedom” (1), to drive a van, “I like driving, and then you have very nice colleagues” (9), and to have another kind of relation to the clients “You get another kind of contact, they are by themselves and not in a group” (3). In the study, we followed the process in the transport unit, where the orders for transports from different units led to complex logistics of vans and people across the whole country. Each person that required transport was assessed and categorised by the ordering unit and double-checked by the transport planning unit. The day before the transport, a schedule was organised for each minivan and sent to the local units where the vans were staffed. The vans take up to four prisoners and the same number of staff. One important component in the day-to-day practice is the setup time; the time it takes to, for instance, prepare the vehicle or to put things in the right place, so that you can get on with your task. Jönsson (2005) argues that the setup time is not only dependent on the activities in question, but also relates to how they are valued. Easy and hard tasks need different setup times, as the hard tasks require more thinking. Thus, easy tasks can be handled during the setup time for the harder tasks. Each transport is meticulously planned, but in practice the staff are prepared for contingencies that might happen. There is an interaction between the plan and the transporters. The plan has to be regarded as a non-human actor—an actant (Latour, 2005) that participates in the transporters’ interactions within a strict scheme. In the morning, the members of the team for the specific minivan divide their tasks of supervisor (taking care of all paperwork), driver and escort. During the day, the vehicle follows a predetermined route, picking up and delivering prisoners (and other incarcerated persons) at the designated spots. The staff create and work within a friendly atmosphere; they greet each prisoner personally and strive to achieve a positive connection, even when they put handcuffs on. If no exception is mentioned in the

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order, all transportees are handcuffed. During the ride, the transporters continue to maintain the mood, all with the ambition of avoiding trouble and the need to use force (Markezic & Svensson, forthcoming). There are very few reports of incidents in transports. Escapes are extremely rare, and both prisoners and staff report fewer incidents on transports than from inside the prisons. Some of the interviewees emphasised that transport is a service where clients meet nice people who treat them well, as “they are people, you know” (6). They also describe how the transportees can relax in the van, whereas in the prison, they must constantly position themselves in relation to others. In some sense, it could be said that this system of transports shows an ideal way of working with a caring power where all persons involved are integrated in a spirit of getting the task done. The transporters can argue, as one did; “My work is to bring them from A to B as smoothly as possible” (11). Thus, creating a calm and safe trip is one of the main goals. As we will see from the interviews, the transporters also talk about themselves as the prison system’s “good guys”.

Three Ways of Understanding Temporality The transport of prisoners is an under-researched area. The temporal aspects of transports have not been given any attention at all in research studies. We argue that it is a fruitful field of inquiry since it elucidates the organisation of time and place in motion. To understand practices like the transportation of prisoners and similar activities “all social science needs to reflect, capture, simulate and interrogate movements across variable distances that are how social relations are performed, organized and mobilized” (Urry, 2007, p. 44). Thus, being on the move and doing time together shows that both the transporters, the prisoners and their practices are embodied. Friedland and Boden (1994) state that: Social actors and social actions are embodied , which means that they always entail genuine engagement of concrete moments in time and particular points in space; people are always somewhere, things have to

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happen in particular places, objects exist in a spatiotemporal relation to each other, and so on (Friedland & Boden, 1994, p. 6).

The time-triad that we use to analyse the transporters’ narratives on time is influenced by theorising on space. We are inspired by Henri Lefebvre’s (2011) triad on perceived–conceived–lived space, which we have transferred into planned, lived and experienced time. Connecting time and space is useful for understanding how time and space co-constitute one another (Moran, 2012). Planned time relates to Lefebvre’s conception of “conceived space” as a representation of space; this is the space created by city planners and scientists. It includes maps of the city, through city plans or different forms of design. In temporal terms, this is the schedule, the timetable, the order of how things are supposed to be sequenced. The lived time is equivalent to the “lived space”. In Lefebvre’s words, this refers to how we use and recreate space for different purposes, or how we take possession over the city. In our understanding, this concerns how we use time and what we do. Finally, the experienced time relates to how Lefebvre describes “perceived space”. It is about how we understand and create meaning. All three dimensions have to be understood as socially produced, through a dialectical process between the three dimensions in the triad. Our main interest here is time, even though time is situated (confined temporality) in the transports carried out between institutions. The actual punishment for the crimes that the prisoners have committed is doing time in a confined space with very little opportunity for individual autonomy. The transportation of prisoners is an example of mobility and of time and space in a particular vehicle. During transport, the prisoners and the staff are doing time together. They are sharing the experience of moving in time together, but for each party this time has a different context and meaning. It is evident that the staff transporting prisoners are people who take on a role where time is related to working hours, separating work from their private time and leisure time. However, in many ways the staff do what they must do during their shift, but family life and the time spent after work are highly affected. The consequences are that our respondents are not only doing time together with the transported

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prisoners, they are also doing time together with their family members and friends (cf. Comfort, 2008 and the Introduction of this book). An interesting reflection is that it is not possible to pause time, even though we often, in our daily lives, try to make breaks and pauses, even though life itself continues. This relates to Abbott’s (2001) distinction, whereby the event can be paused, but time goes on. For the transporters this fact is dealt with differently as we will show from our empirical data. One way of dealing with the fact that time keeps going is to see “this day as this day”, as one of the transporters put it. The external world, outside the event of being at work conducting the transport, are cut off from the event. Time becomes a specific issue within that practice, not related to time in private life. Not really knowing what will happen in the day creates uncertainty. Hägglund (2020) formulates the dilemma well: “Because you can never rest in an immediate presence – because you must always rely on memories of the past and expectations of the future – you are dependent on what is beyond your control” (p. 94). The three analysis sections structure what follows. We first discuss planned time connected to the transportation of prisoners; we then elaborate on how time is lived during the transports before outlining how time is experienced . Planned time is in our view connected to “clock-time”, while the lived and experienced time is more connected to “existential time”.1

Planned Time Planning is a way of trying to get control by applying assumptions about human behaviour as well as about material conditions. A well-known scholar in the field of planning, Andreas Faludi, argues that planning is the application of scientific method to policymaking (Faludi, 2013). From his perspective, working with planning is to implement policy. This is also Lipsky’s (2010) way of describing “street-level-bureaucrats”, as those who work with policy in practice. He argues that prison officers are street-level bureaucrats, as they implement policy through their 1

See the discussion on Chronos and Kairos in the introductory chapter.

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work. They do not take decisions in the way professionals do, but they have a discretionary practice where micro-decisions are made throughout the day. Through these decisions, policy is implemented. In the planning process, advisers and decision-makers interact and knowledge from different areas is combined. Time is in focus as it is the organising principle for the actions that are planned. The idea of the transport is understood as a causal, temporal chain. In the process of planning, prison transport staff responsible for planning must consider the reasons for the transfer and the status of the person that is to be transported, in relation to the legal aspects of how the transport could be handled. For instance, the regulations for a high-security prisoner differ from those for a prisoner who is being moved to an open facility. In the planning process, after considering the facts and any assessments of the person, the next step is to consider if the person can be transported together with others; thereafter the logistics of planning the transport in relation to others takes over. At the national planning centre hundreds of transports are planned each day. The planning staff deal with several vehicles connected to a number of transport centres with local staff. In their planning, they must consider the length of each transport, the geography of where people are to be picked up and dropped off, regulations for the transporters’ working hours as well as the expected traffic and weather conditions. All these aspects are translated into time. How long does it take to drive from X to Y? Would there be time, due to the working hours and the weather conditions, to also drive by prison Z and pick up NN?, etc. In the end, all these considerations and judgements are, with the help of computer-based estimations, condensed into a very detailed scheme for the day. Digital technology such as GPS not only helps to plan, it also provides a system for monitoring and controlling the transport, where it is and whether it is following the plan. In this way, the GPS and the plan become actants and participate in the construction and reconstruction of the schedule. When all events have been translated into temporal terms, the schedule is delivered to the local transporters and their planning takes over. When the transporters talk about planning, they relate to two contexts: how they manage their work-life situation and the implementation of the plan.

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Work-Life Balance In the stories told by transporters, the issue of combining the familylife-schedule with the working schedule recurs. That balance must be considered in relation to all jobs. Having a job with irregular working hours, short notice changes and a very strict and controlled schedule, does not match the contemporary idea of flexible working. Neither does the spatial flexibility of the workplace meet demands arising from the private sphere. You cannot be sure where you will be when your working day ends. One transporter said: You never know when you will get home - - - It could be an accident, it may take several hours on the road ... And you arrive and then someone is sick and you have to sit in hospital for a couple of hours, then the day is over and then Bam! You have to stay overnight in Gävle, or wherever (10).

In relation to the transporters’ private life, the work is defined more by uncertainty than by flexibility as it is the needs of the work that demands their flexibility. They talk about difficulties in managing pick-ups from child care as well as of the problem of maintaining regular activities or participating in private events. Their stance towards private activities becomes: “A working day it is like, ‘if I come, I come’, if I’m invited to friends, it can never be certain” (1). The time for each working day is set the day before but can change during the day. If it has been a period of long days for a specific transporter, and the local unit managers see an opening, they can suddenly say: “you take a day off tomorrow, you don’t have to work” (4), without discussing it. This is a forced flexibility, where there is no room for personal needs. It could in some senses be compared to taxi drivers, whose daily lives also are structured by the tension of being out of time (Sharma, , 2014). Both groups maintain the time of others, but the customer differs. While the taxi drivers’ customer is the one who is being transported, the prison transport has an external costumer, the one who orders the transport, and the transported person can be transported against his or her wish. Moreover, the taxi driver seldom has a schedule for the day. The transporter

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must prepare for the coming day, which is why the schedule is delivered the day before. Time, through the schedule, interacts and participates with the transporter even before the working day starts. “You have to think about what you are doing, and that you go to bed at a reasonable time and get your hours of sleep” (8). As shown, private life is undoubtedly subordinated to work here. Being a prison transporter means being fully dedicated to the job. When it is a working day, all time is regulated by the work, and changes with the needs that arise therein. For most Swedish workers, a lunchbreak of 30 min is included in the working day. The lunch break is unpaid time when you are free to do anything you like. For the transporters the lunch break is replaced by a “meal break” of 29 min. That one minute distinction means being on duty even during their meal. As long as it is not 30 min or more, it can be included in the working time. A temporal detail of one minute distinguishes the intake of food from having free time, off duty. Thus, the transporters are an evident part of the prison system during their working day, screened off from life outside in both time and space. By not leaving space, and time, for moving between the private and professional spheres during the day, the transporters could be seen as in a parallel process to the one Goffman (1991) describes as “mortification of self ” in being an inmate in a total institution. Just like the prisoners, they are fully integrated into the role given by the system. They have a position where they are more of a part of the system than individual persons.

Implementing the Detailed Schedule When the working group gets the plan, they assess all details and check if any revisions are needed. If so, these are made in dialogue with the national unit. It is a form of setup time and a preparation for doing time together, where they also distribute the roles as supervisor, escort, and driver within the group. “It is important that you know the role you have. That is how it is in our working groups. We have it for, to unite, just some seconds—Like ‘you take care of the paperwork, you are

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the transport manager’” (4). This is not only about arranging practicalities; it is also about coming together as a group for doing the time and implementing the plan together, as well as for feeling safe. When the transport starts, everything is done in a very tight time-plan, without room for discussions. Picking up or dropping off a prisoner is scheduled for 10 min and the travelling time between units is estimated minute by minute in line with what the GPS has shown. At each pick-up, some kind of planning is made also with the specific person that is to be transported. No excursions or stops are allowed along the way, which is why one of the central phrases in the planning with the transported person is “Have you been to the toilet?” If the response is not clear enough, the question is rephrased as for example: “It will be at least four hours in the car. So, if you need to go to the toilet, do it now” (1) or even harsher “‘Do you want to go to the toilet or not?’ I explain, I explain, inform the client, about the process the whole trip. We will go from here to there, it will take time, so if you need to go to the toilet, do so. We will not stop anywhere” (2). The emphasis on the visit to the toilet could also be seen as the prisoner being transformed into being a part of the transport system, not a person with basic human needs. In these processes of more and more detailed planning, both the transporters and the prisoners are turned into parts of the system, where their personal needs are disregarded, and the set time frame is in focus.

Flexibility in a Fixed System When the plans are made more and more thorough and the persons involved have been defined within the system, the transport starts. This does not mean that the planning ends. Even if the plan is very strict, everything can always be revised, which means that new plans are continuously made. Some people tend to think the times set in the schedule are carved in stone. But they are not. You know, things have to take the time they need. The only time we have to rush is if they are to catch a flight. Not

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even a court trial [is fixed in time] as we have the object. Nothing can happen until we arrive (12).

This way of dealing with time, within the set frame, is a sign of the transporters’ discretion. In this context, discretion is collective. It is not about a professional making formal decisions, rather it is about actors in a system continuously making micro-decisions on how to act. As the transporters are together as parts of the system, they are interchangeable. Thus, they must act in line with the collective norms formed by the group (Rutz & De Bont, 2020). The statement that “we have the object” clarifies the relation to the transportee as someone who is the object for the transport and its goal, rather than a subject in a joint venture. This discretionary space gives them a more professional role than the planning as such provides them. Their discretion is needed for handling everything that happens. The schedule as an actant sets the task and defines all time units, and the discretionary practice of the transporters helps to uphold that schedule by taking discretionary actions that adjust the plans in relation to factors occurring along the way. It could be external factors, such as the weather conditions or a traffic accident, or internal factors, as when something happens within the transport, between persons or for a specific person. Further, it could also be a question of changing roles within the working group: It is important that you tell your colleagues, that, if you have had a long, tough ride, someone had opened up and talked very much, for a long time, of all the troubles he faces. Then it could be good to shift. Because it is a job to sit there, talking and listening actively to someone. It can also be demanding. - - - And then you feel, ah, I have been sitting here working with the client half the day. Let me drive (4).

The flexibility within the system makes it work. The adjustments made are there to facilitate fulfilment of the plans. The temporal terms are used for uniting the parties involved in the process. As the scheme is so focussed on temporality, the need to leave personal aspects outside this specific context is highlighted. Time helps to clearly define the roles and positions. When those positions are taken, a discretionary practice

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with human interaction is possible, as long as the planned time frame is not abandoned.

Lived Time While planned time is connected to clock-time, lived time is more connected to existential time. This is what Lefebvre (2011) calls “representational”, where the perceived and the conceived aspects are united. It is also very much about doing time in the sense that time is taken into possession by the action as such. This is also where “the event” takes place, talking in Abbott’s (2001) terms. A lot of the procedures that the transporters do are more or less routinised; these routines are in their bones. It is not only the procedures of mise en place while checking the minivan before and after a transport, but also the routinised actions when the prisoner is being prepared for the ride; the visitation, handcuffing, handling of documents, etc. For the transporters, time is a tool and a resource that is actively used in their work. Even though planned time tends to change, the transporters know how long different tasks take. In this way we can see lived time as between planned and experienced time. We follow the event through three steps: the ambitions to follow the plan and avoiding internal and external hinderances.

Ambitions to Follow the Plan The plan is present throughout the transport: every person involved is related to and interacts with the plan. Discretionary measures are taken to get back to the plan when things start to divert. Meanwhile, the main actions from staff aim to create a good situation within the van. This is also understood as being in the best interests of the persons being transported. “The transport is a place to rest, they know that, now, they can just sit there and look outside, listen to the radio, for some hours” (1). For creating that atmosphere and avoiding disruptions, the transporters argue for the necessity of information. If the persons in the vehicle are informed about the plan, they will be less worried. It is about telling…

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…how long the trip will be. Check whether someone has told that we will not reach [the destination] today, you will stay overnight in [another prison]. And tell how the day tomorrow is planned. That’s a way to give the information you have in order to avoid ‘Will I not reach [my destination] today? Why not?’ And then having to tell ‘because my working hours don’t cover it’ (8).

While the transport is being conducted, the transporters work by creating an alliance with the transported persons in this controlled time and limited space. This is a way of taking control over what can be controlled. Thus, sayings like “Well, you have to be flexible, so that… eh… to stay calm, never get excited or so, or drive fast. Things take the time they need” (13). The people involved can only do the best in the situation, which the transporters argue is to unite with the clients in relation to the plan. In Abbott’s (2001) distinction between time and event, this way of reasoning shows how the plan, formed on the basis of time, sets the frame for the event, which is the situation where people meet and interact.

Avoiding Internal Hindrances During the event, (i.e., the transport) often the plan does not work as expected. This is well-known for the transporters, and they are constantly prepared for making exceptions and finding solutions. This form of flexibility is exercised from the beginning of each and every pick-up. The transporters avoid having to wrestle or struggle with the person that should be transported, and they strive to avoid forcing them into the transport: And then you should spend three hours together. That’s not good. It is better that the prison staff takes care of that part. So that we can have a calm walk to the van and they lift the person into the seat and we can start the trip. Then the client doesn’t have any hard feelings towards us (6).

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The pick-up event is scheduled to take ten minutes and within this time, there are a lot of routines included. So that things run smoothly, there are assessments that have to be made instantly: “Can we take this person on a seven-hour trip? … The most important when you meet a client is to see … feel, well yes, how he talks, does he talk, doesn’t he? Is he in a bad mood? You feel in a second how he feels” (12). Still, “time has to be taken for, well, if the person is really paranoid or so. Then it is good if we do not pressure” (2). After having prepared for avoiding trouble, the same ambition must be kept throughout the trip and that is mainly achieved through conversation in the van. Sometimes, when we pick clients up, they are frustrated over their situation and something can have happened in the prison, so that when we come, they are angry, and the prison staff might not have time to talk to them. Then we take five minutes, they can release all frustration. Then you deal with that for a while, and normally, they get calm and then you can talk along the way (9).

The ambition of solving all situations through conversation is sensitive also to the transporters’ mood—“a stressful day, things will happen. Things will happen. If we feel the stress … we are grumpy … We know it will affect the client” (1). Often it is not about just one transported person, there could be several in the van, and then it is also a question about handling the conversation and interaction between them. Even if the planning includes avoiding placing persons that know each other in the same van, it happens. “I know once, we drove two of them. They were sitting in different seats and they were screaming at each other… for two and a half hours” (7). And then there are discussions about prisons and persons, “‘Do you know him?’ and ‘Was he transferred to [prison]?’ It is very hard to avoid, it has to be let out” (7). As shown, the internal hindrances to fulfilling the plan are mainly regarded as interpersonal and to be solved by having a kind and open climate, with some kind of basic assumption that we are all in this together, it will take the time it takes, but it is temporary, it will not last.

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Avoiding External Hindrances Even if they have their strict scheme, “Normally we say that we will arrive when we arrive’, because anything can happen…Even if you have the time. It is about calling and explaining that you will be late” (3). Yet, even with the plan as an actant and with time governing the event, there are also frustrations when external parties or events influence the plans. One transporter said: “We can be super irritable when we are to pick up, and we have to wait for 40 min …We should not have to wait” (1). As the schedule is tight the transporters brought details up when talking about hindrances: “The elevator takes its time, it is that kind of stuff that has an influence” (12). These small details show how strongly the planned schedule influence the transporters. One talked about timesaving and preparation before the working day starts and how it could be presented to the colleagues: ‘Well, OK, I have called the prison and they are waiting for us’, ‘I came a bit early to work today, so I have printed all paperwork needed, so this is what we have to do’. Then we check. ‘Ah, we have done all this. Perfect. Then we have saved some time … we can be off right now’. And then we start with having saved five or ten minutes. That is so valuable for us. All becomes calmer (2).

One of the most evident external factors is the situation in the traffic. “We have no influence over it. It is as it is. Especially when we are up north, then suddenly, we can be standing for two hours on the road. Due to a trailer that has turned over, or something. And sometimes, awful snowstorms” (9). The external hindrances and their consequences are regarded as something to deal with; they produce lost time. The external factors are graded at different levels of importance. While weather and traffic cannot be avoided, conflict with external parties can. A lot of stories concern how the transporters call different parties and inform them of the new schedule and the causes thereof. Most important are flights, as they will leave with or without the specific person. Trials are also important, but when the transported person is not there, the trial might not start. Then

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there are all the prisons where the people to be transported are to be picked up or delivered to. “Delivering at a prison might not be that important. They have staff 24 h a day”. (6). So, in relation to them it is no problem, it’s a question of how to present the changes. Finally, there are hinderances that ruin the plan and demand new plans are made. Then the national unit must be involved, and the planning must start all over. This could be the case due to either internal or external situations. When traffic or weather causes delays, the working hours for the transporters might not cover the time from the transport and new plans have to be made. The same goes for when there is a conflict within the transport: If we notice that this, it is escalating, it will not turn out well. Then we can contact [the national unit] and say that we will drive to the closest prison, and say that ‘we will continue with only one’. Then it is, well it is depending on a lot of things, like ‘how far is it to Jönköping?’. ’20 minutes’, OK, that will work. Or ‘how far is it to Jönköping?’, ‘oh, two and a half hours’, that will not work (7).

The stories on the lived time in the transport all go back to the schedule, how to deal with it, how to make the best of it and when to alter it. Also, in lived time it seems that both the transporters and those who are transported are objects of the plan. Time is governing the event and its actors.

Experienced Time Experienced time is revealed in the narratives. This perspective relates to the existential dimension of time. It is about how time is valued. A basic experience is whether time is long or short. A certain amount of time is the certain amount, but as seconds can be experienced as long, hours can also be experienced as short. In the stories told by the transporters, they relate the experienced time to interpersonal aspects as well as to emotional aspects.

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Interpersonal Aspects of Time The interpersonal aspects in the stories of how transporters perceive time relates to the value of long-lasting contacts with colleagues and short contacts with clients. In that distinction, colleagues are a positive aspect, but that is not always the case. It has to be colleagues you know and trust. One put it thus: “I’ve had short days with colleagues I didn’t really know, and then I have had days with colleagues I regard as very professional. We might have had a thirteen-hour day. That long day was better” (5). Another one said: It is painful, working with people that drain your energy, it is difficult. It is when the colleagues are the problem, not the clients. Because we work in such a limited environment, for such a long time, in this small van. Then you need positive and good colleagues (1).

This shows the co-constitutiveness of time and space in the minivan at the same time as the mobility in between distinct points comes to the fore. These stories should be understood in the light of how the practice is organised. Most transporters stay a long time in their job, which means that each one of them is likely to work repeatedly with the same colleagues. The number of colleagues is also limited, while the number of clients is much larger and the variation within those transported is high. “The colleagues are people you might know for a long time, so you have to focus on being social with them” (6). The transporters have time to socialise when they have trips without any person being transported. It could be the trip back home, or it could be in between deliveries and pick-ups from different prisons. With an “empty” vehicle there is room for personal interaction between staff and the development of trust that is useful in everyday work. It is a space for being personal. I think it is really important that… that you want … that you during a day don’t have a full car all the time. You need to have some time when you can relax, I mean from guarding, so, relax a bit, and be social and talk more personally (14).

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An empty vehicle also enables setup time. In this gap, when the transporters spend time together without anyone to transport, they can interact in a personal way, and get to know each other better. While the perceived value in colleagues relates to the lasting relation, the opposite goes for how the perceived time with clients is valued. First of all, a reason for doing this job is that “[we] transport people under a limited time. Even if there are those who are acting out, there is an end to it. Like, ‘three hours I should handle this’. It brings you some safety in knowing… that however bad it is, it will be over today” (14). The limited time is also a major difference between working in a prison or in the transport service. “In a prison, they can poison the climate and make a mess between staff. If they always get what they want. Because they are there all the time. We have them for two, three hours. Then it doesn’t matter if he gets what he wants a couple of times” (6). This said, they give the impression that the limited time in the transport also provides specific roles, where the “here-and-now-situation” and the ambition of keeping a calm and pleasant situation, also allows a more positive role for the transporters, than for the prison officers. In the transporters’ stories, they also talk about unpleasant situations in a tone of feeling sorry for the transported but having problems handling it themselves. It concerns those aspects of interpersonal situations that we normally do not share between people. It is about bodily aspects such as smells, vomit and other body fluids; aspects that don’t meet criteria for a pleasant situation and therefore are hard to deal with. If a person is foul smelling and found on the run from prison, he is to be picked up from the police and transported before he will be taken in for a shower. In one of the conversations during a ride in an “empty van” the transporters discussed this topic and found it to be one of the worst situations, since the enclosed space in the minivan makes it very difficult to escape the smell. They did have some tricks of the trade to cope with the situation, but it was one example of when the ride felt like an eternity. Other examples concerned sex offenders, especially child molesters. For some of the transporters these were examples of a difficult ride, especially if the transportee talked about what they had done. Knowing that the transport has an end, “it will be over today”, helped the transporters to cope.

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The interpersonal aspects of how time is perceived seems to a high degree to be about having the chance to act in a friendly way; to appear as a good person. This is an enduring issue in relation to the colleagues and also a short-term issue with the client.

Emotional Aspects The emotional aspects are evident parts of experienced time. Experiences are expressed not only as reported stories, but in evaluative statements, for example when the transporters reason about preferring to be on the road rather than sitting waiting a whole day during court hearings. “Hour after hour. It is better driving the vehicle and seeing the landscape. I think it is really nice” (2). Although strong feelings are rarely expressed, different activities are still compared and valued; hence, an emotional dimension must be considered in their stories. Stronger emotions are sometimes expressed, such as when the preparations influence the private sphere; “If you know you are to transport a violent person, it… it gets processes going, it influences me on a personal level. I can sit and worry about it the evening before and so…” (14). The personal level is also the emotional level. In this setting, where the schedule governs the situation, and the persons involved are reduced to roles in the specific setting, the human dimension of emotions does not really fit. The transporters struggle with the human and emotional dimension all the time during the transport. They have the plan, they have their routines, but within that frame, their aim is to meet the transportees as human beings. When they do so, they get a peaceful transport. They say things like: “The most important is that the client has had a nice day, I think. Not treat them like parcels. Treat them like human beings” (6). This way of thinking about the persons being transported is not only a humanistic perspective, it is also an instrumental way of achieving a calm work shift.

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Conclusion From the narratives of the transporters, we can see how time structures the plan which in turn structures the practice such that both transporters and transportees become the objects of the plan. In this way time, through the plan, is an actant in the interaction and participation with the transporters. The staff emphasise in their narratives that they are people, and they also present their clients as people. The transporters use the human dimension in their discretionary flexibility, so that it ultimately becomes a means both of maintaining the plan and the feeling of being able to influence what happens within a strict system where time is the organising principle that everything and everyone is subordinated to. From this chapter three main conclusions can be drawn. During the transportations the staff and the prisoners are doing time together and doing time in motion. From the first handshake to the hand over at the final destination the three dimensions of time (planned, lived, experienced ) intersect. While doing time together the prisoners and the staff share the air, the space and time in the minivan. They also share the journey. Both the staff and the prisoners serve time. For the prisoners this means that part of the sentence will be served during the journey. For the staff part of the working hours will be served. Even though they are all on the move in the same van, they still might have different journeys. While the staff make a new plan, the prisoner might be dreaming away while looking out the window. In this way the spacetime is shared, but other worlds are temporarily brought into the van. They are still driving on the same road, in the same minivan and the clock is still ticking. We can see that time is seen as a resource. Time is something that can be used productively to make the ride as smooth as possible. Time can be given to the prisoner to make the situation work better. This can include time for a smoke before the ride, or to let the prisoner walk at their own pace with the transporter joining in, in the same tempo. Time as a resource is used mainly before the transportation starts and at the planned stops on the way. When in the van, the possibilities of using time as a resource are more limited for security reasons. Therefore, the

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staff and the prisoners need to agree on the plan before the trip starts. Going to the toilet before they leave is one key example of this more or less silent and encapsulated agreement that there will be no more stops on the way. Having to wait can prolong the journey, but it is not seen as a loss of time. Even though the transportation can be seen as time between events, the transportation itself is also an event; an event where the transporters have the experience that they can let it take as much time as it needs, even if they constantly try to find new ways to follow the set plan. We have seen that mostly, time is flexible and adaptable to the situation. Some things do have a definite deadline that cannot be breached. After a certain point in time, the transport needs to come to a stop and continue the following day. There is an end of time for the transporters and knowing that helps the transporters to cope with most things. The whole practice revolves around time. The plans made are central, the performed transport is an implemented plan. In both these aspects, the client as well as the transporter are pieces of the puzzle from a distant perspective. From their own perspective, when the transporters talk about their experienced time, they tell stories about personal and interpersonal aspects; about having the chance to relate to people, yet in different ways depending on whether it is colleagues or clients. Each day an equivalent of the population of one prison is on the move. Our results show the potential of drawing attention to time and movement instead of fixed spaces. In this way we show how both time and punishment are in motion. The transport between prisons has the same function that Armstrong (2018) ascribes to the corridor in a prison: an area in-between, not designed for actions, but for waiting. It elucidates the circulation within the prison system. Even though the space within the minivan is fixed, it moves in between spaces and over time. The prisoners are still waiting for the waiting to end, while the transporters are waiting for their working day to be done. In this way the transported prisoners are “doing their time” at the same time as those transporting them are “doing their working” hours. In other words, they are doing time together.

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References Abbott, A. (2001). Time matters: On theory and method . University of Chicago Press. Armstrong, S. (2018). The cell and the corridor: Imprisonment as waiting, and waiting as mobile. Time & Society, 27 (2), 133–154. Comfort, M. (2008) Doing time together: Love and family in the shadow of the prison. University of Chicago Press. Faludi, A. (2013) A reader in planning theory. Urban and regional planning series, vol. 5. Oxford: Pergamon Press. Friedland, R., & Boden, D. (1994). Now here: An introduction to space, time and modernity. In R. Friedland & D. Boden (Eds.), Now here: Space, time, and modernity (pp. 1–60). University of California Press. Foucault, M. (1979). Discipline and punish: The birth of the prison. Penguin. Goffman, E. (1991). Asylums: Essays on the social situation of mental patients and other inmates. Penguin. Hägglund, M. (2020). Vårt enda liv: sekulär tro och andlig frihet. Första upplagan Stockholm: Volante. Jönsson, B. (2005). Ten thoughts about time. Robinson. Kriminalvården (2020) KOS 2019. Kriminalvård och statistik. Norrköping: Kriminalvården. [The Prison and Probation Service Official Statistics 2019]. Latour, B. (2005). Reassembling the social: An introduction to actor-networktheory. University Press. Lefebvre, H. (2011[1974]). The production of space. 30th print Malden, Mass: Blackwell Publishing. Lipsky, M. (2010). Street-level bureaucracy: Dilemmas of the individual in public services. 30th anniversary expanded ed. Russell Sage Foundation. Markezic, O. & Svensson, K. (forthcoming) Disciplinary discretion, interaction, and compassion: Transports between prisons from the perspective of the transporters. (Under review) Moran, D. (2012). Doing Time” In carceral space: Time space in carceral geography. Geografiska Annaler: Series b, Human Geography, 94 (4), 305–316. Moran, D. (2015). Carceral geography: Spaces and practices of incarceration. Ashgate. Rutz. S & De Bont, A. (2020) Organized discretion. In: T. Evans & P.L. Hupe (eds.) Discretion and the Quest for controlled freedom. Palgrave Macmillan. Sharma, S. (2014). In the meantime: Temporality and cultural politics. Duke University Press.

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Urry, J. (2007). Mobilities. Polity.

6 The ‘Reintegration Paradox’: Working Towards the Future While Standing Still Kristel Beyens, Lars Breuls, and Elli Gilbert

Introduction A fundamental characteristic of imprisonment is that prisoners are not only deprived of their liberty, but also control over their own time. Being imprisoned implies being subjected to imposed and inflexible institutional timetables, that limit the capability to manage one’s own time. Examining imprisonment from a temporal perspective therefore allows a deeper understanding of the meanings, experiences, and pains of imprisonment. O’Donnell (2014) describes the temporal consequences of being in detention as follows: At a fundamental level therefore prisons will always be dehumanizing, no matter how good the physical conditions or the relationships between prisoners and staff, because they curtail the individual’s capacity to look K. Beyens (B) · L. Breuls · E. Gilbert Vrije Universiteit Brussel, Brussels, Belgium e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1_6

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ahead, to plan, to efface the marks of the past, to wonder, to project themselves into new futures. (O’Donnell, 2014, p. 179)

The loss of autonomy over time-use not only adds to the painful aspects of imprisonment, but it also limits essential planning for future release. While prisoners are formally expected to take responsibility for planning their return to society, in practice they are stuck in prison environments where their lives stand still; a situation Crewe (2011) describes as the pains of responsibilization and self-government (see also: Bosworth, 2007; Van Ginneken, 2015). This observation equally applies to Belgium, where a discretionary early release system, with reintegration as an official leading principle, was legally introduced in 2006.1 Since then, persons with a prison sentence totaling more than three years must pass different stages of semiliberty before being released unconditionally. At each stage, decisions must be taken by the Penitentiary Administration and/or the Sentence Implementation Court, who introduce consecutive moments (or phases) of uncertainty surrounding the result of each decision. At the same time, the system expects imprisoned persons to be actively engaged with life after prison while they are detained. This chapter questions the feasibility of the reintegration requirements demanded of convicted persons with a prison sentence of more than three years. These expectations are particularly acute given their limited temporal agency and the ongoing institutional impediments, lack of support and access to services within and outside prison during their detention (Scheirs & Beyens, 2019). The observation that a growing number of convicted persons ‘max out’ their full sentence in Belgium (Beyens, 2019; Robert, 2018) suggests the existence of ‘pains of discretionary gradual release’. These pains result from the uncertainties created by the Belgian early release system, and from the substantial difficulties prisoners face preparing reintegration plans while in prison. In Belgian prisons, a reintegration plan is of paramount importance if a modality of (semi-)release during the detention trajectory is to be obtained. We will 1

The Act of 17 May 2006 on the External Legal Position of sentenced prisoners and the right of the victims in the framework of modalities of implementation of sentences, Belgian Gazette, 15 June 2006, 30.455.

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argue that this creates a ‘reintegration paradox’ for imprisoned people, who have to work towards the future while standing still. First, we will look at the concept of temporal agency and its relevance in the context of deprivation of liberty. We argue that temporal agency is always bounded, especially when under conditions of imprisonment. In this respect, the temporal detention experience is linked to the requirements of the discretionary gradual early release system in Belgium. We show how this system imposes additional constraints on imprisoned people’s temporal agency, by creating consecutive temporal uncertainties. Our arguments will be supported with testimonies from imprisoned people about their experiences with the Belgian early release system, collected by Gilbert (2020) and Bendannoune (2016).2 We will close this chapter with our reflections on the desirability of the discretionary early release system in Belgium and the challenges it faces.

Temporal Agency and ‘Doing’ Time in an Unsupportive Context The intrinsic relationship between time and a prison sentence seems selfevident: when imposing a prison sentence, courts decide the length of the sentence. Terms such as ‘doing time’, ‘serving time’, ‘empty time’, or even ‘killing time’, are regularly used in this regard. Life inside prison is strictly regulated and governed by tight timetables (cf. Foucault, 1977) that contribute to the deprivation of autonomy (cf. Sykes, 1958). Not only is the nature of most daily activities determined by the prison system, but also their timing, sequence, and duration, which can inhibit reintegration after release (De Vos, 2021; Irwin & Owen, 2005; Schinkel, 2014). The image of imprisoned people undergoing incarceration passively, however, has been challenged in contemporary research. Rubin (2015) points out that imprisoned people are, to some extent, able to exercise free will and oppose the prison regime’s demands and expectations. 2 We would like to thank Sofia Bendannoune for making the data available for additional analysis for this chapter.

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Imprisoned persons can exercise some temporal agency with a host of enabling and—in a prison context—largely constraining conditions (cf. Sayer, 2012). Flaherty (2020, p. 13) points out that prisoners try “to control, manipulate and customize their own temporal experience” and adapt to the prison context. They construct, for instance, their own ‘prison time’ around certain institutionalized recurring events or actions (Flaherty, 2020). Scarce (2002), who was incarcerated in Spokane (Washington) County Jail after refusing to divulge to the court the content of confidential communications obtained for his dissertation research, soon learned that many imprisoned persons tried to manipulate time, by sleeping time away or watching television for instance (see also: De Vos, 2021; Jewkes & Johnston, 2009; Knight, 2016; Lindlof, 1986). Others reduced their dependence on external points of reference (see also: O’Donnell, 2014), by throwing out the calendar or no longer watching the news. The latter coping strategies have a downside, however, as Crib, a fellow convict, explained to Scarce (2002): Course, that’s what fucks you up when you get back on the streets. If you ain’t watched no TV for a while, you ain’t gonna be ready for all the changes. But it works while you’re in. (Scarce, 2002, p. 311)

Crib (in Scarce, 2002) referred to an essential element of the ‘reintegration paradox’: the discrepancy between life inside prison and its associated temporal experiences on the one hand, and the associated temporal experiences of life outside, on the other. However, time manipulation strategies seldom take away the experience of lacking control over the future (Bengtsson, 2021). They might even exacerbate those feelings of “getting out of sync ” with life outside (Henriksen & Refsgaard, 2020, p. 53) and with so-called “street time” (Scarce, 2002, p. 313). A Scottish study by Deacon (2019, cited by Rubio Arnal, 2021) identifies the temporal distance between incarcerated people and their families and the asynchronicity that may occur because of a distinct experience of time inside and outside prison:

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Because of the contrast between a ‘highly routinized’ (p.201) monotonous scheduled life inside prison and an autonomous, less structured and more diverse life outside prison; and the contrast between the usually slower analogic communication inside prison and the speedy digital communication on the outside. (Deacon, 2019, cited by Rubio Arnal, 2021, p. 74)

Deacon (see also: McNeill et al., this volume) also points to the consequences for release of the temporal gap between life inside prison and life outside. The ways in which temporal agency is exercised by imprisoned people generally varies throughout the different stages of a prison sentence, reflecting a renewed or heightened focus on life outside in preparation for release (Crewe et al., 2020; Irwin, 1970; O’Donnell, 2014 Wheeler, 1961). A discretionary release date, however, creates temporal uncertainties and associated frustrations and pains (Crewe, 2011). In a discretionary release system, convicted persons are expected to prepare for a release date that might not come, or is postponed several times. While doing so, they must wait for decisions by administrative decision-makers and/or courts, which follow a bureaucratic framework of procedural time. In this chapter, we will illustrate how the discretionary gradual early release system in Belgium limits the temporal agency of imprisoned people and how particular ‘pains of discretionary gradual release’ are generated. We also show how the ‘reintegration paradox’ not only arises from a discretionary release system, but is reinforced by a prison system with a lack of support for those anticipating a future life outside prison. This is exacerbated by overcrowded and understaffed prisons, and a lack of attention to budgets for assistance and/or care (Beyens, 2019; Scheirs & Beyens, 2019). In such contexts, people who want to fill up ‘dead time’ with activities considered useful in view of their future release, are confronted with few opportunities, or waiting lists to access activities to prepare for their release. In that case, timely care, “defined as the right care at the right time, as a manifestation of “in sync” rhythms” (Andersen & Bengtsson, 2019, p. 1510), is lacking and the temporal agency of imprisoned persons is further constrained by the structural context, i.e., the lack

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of possibilities for support inside and outside prison. What is left is ‘nontime’, “in which nothing happens and where there is nothing to expect ” (Bourdieu, 2000, p. 222). However, parole decision-makers, who expect convicted persons to prepare a sound reintegration plan, tend not to take these structural obstacles into account when deciding to grant or refuse a release modality (Scheirs, 2016).

From Prison to Society: A Gradual Release System Article 6 of the 2006 European Prison Rules emphasizes that “all detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty”.3 Relatedly, Belgian legislation emphasizes social reintegration as an official aim of sentence implementation. The Belgian Prison Act of 2005,4 and the Act on the External Legal Position of Prisoners of 2006,5 state that imprisonment should aim to limit the detrimental effects of the deprivation of liberty, affirm reparation for the harm caused to the victims and facilitate the social reintegration of prisoners into society. In the Belgian context, social reintegration refers to the objective of enhancing “the ability of prisoners to return to and function normally in civil society after release” (Dupont, 1998, p. 144). Thus, reintegration is currently the primary principle of the Belgian conditional release system. Since February 2007, multi-disciplinary Sentence Implementation Courts have decided on the early release of convicted persons sentenced to more than three years of imprisonment, after a judicial procedure and an adversarial court hearing where the Public Prosecutor, the prison governor, and the convicted person and/or their lawyer is heard. Parole 3 Recommendation Rec (2006)2 of the Committee of Ministers to member states on the European Prison Rules. 4 The Belgian Prison Act of 12 January 2005 on the prison system and the legal position of prisoners, Belgian Gazette, 1 February 2005, 2.815. 5 The Act of 17 May 2006 on the External Legal Position of sentenced prisoners and the right of the victims in the framework of modalities of implementation of sentences, Belgian Gazette, 15 June 2006, 30.455.

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is, however, the end of a longer trajectory of inside-outside prison, that is constructed around different and consecutive ‘sentence implementation modalities’ that have to be applied for and granted on an individual basis. The legally defined parole date is the anchor point for eligibility for the other sentence implementation modalities. Imprisoned persons can ask for short leaves or prison furloughs for periods of 16 and 36 hours respectively, one or two years prior to the eligibility date of their conditional release. These furloughs are framed in a rehabilitative logic and must be used to look for a job, housing, or education in society. Although these leaves and furloughs are part of the ‘standard regime’, they are granted by the Prison Administration on an individual basis. Six months before the eligibility date for conditional release, imprisoned persons can apply for electronic monitoring or semi-detention (leaving prison on a daily basis for a maximum of 12 hours). Here the Sentence Implementation Courts decide. Although it is not explicitly stipulated in the Act of 2006 on the External Legal Position, Sentence Implementation Courts mainly do not grant conditional release, electronic monitoring, or semidetention if the prisoner has not been granted a penitentiary furlough or short prison leave beforehand. This has instigated a practice that has been called ‘the path of gradual release’, where risk, rehabilitative, and victim concerns have become combined (Scheirs, 2014, 2016; Vander Beken, 2021). This gradual system also gives the Prison Administration, who make decisions about short leaves and furloughs, considerable power in opening, delaying, or cutting off the possibility for conditional release. Although the logic of this system is formally framed as rehabilitative, we will show that these stages through which imprisoned persons are required to pass in moving towards release are experienced as recurring hurdles to be overcome, which hinder, rather than support, the pathway out of prison. As noted above, the eligibility date for conditional release is the reference point for other sentence implementation modalities. Persons sentenced to three years of imprisonment or more can be conditionally released after having served one third of their prison sentence; ‘recidivists’ must wait until having spent at least two thirds of their sentence in prison. In March 2013, the time conditions for persons sentenced to

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thirty years or life imprisonment were restricted,6 meaning that fifteen years must be served in prison before being eligible for parole. Longterm sentenced ‘recidivists’ must serve at least nineteen or twenty-three years depending on the nature of their earlier convictions. The eligibility dates for short leaves, prison furloughs, semi-detention, and electronic monitoring are adapted accordingly. However, in the majority of cases, these eligibility dates are exceeded by a considerable margin (Maes & Tange, 2014). Although the time conditions are fixed, the discretionary aspect of the process is introduced with the evaluation of five ‘counter-indications’ for each sentence implementation modality, which entail: (1) the absence of prospects for the social reintegration of the imprisoned person; (2) the risk of committing further serious offences; (3) the risk that the imprisoned person would harass victims; (4) the attitude of the imprisoned person towards the victim(s) of the offence they were convicted of; and (5) the efforts to pay the civil parties. The counter-indications reflect the importance of social reintegration to the candidate for release, but also the concern to avoid a risk of recidivism and to safeguard the interests of victims. Parole candidates must provide a reintegration plan showing their prospects for post-prison reintegration and the efforts that they have already made in this regard. The counter-indications are very wide-ranging and thus offer considerable discretion to the members of the Sentence Implementation Courts (Scheirs, 2014). Meeting all the requirements increases the reintegration burden for the future parolee inside and outside prison. To show that they are ready for parole, candidates are responsible for the provision of a reintegration plan. The Belgian legislator, however, did not specify the expected content or specific elements of this reintegration plan. This lack of guidelines leaves a wide range of discretionary power to the Sentence Implementation Courts in their evaluation of this 6

The Act of 19 March 2013, which amends the Act of 17 May 2006 on the external legal position of sentenced prisoners and the right of the victims in the framework of modalities of implementation of sentences, Belgian Gazette, 19 March 2013, 16.363. This impediment of the release conditions of this particular group of long-term prisoners can be seen as a consequence of the highly mediatized conditional release granted to Michelle Martin, Dutroux’s ex-wife, who was convicted as a co-offender in this case.

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requirement, and although they operationalize the key elements of the reintegration plan in a rather routinized and standardized way, Scheirs (2014) observed that there are significant differences and expectations about how it should be conceived (see also: Engels, 2013). The support prisoners receive in making their reintegration plans also differs between prisons, depending on inter alia: the support of the psychosocial service; the availability of local services in the community; and the available infrastructure for education and work in prison. However, in general the support is very modest (Scheirs & Beyens, 2019). Ideally, and according to the Belgian Prison Act of 2005,7 the (preparation of the) social reintegration of prisoners should start at the very beginning of the detention period. From this perspective, the requirement of a ‘detention plan’,8 is an important tool in this progressive process of reintegration. In particular, the specific barriers to successful reintegration of the prisoner have to be identified and solutions must be proposed in the detention plan (Dupont, 1998); it is in fact a condition for the elaboration of a sound reintegration plan. However, as the stipulations about the detention plan were only implemented in 2019,9 this aspect of the detention trajectory is only in a starting phase. So, to date, the necessary support for preparing a reintegration plan is still mostly absent. Taken together, these factors add up to the reality that preparations for release only begin when the possible release date is approaching, resulting in serious delays to the actual release date. A final aspect worth mentioning is that if parole is granted, the Sentence Implementation Court also imposes a period on licence, which lasts at least for the remaining time of the prison sentence. This ranges from a minimum period of one year for those with a sentence of up to five years, a period between five and ten years if the person is serving

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The Belgian Prison Act of 12 January 2005 on the prison system and the legal position of prisoners, Belgian Gazette, 1 February 2005, 2.815. 8 “The Prison Service shall ensure that the prisoner is given the widest possible access to the full range of training activities made available with regard to his personal development, to the meaningful spending of his detention time, and to maintaining or improving prospects of successful reintegration into society” (art. 75§1 Belgian Prison Act of 2005; own translation). 9 Royal Decree of 5 April 2019 determining the date of effect of Title IV of the Belgian Prison Act of 12 January 2005, Belgian Gazette, 26 April 2019, 40.557.

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a prison sentence of more than five years, and up to ten years for lifesentenced persons. Consequently, the supervisory period can exceed the remaining prison sentence. Thus, the longer it takes for imprisoned persons to get parole, and the nearer they approach the end date of their sentence, the higher the risk that they will calculate the period of parole supervision as surpassing their sentence, adapt their aspirations regarding reintegration and limit their efforts to meet the expectations of the Sentence Implementation Courts. Therefore, when a critical point is passed, prisoners become discouraged, lose hope, ‘prefer’ to max out their sentence in prison, and thus leave prison with no supervisory conditions or support, which contrasts markedly with the aims of the 2006 Act on the External Legal Position. Indeed, the last ten years have witnessed an increasing number of prisoners who fully serve their sentence in prison. In 2013, the number of prisoners maxing out their sentence actually surpassed the number of prisoners who were conditionally released (Beyens & Maes, 2017, p. 281).

Note on Methodology and Empirical Data In focusing on how processes of release impact upon imprisoned persons’ experiences of time, and the strategies they deploy to cope with it, we use data from two studies on the experiences of convicted persons in Flemish prisons from a time perspective. First, Elli Gilbert (2020) conducted several in-depth open interviews with four people currently under electronic monitoring.10 Using the descriptive phenomenological method (Giorgi, 1985) allowed for the unpacking of those elements which were experienced as punishment by the interviewees. Secondly, Sofia Bendannoune (2016) conducted interviews with thirteen people who were recalled to prison after violating their licence conditions during early release. She analyzed their pathways in and out prison and their associated feelings and experiences. All research activities were carried out in accordance with the European Code of Conduct for Research 10

For her PhD, Elli also interviewed people sentenced to a work penalty or electronic monitoring (as an autonomous sanction). These interviews were not re-analyzed for this chapter.

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Integrity. Interviews were preceded by an informed consent process, were audio recorded with the permission of the participants and transcribed verbatim. The authors of this chapter re-analyzed the interviews with the (former) imprisoned persons, with a specific focus on their experiences of time during imprisonment, when preparing their re-entry into society and while in a (semi-)release modality. The data was thematically coded abductively using themes from the literature in the coding process but remaining sensitive to additional themes that might emerge from the data (Layder, 1998). Whereas the people interviewed by Sofia Bendannoune were recalled to prison, and therefore had mostly negative experiences with early release procedures, those interviewed by Elli Gilbert were no longer imprisoned at the time of the interview. They had been granted release under electronic monitoring and saw it as a first step in their reintegration trajectory. The combined data from these two small scale studies offers valuable insights into detention and release experiences. The testimonies and mechanisms described also reveal the general malaise in the Belgian prison and early release system.

The ‘Reintegration Paradox’ in Practice Prison Entry and Mid-Sentence In principle, preparation for returning to society should begin from the first day of incarceration. Throughout the interviews, however, strong emphasis was placed on how support for this was absent in prison, and that the expectations to work towards the future are experienced as unrealistic. Moreover, the process is insensitive to how arrest often leads to “existential dislocation and biographical rupture ” (Crewe et al., 2020, p. 79). Frank described such a disturbance in the following way: The arrest puts you many steps backwards. I mean, you lose… Yes, everything, I would say. In all areas. (Frank, recalled person)

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Similarly, Simon (under electronic monitoring) emphasized not only that he did not feel at home in prison, but also that he did not want to feel at home. This was echoed by John (under electronic monitoring), who commented that being imprisoned was more difficult at the beginning because this was the stage where the most internal resistance is experienced. After a while, according to John, most prisoners realize that it is better to just accept it, otherwise they might be heading towards an emotional breakdown. “Once you accept the detention, it becomes more bearable”, he said. Imprisonment can also lead, among other things, to the weakening of ties with family and friends, the loss of residence, the loss of work, all of which created a feeling of “having to start from scratch again” (Tom, recalled person). The interviewees pointed out that they received limited to no support in preparing for life after incarceration. This was perhaps most evident in an interview where, when asked about such support in prison, Tim (recalled person) began to ironically laugh out loud. Complaints about the lack of support from the psychosocial services— or even about the way in which for some, these services obstructed the reintegration process—were omnipresent throughout the interviews. The offer of assistance (e.g., treatment for addiction and psychological problems) in prison is limited. Only 35% percent of the prisoners have access to jobs in prison and only 5% have access to education and training for qualifications (FOD Justitie, 2019, p. 18). So, just to get a job or to participate in classes inside prison, they often must spend several months on a waiting list: I’ve only recently made it to the waiting list. I have only been able to work four days. When on the waiting list, you only get called if someone becomes ill. So, if nobody gets sick, you don’t get called. (Steven, recalled person)

John (under electronic monitoring) explained how it helps to have something to do during the day, to survive the detention time. Not everyone has these opportunities, not least because of organizational constraints, i.e., the limited availability of, and access to, meaningful activities.

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Without working or studying, imprisoned people spend most of their days and nights in their cell, with watching TV, playing games, cleaning, drawing, or writing as the main boredom management strategies to kill time. They can only leave their cell for the daily walk outside, recreational activities now and then, or visits from family or friends. Time in prison is generally experienced as slow and ‘sticky’ (Griffiths, 2014, p. 1994). Interviewees explained how they tried to familiarize themselves to this experience of time. Taking drugs, that are easier to find inside than outside prison according to Steven (recalled person), to escape from reality, is also a common practice (cf. Gashi et al., 2021). No work, no play, and a lack of money combine to further limit the opportunities for boredom management strategies, such as watching TV: If you want to work here, there is a waiting period of six months to eight months, and if you don’t get any support from outside, you will get eight euros a week here. That’s nothing. You already have to pay four euros for TV, then you don’t even have enough to buy cigarettes. (Steven, recalled person)

Several interviewees described how, confronted with sticky time, they decided not to worry anymore about “the classical clock and calendar time that consumed those outside” (cf. Scarce, 2002, p. 313). They are nevertheless reminded of so-called “street time” (Scarce, 2002, p. 313) when talking to family and friends: I’ve been inside for a while and the first two years, it was difficult. But after two years, you don’t worry about that [time slipping away] anymore. You create your system, you do things in prison. When you get visits, however, you are constantly reminded of that. You see people grow older. But you don’t feel that here in prison, because time stands still when you are inside. (Louis, recalled person)

While in prison, time is experienced as standing still while life outside, of course, continues. The implication here is that imprisoned people often have the feeling of ‘losing’ time as they miss out on transitional events, such as children’s birthday parties, family reunions, and funerals.

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For example, Jack (under electronic monitoring) had to miss his grandfather’s funeral during his detention and did not get the chance to say goodbye. The worst thing about it, according to Jack, was the fact that he was not able to “be there” for his family during a time of mourning. Similarly, John (under electronic monitoring) was unable to go to his uncle’s funeral, which led him to experience a lack of closure. In addition, David (under electronic monitoring) mentioned a loss of time, but more in the sense that he felt alienated from his friends who all continued with their lives. While they evolved, his life was put on hold in prison. This does not mean that imprisoned people cannot find meaningful ways to occupy their days and try to make the best out of it. Jack, for instance, told how he could keep himself busy inside prison and even got the chance to study and obtain some qualifications: I had to make a curriculum vitae. Like that, for the first time in my life, I actually had things to put on it, so that was fun, yeah. (Jack, under electronic monitoring)

However, the opportunities for such activities—or for reinventive processes more broadly (Crewe & Ievins, 2020)—are too limited in Belgian prisons. Indeed, as Crewe and Ievins (2020, p. 582) remind us: “Reinvention is always partial and precarious, because of the way that the prison’s other objectives beside reform are more likely to impede than support processes of change”.

Early Release, Anticipatory Waiting, Despair and Drop-out The ‘path of gradual release’, to which judicial actors adhere so enthusiastically, is a daily concern for many prisoners. Short prison leaves and furloughs are considered the first steps in this gradual path to liberty. They can be used for job interviews, or an intake meeting for a training course and are thus important and necessary steps towards the reintegration plan, if the person is to be granted electronic monitoring,

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semi-detention, and/or conditional release—the next steps in the reintegration process. Once imprisoned persons are eligible for these sentence implementation modalities, a process of anticipatory waiting starts. This is a period of waiting for something meaningful and/or of hoping for good news. However, if the applications for short leaves, furloughs, or other sentence modalities are rejected several times, the risk of becoming cynical and desperate is real. This was confirmed by several interviewees, who felt that the modalities in the gradual pathway of release were used more as a privilege to be handed out than an unconditional expectation. This is illustrated by a (large) discrepancy between the parole eligibility date and the actual release date. Research by Maes and Tange (2014) shows that the mean delay period for actual release compared to the eligibility date is 14 months, and that only a small minority of imprisoned people are actually released at the legal one third eligibility date. The quote below from Benny explains how this feels for those who are subjected to it: You get a paper. You can see the sentence you’ve got and when you are eligible for prison leaves, furloughs, semi-detention, electronic monitoring, and conditional release. Someone who has been convicted fixates on this: then I can proceed to prison leave, then – six months before my conditional release date – I am eligible for electronic monitoring and then for my conditional release: I can go home. But nothing happens. For nobody. So it is a privilege. In other words, you have all these convicts, and there is nobody who can say to his father, his mother, his spouse, his children: ‘Then I come home’. That is an extra psychological punishment on top of all the violence that is very intense inside the prison walls. If you could take away that uncertainty – I don’t know how, I’m not a judge… That they work on it, that there is more clarity, then you would have 50% less violence in prison. That is the most important thing that should happen here actually. Convicts should know, regardless of what they have done, when they are getting out. If you say that to the governor… I once said that to the governor, and he says: ‘You know that four years is four years.’ [He is referring to the date of the end of the sentence.] If that’s the case, they shouldn’t give people a paper that tells them that they can be released after one third of the sentence. (Benny, recalled person)

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Such feelings and experiences were shared by almost all interviewees. Simon, for instance, called the uncertainty associated with the discretionary gradual early release system “the worst punitive experience”: And those are very difficult moments, because… Yes, there are dates on your paper, but the only date that actually counts is the end of the sentence. That is the only thing you can be sure of. And when you will be released, we’ll see… (Simon, under electronic monitoring)

Similarly, John (under electronic monitoring) described the uncertainty of anticipatory waiting as an additional psychological punishment. He felt that even his family distrusted him, because they did not understand how slow the procedure for requesting leaves was. They believed that he was responsible for not being conditionally released, assuming that the reason was he was misbehaving in prison. This uncertainty concerning conditional release made David (under electronic monitoring) feel very scared; fearful that he would never be released from prison. He described this fear and uncertainty as “horrible”. What we suggest is being experienced here is ‘the pain of anticipating something that does not happen’. Moreover, many imprisoned persons had the feeling that working out a reintegration plan was their sole responsibility: It’s not easy to make all that happen in here, because you can’t get anything done. For work… you have to make an appointment from inside prison to be able to apply outside and then you have to see if you get a prison leave. So, it’s hard to make that happen… It’s just a disaster. (Frank, recalled person)

These frustrations are compounded by lengthy administrative procedures, by “motionless bureaucracy” (Benny, recalled person). These protracted procedures even proved to be an obstacle when modalities were granted and the first steps in the gradual release process could be taken, as Steven explained:

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Even if an employer says yes, then the second step is to actually tell him: ‘Yes, but wait a minute. I now have to submit that to the Sentence Implementation Court and they have to decide again.’ [Employer:] ‘But hey, I want you to start tomorrow.’ ‘Yeah… That’s not possible, sir, because I have to ask for permission. They still have to approve it all, they still have to meet about it, that’s another few months’. (Steven, recalled person)

The discretionary early release system is thus a contextual constraint that limits the possibility of imprisoned people to exercise temporal agency—to, among other things, plan ahead, make arrangements with family, friends, employers. This only leaves one predominant temporal coping strategy for imprisoned people: to no longer have any expectations. This strategy was frequently mentioned throughout the interviews, for instance by Steven: Because now, too, I want to get it [the release modality], but I’m not hoping for that, because otherwise if they say no, you always get the door slammed in your face. Then you might get depressed or you might have a tantrum. So, it is better not to hope and not to expect anything. […] You learn that through the years: why should I put energy into it, being stressed about it? The more you stress yourself, the longer they make you wait. (Steven, recalled person)

These ‘pains of discretionary gradual release’ have led to a growing number of convicted persons deciding not to file any application for early release and to therefore serve their full sentence: in 2017, the number of imprisoned people sentenced to a prison sentence of more than three years maxing out their sentence (N = 812), outnumbered the number of imprisoned people being conditionally released (N = 739) (Beyens, 2019, p. 181). The choice to ‘max out’ can be considered a desperate act, which is however not feasible for all convicted persons, as Steven explained: If the end of the sentence was not so far away actually, I would stay here ’til the end of the sentence. But then again, I have a girlfriend waiting outside. I still like to see her and she still comes to visit me, so… If I get the chance to go outside, I would. (Steven, recalled person)

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Indeed, the ‘choice’ to stay in prison until the end of the sentence and/or to ignore the calendar time comes at a significant cost: not only does the length of the sentence increase, but so too does its depth, with prisoners finding themselves “being buried far from liberty, deep below the surface of freedom” (Crewe, 2011, p. 521), away from associated life plans, social ties, and attachments. Paradoxically, those leaving prison at the end of their sentence, may be the least prepared to reintegrate into society. Besides being an act of despair, maxing out can also be regarded as an act of resistance or subversion against the discretionary gradual parole system. ‘Voluntarily refusing’ parole, means that supervision and judicial control after the detention period are avoided, undermining the goal of reintegration, and the claims that current systems strive for reintegration. Maxing out can also be a rational choice to escape certain conditions, such as compensating victims, for example, which is one of the conditions to be met before being conditionally released. Robert (2018), who studied maxing out with a small group of imprisoned persons in one Walloon prison, refers to the existence of a certain critical ‘tipping point’, that he describes as a ‘threshold beyond which the prisoner sees more benefits in maxing out than he does in obtaining early release’ (Robert, 2018, p. 262). He found that the timing of the tipping point differs, and depends on many issues, including the time that has already been served, the exact time that is left to serve, and the minimum duration of the supervisory period after detention. The tipping point can also be linked to elements of the release system, such as the number of negative decisions or negative release experiences, such as recall.

Getting Back in Sync After Release Release from prison can also come as a shock (cf. Durnescu, 2019). In particular, when it is not expected and/or after being buried away in the prison system for a significant amount of time, released persons are faced with adapting to the fast-paced life outside. Not only do they encounter a contrast between the experience of time in prison (i.e., slow, sticky time) and the actuality of time outside (i.e., fast-paced life), but

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there is also a contrast in terms of tempo (Robberechts, 2022). Technological advancements which have accelerated life for those in society gradually, are encountered by imprisoned people who have had limited or no access to such technologies, in some cases for many years. Several recalled persons referred to the time they needed to adapt after being released, especially in relation to working with new technological devices, or with regard to being in crowded and busy spaces (see also: Rubio Arnal, 2021): You have to adapt. I can read the newspaper in prison every day, so I follow the news. But still, when you go outside, there is always a short period in which… Society moves very fast. The first time out, I went to [name electronics shop]. I was in prison for thirty months, so I hadn’t been there for over two years. All these things they were selling, I never saw them before. And that was just after thirty months. (Benny, recalled person) You get used to that lonely feeling in prison. And the first time outside, I called my girlfriend: ‘Please come and get me, because I don’t feel well here.’ And I just stayed in the car all night, because it was small, because… Yes, after seven years of that cold feeling, you get used to it. And then all of a sudden, everything is so big, the technology as well… (Steven, recalled person)

This shock can be intensified by changes in personal situations, for example, because children have grown up, or a partner has moved on to another relationship. Because of the gradual system, electronic monitoring is often a first step towards conditional release after having served a prison sentence of more than three years. Although one is technically out of prison, electronic monitoring can still feel like a very restrictive measure, especially when it comes to time and the experience of time. When granting electronic monitoring, the Sentence Implementation Court also imposes several conditions, among which is the requirement to follow a tight time schedule controlling when one can, or cannot, be away from home. Several interviewees mentioned the restraints they constantly felt because of the little time they ‘received’ for activities outside their home. Such

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a tight schedule can undermine the possibility of re-establishing past social connections. In addition, the ‘free time’, or the time that can be spent outside the home without being electronically monitored, is not only limited, but also predetermined (often only in the morning). It is possible to shop for groceries then, but when you’re out of cigarettes in the evening, it is impossible to go and get some. The necessity to constantly monitor one’s use of time, can be experienced as punitive: And yeah, the restrictions of having to be at home at a certain time… Like now, I’m watching my clock, ’cause I have to be home… I have time, but I’m never at ease. I have to watch this. I cannot talk without paying attention or hang around somewhere without watching the clock. (David, under electronic monitoring)

When a parolee is late, or when they do not comply with their licence conditions, the Sentence Implementation Court can recall the parolee to prison after a hearing (see Beyens et al., 2020 for more details). Parolees experience little assistance in overcoming structural barriers in society, such as lack of employment opportunities, waiting lists at reception and treatment centres, and lack of treatment options for people with dual diagnoses (Breuls et al., 2020). Moreover, as was mentioned in several interviews, the stigma of being an ‘ex-prisoner’ (cf. Durnescu, 2019), and having a criminal record, was an impediment to the search for a job. Several interviewees made reference to limitations of the conditions imposed, especially the prohibition on meeting ex-detainees, which made it difficult to reconnect with old friends and sometimes even family members (that have a criminal past). While the idea behind these conditions is to keep people away from certain ‘antisocial milieus’, it totally neglects the possibility of supportive contacts between e.g., old cellmates. Earlier research also found that parolees who do not return to their former place of residence tend to experience more feelings of loneliness (Opsal, 2015). What emerged strongly in the narratives of the recalled people, was that feelings of personal satisfaction and ‘belonging’ (cf. Kirkwood & McNeill, 2015) were conspicuous by their absence during the period of conditional release. Convicted persons face robust demands in being

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responsible for their reintegration process, but feel they have little or no voice in the decisions made about their own lives during incarceration and on parole (Bendannoune, 2016).

Conclusion The testimonies presented above clearly show how imprisoned persons face numerous unrealistic expectations under conditions of electronic monitoring or when on parole. Within Belgian prisons and beyond, they are expected to actively work towards change both during their incarceration and after release, with limited, if any, structural and emotional support to do so. At the same time, the discretionary gradual early release system creates additional temporal uncertainties and psychological ‘pains of discretionary gradual release’. Transition from imprisonment to freedom often comes with struggles (cf. “pains of reentry”; Durnescu, 2019), so there is little intrinsic reason why gradual transition must be problematic. However, it is the combination of graduality and relative indeterminacy, due to a discretionary release system that seeks to reduce recidivism and risk (Scheirs, 2016; Vander Beken, 2021), that is at the heart of the pains described in this chapter. It is precisely the associated uncertainties that make this gradual release system unbearable for a significant number of imprisoned people, so much so that they would rather stay in prison until the end of their sentence. This contradictory rationale is what underpins the ‘reintegration paradox’. It could be argued that temporal pains and uncertainties could be eased if imprisoned people knew what to expect in terms of release dates—an argument that is supported by the observation that an increasing number of convicted people ‘choose’ to stay in prison until the only date they are certain of, i.e., the end of their sentence. From this perspective, a system with fixed dates of release after a certain period in prison, after one third, half, or two thirds of the imposed sentence, dependent on the legal status of the convicted person, may be preferable. In any case, this idea is alive and well, since the Director-General of the Belgian Prison Service outlined such a proposal in a recent publication:

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Let us define the penalty of deprivation of liberty as the sequential composition of an intramural part of deprivation of liberty and an extramural part of restriction of liberty. Let both be fixed in time at the sentencing process. (Van De Voorde, 2020, p. 346; own translation)

This would provide “the most solid basis for a real detention planning. A planning that from the start has a perspective in time and space ” (Van De Voorde, 2020, p. 349; own translation) and would lead to a greater continuity between the intramural and extramural period. Worrall (2011) argues that the notion of ‘seamless’ progression from custody to the community, is a ‘penal imaginary’. She warns of the managerial misuse of such an imaginary in view of implementing risk assessment tools, recall procedures and independent bodies that decide about release, creating a discretionary release system. It is clear, however, that the plea of Van De Voorde (2020) does not have that intention. He wants to get rid of the temporal pains created by the uncertainties of such a discretionary release system and proposes to make release less conditional and discretionary. Belgian criminologists/criminal law scholars, such as Vander Beken (2021), also endorse such a reform, albeit with the important caveat that such a transition should be part of a broader policy of penal moderation (cf. Snacken, 2015), limiting the use and length of prison sentences in general. In any case, based on the testimonies presented in this chapter, reforms that limit the temporal uncertainties imprisoned people endure seem more than warranted. A further driver of the ‘reintegration paradox’ is the limited offer of meaningful activities in prison to prepare for re-entry. This offer should, however, be part of a ‘normalized’ prison regime that prepares for reintegration. Article 5 of the European Prison Rules defines normalization by stating that “life in prison shall approximate as closely as possible the positive aspects of life in the community”. Snacken (2005) distinguishes between two levels of normalization. From an individual level, normalization refers to the idea that prison regimes should be organized in such a way that they allow imprisoned people to keep, or fulfil, their social roles, such as being a father, a friend, a student, or employee as far as possible. This should be guaranteed by normalization on a collective level, that recognizes imprisoned people’s right to access the same (quality

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of ) services and activities as they did in society. The distinct lack of many aspects to this in Belgium, militates strongly against the preparation for release, thus contributing to the ‘reintegration paradox’. Accordingly, we agree with De Vos (2021), who conducted an extensive comparative study on the normalization principle and detention regimes in Belgian and Norwegian prisons, and who argued that the differences between the use of time inside and outside prison should be as minimal as possible if the chances of a positive reintegration path are to be increased, and thus reduce the risk of the ‘reintegration paradox’. This leads us neatly to the question of whether it is tenable or even desirable to put reintegration forward as a legitimate aim of imprisonment. In this regard, our analysis calls for modesty in what can be achieved within a prison context. Striving for humane containment, with an offer of support, training, and education during a predetermined period of sentence, without subjecting people to unrealistic rehabilitation expectations, is arguably a fairer and more just way to implement short and long prison sentences. This, of course, requires a fuller discussion on the aims of punishment in general.11

References Andersen, D., & Bengtsson, T. T. (2019). Timely care: Rhythms of bureaucracy and everyday life in cases involving youths with complex needs. Time & Society, 28(4), 1509–1531. Bendannoune, S. (2016). Van re-integratie tot re-prisonisering. Waar loopt het mis? [From reintegration to re-prisonization. Where does it go wrong?] (MA thesis). Vrije Universiteit Brussel, Brussels. Bengtsson, T. T. (2021). Bordeom: A key experience of youth imprisonment. In A. Cox & L. S. Abrams (Eds.), The Palgrave international handbook of youth imprisonment (pp. 205–223). Palgrave Macmillan. Beyens, K. (2019). Belgian release policies, rationales and practices. European Journal of Probation, 11(3), 169–187. 11

See Beyens (2019, pp. 178–179) for a discussion on the relative autonomy of the aims of the sentencing and sentence implementation phase.

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Beyens, K., Breuls, L., De Pelecijn, L., Roosen, M., & Scheirs, V. (2020). Recall to prison in Belgium: Back-end sentencing in search of reintegration. Probation Journal, 67 (1), 6–25. Beyens, K., & Maes, E. (2017). ‘Gevangeniscapaciteit, gevangenisbevolking en gevangenispersoneel: kwantitatieve evoluties’ [Prison capacity, prison population and prison staff: quantitative evolutions]. In K. Beyens & S. Snacken (Eds.), Straffen. Een penologisch perspectief (pp. 253–293). Maklu. Bosworth, M. (2007). Creating the responsible prisoner. Federal admission and orientation packs. Punishment & Society, 9 (1), 67–85. Bourdieu, P. (2000). Pascalian meditations. Polity Press. Breuls, L., De Pelecijn, L., Scheirs, V., & Beyens, K. (2020). ‘Terug naar de gevangenis? De herroepingsprocedures voor de strafuitvoeringsrechtbanken’ [Back to prison? The recall procedure at the Sentence Implementation Court]. Justitie En Veiligheid, 16 , 1–19. Crewe, B. (2011). Depth, weight, tightness: Revisiting the pains of imprisonment. Punishment & Society, 13(5), 509–529. Crewe, B., Hulley, S., & Wright, S. (2020). Life imprisonment from young adulthood. Adaption, identity and time. Palgrave Macmillan. Crewe, B., & Ievins, A. (2020). The prison as a reinventive institution. Theoretical Criminology, 24 (4), 568–589. Deacon, K. E. (2019). Families—Inside prison and out: Young people’s experiences of having a family member in prison (PhD). University of Glasgow, Glasgow. De Vos, H. (2021). The normalization principle. A new perspective on imprisonment. Comparative research on the development and interpretation of the normalization principle and its impact on the theory and practice of punishment (PhD). KU Leuven, Leuven. Dupont, L. (Ed.). (1998) Op weg naar een beginselenwet gevangeniswezen [Towards a Prison Act]. Universitaire Pers Leuven, Leuven. Durnescu, I. (2019). Pains of reentry revisited. International Journal of Offender Therapy and Comparative Criminology, 63(8), 1482–1498. Engels, I. (2013). Het belang van het reclasseringsplan in de besluitvorming van de voorwaardelijke invrijheidstelling: een empirisch onderzoek bij de Franstalige strafuitvoeringsrechtbanken [The importance of the reintegration plan when deciding on conditional release: An empirical research at the Frenchspeaking Sentence Implementation Courts] (MA thesis). Vrije Universiteit Brussel, Brussels. Flaherty, M. G. (2020). The lathe of time. Some principles of temporal agency. In M. G. Flaherty, L. Meinert, & A. L. Dalsgård (Eds.), Time work: Studies of temporal agency (pp. 13–28). Berghahn Books.

6 The ‘Reintegration Paradox’ …

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FOD Justitie. (2019). Jaarverslag 2017. Directoraat-generaal Penitentiaire Inrichtingen [Annual Report 2017. Belgian Prison Service], FOD Justitie, Brussels. Foucault, M. (1977). Discipline and punish: The birth of the prison. Penguin. Gashi, L., Pedersen, W., & Ugelvik, T. (2021). The pains of detainment: Experience of time and coping strategies at immigration detention centres. Theoretical Criminology, 25 (1), 88–106. Gilbert, E. (2020). Het strafkarakter van de straf. Een descriptief fenomenologisch onderzoek naar de ervaring van de dader [The offender’s experience of punitiveness: A descriptive phenomenological study] (PhD). KU Leuven, Leuven. Giorgi, A. (1985). Phenomenology and psychological research. Duquesne University Press. Griffiths, M. B. E. (2014). Out of time: The temporal uncertainties of refused asylum seekers and immigration detainees. Journal of Ethnic and Migration Studies, 40 (12), 1991–2009. Henriksen, A.-K., & Refsgaard, R. C. B. (2020). Temporal experiences of confinement: Exploring young people’s experiences in Danish secure institutions. Young, 29 (1), 45–61. Irwin, J. (1970). The Felon. Prentice Hall. Irwin, J., & Owen, B. (2005). Harm and the contemporary prison. In A. Liebling & S. Maruna (Eds.), The effects of imprisonment (pp. 94–117). Willan. Jewkes, Y., & Johnston, H. (2009). Cavemen in an era of speed-of-light technology: Historical and contemporary perspectives on communication within prions. The Howard Journal of Criminal Justice, 48(2), 132–143. Kirkwood, S., & McNeill, F. (2015). Integration and reintegration: Comparing pathways to citizenship through asylum and criminal justice. Criminology & Criminal Justice, 15 (5), 511–526. Knight, V. (2016). Remote control: Television in prison. Palgrave Macmillan. Layder, D. (1998). Sociological practice. Linking theory and social research. Sage. Lindlof, T. R. (1986). Social and structural constraints on media use in incarceration. Journal of Broadcasting & Electronic Media, 30 (3), 341–355. Maes, E., & Tange, C. (2014) Langgestrafte veroordeelden in de SURBwachtkamer voor voorwaardelijke invrijheidstelling: ‘En attendant Godot?’ [Long-term prisoners in the waiting room for conditional release: ‘Waiting on Godot?’]. In K. Beyens, T. Daems, & E. Maes (Eds.), Exit gevangenis? De werking van de strafuitvoeringsrechtbanken en de wet op de externe rechtspositie van veroordeelden tot een vrijheidsstraf (pp. 97–131). Maklu.

168

K. Beyens et al.

O’Donnell, I. (2014). Prisoners, solitude, and time. Oxford University Press. Opsal, T. (2015). “It’s their world, so you’ve just got to get through”: Women’s experiences of parole governance. Feminist Criminology, 10 (2), 188–207. Robberechts, J. (2022). Prison life through the lens of digitalization (PhD). Vrije Universiteit Brussel, Brussels. Robert, L. (2018). Maxing out in prison. A study of pre-release long-term prisoners (PhD). KU Leuven, Leuven. Rubin, A. T. (2015). Resistance or friction: Understanding the significance of prisoners’ secondary adjustments. Theoretical Criminology, 19 (1), 23–42. Rubio Arnal, A. (2021). Post-prison re/integration? A Glasgow case study (PhD). University of Glasgow, Glasgow. Sayer, A. (2012). Power, causality and normativity: A critical realist critique of Foucault. Journal of Political Power, 5 (2), 179–194. Scarce, R. (2002). Doing time as an act of survival. Symbolic Interaction, 25 (3), 303–321. Scheirs, V. (2014). De strafuitvoeringsrechtbank aan het werk [The sentence implementation court at work]. Maklu. Scheirs, V. (2016). Doing reintegration? The quest for reintegration in Belgian sentence implementation. European Journal of Probation, 8(2), 82–101. Scheirs, V., & Beyens, K. (2019). Prisoners resettlement in Belgium: Also a responsibility of civil society. In F. Dünkel, I. Pruin, A. Storgaard, & J. Weber (Eds.), Prisoner resettlement in Europe (pp. 37–50). Routledge. Schinkel, M. (2014). Being imprisoned. Punishment, adaptation and desistance. Palgrave Macmillan. Snacken, S. (2005). Forms of violence and regimes in prison: report of research in Belgian Prisons. In A. Liebling & S. Maruna (Eds.), The effects of imprisonment (pp. 306–339). Willan. Snacken, S. (2015). Punishment, legitimate policies and values: Penal moderation, dignity and human rights. Punishment & Society, 17 (3), 397–423. Sykes, G. H. (1958). The society of captives. Princeton University Press. Vander Beken, T. (2021) Als je klaar bent, mag je naar huis. Reflecties over doel en inhoud van vrijheidsberovende straffen en maatregelen [When you’re done, you can go home. Reflections on the aims and content of liberty-depriving sentences and measures]. VUBPress. Van De Voorde, R. (2020). Het einde van de voorwaardelijke invrijheidstelling [The end of conditional release]. Panopticon, 41(3), 345–351. Van Ginneken, E. (2015). Doing well or just doing time? A qualitative study of patterns of psychological adjustment in prison. The Howard Journal, 54 (4), 352–370.

6 The ‘Reintegration Paradox’ …

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Wheeler, S. (1961). Socialization in correctional communities. American Sociological Review, 26 (5), 697–712. Worrall, A. (2011). The ‘seemingness’ of the ‘seamless management’ of offenders. In P. Carlen (Ed.), Imaginary penalties (pp. 113–134). Willan.

7 Time After Time: Imprisonment, Re-entry and Enduring Temporariness Fergus McNeill, Phil Crockett Thomas, Lucy Cathcart Frödén, Jo Collinson Scott, Oliver Escobar, and Alison Urie

Introduction Perhaps inevitably, given the scale and impact of ‘mass incarceration’ in the USA, much attention is now being paid to the processes of re-entry and re/integration after imprisonment. For example, Reuben Miller’s (2021) important new book, Halfway Home, is centrally concerned with the ‘afterlife of mass incarceration’ (as its subtitle makes clear). Miller chooses the term ‘afterlife’ to make an explicit connection between the Fergus McNeill drafted this chapter, before the other named authors read and commented on the draft. More broadly, the learning generated in the Distant Voices project was the product of a much wider collaborative effort that includes our core group and the community of enquiry from which it is drawn. Though the responsibility for this chapter rests with the named authors, we wish to acknowledge our indebtedness to the core group and the community of enquiry.

F. McNeill (B) · L. C. Frödén University of Glasgow, Glasgow, Scotland, UK e-mail: [email protected] P. C. Thomas Glasgow, Scotland, UK © The Author(s) 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1_7

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history and legacy of slavery in the USA and the development of what he calls the ‘supervised society’; one in which people of colour continue to be disproportionately trapped in ‘carceral citizenship’ (Miller & Stuart, 2017). As such, their emancipation—from both slavery and imprisonment—is only ever partial. For people of colour leaving prison, their lives remain confined and constrained in multifarious ways. In making these connections between slavery, imprisonment and supervision, Miller’s work clearly fits with the historical strand of ‘time and punishment’ scholarship discussed in the editors’ introduction; Miller connects racialised injustice in the past and in the present of the USA.I Our focus in this paper is somewhat different. The title—‘Time After Time’—alludes not to the historical production and reproduction of injustice but rather to the existential challenges associated with doing time in the community after doing time in prison. To borrow again from the editors’ introduction, drawing on Hassard (1990), our focus is on the ‘Kairos’ of experienced time, not the ‘Chronos’ of clock-time. Our central claim is that the temporal rupture that imprisonment causes continues to be felt long after release; in other words, imprisonment has its own ‘afterlife’, or perhaps its own ‘after-shock’. That said, the interactions between doing time in and after prison are not straightforwardly linear or chronological. For example, how a prisoner imagines present life outside prison and how they anticipate future life after prison will affect how their imprisonment is experienced in the present. So, it is not just the past that shapes the present and the future; the (anticipated) future also shapes the present. Moreover, as we will see below, part of the present work of imprisonment (and of ‘rehabilitation’) concerns reviewing the past and rewriting the future. J. C. Scott University of the West of Scotland, Paisley, Scotland, UK O. Escobar University of Edinburgh, Edinburgh, Scotland, UK A. Urie Vox Liminis, Glasgow, Scotland, UK

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In the next section, we briefly review the few sources that have examined time and temporalities in re-entry and re/integration to date. We then introduce the contexts and methods of the research project on which we draw here to explore these issues further. In the third section, we discuss one creative process and output of that project, through which two participants initially explored these questions. We then go on to present three sections that identify and analyse different ‘travails’ of penal time that emerged from our data via collaborative analysis. Importantly, we did not structure our inquiry to explore or test or develop theories or conceptualisations of time and temporalities; rather, time and temporalities emerged inductively as themes as we reviewed and discussed our data together. We then looked to the literature to help us make sense of what we had found. Our main aim here is simply to share and interpret these findings, with a view to encouraging further work in this neglected area; we neither aim nor claim to offer a theory of post-prison temporalities. We use the term ‘travails’ in this paper to stress the significant, difficult and active work involved in addressing the temporal challenges that punishment creates. This is not to say that these travails are solely temporal; rather, each of them involves motion through (or stasis in) both time and space while these fundamental dimensions of human experience are affected by the exercise of penal power. As Robinson (this volume) explores, drawing on Lewis and Wiegert (1981), our lives are ‘embedded’ within fields or structures; and this embeddedness is both spatial and temporal. State punishment—in the form of imprisonment—rips people from one field and forces their spatial and temporal embeddedness in another; release from prison produces another rupture. Respectively, the three travails we discuss below include (1) the struggles caused by ‘de-synchrony’ between time inside and outside of prison and the problems of ‘re-synchrony’ that it creates; (2) the contestation of ‘readiness’ for progression and release; and (3) the problem of living postrelease with the paradox of ‘enduring temporariness’. In our conclusion, we argue that tackling these three challenges requires people re-entering society to travel not just through spaces and to places but also through time, both backwards and forwards; and we argue that these journeys are very often difficult and sometimes dangerous.

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Doing Time After Time Given the proliferation of literature about re-entry, it is perhaps surprising that very little attention has been paid to its temporal dimensions. Understandably perhaps, work has tended to focus on how, in what condition and with what support people are released; where and to whom they go; and what kind of reception they receive. In other words, much of the literature focusses on systems and practices of re-entry, on its socio-spatial environments and on its social and relational contexts (e.g., Western, 2018). That said, there are a few important contributions that have begun to attend to the temporal dimensions of re/integration. Moran (2012), for example, building on the work of Wahidin (2002), analyses how Russian women prisoners’ accounts of imprisonment and re/integration reveal that prison time is very often “inscribed’ on the body’ (Moran, 2012: 564). Though these inscriptions come in diverse forms, some of which are more concealable than others, her analysis suggests that they often present significant re-entry problems for the women, commonly related to risks of stigmatisation. To avoid these risks, many of the women tried to conceal, change, or remedy these inscriptions; for example, by paying for expensive dental work required to address the adverse effects of rudimentary dental care (or lack of care) in Russian prisons. Moran (2012: 579) concludes: the inscription of prison time on the body has significance not only during incarceration… but also after release, in that released prisoners feel most keenly the inscription of prison time on their bodies, through their anxieties before release, their adjustment to everyday life on the outside, and critically, the stigma attached to their loss of teeth as a marker of imprisonment. (Moran, 2012: 579)

Other research attests to the associations between imprisonment, morbidity and mortality (e.g., Fazel & Baillargeon, 2012); a theme to which we will return below. Some recent studies have begun to suggest

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that people in prison are vulnerable to ‘accelerated aging’1 ; the biological clock may tick more swiftly for prisoners than others, shortening their post-prison lives (Wahidin, 2002). But while ageing may be accelerated for prisoners, prison time itself is often experienced as decelerated (see also Earle, 2021). As Moran (2012: 570) notes: Women interviewed in prison described the concerns they had about life on the outside, mainly expressing these in terms of needing to ‘catch up’ with the changes that would have happened while they had been away. [emphasis added]

So, prisoners may be ageing (and dying) more swiftly while living more slowly; so much so that adjustment to the pace of life outside becomes a significant concern. In Durnescu’s (2019) recent study of re-entry in Romania, he tracked 58 men released from Jilava prison, just outside Bucharest. The men were interviewed on the day of release, after one week out, after one month out, after three months and after six months. The interviews focussed on daily experiences, obstacles and challenges, opportunities and resources, identity issues and future plans. Durnescu’s use of repeated interviews (and other methods) allowed him to chart the temporal ordering of the inter-related and compounding ‘pains of release and re-entry’ that the men experienced. In the first month, echoing the worries of the Russian women prisoners discussed above, the men struggled with adapting to their new environments, even where these environments had once been familiar. They faced challenges in adjusting to family life, to the busy-ness of life outside and to the ubiquity of digital technology. At the same time, they struggled to engage with state officials to get identity papers or claim benefits, commonly finding these bureaucratic processes impossibly complex and often futile. Even where formal rights to assistance existed, it was practically impossible to claim or secure that help. Many of the men were also in poor health, some with conditions associated with poor prison food, sanitation, ventilation, health care or regimes. 1 See: https://www.euro.who.int/__data/assets/pdf_file/0007/249208/Prisons-and-Health,-19The-older-prisoner-and-complex-chronic-medical-care.pdf, accessed 8th November 2021.

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The older men in the study reported severe social isolation and loneliness. In the second and third months, these problems conspired to plunge many of the men into extreme poverty. Even those who found work typically earned wages that barely supported their basic subsistence needs. In these circumstances, it is not surprising that some of the men struggled to avoid further offending. After the first three months, the men reported problems of stigmatisation. This could come in the form of pity or in the form of blame but was most often related to problems finding work. The men also related ‘pains of instability’ and a sense of ‘walking on thin ice’. Without work, many found themselves forced to move from place to place, producing a life lived in transit between short stays with different relatives or friends. For some, this was linked to the feeling of being an outcast; a feeling made worse where people had problems securing identity papers and medical care. Durnescu’s work begins to reveal how the material, social, spatial and relational dynamics of reintegration are both inter-related and temporally ordered. Bruce Western’s (2018) recent book, ‘Homeward: Life in the Year After Prison’ , is based on similar research in Boston, USA. Western and his team of researchers tracked 122 men and women using a variety of methods to collect data about their lives and experiences. There is much in Western’s book that resonates with Durnescu’s findings. Focussing here on the issue of re-entry processes or ‘transitions’ (as he calls them), Western (2018) notes that the first few weeks out of prison are typically ‘bewildering and awkward’ (p. 27); stress, nervousness and loneliness can be experienced as overwhelming. As in Durnescu’s study, some people struggle to adapt and readjust to everyday situations like crowds, using public transport or shopping, and many struggle with managing the many appointments they need to keep to secure help and comply with supervision. Thus, even the basic practicalities of ‘getting home and getting established’ can be very hard to manage. In this crucial first phase, family support can and does help. Conversely, problems with drugs and alcohol tend to make things worse. Beyond the first few weeks, Western charts the challenges of securing ‘community membership’, as reflected in establishing a family life, a place

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to stay and a means of subsistence (whether through work or public assistance). Re-making a place in a family from which a person has been absent is difficult. Tensions in families can surface or re-surface; former prisoners can feel like a burden, especially when denied the means to contribute materially. In Western’s study, older women played key roles in providing support, and such support was also connected with housing stability. Overall, though, half of the participants in Western’s study were still in insecure housing (or homeless) six months after release. Almost half had found work within two months of release; but older participants and those with addiction issues were unlikely to find work. In his conclusion, Western (2018: 185) argues: The mission of social integration in the aftermath of crime creates a broad test for criminal justice policy: does it encourage community membership or does it deepen social exclusion? Many staples of American justice fail this test. Fines and fees for cost recovery, pretrial detention for want of bail, criminal record disqualifications for government benefits, revocations of probation and parole for technical violations—all fail the test of social integration.

In other words, these important studies, like many other re-entry studies, suggest that, rather than progressing steadily (and in a linear fashion) towards re/integration, people move from the liminality of imprisonment to the limbo of incarceration’s afterlife (Miller, 2021). Indeed, where there is movement, it is as likely to move regressive as progressive (Nugent & Schinkel, 2016), meaning that people seem to face what we describe below as the paradox of ‘enduring temporariness’, with all of the precarity and vulnerability that this condition entails. In relation to reintegration then, time is not only a key dimension to think about but it is also a sensitising lens to think through.

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Distant Voices: Context and Methods For many decades, both in criminology and in criminal justice, there has been a focus on the ‘correction’ or individual ‘rehabilitation’ of prisoners and probationers (Raynor & Robinson, 2009). Some have criticised the concept of rehabilitation as a ‘penal imaginary’ (Carlen, 2008, 2013)—a convenient fiction and a fig-leaf to cover the embarrassment of punishment’s de-habilitating and dis-integrating realities. Others have drawn attention to aspects and models of rehabilitation that extend beyond individual transformation, insisting on a broader conceptualisation that attends to restored legal and political rights and social relations (McNeill, 2012, 2014). With this wider conceptualisation of rehabilitation and re/integration in mind, the origins of ‘Distant Voices: Coming Home’ lie in precursor projects which revealed both the importance of social re/integration after punishment, and the profound difficulties associated with securing it, particularly within hostile environments (McNeill & Urie, 2020; Urie et al., 2019). The studies discussed in the preceding section attest to the extent and complexity of these difficulties. Between 2017 and 2021, Distant Voices was a partnership between the Universities of Glasgow, Edinburgh and the West of Scotland, and the arts organisation Vox Liminis,2 which hosted both the practice and the community through which we learned. In disciplinary terms, the project spanned community development, criminology, music, politics and public policy, deliberately blurring boundaries between creative practice, research, knowledge exchange and public engagement. At the project’s inception, we aimed to explore whether and how creative processes might enable a more constructive, affective engagement with questions of crime, punishment and re/integration and might even change the way that people returning from prison are received (cf. McNeill, 2019: 148). With these ends in mind, songwriting and songsharing seemed a potentially powerful approach for both exploration and action (for more detail, see Crockett Thomas et al., 2020, 2021; Urie et al., 2019). 2

See: www.voxliminis.co.uk, accessed 25th May 2021.

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The project’s fieldwork involved 21 two- or three-day workshops which took place between July 2017 and July 2019.3 Thirteen of these took place in Scottish prisons (one open and three closed institutions which, between them, hold men and women and adults and young people) and eight in community settings in Glasgow and in Inverness. In these workshops (called ‘Vox Sessions’), we used collaborative songwriting to support a range of differently situated people (all with experience of the criminal justice system) to creatively explore questions of punishment and reintegration together. In total, we worked with 153 people to produce 150 original songs. The analysis in this paper includes but extends beyond consideration of specific songs, exploring how questions of time and temporality recurred throughout the project. Hence, we draw on a range of data; not just song recordings, song lyrics and song introductions developed with the co-writers but also interviews with participants and the researchers’ ethnographic field-notes. The analysis builds on a systematic open coding of the data undertaken by Phil Crockett Thomas using NVivo software. Distant Voices was guided by a ‘Core Group’ of about 16 people with direct experience of the justice system as prisoners and/or supervisees, family members or practitioners, or from related academic, creative and/or community projects. Discussions within the Core Group informed the evolving design and conduct of the research, and our approach to analysis. Within the Core Group, Jo Collinson Scott also drew on her expertise in ‘practice-as-research’ (Nelson, 2006) to develop a novel approach that we called TREEs: ‘Tiny Research Enquiries and Explorations’.4 TREEs usually involved individual core group members, or pairs of members, in following lines of enquiry that struck them as interesting, often using creative methods. This paper has evolved from one such TREE, which we discuss briefly in the next section. Ethical approval for the research was sought and obtained both from the College of Social Sciences Ethics Committee at the University of 3 For more extensive discussions of these workshop and the project design see (Crockett Thomas et al., 2020; McNeill and Urie, 2020; Urie et al., 2019). 4 For those interested, Jo intends publishing more about the evolution of this method soon, including on her blog, ‘Songwriting as Research’: https://songwritingstudies.com/songwritingas-research/, accessed 12th April 2022.

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Glasgow and from the Research Ethics and Access Committee of the Scottish Prison Service.

The Time TREE The ‘Time TREE’ involved Fergus McNeill (the project’s principal investigator and a criminologist) and Louis Abbott (the project’s Creative Lead and a musician and songwriter). It was inspired by a Core Group workshop in August 2018 at which we collaboratively analysed data from a songwriting session that had taken place in HMP Castle Huntly (Scotland’s only open prison) six months earlier. The Core Group members noticed that time, timing and temporariness were recurring themes in the data from that session; indeed, these issues recurred in many sessions throughout the project. Informed by this exercise in collaborative analysis of one session, our NVivo coding framework developed to include several time-related codes; ‘memory or past’, ‘change’, ‘future or carpe diem’, ‘time pressures’ and ‘time wasted or suspended’. These Core Group discussions first prompted the recognition that re/integration after imprisonment is not just about who and where people return to but also about when. The separation produced by imprisonment is not only spatial—it is also temporal—and, as we discuss further in the next section, that means that coming home often involves a struggle to re-synchronise with life outside. Initially, Fergus followed up on these ideas by reading some criminological sources related to time and punishment (most of them discussed below); he summarised these papers and added some of his own thoughts to a short paper which he shared with Louis. At the same time, Fergus also produced a piece of creative writing entitled ‘Her: Him: Us’ in which he tried to explore how time plays differently for families of prisoners, for prisoners and for the rest of ‘us’, i.e., those who are not directly affected and who may be oblivious to these temporal struggles.

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Her: Him: Us Her: Baby lights, at first in green staccato beats They flicker, one, three, two Then to a rising roar: eight red The colour that calls me from my bed How quickly can I warm and mix His formula, his micro-fix? Fluffy-slippered and towelling-gowned I rush to sate his appetite And you, attuned to different beats Awake or in carcerated sleep? The thrum of water in rusty pipes The buzz of cell-block all-night lights The cries of first-night prison fears The long-drops of tie-sundering tears You’re locked inside a different drum Beaten by its rhythm sticks You dance their ersatz muzak tune Learning to twist and turn their tricks Him: I stare at dust-specks in the dullest air Imagining dark-sky constellations I try to dream a galaxy of suns To warm these cells and colour greys But warp is weft, and thrice cleft I cannot slip the knot of waking The stillness makes it tighter still There is no change they’ll mark or measure

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While you, attuned to different beats Lie deep or in disrupted sleep In shampooed scent from fresh-air sheets Your fuss and fret so quick to reach The wail of woken infant fears And dry fresh-fallen baby tears You’re dancing to a different drum It tells you when and how to move Lock-stepping to a true-love tune You’ve changed, and no-one asked for proof Us: For ‘us’, the time is really flying Outside the window we see in passing Reservoirs shining like mercury pools Then later, cities veined by Christmas lights We watched the first film, the second and the third Ate meals, drank drinks, and meals and drinks But those giant leaps of long-haul travelling Ended stock-still at the final step: the disembarking While you, attuned to different beats Wonder how each other sleep, With soured breath and flattened hair We wind and wait and whine and stare The ones ahead so glacially slow While we’re desperate for our welcome homes We’re trained to dance to different drums That tell us we have no need to move Time’s labour is lost and, unchanged, Our standstill is the living proof.

Louis explored the same issues not through words, but via sound. He describes his process and contribution as follows:

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In its early stages the musical ideas I was working on and the text Fergus had written were living separately. We had discussed the ways in which I could manipulate recorded sounds on Pro Tools [music production software] using plugins like ‘Time Expansion/Compression’—the ability to stretch or squeeze a soundwave. I experimented with a simple, repeated pattern of notes and played about with them at different tempos, keeping the pitch the same. Doing so reminded me of a piece written for string orchestra (and bell) by Estonian composer, Arvo Part, which is essentially a canon; a cascading melody line starting at different speeds and octaves as it passes through the orchestra. This became the basis for the punchline of the piece (3.45s) with several, differently paced, descending lines played on a synthesiser. I also manipulated some ‘field’ recordings of household objects and time stretched those; a ticking clock, a burning candle. The piece finishes with the pulsing of an ultrasound recording of a baby’s heartbeat.

The combination of Fergus’s spoken words and Louis’s soundscape can be heard here: https://soundcloud.com/voxliminis/sets/time-after-time/ s-OOqKIeAhe73?si=8af57698730e4c5b9c64eba1f8209973&utm_sou rce=clipboard&utm_medium=text&utm_campaign=social_sharing. The piece they made together speaks directly to the first of the three travails discussed below. All the songs mentioned below are also available via the same SoundCloud link.

Travails of Synchrony, De-synchrony and Re-synchrony The Time TREE highlights and creatively explores a relatively commonplace finding of prisons research: for many prisoners, part of the process of adaptation to prison life, and one of the main ways they ‘do time’, is by focussing on the here and now, on life inside (see O’Donnell, this volume). To be preoccupied with life outside—and to try to sustain an awareness of its routines and rhythms—is likely to be painful. As the words above put it, the prisoner is ‘trapped inside a different drum’, while his partner is ‘attuned to a different beat’ (the beat set by their newborn baby). O’Donnell (2014), for example, writes about the ‘Sundering of

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Ties’ (with the outside world) as a means of securing psychological survival: Visits can make time harder to serve because they jolt prisoners back to an alternative reality that is often an unhappy reminder of their predicament. They are memento mori. Contacts with the outside world signal that while people that they care about are moving forward in time, the prisoner’s development is arrested. (O’Donnell, 2014: 196)

The notion of ‘time arrested’ features famously in Denise Riley’s (2019) poetic essay, ‘Time Lived, Without its Flow’, in which she reflects on the temporal rupture caused by the sudden death of her adult son: But how could such a striking condition ever be voiced? It runs wildly counter to everything that I’d thought we could safely assume about lived time. So this ‘arrested time’ is also a question about what is describable; about the linguistic limits of what can be conveyed. I’m not keen on conceding to any such limits. Yet it seems that the possibilities for describing, and the kinds of temporality that you inhabit, may be intimately allied. For there do turn out to be ‘kinds’, in the plural. (Riley, 2019: 14)

While we recognise problems in drawing too close a parallel between these two situations, both involve profound losses, and both can plunge those affected into struggles to adjust and adapt to new, undesired and unexpected temporalities which are experienced as being different from those of the world around them. And perhaps we can hope that the songs discussed below can communicate more about this condition than words alone. For example, the editors’ introduction to this volume mentions O’Donnell’s (2014) taxonomy of seven ways that prisoners truncate time; by rescheduling it into manageable blocks; by removing it through absorption in everyday tasks; by reducing their consciousness of it, for example, by sleeping; by reorienting themselves to live in the present; by resisting the prison system and its temporalities in more or less overt ways; by finding ‘raptness’ in the flow of absorbing activities (like art) and by reinterpreting the meaning of prison time. As O’Donnell (2014)

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notes, not all strategies are available to all prisoners—and prisoners who can manage none of them are often vulnerable to self-harm and suicide. Importantly, Crewe et al. (2017), in exploring the experiences of life sentence prisoners in England, noted that they used different strategies at different stages of their sentences; in the early stages of their sentences, most tried to avoid thinking about time in general (and in particular the time ahead of them), preferring to live in the moment. But amongst those further on in their sentences, responses were more mixed: some accepted the flow of prison time, finding some agency in actively ‘swimming with the tide’ rather than against it. In a Vox session at HMP Barlinnie in January 2019, ‘Lee’5 wrote a song called ‘Autopilot’ in collaboration with musician Jill O’Sullivan. Autopilot vividly illustrates some of these strategies, both lyrically and sonically. Lee introduces the song as follows: My song is more about the state of mind you need to cope with prison life. A way of being, a way of living while being incarcerated. I use autopilot as a coping mechanism, where there is not much thinking needed, our days melt into one, therefore time flies by.

The song opens and closes with the following lines: I’m holding on to autopilot, autopilot for tonight. Autopilot doesn’t choose, autopilot doesn’t ask. I’m holding on to autopilot, autopilot for tonight. Autopilot doesn’t choose, autopilot’s got it all mapped out.

In these words, and in his introduction to the song, Lee is clearly conscious of his temporal adaptation to prison life and of its rewards; ‘time flies by’. But within the metaphor of the autopilot lies an apparent 5 During Vox sessions, we discussed with participants how they wished to be credited as cowriters, and how they wished to be referred to in research outputs, thus seeking informed consent as to how to balance the desire to assert authorship of the songs against risks of exposure (and labelling). We try to revisit this question, wherever possible, where songs are being shared in public, if we identify any significant risks for co-writers. Some choose to use versions of their own names; some choose to use pseudonyms. Here, we prefer not to identify which choices the co-writers made.

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contradiction: Lee surrenders control (or perhaps autonomy) in order to affect and accelerate time’s passing. He actively and strategically chooses passivity. Both the lyric and the hypnotic, trippy quality of the music perhaps suggest the altered consciousness that O’Donnell (2014) identifies with reduction as a means of truncating prison time. But the chorus of the song changes tone, darkening sonically. Lyrically, it seems to express more active resistance: I I I I I I

am am am am am am

more more more more more more

than than than than than than

a number a prisoner a judgment in a court room saga a prisoner you’ll ever know you’ll ever know.

The song’s short verses allude to the past, the present and the future: Oh to have belief, to live beyond your grief This is my reality, oh to find the good To find the good in me. You’re a distant memory Oh to have normality, what do you believe? The doors in here are closed, but I am still alive I am still alive. I can breathe. I have adapted.

These lyrics assert both a future-oriented desire for belief (and a life beyond grief ) and a more present-focussed confidence in the protagonist’s resilience, even in the face of prison time. They seem to somehow blend adaptation and resistance. They may even hint at an attempted reinterpretation of prison time. Interestingly, the song’s structure involves an intro and an outro that repeat the autopilot refrain above. Thus, the resistance and reinterpretation suggested by the verses and chorus are wrapped up in the removal (that is, into the trance state of being on autopilot) with which the song begins and ends. Taken together, the song vividly illustrates how different ways of truncating time can co-exist in complex inter-relationships.

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Lee’s song is not without concern for life outside the prison, but it is very much focussed on life inside. While this may not necessarily entail the ‘sundering of ties’ that O’Donnell (2014) discusses, it might imply that the travails of managing prison time—synchronising with its routines and rhythms—mean disconnecting from or de-synchronising with life outside. Deacon’s (2019) research on how young people in Scotland experience the imprisonment of a family member uses the concept of ‘de-synchrony’ to elaborate how time is (made) different for people in prison and for their families. Deacon adopts this concept from a paper focussed on the experiences of seafarers and their families (Thomas & Bailey, 2009). In their conclusion, the authors note: While stress and difficulties due to separation can be understood as, in part, due to lack of physical co-presence, the experiences of temporal discontinuity and the effects of living within complex and nonsynchronous temporal frames should not be underestimated. Seafarers became essentially ‘out of time’ with their families, temporarily stepping out of the linear trajectory of home life. (Thomas & Bailey, 2009: 625–626)

As Deacon (2019) argues de-synchrony is likely to be even greater for those affected by imprisonment; and this is not just a matter of the duration of separation. For example, noticing how young people’s lives are characterised by the immediate feedback loop of digital communications (whether via texts, or social media, or ‘on demand’ entertainment), she identifies how sharply this contrasts with the decidedly analogue schedule of receiving phone calls from prison, or of making visits to prison. Whereas digital connection might mediate the problem of desynchrony for people who are separated from families by work, prisoners are also routinely excluded from digital life (including digital family life). The notion of de-synchrony recalls Lewis and Wiegert’s (1981) insight that temporal ‘embeddedness’ requires ‘synchronicity’; to function well within important social relations (like those of family and

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friendship networks) requires temporal coordination. Yet as ‘Her-HimUs’ describes, being embedded in different temporal orders confounds this possibility. If imprisonment produces de-synchrony then re-entry requires resynchrony. In two recent articles, we have explored how songs and songwriting afford opportunities to explore and address prison-generated problems (Crockett Thomas et al., 2020, 2021). Particularly for people nearing the end of their sentences, the challenges of ‘re-synchrony’ can loom large. We have already noted in our discussion of Moran’s (2012) study above that prisoners nearing and after release feel the pressure to ‘catch up’ with life outside. Earle (2021: 45) has recently articulated this challenge, setting it within the context of fast-flowing, contemporary, digital capitalism: The subtle habituations of prison life ambushed me on release from my short sentence. Even after just three months, I found myself literally thrown off balance by the scale and speed of things in motion, particularly cars, and buses even more so, but even people. Everything seemed to move so fast. Roads were a hazard, if only for a day or so. It was an unexpectedly physical reaction, and one most of the convict criminologists I have met recognise… If the continuing acceleration of life is a constitutive feature of our era what new torpors will torment the prisoner as “the rhythm of your inner life slows down” (Serge, 1977, p. 62). And what consequences follow from the rising disparities between still life inside and fast life outside?

We also noted, following Durnescu (2019) and Western (2018), the difficulties of adjusting to life outside and of re-connecting with loved ones and family life. ‘Am I Dreaming?’, written by ‘Eddie’ in collaboration with musician Chris Duncan at HMP Castle Huntly in August 2017, explores these issues. At the time of writing the song, Eddie was coming to the end of a long sentence. The open prison conditions allowed home visits as part of his preparation for release. In conversation, Eddie elaborated: The song title is ‘Am I Dreaming?’ and it’s about, probably about being in the jail so long and the trials I’ve went through and what I’ve put my

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wife through, and at times I thought we’d been apart for so long that it’d be hard getting back to normal again. At times, my wife did say, “listen, I cannae’ put up with this anymore, you’ve been away for so long” but then, recently we’ve had a talk and we said we could have a good go at this. That’s kinda’ what the song’s about, about me getting another chance, kinda’ turning back the clock to the old days and it’s, it’s in the lyrics and it does seem like a bit of a dream, that we’re having a chance to do things again. [emphasis added]

As befits the song’s title, the sound is dreamy and wistful. Chris’s vocal in the verses is soothing; Eddie’s vocal in the chorus is more urgent— pleading almost: Can we go back to the old days? Kicking snow up in the park Chasing down the moonbeams, find shelter after dark Can we go back to the old days? Find shelter in the dark Ooh, ooh, am I dreaming?

Again, the song contains contradictions. Unless time itself can be turned around, there is, of course, no way of literally going back. The second verse explains: You see the years are passing fast now, and I want our love to last So let’s look to the future, forget about the past So let’s lay down in the garden, with the sunshine on our face Just thinking about the old times, and those happy, happy days Ooh, ooh, am I dreaming?

By appealing to their shared past, Eddie is invoking happy memories of a time when his life and his wife’s life were in synch. Laying down in the garden with the sunshine on their faces is a vivid metaphor of this temporal, spatial and relational synchrony, and embeddedness. At the same time, he suggests that they both ‘forget about the past’, referring presumably not to their happy memories but to his mistakes and to the lost years in prison. Importantly, the song’s title, which also features as a refrain at the end of each verse and chorus, is a question: Am I dreaming? As well as invoking the liminality of dreaming—where the past and the future

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coalesce and collide, perhaps the title hints at Eddie’s understandable uncertainty about whether re-synchrony and reconnection could be made a reality. Such doubts make sense, given how long Eddie’s and his wife’s lives had been de-synchronised and disconnected and given how many relationships fail to survive long-term separation.

Travails of Readiness The second set of travails occasioned by doing prison time concern questions of identity change, personal transformation, rehabilitation and redemption. More specifically, they relate to the contestation of ‘readiness’, and to the struggle over the timing of progression and release. This is a struggle between ‘narrative time’, which informs how a person experiences and estimates their transformation in an existential sense, and ‘system time’, which reflects the prison and parole authorities’ assessment of that transformation. In a sense, returning to Hassard’s (1990) distinction, this is a struggle between Kairos and Chronos; the person experiences change and feels ready; but it is the system that determines the chronology of progression. The close links between time and change have been recognised for millennia: Aristotle claimed that time is the measure (or the number) of change; we are only aware of time passing because we can observe changes around us, for example, in the sun’s position in the sky or the place of the hands on the watch-face or the growth of a child. As Moran (2012) notes (following Wahidin, 2002), this also relates to how time is written in and on our bodies, for example, via greying hair, wrinkles, scars and stretch marks. The converse is also often true: The absence of visible or measurable change creates the impression that time is not passing, or that it is passing very slowly. We need only think of queues and waiting rooms to recognise this. In ‘Her: Him: Us’, the prisoner’s partner recognises that he has to ‘dance their ersatz muzak tune, learning to twist and turn their tricks’. In other words, he must perform a discernible change for the prison authorities; and they determine the beat or tempo to which he must perform. By contrast, he describes her as ‘lock-stepping to a true-love

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tune, you’ve changed, and no-one asked for proof ’. Unlike the vagaries of his ‘correction’, her embodied transformation into being a mother is un-questioned and undeniable. The last few lines turn Aristotle’s observation about time and change on the distracted, self-obsessed ‘us’, enduring long-haul flying: We’re trained to dance to different drums That tell us we have no need to move Time’s labour is lost and, unchanged, Our standstill is the living proof.

Here, the accusation is that ‘time’s labour’ (i.e., the work of transformation that people in prison may do) is lost because we are unchanged; ‘we’ are duped into the mistaken belief that only ‘they’ (‘offenders’, ‘criminals’, ‘others’) need to change; society itself needs no transformation. In respect of the systemic insistence on prisoner transformation, Crewe (2011) has written about the ‘tightness’ of contemporary penal regimes; his use of this term refers to the tension and anxiety created by conditions of uncertainty that promote compliance, discipline and self-regulation. Tightness has an important temporal dimension, in that it is closely associated with indeterminate aspects of sentences—where discretionary judgements about progress influence whether a prisoner is deemed ‘ready’ to move into the next phase of their sentence and when or if (in the case of life sentence prisoners) they will be released on licence. Warr’s (2019: 20) study of life sentence prisoners similarly reveals how their ‘narrative labour … coalesces around the performance of a flagellant self ’ (Warr, 2019: 30), demonstrating contrition, amenability to ‘correction’ and sincere hopes for redemption and reintegration. The temporal indeterminacy rests in the fact that how long they will serve depends on whether and to what extent they are seen as having changed. In a recent paper (Crockett Thomas et al., 2021), we show how some Distant Voices songwriting and songs seem to afford opportunities to address narrative problems caused by punishment, including those associated with the contestation of change. Songs with ‘resolved plots’, for example, narrate the transformation of a discredited and stigmatised identity. But we also note that, sometimes,

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they do so in ways which may entail a degree of co-optation into certain forms of ‘judged selfhood’. This becomes obvious if we accept that such songs insist upon a new judgment; i.e., that the protagonist is redeemed and should be restored. (Crockett Thomas et al., 2021: 7–8)

Our analysis in that paper of ‘Steven’ and Kris Drever’s song ‘The Man I Used to Be’ illustrates this argument.6 Crucially, for present purposes, Steven was serving a determinate sentence and was within a week or so of release from prison. In his case, having received a sentence of less than 4 years meant that the authorities held no supervisory power over him post-release (see McIvor et al., 2018). Yet his desire, in writing the song, to both mark and measure the change in himself was obvious. But notably, his intended audience was not the prison authorities; rather he was writing for himself (since he wanted the song to sustain his motivation) and his family. As he put it: For me I can do this song, and the people who know me—when they listen to it—they’ll understand a little bit about where I am in my life right now and that I have faced a lot of problems, and that I’ve been strong, I’ve just never known how to express that… I don’t think that I can be anybody different unless I understand the man I used to be, and that’s where the title came from, ‘The Man I Used to Be’, not ‘The Man I Am Now’ because that man will always develop but, the man I used to be, I’ll never go back there.

For other participants, including lifers like ‘Dale’, who had spent several decades in prison, the feeling of being trapped in a struggle with prison and parole authorities over the recognition (or not) of change and the associated judgement of readiness was acute: In here at times I’ve felt as if, if you’ll pardon the expression, banging my head against a brick wall… with some of the people in here, because they’ve got their own preconceived ideas of who I am. I’m trying to prove to these people that’s not who I am. I’m a different person now. I might

6

The track can be listened to via this link: https://www.voxliminis.co.uk/media/the-man-i-usedto-be/, accessed 12th April 2022.

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have been that [several decades] ago it’s true, but that’s not me now. It’s trying to convey this to them in a way they’ll understand. But that’s just me, it’s how I feel at times. [emphasis added]

For many then, imprisonment generates the question: ‘How much prison time is enough?’ The answer is contested, not just because of debates about retribution and proportionality but also because of the vagaries of, on one side, demonstrating, and, on the other side, validating transformation or ‘rehabilitation’. The prisoner is caught in an Aristotelian double-bind; they must show a marked and measurable change, but they must do so in an institutional environment where, for many of them, time has also been slowed down. The interruption and deceleration of life’s temporal order in prison mean that change is both harder to see and harder to make visible.

Travails of ‘Enduring Temporariness’ The final set of travails that we discuss is associated with the various forms of temporariness that imprisonment creates or exacerbates. We noted at the end of this paper’s first section that many studies suggest that re/integration after punishment is rarely achieved. As we put it above, people move from the liminality of imprisonment to the limbo of incarceration’s afterlife (Miller, 2021), where they face the paradox of ‘enduring temporariness’, and the precarity and vulnerability that this condition entails. Similarly, in the field of migration studies, it has been argued that, to stand a chance of securing integration and belonging, asylum seekers need not just legal citizenship but also safety and security, linguistic and cultural competence and a range of social connections (Ager & Strang, 2004, 2008). Yet, research suggests that they are often denied these foundational legal and civic resources for integration, and access to its ‘means and markers’; employment, education, health care and housing. As a result, even for those who avoid long and indefinite detention under immigration law, they remain in civic, temporal and social limbo, until

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and unless they can secure ‘settled status’ (see, e.g., Bhatia & Canning, 2020). Most people returning from imprisonment already have formal, legal citizenship, but they have been spatially and temporally estranged and excluded through the penal system. Of course, the irony of the ‘re’words that proliferate in criminal justice (rehabilitation, reintegration, resettlement, even re-entry) is that they assume a return to a prior state of wellbeing that, for many, never existed (Carlen, 2008; McNeill, 2017; Urie et al., 2019). For most, imprisonment is not their first or primary experience of estrangement, exclusion and disenfranchisement; rather, it acts to exacerbate prior social disintegration. In these processes too, there are important relationships between time, space and social relations. Some of these were vividly illustrated in a conversation between Fergus and John, a member of our Core Group who was released from a long prison sentence a couple of years before the project began. As part of another TREE, Fergus and John had begun comparing what ‘home’ had meant to each of them at different times in their lives: A long car journey allowed John and me to spend an hour or two [in discussion]. From comparing our experiences of home, we came to realise that to be settled (at home), John needed to feel in control , or controlled. Either way, life had to be in control in some senses. In places, at times, and with people or routines that he felt he could not or cannot trust, it was or is impossible to feel settled. Consequently, in foster care, on remand, in open prison and on licence, he couldn’t and can’t really ever be or feel at home. The lack of control and trust, the uncertainty, made or makes it impossible to settle. But in his own place in Glasgow (preprison...) and in HMP Shotts [where he was held for several years], he could feel at home and settled. In both of those places, he was also able to make friends. (Field-notes, December 2018, emphasis in original ).

The word ‘settle’ is interesting in this context—not least because of the criminal justice use of term ‘resettlement’ (i.e., after prison) in the UK. In common use, ‘settle’ has multiple meanings—we settle disputes, we settle debts, we settle down, we settle into things, we settle for less. Combining these uses perhaps, the term settlement implies resolution,

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calmness, security, stability and accepting our situation. Yet, as John’s experience illustrates, the care system and the justice system tend to deny people the sense of control and the trusting relationships on which feeling and being settled depends. Instead, these systems are characterised by instability and uncertainty—and by what we have termed ‘enduring temporariness’. One especially vivid depiction of the effects of temporariness can be found in a song about home leave from open prison, written by ‘Homesick Reg’ in collaboration with session-facilitator and musician Lisa Howe in February 2018. The song is entitled ‘Two Days’. Reg says of the song: Title speaks for the song but it’s the worry and buzz ae getting oot efter three and a hauf years. But it’s only two days staged leave so you’ve got a million things you need tae get done but not enough time.

Sonically and lyrically, ‘Two Days’ communicates the very opposite of being settled; it sounds excited, apprehensive, urgent, ragged, frenzied and chaotic. Nonetheless, its chorus conveys not just the urgency of packing things into a couple of days’ leave, but also the need to slow down—to settle. Tellingly, it also compares the experience of home leave to time travel, placing Reg, like Marty McFly (the protagonist of the ‘Back to the Future’ movies), in the right place (his ‘hometown’) but at the wrong time: Two days I’ve got to go, time to get things done When will this all be gone and turned back into fun? I need to try and get all slowed down Time travelling, Marty McFly, now I’m back in my hometown

While Reg’s depiction of home leave is light-hearted, the fact that this sense of temporariness (and of de-synchrony) endures for many post-release can have serious and tragic consequences. Having previously taken part in Vox Sessions in prison, ‘Adam’ took part in a communitybased Vox session in December 2018, not long after his liberation. He wrote a song called ‘Never Change this Man’ with musician Claire

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McKay. The song is in the style of Johnny Cash, with a catchy rhythm, and was sung by Adam with a compelling blues voice. ‘Never Change this Man’ is about a famous actor who happened to be the father of Adam’s friend. He came to mind as Adam thought about the session’s theme—rebellion—so he decided to pay the actor a tribute. The lyrics feature some classic tropes of that kind of portrait. The song structure mirrors a life-story, from the golden years to later decay: Once I was a Rockstar, I lived in perfect mess I always had the women, cause I always looked my best Smoked as I was rollin, the bourbon burnt my chest If Springsteen was the Boss, you know I taught the best.

The chorus celebrates the ageing rock-star’s enduring commitment to being a rebel: I don’t give a damn, I am the way I am Walked these streets for many years You will never change this man

But as the song unfolds, there is a sense that time is catching up with him: This old dog has had his day, stiff fingers make it hard to play As my health begins to let me down, I sing the words but make no sound Looking in the mirror, I don’t recognize the face As the world keeps moving, I can’t seem to keep my place. [emphasis added]

Although at first sight, the song doesn’t seem to speak directly to Adam’s own experience as a person recently released from prison, those lyrics echo some of the temporal challenges of re-entry discussed above. In conversation, Adam made the connection himself: …a lot of people come out, like myself, and I was happy for the first couple of days, like oh… result, I’m out, great, I’ll go and see everybody, and after a couple of days I was lost. It was like everybody has moved on with their life, they’ve got families and stuff and I just felt I was in

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a stagnant position of just my life hasn’t changed, I’ve not progressed as a person, everybody I know is different because obviously they’ve done different things, so I found that very hard and I’m still adjusting.

Adam knew first-hand the pain that de-synchrony causes, and he struggled with the enduring temporariness that his imprisonment had created or exacerbated. After the December 2018 session, he kept in touch, occasionally attending our regular Tuesday night meetings (Unbound) and joining us for a residential creative writing workshop in August 2019. However, a few months later, in March 2020, Adam died by suicide. We don’t know to what extent the forms of temporal suffering we have articulated in this paper contributed to his death. But we do know that rates of suicide in prison and after prison far exceed those in the general population (Armstrong & McGhee, 2019). For some, the temporal, spatial and relational disruption that punishment creates is simply not endurable.

Conclusion: Reintegration as Time Travel In this chapter, we set out to explore time after time, or more specifically, to examine some of the temporal dynamics of imprisonment and reintegration. Through an examination of those few studies that have attended to the temporalities of re-entry and reintegration, we argued that many people released from prison move from the limbo of imprisonment to the ‘enduring temporariness’ of unfinished and incomplete reintegration. Then, by drawing on our own research processes and findings, we illustrated and explored three kinds of ‘travails’ of penal time; three forms of temporal work that imprisonment generates for its subjects. The first travail concerns how getting ‘in synch’ with prison time, both to manage it and to survive it, produces the problem of de-synchrony with life outside. In consequence, people in re-entry processes need to find ways to secure re-synchrony; to ‘catch up’ not just with people, but also with the pace of life outside. The second travail relates to the notion of ‘readiness’ for progression, release and reintegration. These require both narrative and performative work to persuade prison and

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parole authorities (and sometimes others) that sufficient change has been marked and measured; that ‘enough’ time has passed, even when prison has slowed time down. The third travail centres on enduring temporariness, which we contrasted with the condition of being ‘settled’. We noted that many people who have been processed through care and justice (and immigration) systems are denied both the forms of control over their own lives and the trusting relationships on which being and feeling ‘settled’ depends. As we illustrated, for some people, living under these conditions may prove unbearable. Our elaboration of these travails of penal time suggests that we might do well to think of re-entry and reintegration not just as a journey from one place to another, and from one set of social relations to another, but also from one time zone to another: and even through time itself— back to the past, through disrupted and multiple presents, to a range of possible futures, and back. If long-haul travelling (as depicted in ‘Her: Him: Us’) teaches us that crossing time zones can be seriously discomfiting, then science fiction teaches us that time travel is often very dangerous. All the more reason, we would argue, for not imposing the temporal, spatial and relational disruptions of imprisonment in the first place and for working to end the injustice of the ‘enduring temporariness’ that it entails: time after time after time after time.

Note I. In different parts of the world, different words are used to describe leaving prison and returning to life outside. To us at least, the North American term ‘re-entry’ implies a focus on the immediate processes and challenges associated with exiting prison and entering a society from which one has been excluded. The European term ‘resettlement’ (discussed later in this chapter) perhaps suggests a slighted longer time horizon, looking beyond what we might term the arrival phase. The term ‘re/integration’, which was the main focus of the project discussed in this chapter, encompasses an even broader and deeper set of concerns, referring to the social and personal processes associated with finding and securing a place within ‘free’ society. It can also refer to the outcome of these processes, i.e., to the achievement of a state of acceptance, connection and belonging

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[see Rubio Arnal in Post-prison re/integration? A Glasgow case study (PhD thesis), University of Glasgow, 2021]. The forward slash in ‘re/integration’ signals recognition of the fact that many of those seeking integration after punishment may never have been integrated in the first place [Urie et al. in Journal of Extreme Anthropology 2019:2535–3241, 2019].

References Ager, A., & Strang, A. (2004). Indicators of integration: Final report. http://web archive.nationalarchives.gov.uk/20110218135832/http://rds.homeoffice. gov.uk/rds/pdfs04/dpr28.pdf. Accessed 11th April 2022. Ager, A., & Strang, A. (2008). Understanding integration: A conceptual framework. Journal of Refugee Studies, 21, 166–191. Armstrong, S., & McGhee, J. (2019). Mental health and wellbeing of young people in custody: Evidence review. Project Report. Scottish Centre for Crime and Justice Research. Bhatia, M., & Canning, V. (Eds.). (2020). Stealing time: Migration, temporality and state violence. Palgrave Macmillan. Carlen, P. (Ed.). (2008). Imaginary penalities. Willan. Carlen, P. (2013) Against rehabilitation; For reparative justice. In K. Carrington, M. Ball, E. O’Brien, & J. M. Tauri (Eds.), Crime, justice and social democracy. Critical criminological perspectives. Palgrave Macmillan. Crewe, B. (2011). Depth, weight, tightness: Revisiting the pains of imprisonment. Punishment and Society, 13(5), 509–529. Crewe, B., Hulley, S., & Wright, S. (2017). Swimming with the tide: Adapting to long-term imprisonment. Justice Quarterly, 34 (3), 517–541. Crockett Thomas P., McNeill F., Cathcart Frödén L., Collinson Scott J., Escobar O., & Urie, A. (2021, March). Re-writing punishment? Songs and narrative problem-solving. Incarceration. 2021. https://journals.sagepub. com/doi/full/10.1177/26326663211000239 Crockett Thomas, P., Collinson Scott, J., McNeill, F., Escobar, O., Cathcart Frödén, L., & Urie, A. (2020). Mediating punishment? Prisoners’ songs as relational ‘problem-solving’ devices. Law Text Culture, 24 (1/7), 1–25. https://ro.uow.edu.au/ltc/vol24/iss1/7

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Deacon, K. (2019). Families—Inside prison and out: Young people’s experiences of having a family member in prison (PhD thesis). University of Glasgow. https://theses.gla.ac.uk/75052/ Durnescu, I. (2019). Pains of reentry revisited. International Journal of Offender Therapy and Comparative Criminology, 63(8), 1482–1498. Earle, R. (2021). Doing time for convict criminology. In J. I. Ross & F. Vianello (Eds.), Convict criminology for the future. Routledge. Fazel, S., & Baillargeon, J. (2012). The health of prisoners. The Lancet, 377 (9769), 956–965. Hassard, J. (1990). Introduction. In J. Hassard (Ed.), The sociology of time. Macmillan. Lewis, J. D., & Wiegert, A. J. (1981). The structures and meanings of social time. Social Forces, 60 (2), 432–462. McIvor, G., Graham, H., & McNeill, F. (2018). Prisoner resettlement in Scotland. In F. Dunkel, I. Pruin, A. Storgaard & J. Weber (Eds.), Prisoner resettlement in Europe. Routledge. McNeill, F. (2012). Four forms of ‘offender’ rehabilitation: Towards an interdisciplinary perspective. Legal and Criminological Psychology, 17 (1), 18–36. McNeill, F. (2014). Punishment as rehabilitation. In G. Bruinsma & D. Weisburd (Eds.), Encyclopedia of criminology and criminal justice (pp. 4195– 4206). Springer Science and Business Media. McNeill, F. (2017). Punishment, rehabilitation and reintegration. Plenary address at the British Criminology Conference, Sheffield Hallam University, 8th July, 2017. http://blogs.iriss.org.uk/discoveringdesistance/2017/08/29/pun ishment-rehabilitation-and-reintegration/. Accessed 12th March 2022. McNeill, F. (2019). Pervasive punishment: Making sense of mass supervision. Emerald Publishing. McNeill, F., & Urie. A. (2020). Collaboration before collaborative research: The development of ‘distant voices’, Methodological Innovations, first published 1st July 2020, https://doi.org/10.1177/2059799120937270 Miller, R. (2021) Halfway home: Race, punishment and the afterlife of mass incarceration. Little, Brown. Miller, R., & Stuart, F. (2017). Carceral citizenship: Race, rights and responsibility in the age of mass supervision. Theoretical Criminology, 21(4), 532–548. Nelson, R. (2006). Practice-as-research and the problem of knowledge. Performance Research, 11(4), 105–116. Nugent, B., & Schinkel, M. (2016). The pains of desistance. Criminology & Criminal Justice, 16 (5), 568–584.

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Moran, D. (2012). Prisoner reintegration and the stigma of prison time inscribed on the body. Punishment & Society, 14 (5), 564–583. O’Donnell, I. (2014). Prisoners, solitude and time. Oxford University Press. Raynor, R., & Robinson, G. (2009) Rehabilitation, crime and justice. Palgrave. Riley, D. (2019). Time lived without its flow. Picador. Rubio Arnal, A. (2021). Post-prison re/integration? A Glasgow case study (PhD thesis). University of Glasgow. Serge, V. (1977). Men in prison. Writers and Readers. Thomas, M., & Bailey, N. (2009). Work, temporal synchrony and families. Sociology, 43(4), 613–630. Urie, A., McNeill, F., Cathcart Frödén, L., Collinson Scott, J., Crockett Thomas, P., Escobar, O., Macleod, S., & McKerracher, G. (2019). Reintegration, hospitality and hostility: song-writing and song-sharing in criminal justice. Journal of Extreme Anthropology, 2019, 2535–3241. https://doi.org/ 10.5617/jea.6914 Wahidin, A. (2002). Reconfiguring older bodies in the prison time machine. Journal of Ageing and Society, 7 (3), 177–193. Warr, J. (2019). ‘Always gotta be two mans’: Lifers, risk, rehabilitation, and narrative labour. Punishment & Society, 22, 28–47. Western, B. (2018). Homeward: Life in the year after prison. Russell Sage Foundation.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/ licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made. The images or other third party material in this chapter are included in the chapter’s Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter’s Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

8 Probation Work in the Juridical Field: A Dance to the Music of Time Gwen Robinson

Introduction In this chapter, I revisit and offer some reflections on an ethnographic study I conducted in 2017, which set out to examine the role of workers employed by the National Probation Service in English magistrates’ courts. Magistrates’ courts in England and Wales comprise the lower tier of ‘summary’ justice and are responsible for sentencing more than 90% of defendants each year.1 Cases are dealt with by a bench of lay magistrates (assisted by a legal advisor) or a district judge. For more than a century, 1

The most serious offences are sentenced at Crown Court. In the 12 months to June 2020, magistrates’ courts sentenced 908,180 offenders, whilst 66,769 offenders were sentenced at Crown Court (Ministry of Justice, 2020).

G. Robinson (B) Sheffield University, South Yorkshire, England, UK e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1_8

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probation workers have played an important role in this setting, principally through the provision of information about defendants to inform sentencing decisions. No empirical research had considered this aspect of probation work in England and Wales for many years: in fact, the only study to do so previously was Carlen’s classic Magistrates’ Justice, which considered the role of probation alongside the many other actors in the summary courts of the 1970s (Carlen 1976a, 1976b; Carlen & Powell, 1979). My particular interest stemmed from the 2014 part-privatisation of probation services in England and Wales and a desire to find out how this significant development had affected probation work in the criminal courts2 . I was also aware of a parallel set of reforms that had been instituted in the court arena, aimed at enhancing efficiency in the administration of summary justice, with an explicit focus on speeding up the ‘disposal’ of criminal cases via the avoidance of unnecessary hearings and adjournments (Ward, 2016). The study involved spending time with probation teams based in two different magistrates’ court buildings: one in a city and the other in a smaller town, in separate counties in the north of England. The two probation teams involved in the study were selected for contrast: the ‘City’ team comprised around 20 practitioners, 7 support staff, and a manager; the ‘Town’ team had 6 practitioners, 2 support staff, and a part-time manager. The research involved periods of observation (81 hours across 13 separate days) and interviews with 21 probation staff, 2 of whom were team managers, 13 of whom were practitioners, and 6 who had administrative roles. Elsewhere I have presented the findings of this study using the theoretical framework of ‘McDonaldization’ (Ritzer, 2015; Robinson, 2019, 2020), but in this chapter, I want to re-consider the findings through a focussed temporal lens (see Carr & Maguire, this volume, for a contrasting study of probation work in the Irish courts). Whilst time— and in particular speed/pace—is a theme in Ritzer’s work (and in the Weberian tradition to which it belongs), here I want to look beyond that 2

This aspect of probation work had not been subject to privatisation, instead being one of the functions adopted by a newly created National Probation Service (NPS) which remained in the public sector. I was aware that, in the first two years of its operation, the NPS had adopted a national model of specialist court teams, but nothing was yet known about how they were functioning in practice.

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framework and draw instead on some alternative (and I suggest complementary) theoretical resources, to enable me to draw out the various ways in which time emerged as an important theme in the study. I will focus in particular on the ways in which the temporal experience of the probation workers was shaped (and in the process of being re-shaped) by their ‘embeddedness’ in the juridical field (Bourdieu, 1987). As a broad framework in which to situate the discussion, Bourdieu’s concept of the (social) field is particularly useful for two reasons. Firstly, it is useful because it signifies an area where different social positions are arranged in relation to subordination. Every social field (the juridical field, which Bourdieu (1987) specifically addressed in his work, being no exception) is understood as a state of permanent inequality, i.e. a social space where there is a constant imbalance among different social positions regarding the possession of different forms of capital. Although sparse, previous research on probation work in courts, both in England and Wales and in Scotland, has portrayed probation as a relatively weak/subordinate actor, characterised by status anxiety and/or at risk of ‘incorporation’ into the dominant court culture (Carlen & Powell, 1979; Powell, 1985; Halliday et al., 2009; Mawby & Worrall, 2013). Indeed, probation workers have traditionally been characterised as ‘servants of the court’, a title which highlights their lower status in that setting. Secondly, Bourdieu recognised that each field has its own rhythm and pace, such that one’s temporal consciousness is shaped both by one’s specific position in the field, but also the temporal norms or ‘doxa’ within that field (Atkinson, 2019). Bourdieu thus offers a powerful framework within which to examine the temporal experiences of probation workers deployed in a field adjacent to but not their own, in which they have traditionally been conceived as subordinate actors, and which itself was undergoing temporal ‘reform’. Within that broad framework, I have drawn upon a range of other theoretical resources which speak to and help to make sense of the temporal dimension of probation work in the juridical field. A key concept I will use is synchronicity, which concerns the temporal coordination of the activities of different groups or individuals in a given social field. In the first part of the chapter, I consider how the working week of the probation teams was structured by the temporal ‘doxa’ of

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the setting in which they were embedded, and how this produced an experience of probation work that was quite different from that of their colleagues situated elsewhere in the probation field. In the second part of the chapter, I turn my attention to the work of the probation teams, focusing specifically on the production of pre-sentence reports, which are the main artefact of probation work in the juridical field. In this section, a more critical perspective on synchronicity is adopted, which draws in particular on Sarah Sharma’s work. Sharma’s (2014) research on the subjective temporal experiences of different groups of workers highlights the exercise of power in the synchronisation of labour. Here we see how the production of pre-sentence reports has radically altered as probation teams have sought to recalibrate to a ‘temporal architecture’ (Sharma, 2014) that has become increasingly intolerant of delay. The exercise of power is also a focus in the third part of the chapter, which considers the slower aspects of the probation workers’ daily temporal experience, and the production of ‘dead time’, when there is nothing to do but wait.

Embedded Work and ‘Synchronisation’ Whilst much research attention has been paid to the specific cultures of practice (habitus, in Bourdieusian terms) within the constituent parts of the criminal justice system (e.g. on probation, see Grant, 2016; on policing, see Chan, 1996), relatively little has fallen to questions about what happens when particular practice cultures become embedded in fields or structures that are not their own—and even less to the temporal dimensions of these phenomena (for an exception, see Crawford (2015) on restorative justice). This issue of cultural intersection is however a particular feature of probation work in court settings, as noted above. It is also a feature of probation work in prisons, which is another context which has been neglected by researchers (Stone, 1985). The extant studies have not however shone a particularly bright light on the temporal dimensions of this ‘embedded’ relationship. The concept of ‘embeddedness’ has a variety of potential dimensions, but it is most often conceived as a spatial concept (Hess, 2004). However, it also has a temporal dimension, and it is one of the key concepts

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used by Lewis and Wiegert (1981) in their analysis of the structures and meanings of social time. They explain that, in the temporal sense, ‘embeddedness’ refers to the fact that all social acts are temporally fitted within larger social acts. It recognises that ‘human life and the social actions which constitute it are a complex overlap of actions and meanings at various stages of enactment’ (1981: 450). ‘Synchronicity’ is a related concept in their analysis: this, they argue, is required when groups (of individuals or organisations) seek to attain temporal coordination of their activities, schedules, or timetables. They offer the example of family members, who must ‘synchronize their various embedded times if they hope to attain temporal coordination among themselves as competent family members’ (1981: 438). In my study, the embedded nature of probation work emerged as an extremely significant factor, and this embeddedness had both spatial and temporal dimensions. In spatial terms, the probation workers were physically housed in their own suite of offices within the court buildings. They were, in other words, ‘resident guests’ (Dane & Simon, 1991). In line with national policies put in place after the part-privatisation of probation services in 2014, the probation workers were now part of specialist court teams, which meant that they were deployed exclusively in that setting, and had no supervisory responsibilities for the supervision of individuals in the community. This was a break with tradition, in that the majority of English and Welsh courts had previously been ‘serviced’ by probation staff made up of smaller teams of court-based workers supplemented by other probation staff normally based in field offices, where they had their own caseloads but additionally provided services to the local courts on a rota basis. This model had allowed fieldbased probation workers to gain experience of the local court culture and of preparing pre-sentence reports, with the possibility of taking on supervisory responsibility for defendants on whom they had prepared reports, when those defendants received community sentences. In the year or so prior to the fieldwork commencing, then, the probation teams had come to occupy a position within the courts that could be described as fully embedded : they were physically located in the ‘probation suite’ within

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the court building, and this was their sole place of work.3 At the same time, the possibility of starting and continuing a supervisory relationship with defendants across the pre- and post-sentencing stages had been terminated. The embeddedness of the court team thus had a spatial dimension, but it also had a very significant temporal dimension. For example, when asked to describe their role in a few words, team members very commonly used the language of the temporal: ‘dynamic’, ‘fast-paced’, ‘intense’, ‘busy’ and ‘immediate’ were typical examples. Importantly, the fully embedded nature of the probation role also had significant implications for the construction of the working week for the probation staff. With no work base—and indeed no work—beyond the court, the working week was constructed around the business hours of the court (generally 10 am–4 pm, Monday to Friday). Whilst this may sound unremarkable, it needs to be understood in the context of the wider culture of ‘normal’ probation work in the field, which contemporaneous research has shown to be characterised by a high degree of ‘spillover’, whereby the need to complete work tasks routinely means that work-time routinely encroaches on personal and out-of-hours time (Hochschild, 1997; Phillips et al., 2016; Westaby et al., 2016). Members of probation court teams thus experienced a very different working week to their colleagues located in the field offices of the same towns and cities, because of the fully embedded nature of their roles and the requirement for synchronisation with the court’s temporal structures. This fact of their working lives was remarked upon again and again in research interviews with the probation practitioners, in which I sought to understand how the work was experienced. Indeed, the theme of temporal/psychological structure was raised in every one of the individual interviews I conducted, and it was widely regarded as a prized feature of the role. For example, Fred,4 a Probation Officer (PO) in the City team, said: ‘Every day’s compartmentalised: it’s stressful, but it’s a different sort 3 Elsewhere, I have considered the spatially embedded nature of court work in relation to Weber’s metaphorical ‘cage’ (Robinson, 2020). 4 Pseudonyms have been used to protect the anonymity of the participants. Ethical approval was secured from the author’s institution and the research was also approved by the National Offender Management Service.

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of stress. For me it’s manageable stress; I can get away from it’. John, another PO in the same team, said ‘You can go on leave and come back without having a pile of emails requiring two 70-h weeks to catch up’. He added: ‘It’s less flexible time-wise but it is a better work-life balance; I go home and have more mental energy’. Another colleague, Peter, similarly emphasised the contrast between court work and field-based probation work, centred on the management of a caseload: [In the field team] the pressure is constant and there can be a constant feeling of dread around all that you know you have to do. Court work is easier in that respect, because you do the work, you get the work done, and then you go home and you don’t think about it. (Peter, PO, City team)

Members of the court teams thus felt protected from the problem of ‘spillover’ into their personal time and valued this as an integral aspect of their specialist role as a ‘servant of the court’. One experienced officer, in the Town team, reflected that ‘I think in today’s probation climate it’s a bit of a respite niche compared to [working in] the field’. In the next section, I will explore a more fundamental finding in relation to the synchronisation of probation work with the court’s daily timetable, which will centre on the growing value of speed and efficiency in the latter and its implications for the main function of probation work in the court setting: namely, the production of pre-sentence reports.

Servants of the Court’s Clock When the research commenced, initially with the City team, I struggled to make sense of who was doing what, and how the work (and the workers) were organised: it was not at all clear, in the first few days of observing, why the open-plan office was sometimes fully occupied and at other times almost empty. But as the research progressed, I learned that there was an invisible choreography underpinning each day’s activities: both teams had in place a rota system to manage their work and

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to ensure the synchronisation of their labour with the courts’ timetables. I discovered that in both sites there were weekly and daily rotas which mapped onto the known schedules of activity in the court building (which housed multiple courtrooms). For example, the courts dedicated specific days/courtrooms to hearings of different types: e.g. breach hearings on Wednesdays; anticipated guilty pleas on Mondays and ‘not guilty’ pleas on Thursdays; and so on.5 Different types of court activity required varying types and degrees of activity on the part of the probation team in the courtroom: these included observing and recording pleas and sentencing outcomes; relaying information between the courtroom and colleagues located in the probation suite; presenting pre-sentence reports and prosecuting breach cases. The individual members of the team (who included some fully qualified Probation Officers and larger numbers of paraprofessional Probation Service Officers) had roles assigned each day that reflected the courts’ schedules and their level of experience. In her now-classic ethnographic study Magistrates’ Justice, Pat Carlen (1976b) was highly alert to the need for synchronisation in the courtroom. That synchronisation, she noted, had both spatial and temporal dimensions: documents and persons needed to be in the right place at the right time, and her observations revealed that the overall control and timing of events was, at that time, monopolised by the police (as prosecutors), aided by other judicial personnel. In other words, the police had the lion’s share of power to determine the scheduling of cases and ultimate control over the court’s timetable. Since the establishment of a Crown Prosecution Service in the 1980s, that power no longer rests with the police, but from a probation perspective it has remained in the hands of judicial personnel (e.g. see Welsh & Howard, 2019; Mack & Roach Anleu, 2007). There is thus continuity in that the ‘choreography’ of the probation teams could still be said to be controlled to a very large extent by the court’s timetable. Notwithstanding that continuity, the court’s timetable has itself come under pressure to speed up, thanks to a raft of reforms aiming to

5

For an example, see HM Crown Prosecution Service Inspectorate 2016, Annex D.

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enhance ‘efficiency’ in the administration of summary justice.6 This set of reforms, exemplified in policy changes introduced by Swift and Sure Justice (Ministry of Justice, 2012) and Transforming Summary Justice (Crown Prosecution Service, 2015) has had an explicit focus on speeding up the disposal of criminal cases via the avoidance of ‘unnecessary’ hearings and adjournments (Ward, 2016). This has been particularly significant for probation work because the production of pre-sentence reports has traditionally taken place in the time created by an adjournment (typically for a period of 3 weeks). The programme of reforms referred to above has encouraged courts to prioritise two principal temporal goals, which can be characterised as ‘getting through the list and moving the case along’ (Mack & Roach Anleu, 2007: 344). These goals encourage magistrates to avoid adjournments and instead ‘stand matters down’ temporarily, with a view to recalling and disposing of them on the same day. A review of Efficiency in Criminal Proceedings by Sir Brian Leveson in 2015 concluded that ‘time and resources are frequently being wasted as a consequence of the practice of adjourning the sentencing hearing so that the Probation Service can prepare a presentence report (‘PSR’) for cases that do not require a PSR or when an oral report would suffice’ (Leveson, 2015: 43). Drawing on Sharma’s work, the effect of this programme of reform in the juridical field has been to alter the temporal architecture in the magistrates’ courts, and to reset the dominant temporality—or temporal doxa—to a faster pace. Leveson’s comments are significant because they reveal a construction of adjournment as ‘wasted time’, and of the probation service as a key actor in the production of ‘waste’. It is however magistrates—not probation staff—who exercise the power to adjourn, and they too are implicated in Leveson’s critique. The new temporal doxa—as expressed by Leveson—thus encourages sentencers to withhold their power to adjourn, leaving probation workers who serve the court with little choice but to ‘recalibrate themselves to serve the [new] dominant temporality’ (Sharma, 2014: 139).

6

This set of reforms pre-dates the financial crisis but gained momentum in the face of cuts to justice budgets after 2010.

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Indeed, subsequent to Leveson’s report, the National Probation Service took concrete steps to recalibrate its practice to conform with the new temporal doxa, setting a target to produce the vast majority of PSRs as brief oral reports delivered on the day of request, or as ‘fast delivery’ written reports produced in up to 5 days. Henceforth, only 10% were to be ‘standard delivery’ reports, written and delivered on a more substantial adjournment of up to 14 days (National Probation Service, 2016: 9). By 2017 when the research was conducted, oral reports were for the first time outnumbering both (fast and slow) types of written reports nationally (Ministry of Justice, 2017; Robinson, 2017). It is in this context that I found the so-called ‘stand down’ PSR, delivered orally rather than in written form, had become the ‘new normal’, such that the courts’ imperative to deliver speedy justice not only had dramatic implications for the process of report production but it had also fundamentally changed their mode of delivery—and thus the very nature of the main artefact of court-based probation work. The focus of the subtle but powerful system of temporal control of probation work was the shrunken window of time that the courts made available for their preparation. In the City courts, a 1-hour window for the preparation of reports had quickly become ‘standard’. In the Town, the courts were moving a little more slowly to embrace speedy justice but were clearly heading in the same direction, and demand for stand-down oral reports was growing. In both research sites, I observed the ways in which time controlled and shaped the behaviour of the probation workers in respect of PSR production. A request for a PSR routinely started a process which began with the creation of an electronic record by an administrator, and then prompted a series of actions that included the rapid reading of documentation provided by the Crown Prosecution Service (typically the police account of the offence and a list of the defendant’s previous convictions); an interview with the defendant; then the completion of risk assessment and other mandatory electronic records; and quite often telephone calls to other agencies involved in public protection (typically police and/or social services) to verify information. After presenting the report orally in the courtroom, the task of recording the result would pass back to an administrator. As I have noted elsewhere, the analogy with a production

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line in a factory, with each worker contributing his or her labour in a predefined sequence of tasks, was striking (Robinson, 2019). There were however observable differences between the individual workers as to how they budgeted their limited time within the restricted PSR window. In order to recalibrate their own practices, each practitioner had developed their own routines, short-cuts, and elements of scripted behaviour—what Sharma (after Foucault) refers to as ‘technologies of the self ’—to get everything done. As Fred (City team) explained, ‘You always have in the back of your head a template of what you’re going to ask, and you have stock phrases as well that you use to speed things up’. His colleague Peter observed: Well we’re all different. I’ve noticed John does it different to Fred and I do it different to them both. John does a lot of prep beforehand but he can just go into court and talk without a script, whereas I can’t do that, I need a structure I can rely on. So I do less checking—I do some—spend a short period of time with the [defendant], then think about what I’m going to say. So in that hour I spend about 15-20 minutes checking [information], then about 20 minutes with the person, and 20 minutes writing it up.

Inevitably, the limited time available to prepare a report had significantly impacted upon the ways in which the practitioners interacted with the defendants who were the subjects of those reports. Whereas the traditional ‘standard delivery’ report might have involved two interviews with the defendant, one of which might take place at the defendant’s home, all the interviews I observed were conducted in designated interview rooms in the court buildings, and all were relatively brief. For example, at the City site the PSR interviews with defendants that I observed lasted between 15 and 30 min, with an average of 24 min. All the interviews were tightly focussed, with a view to eliciting only information deemed relevant to the delivery of the report and a recommendation for sentencing. As one practitioner put it, ‘you don’t want to open a can of worms’. Coupled with the designation of the practitioners as court specialists with no prospect of taking on supervisory responsibility for the

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defendants post-sentence, the brevity of the interaction with the defendant rendered it a very instrumental encounter, focussed on the building of rapport only to the extent that this would help the practitioner extract the ‘right’ information for the specific task at hand. This process of recalibration to a new temporal order, by which the production of PSRs had come into line with the court’s desired pace, can be understood with reference to the concept of ‘coercive isomorphism’, which comes from the organisational studies literature (DiMaggio & Powell, 1983). This term describes a process whereby one organisation is subject to formal or informal pressure from another organisation on which it is dependent, and where its own legitimacy is relatively weak. Courts can be understood as the principal ‘commissioners’ of probation work: it is the sentencing decisions of the courts which produce offenders requiring probation supervision and thus, in the juridical field, probation is the weaker partner (as has been noted in previous research—see above). The majority of those I interviewed described the move toward speedier report production as part of a positive narrative centred on enhancing probation’s legitimacy in the court’s eyes. For example, Karen, a manager in the City team with many years’ experience in the court setting remarked: We’ve moved much more centre stage really, you know there’s a stronger thrust on enforcement and sentencing on the day which is part of the timeliness agenda and that for us has been really good because instead of reactively being told ‘we want to request a report’ at court, you’re now being asked to do the report, so you’re using your skills actually in the court setting and standing up and trying to be articulate and persuasive in the court setting, which I think is actually more rewarding than, you know, way back when, when you were just sort of taking details from the service user and then writing the report later.

In Bourdieusian terms, we can think about this as a capital transaction, and here the concept of temporal capital is useful. Wang (2019) has defined temporal capital as the amount of time individuals or groups have under their control, and her own research (in health care settings) has shown that this is necessarily differentiated by one’s position in a given field. It appears that the probation teams (supported at the policy

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level) had traded quite significant amounts of temporal capital for a different form of cultural capital: namely heightened legitimacy in the court’s eyes. That being said, a degree of resistance to this transaction was noted in interviews with one or two of the more experienced probation workers in the Town team. Here, the local judiciary had been slower to take on board the push toward speedier summary justice, and this meant that the probation team had yet to forego as much temporal capital as the City team had—although they were mostly producing same-day reports without the traditional adjournment. The PSR interviews I observed in the Town were thus a little longer: between 15 and 90 min, with an average of 56 min. The manager of the Town team reflected in interview that some of the longer-serving practitioners in her team were experiencing discomfort and a degree of role conflict in the face of pressure to speed up the report production process and (as a corollary of that) spend less time interviewing the defendant. Eva, an experienced practitioner in the Town team, explained that her ability to do ‘a proper risk assessment‘ was being compromised, such that she was beginning to feel professionally deskilled. In Bourdieusian terms, this is an example of hysteresis, whereby the (in this case, professional) habitus lags behind the changed conditions in the field (see also McNeill et al., 2009). In the City, by way of contrast, a process of re-framing the ‘professionalism’ of the team members had already occurred: whilst acknowledging that less time meant less in-depth assessments, more emphasis was placed on the value (to the court) of being able to produce a ‘good enough’ assessment and a sentencing recommendation in the (limited) available time. In other words, the City team accepted that the reports they were now producing were different, not just in quantitative terms (measured in the minutes deployed in the production process and the length of the reports) but also in qualitative terms, and they were resistant to the suggestion that a faster pace of work might mean lower quality reports. Rather, the consensus among the team was that their reports were now less ‘flabby’, more focussed, and better adapted to the contemporary needs of the court.

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Irrationality, Inefficiency, and the Production of ‘Dead Time’ You never get a steady pace here: it’s either manic, or barren (William, City team).

As I have already noted, members of the court teams tended to characterise their experience of their role in the language of the temporal. In particular, the ‘manic’ nature of the job stood out, and it was clear from both my observations and interviews that, on the whole, team members appreciated and enjoyed the active, fast-paced nature of their working lives as ‘resident guests’ in the court building (see also Robinson, 2020). But, as William observed (above), the pace of the work—whilst often fast and fuelled by adrenalin—could not be described as ‘steady’. Whilst many aspects of the role were predictable and repetitive, and the business of the courts was subject to detailed (daily and weekly) timetabling, the quest for ‘efficiency’ in the production of summary justice was a chimera. As noted above, I have previously analysed the findings of my study through the lens of Ritzer’s (2015) ‘McDonaldization’ thesis (see Robinson, 2019) and that analysis centred on the four main dimensions of ‘McDonaldized’ settings, which are efficiency, calculability, predictability, and control. However, Ritzer’s thesis proposes that there is a further dimension to McDonaldized systems, which concerns its unintended, negative consequences. The ‘irrationality of rationality’ is the inelegant term Ritzer adopts to denote these negative consequences. ‘Rational systems’, Ritzer argues, ‘inevitably spawn irrationalities that limit, eventually compromise, and perhaps even undermine their rationality’ (2015: 132). For Ritzer, it is the inevitability of these ‘irrationalities’ which renders them not just the unintended consequences of McDonaldization, but rather its fifth dimension (alongside efficiency, calculability, predictability, and control ). Ritzer offers seven examples of the sorts of ‘irrationalities’ that may be produced in McDonaldized settings. Inefficiency is the first of these. He illustrates the problem of inefficiency in the fast-food context with reference to the queuing of people at McDonalds’ counters and of cars at the

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drive-through restaurant. McDonalds, he argues, is a victim of its own success: demand for its meals is high, but consumers have been trained to expect swift service. The prevalence of long queues at the checkout, Ritzer argues, makes a mockery of the idea of ‘fast food,’ and renders the consumer experience slow and frustrating. Meanwhile, the overriding emphasis on speed and throughput tends to create inefficiencies in the form of mistakes, and it takes time to correct errors, further increasing the problem of inefficiency. Despite the very different context in which my research was conducted, these are surprisingly pertinent examples: the probation teams at the magistrates’ courts were ostensibly engaged in a process of delivering ‘fast justice’, yet their efforts in that regard were often frustrated. Meanwhile, mistakes sometimes happened when staff found they were juggling multiple tasks during ‘manic’ periods. In both teams, I was told in interviews that individuals had been reprimanded by managers for jeopardising the team’s achievement of key targets for their labour (which mostly related to the timeliness of their activities), due to absent-mindedness in the midst of exceptionally intense periods. Most often, I observed inefficiencies that stemmed from last-minute reshuffling of the court’s schedule and the inevitable peaks and troughs of demand for the services of the court team. Eva, an experienced practitioner in the Town team, explained: ‘I find I’ve rushed [to prepare a report] sometimes and then I’m sat in court waiting. Other times the usher’s knocking on the door [of the room where the defendant is being interviewed] wanting to know if you’re ready’. Reflecting Eva’s experience, there were several occasions on which I witnessed members of the teams in ‘virtual queues’ in the courtroom: that is, sitting quietly on the probation bench, waiting for the case on which they had an oral report ready to present to be called7 . On one occasion, I observed a probation officer waiting in court for an entire afternoon. These are all examples of the micropolitics of power at work in the court setting: as Bourdieu has argued, ‘adjourning, deferring, delaying […] or conversely, rushing, taking by surprise’ are all ways of exercising power over others. When 7 Although there was some evidence of court clerks and ushers working together to re-shuffle the listings to accommodate probation staff, this was inconsistent.

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the probation team members were not rushing to meet the court’s needs, they had to endure sometimes long periods of time enduring ‘powerless waiting’ (Bourdieu, 2000: 228). The ‘dead time’ produced by the stratification of temporal capital in the field was a major source of frustration because while waiting in court (or indeed in the probation suite) to be called, the resources of those practitioners could not be re-deployed on a new case. This could lead to blockages in the normally well-oiled system when in an adjacent courtroom, a probation worker would have to explain to sentencers that no-one was presently available to interview a defendant. Like the customer at McDonalds, who has been conditioned to expect a fast service, sentencers reportedly found this scenario frustrating and difficult to comprehend. And like the McDonalds corporation, the court teams were arguably victims of their own success. As one practitioner explained, ‘we’re almost setting a precedent, that we can do everything straight away’ (Sarah, City team). In other words, the team’s efficiency in meeting demand for same-day reports had bred impatience in sentencers, who appeared to be developing an insatiable appetite for instant gratification (see Loader, 2009). For example, one practitioner told me that in her experience it was becoming more difficult to persuade magistrates that an adjournment was sometimes appropriate when the case was complex and/or assessments conducted by other agencies were required. Another commented that because sentencers had no awareness of probation staffing levels on any given day, ‘when there is annual leave or sickness and there are lots of listings, sometimes we get shouted at by magistrates when they feel we aren’t providing the service they expect’ (Joan, City team). ‘Dead time’ was also sometimes apparent in the backstage area of the probation suite, when staff could be observed sitting quietly at workstations, checking their mobile phones in the absence of any immediate tasks. Relatively short pauses were tolerable, but longer periods of inertia were not enjoyed: when asked in interviews what a ‘bad day’ at work was like, the vast majority of practitioners said, without hesitation, that a bad day was one in which there was not enough to do. Team members craved activity and utility, and said they found it difficult to pick up the pace again once momentum was lost. As one practitioner told me, for

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him a bad day was ‘Slow, and then having to get into the zone and not having the energy’ (Sam, City team). Some preferred to sit in court in the hope of picking up a request for a PSR, rather than sitting in the office redundantly, even for a short while. More dead time was generated when team members’ telephone calls to other agencies were left unanswered, which happened on a regular basis. On one occasion, in the City office, a practitioner with a telephone to her ear told a colleague that she was trying to get hold of someone in the local field team to discuss a breach case, and that she had tried more than ten times already that day: ‘I’m trying to get hold of a human person, not a voicemail’, she explained sardonically. On another occasion, I observed a team member on the telephone explaining to a sequence of five different people that she was trying to find out whether a defendant’s child was known to Social Services. Dead time was also generated when IT systems stalled or failed, which was not uncommon. There were many occasions during the fieldwork that I observed or heard about slow, frustrating, and generally ‘crap IT systems’ (Sarah, City team). There were regular complaints about the National Probation Service’s digital case management system, its failure to interact effectively with other programmes, or the poor quality and battery life of laptops issued to court teams. During the research, I witnessed only one team member attempting to use a laptop to access data in court, and it was clearly an old model. Other court users had much newer machines, and were clearly heavily reliant upon these, whilst probation staff had little choice but to continue to rely on paper files and handwritten notes. But it was an incident I observed toward the end of the fieldwork, in the Town team office, that provided the best illustration of the teams’ dependence on IT systems. On this particular morning, Eva found herself locked out of her account and, having spent almost an hour trying to resolve the problem (which included a lengthy call to IT support, based in a remote location), she found herself completely redundant. With all her work inaccessible, her day would be composed entirely of ‘dead time’ until the IT problem could be fixed, or she was called upon to prepare a stand-down report. ‘There’s always something’, she told me; ‘Every week, there’s always something’.

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The court team members were thus often frustrated. The firm boundaries around their roles (a function of their spatial embeddedness) meant that when the demands of the courts ebbed, there was no alternative work to do. With no supervisees of their own, court staff had no appointments to schedule and no case notes or assessments to catch up on. Meanwhile, as some of the interviewees noted, NPS colleagues in field teams could be under considerable stress, managing large, high-risk caseloads, but unable to call upon the (at times) under-utilised resources of the court team, which had to be available to meet the unpredictable demands of the court (e.g. see Phillips et al., 2016). Dead time was, thus, also a product of the relationship between the courts and probation: in particular the former’s greater access to temporal capital but also the latter’s desire to maintain (and ideally enhance) its legitimacy in the eyes of the courts. As one team manager put it, ‘I like to think they’ve realised the value of what we can contribute to the process, and so…we are interdependent, and they realise that yes we can help and yes we can help now’. Her characterisation of an ‘interdependent’ relationship between the courts and probation makes sense to the extent that sentencing in many cases requires consideration of a PSR; but, ultimately, the research revealed that the meaning of ‘now’ was at the mercy of the courts to determine. Probation workers could be ready, willing, and able to act, but in the absence of the court’s explicit direction, left idle. Given this dynamic, coupled with the consistent unpredictability of court business and demand for probation services, it is difficult to envisage the elimination of waste in specialist court teams. The ideal of efficiency which lay behind the creation of specialist court teams was thus another ‘imaginary penality’ that could never in fact be realised (Carlen, 2008).

Conclusion In his ground-breaking analysis of time in the probation context (discussed in the introduction to this volume), Nellis’ (2002) focus was on the internal dynamics of the probation service: specifically, the undemocratic imposition of a ‘tighter temporal regulation of both staff and offenders’ (2002: 65) and a more overtly controlling ethos within the

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organisation8 . Nellis was concerned with the encroachment of ‘managerial time’ on probation practice, which he saw as being at odds with the ‘more flexible, fluid and open-ended conception of time’ characteristic of social work with offenders in the community, with its traditional emphasis on the cultivation of supervisory relationships to facilitate ‘slow processes of inner change in offenders’ (2002: 60, 73). Nellis paused only briefly to note that there would be temporal implications of closer or more ‘joined up’ relationships between different parts of the criminal justice system (e.g. probation and prisons; police and probation), but he did offer the important observation that attempts to synchronise the boundaries and/or activities of these different parts of the system could run the risk of overlooking the pre-existing ‘rhythms and momenta’ characteristic of their respective cultures (2002: 71). In this chapter, I have revisited some of the themes raised by Nellis in his article, but rather than focusing on the internal dynamics within the probation field, I have considered probation work in the adjacent, juridical field (Bourdieu, 1987). Where Nellis’ article focussed on the internal dynamics of power within the probation field, this analysis of probation work in court has helped to illuminate how the temporal dynamics of practice for one professional group can be (re)shaped when that group becomes embedded in another field—in this case the juridical field—with its own ‘rhythms and momenta’. In this study, I observed how the probation court teams recalibrated their activities to synchronise with the court’s timetable, thereby enacting and reinforcing a particular, dominant temporality in criminal proceedings (Sharma, 2014). I also observed some of the consequences of this synchronisation. For the probation teams, a low stock of temporal capital was one result: as ‘servants of the court’s clock’, they had limited control over their working time. Another was that they had to endure substantial ‘downtime’ when there was no immediate demand for their services, such that waiting was a frequent experience. But whilst some frustrations flowed from this, most perceived benefits vis-à-vis their legitimacy with sentencers as the

8 Nellis was writing just after the establishment of a National Probation Service and the publication of its first strategy document, which was entitled A New Choreography (NPS 2001).

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main commissioners of probation work. There were also temporal benefits beyond the boundary of the working day, in that work did not bleed into their private time: it stopped when they left the probation suite at the end of the day. They thus gained temporal capital when the working day ended, achieving a good work/life balance and some welcome ‘time out’ from the probation field. So, whilst their subordinate status in the juridical field appeared to be confirmed, this was offset by gains elsewhere. Members of the court teams therefore experienced a very different working week compared with their colleagues located in the field offices of the same towns and cities, because of the embedded nature of their roles and the requirement for synchronisation with the court’s temporal structures. Other consequences of probation dancing to the court’s tune—and indeed to the quickening tempo of the tune itself—were not examined in this study. One group of stakeholders whose temporal experiences were not in focus are the defendants who are the everyday subjects of summary justice. Further research to explore how they experience both the new tempo of summary justice, and the process of PSR preparation, is clearly needed before we can confidently draw conclusions about the consequences of the new temporal dynamics at work in the magistrates’ courts for all the stakeholders. Certainly, the observations conducted in this study shine a light on the ways in which defendants are constituted in time in ways that are structurally related to the time of the professionals with whom they must interact, and who themselves are working to maintain the temporal architecture in which they are situated. How defendants experience their existence in the juridical grid of temporal power relations is an empirical question well worth pursuing. Notwithstanding this blindspot, however, the findings presented in this chapter are significant. Not only do they enhance our knowledge and understanding of a key element of contemporary probation practice (i.e., the provision of advice to the courts) but they also shed new light on the implications of the transition to a ‘quickstep’ pace in the English and Welsh magistrates’ courts. Moreover, this chapter has drawn attention to a hitherto neglected feature of criminal justice systems: namely, the micropolitics of temporal power relations that are enacted when one professional group steps over the boundary of its own field and into the

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territory of another. Indeed, as Sharma has shown, wherever synchronisation is required, we stand to learn much about the dynamics of power by attending to the temporal domain.

References Atkinson, W. (2019). Time for Bourdieu: Insights and oversights. Time and Society, 28(3), 951–970. Bourdieu, P. (2000). Pascalian meditations (trans., Richard Nice). Stanford University Press. Bourdieu, P. (1987). The force of law: Toward a sociology of the juridical field. Hastings Law Journal, 38, 805–853. Carlen, P. (2008). Imaginary penalities. Willan. Carlen, P. (1976a). Magistrates’ justice. Martin Robertson. Carlen, P. (1976b). The staging of magistrates’ justice. British Journal of Criminology, 16 (1), 48–55. Carlen, P., & Powell, M. (1979). Professionals in the magistrates’ court: The courtroom lore of probation officers and social workers. In H. Parker (Ed.), Social work and the courts. Edward Arnold. Chan, J. (1996). Changing police culture. British Journal of Criminology, 36 (1), 109–134. Crawford, A. (2015). Temporality in restorative justice: On time, timing and time-consciousness. Theoretical Criminology, 19 (4), 470–490. Crown Prosecution Service. (2015). Transforming summary justice. https:// www.cps.gov.uk/publication/transforming-summary-justice-criminal-jus tice-system-wide-initiative-improve-how-cases. Accessed 14 April 2021. Dane, B. O., & Simon, B. L. (1991). Resident guests: social workers in host settings. Social Work, 36 (3), 208–213. DiMaggio, P., & Powell, W. (1983). The iron cage revisited: Institutional isomorphism and collective rationality in organizational fields. American Sociological Review, 48, 147–160. Grant, S. (2016). Constructing the durable penal agent: Tracing the development of habitus within English probation officers and Scottish criminal justice social workers. British Journal of Criminology, 56 , 750–768. Halliday, S., Burns, N., Hutton, N., McNeill, F., & Tata, C. (2009). Street-level bureaucracy, interprofessional relations, and coping mechanisms: A study of

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criminal justice social workers in the sentencing process. Law and Policy, 31(4), 405–428. Hess, M. (2004). ‘Spatial’ relationships? Towards a reconceptualization of embeddedness. Progress in Human Geography, 28(2), 165–186. HM Crown Prosecution Service Inspectorate. (2016). Transforming summary justice: An early perspective of the CPS contribution. HMCPSI. Hochschild, A. R. (1997). The time bind: When home becomes work and work becomes home. Henry Holt. Leveson, B. (2015). Review of efficiency in criminal proceedings. The Judiciary of England and Wales. https://www.judiciary.uk/wp-content/uploads/2015/01/ review-of-efficiency-in-criminal-proceedings-20151.pdf. Accessed 13 April 21. Lewis, J. D., & Wiegert, A. J. (1981). The structures and meanings of social time. Social Forces, 60 (2), 432–462. Loader, I. (2009). Ice cream and incarceration. Punishment and Society, 11(2), 241–257. Mack, K., & Roach Anleu, K. (2007). Getting through the list: Judgecraft and legitimacy in the lower courts. Social and Legal Studies, 16 (3), 341–361. Mawby, R. C., & Worrall, A. (2013). Doing probation work: Identity in a criminal justice occupation. Routledge. McNeill, F., Burns, N., Halliday, S., Hutton, N., & Tata, C. (2009). Risk, responsibility and reconfiguration: Penal adaptation and misadaptation. Punishment and Society, 11(4), 419–442. Ministry of Justice. (2020). Criminal justice statistics quarterly. Ministry of Justice. Ministry of Justice. (2012). Swift and sure justice: The government’s plans for reform of the criminal justice system. Ministry of Justice. Ministry of Justice. (2017). Offender management statistics quarterly: JulySeptember 2016 . Ministry of Justice. National Probation Service. (2016). NPS operating model version 1.0. National Probation Service. National Probation Service. (2001). A new choreography: An integrated strategy for the national probation service for England and Wales: Strategic framework 2001–2004. National Probation Service. Nellis, M. (2002). Community justice, time and the new National Probation Service. Howard Journal, 41(1), 59–86. Phillips, J., Westaby, C., & Fowler, A. (2016). ’It’s relentless’: The impact of working primarily with high-risk offenders. Probation Journal, 63(2), 182– 192.

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Powell, M. (1985). Court work. In H. Walker & B. Beaumont (Eds.), Working with offenders. Macmillan. Ritzer, G. (2015 [1993]). The McDonaldization of society. Sage. Robinson, G. (2020). Probation practice in a velvet cage? Specialist court work after probation privatisation in England & Wales. Punishment and Society, 22(1), 70–89. Robinson, G. (2019). Delivering McJustice? The probation factory at the magistrates’ court. Criminology and Criminal Justice, 19 (5), 605–621. Robinson, G. (2017). Stand-down and deliver: Pre-sentence reports, quality and the new culture of speed. Probation Journal, 64 (4), 337–353. Sharma, S. (2014). In the meantime: Temporality and cultural politics. Duke University Press. Stone, N. (1985). Prison-based work. In H. Walker & B. Beaumont (Eds.), Working with offenders. Macmillan. Wang, C. (2019). Temporal dynamics in the daily lives of health practitioners. Time and Society, 28(4), 1552–1576. Ward, J. (2016). Transforming summary justice: Modernisation in the lower courts. Routledge. Welsh, L., & Howard, M. (2019). Standardization and the production of justice in the summary criminal courts: A post-human analysis. Social and Legal Studies, 28(6), 774–793. Westaby, C., Phillips, J., & Fowler, A. (2016). Spillover and work-family conflict in probation practice: Managing the boundary between work and home life. European Journal of Probation, 8(3), 113–127.

9 Criminal Court Time and Social Work Time: Pre-sentence Reports and the Chronotope of Adjourned Supervision Nicola Carr and Niamh Maguire

Introduction In this chapter, we focus on the shift from ‘court time’ to ‘social work time’ that occurs when a pre-sentence report (PSR) is requested in Irish criminal courts. During the period of adjournment in legal proceedings while the report is being prepared people are sometimes subject to a practice known in Ireland as ‘adjourned supervision’. This involves a prolonged period of adjournment, between adjudication and sentencing, whereby the defendant is supervised by a probation officer (who gives regular update reports to the court on the defendant’s progress) but is N. Carr (B) University of Nottingham, Nottingham, UK e-mail: [email protected] N. Maguire South East Technological University, Waterford, Ireland e-mail: [email protected]

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1_9

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not subject to a formal sentence (Maguire & Carr, 2017). As we will show, in the Irish context, this liminal practice can sometimes continue for extended periods of time. Throughout the chapter, we draw on the work of Mariana Valverde and particularly her analysis of governance projects through the frames of: jurisdiction, scale, and logics. Focussing on an empirical study of presentence reports in Ireland, we demonstrate how the request for a PSR acts as a hinge between jurisdictional domains, which entails a shift in temporality—from that of criminal court time to the domain of social work time. We demonstrate that during a prolonged period of adjournment, the report subject occupies a specific liminal spatio-temporality or chronotope (Valverde, 2015), and is subject to different forms of governance, which to date have not been sufficiently illuminated. The chapter begins with a brief description of the empirical study, before setting out some of the key orienting concepts we use for our analysis.

Pre-Sentence Reports and Adjourned Supervision The research on which we draw in this chapter was conducted in the Republic of Ireland and aimed to investigate the role of pre-sentence reports in sentencing. It focussed on uncovering the processes of communication embodied in the reports, between probation officers who created the reports, and the ultimate consumers of the results, sentencing judges (Maguire & Carr, 2017). Building on previous studies in other European jurisdictions (Tata et al., 2008; Beyens & Schiers, 2010) we deployed a multi-modal research methodology aimed at capturing the process from the creation of the report through to its use in sentencing. This involved combining observations of probation practice; content analysis of pre-sentence reports; and semi-structured interviews with key actors including probation officers and judges. A referral to Probation Services for a pre-sentence report is not a legal requirement in Irish law (except for assessments for Community Service, and for juvenile offenders), and the practice of referral from the courts, which include both District and Circuit criminal courts,

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varies widely across the country. District Courts are the entry point for all criminal cases. Sometimes referred to as the ‘workhorse’ of the court system (O’Nolan, 2013), they deal with the vast majority of cases. Circuit Courts are higher courts which deal with more serious offences, and which accordingly have greater sentencing powers. The compilation of pre-sentence reports invariably leads to delays in the disposal of cases. This was a key finding of our study, which documented the protracted periods of time that it takes from the moment of report request to sentence outcome. Across the 18 cases included in our sample, this ranged from 56 to 300 days (Maguire & Carr, 2017).1 Referral for a pre-sentence report thus inevitably involves an elongation of the period it takes for a case to make its way through the criminal process. And yet, our findings illustrate that a referral to the Probation Service for a PSR is perceived by judges, lawyers, and probation officers as representing a positive opportunity to engage rehabilitative services and to potentially avoid a custodial sentence (Carr & Maguire, 2017). In this chapter, we argue that the request for a PSR signals an important, although on the face of it largely invisible, shift in the spatio-temporal ordering of the case, in that the adjournment for the preparation of a report shifts the focus from the historical ‘facts’ of the offence, towards the biographical constitution of the subject, both as a person with a past, and as one with a potentially redeemable future. The inexorable processing of cases in the court is halted and replaced by a period of adjournment for the preparation of the report. During this adjournment, the defendant (who may not be formally convicted, although guilt may be proven) is still under the jurisdiction of the court but must meet with and comply with the requests of a probation officer in order to undergo assessment required for the preparation of the PSR. In this process, the defendant comes under the jurisdiction of the probation officer with all the attendant changes in temporal logics, scale, and governance that this change in the jurisdiction game entails (Valverde, 2009). By way of a case study, we analyse the power effects related to the change of jurisdiction inherent in the practice of ‘adjourned supervision’. Adjourned supervision is distinct from the normal PSR 1

Full details of the study’s methodology and findings are reported in Maguire and Carr (2017).

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process2 as it involves a practice whereby a judge adjourns the sentencing decision in a case for a period (that in our sample ranged from three to nine months), and orders that the defendant is supervised during this period of adjournment by a probation officer. Accordingly, the defendant must comply with the conditions of the adjournment and directions of the probation officer or risk return to court for the immediate imposition of sentence. Adjourned supervision has been practiced for over 40 years in Ireland. It is distinct from a community sentence as at the point at which it takes place the court has adjourned the sentencing proceedings, before deciding on the most appropriate disposal.3 Although it does not have a statutory basis in Irish law it has been characterised as a ‘judicial innovation’ (Healy & O’Donnell, 2005), which has emerged in the absence of any significant changes to the statutory framework governing probation (the Republic of Ireland still retains the Probation of Offenders Act, 1907 as its primary legislation). It is also worth noting that as a practice, it stands in sharp contrast to changes in the ways in which similar reports are produced in neighbouring jurisdictions, where there has been an overt emphasis on the need for ‘speedier justice’ (see chapter by Robinson in this volume).

Jurisdiction, Scale, and Governance Mariana Valverde (2010, 2014) has proposed a framework for the study of governance projects that seeks to capture their dynamic nature. In her explication of this framework, which she has applied to explore the dynamics of ‘security’, she directs attention towards three specific areas: jurisdiction, scale, and logics. 2 It is worth noting that at the time we conducted this research there were no specified timeframes in which reports should be produced, and no national data on this area. In our sample the shortest period between report request and outcome was 56 days, while the longest period, which included a period of adjourned supervision was 285 days. 3 It is worth noting that Adjourned Supervision is not a marginal practice and in fact the numbers under Adjourned Supervision (referred to in the Probation Service’s Annual Report as ‘supervision during deferment of penalty) exceeds the number of people subject to Probation Orders. The latest data shows that in 2020 there were 1,698 cases of adjourned supervision, whereas 1,124 Probation Orders were made by courts across Ireland (Probation Service, 2021).

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Jurisdiction is most frequently understood in spatial terms. This is illustrated by the fact that we often talk about jurisdiction in relation to territorial divides and relatedly whose authority reigns in these territories. Consider for instance the long-drawn-out debates following Brexit about the Northern Ireland protocol, which is largely a dispute regarding territory (i.e., where the border of Europe lies) and who should govern the boundaries of this territory (Phinnemore, 2020). The ‘routine work of jurisdiction’, Valverde (2009: 143) observes, tends to equate the ‘where’ with the ‘who’ of governance, and leads to a form of path-dependency, in that once the questions of ‘where’ and ‘who’ are decided, the ‘what’ and ‘how’ tend to flow automatically. This tends towards the bracketing-off of considerations about who become the objects and subjects of governance and how governance is done (i.e., through what resources and rationalities). She elaborates: Jurisdiction is not just the determination of the ‘who’ of governance, the determination of the correct sovereign. Jurisdictional games also determine what spaces, persons and/or issues are to be governed by any one authority. And perhaps most importantly, in determining the who and the what of governance, the game of jurisdiction ends up quietly determining the how of governance, the qualitative element. (Valverde, 2014: 388)

Viewed this way, jurisdiction therefore refers to the ‘governance of governance’ (Valverde, 2010: 14) and here we use the concept in this broad sense. Valverde (2009: 145) further argues that the invisible work of the ‘machinery of jurisdiction’, serves to separate out ‘incommensurable processes, or processes with incommensurable logics’ by assigning them to different authorities ‘as if by magic’. Scalar dimensions (including spatial and temporal) are a further important consideration. At times jurisdiction and scale shade into each other (Valverde, 2014), in that determining jurisdiction may determine the scale at which governance operates (e.g., at local, national, or international level). However, these dimensions may not necessarily align, and jurisdiction can work at different scalar dimensions. Furthermore, the temporal features of scale tend to garner much less analytic attention.

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Valverde (2009) provides the example of ‘police power’, where within the same agency there may be a separation between preventative police work and detection work—one operating on future oriented temporality (crime prevention) and the other seeking to rectify the past (detection and punishment). She therefore characterises ‘policing’ as providing a ‘hinge’ between two key temporalities of governance. Accordingly, different logics and techniques of governance come into play. Directing attention towards these logics can help to illuminate power effects of governance. A final analytical tool that is of relevance for this chapter is the concept of the chronotope. This is a term derived from the work of the literary theorist Mikhail Bakhtin (1981) who used it to illuminate the interlinked spatial and temporal dimensions of different literary genres. Valverde (2015: 11) proposes that ‘like literary genres, different legal processes are shaped and given meaning by particular spacetimes’. She provides the specific example of the courtroom chronotope where different spatiotemporal logics apply when the court is ‘in session’ and where the authority of the judge reigns, compared with the same court-room out of session. In this chapter we proceed to show how the request for a PSR operates as a hinge between two different jurisdictions—that of the criminal court into the domain of social work, and that within these different jurisdictions different temporal logics, scales, and forms of governance apply. We argue that the practice of ‘adjourned supervision’ constitutes a chronotope, that is a specific time–space where spatio-temporal logics intersect with attendant power effects. In the next section, we explore some of the extant literature that specifically considers temporality: firstly, in relation to criminal courts, and secondly in the field of social work, which is where probation in Ireland is situated. We then proceed to illustrate these points with reference to our empirical study.

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Criminal Court Time The subject of time as it relates to criminal law and criminal courts has received considerable attention in the literature but relatively little theorisation. Studies on the historical evolution of the trial highlight how it evolved over the last two centuries from being a relatively short summary hearing based on local knowledge of the defendant’s character (Langbein, 1978, 2003) to being a very drawn-out affair lasting days, and even weeks, involving lawyers expertly weaving a complicated labyrinth of evidentiary rules (Kilcommins et al., 2017). Concomitant with an expansion of the time it takes to conduct a trial, in modern times there has been an astronomical growth in the proportion of trials that are disposed of by guilty plea, which generally involve considerably shorter hearings. In common law jurisdictions, by the mid-nineteenth-century guilty pleas became the norm and trials by judge and jury the exception (Langbein, 1978, 2003; McConville & Mirsky, 1995). The Irish statistics on the number of jury trials held each year illustrate the decline of the centrality of jury trials in recent times. In 2018, statistics published by the Courts Service show that criminal courts disposed of a total of 315, 033 criminal offences (not including appeals) but only held a total of 1,327 trials by judge and jury (Court Service, 2018: 84–91). Increased concern about reducing the length of time it takes to dispose of a criminal case is reflected in the relatively recent inclusion of statistics on court disposal times in annual court reports in Ireland (see, for example, Court Service, 2020). Waiting times for criminal trials are now an important measure of system performance, reflecting a shift in focus from temporality as it relates to the transformation of the individual to a focus on system performance (Feeley & Simon, 1992). Reducing delays in trial waiting time is also a legal requirement under the European Convention of Human Rights (ECHR). In McFarlane v Ireland [2010] ECHR 1272 Ireland was found to be in violation of Article 6 of the Convention for unreasonable delays in criminal proceedings which breached the applicant’s right to fair trial within a reasonable time period. Particularly in lower criminal courts, high volumes of cases mean that time is at a premium and this creates a pressure to dispose of cases

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efficiently without undue delay (Hunter et al., 2016). Time as a practical constraint on how judges in lower criminal courts exercise judicial discretion and engage in judge craft has been noted in the literature (Hogarth, 1972; Tata, 2020). Time pressures associated with balancing high caseloads and efficiency targets have been associated with the routinisation of approaches to judging and a resultant loss of judicial discretion (Hogarth, 1972; Mack & Roach Anleu, 2010). An important strand of literature focusses on exploring the temporal logics of the criminal law and more specifically, the temporal logics of conventional styles of adjudication. These accounts draw attention towards the types of ‘pastness’ that are typically constructed by the temporal logics inherent in the criminal law and in conventional adjudication and how these influence ascriptions of criminal responsibility (Chowdhury, 2017; Farmer, 2010; Kelman, 1981). Tata (2020: 56) has highlighted that how the criminal process constructs the facts of the case is not inevitable but is instead related to how ‘the legal process … edits and transforms the case and its facts according to its own taken for granted categories: its ways of knowing and ways of doing’. Chowdhury (2017) argues that for conventional criminal adjudication the narrow timeframe is then the taken for granted temporal category. Narrow timeframes typically focus on actions, moments, and fragments whereas broader timeframes allow consideration of the impact of underlying conditions. The timeframe employed matters because it impacts the construction of causality and this in turn influences ascriptions of criminal responsibility. The use of broader time frames would potentially lead to the prioritisation of underlying conditions and a wider range of causal factors (Chowdhury, 2017). Conventional criminal law is thus wedded to a spatial temporality (a chronotope) which prioritises causes over conditions and is predicated upon ensuring the construction of legal subjects as depersonalised, abstracted individuals and of eliding the wider social, political, and economic conditions which potentially might reduce their personal responsibility for the criminal act for which they stand accused (Chowdhury, 2017). The narrow focus of conventional adjudication along with the loss of the lengthy criminal trial means that very little of the defendant’s biographical information is available to the court. While criminal

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law focusses primarily on the construction of (a narrowly framed) past in order to ascribe criminal responsibility, in contrast social work time, as the following section illuminates, focusses on the future and uncovering the biographical self. Valverde (2015: 17) is critical of the detached analysis of time from space in much socio-legal analysis, arguing that the concept of the courtroom chronotope allows greater insight into how space thickens time and how different legal times create and/or shape legal spaces and vice versa. She elaborates: The judge’s sovereign power to start and stop the legal game is what makes the courtroom space a court of law…To summarize: the space of legal speech acts to draw boundaries around law’s official time; and, in the same way, temporal markers (e.g., the judge’s or clerk’s pronouncement that the court is now in session) also redefines, instantly, the space in which the remark is made.

The judge’s power to stop and start the proceedings, in the form of adjournments for pre-sentence reports, for instance, could be considered a powerful disruption of the legal game by inviting different temporal logics into play. We argue here that this is precisely what happens when a judge requests a PSR.

Social Work Time The subject of time as it relates to probation supervision has received little attention beyond literature which has explored the attendant effects of increased bureaucratisaion of practice. Examples in this vein include research which has documented how probation officers use their time (DeMichele & Payne, 2017; Rokkan et al., 2015). Such studies have generally observed an increase in administrative requirements and the diminution of contact with clients, which have been linked to broader trends including the advent of new public management, the ascendancy of risk and the rationalisation of resources (Annison et al., 2008; Mawby & Worrall, 2013).

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These conflicts between ‘compassionate time’ (or client centred work) and administrative, or ‘paperwork time’ have also been observed in broader research on social work practice (e.g., Yuill & Mueller-Hirth, 2019). In this analogous field the temporal dimensions of practice, including their normative inflections and power effects, are afforded wider coverage. We therefore draw on this literature, primarily because of its saliency but also because in Ireland probation staff are qualified social workers, to illustrate some key aspects of what we refer to here as ‘social work time’ and which we distinguish from court processing, i.e., the ‘criminal court time’ described above. Several studies which have explored the temporalities of social work practice, including in the fields of child protection and welfare and mental health, observe that social work is typically predicated on linear understandings of time (Fahlgren, 2009; Juhila et al., 2015; Poso & Eronen, 2015). This linearity is illustrated by social work’s focus on explanatory causes and measurable effects and is made manifest in practices of assessment and the formation of targets of intervention (Juhila et al., 2015). It is also more fundamentally evident in social work’s orientation towards ‘future work’ (Fahlgren, 2009). Yuill and Mueller-Hirth (2019: 1533) elaborate that social work practice operates according to a ‘Kantian imperative’, which is to say, it is predicated on an understanding: … that people can become more than they currently are, that their lives hold the possibility of being improved and transformed . The presence of becoming as an integral element of social work indicates a temporal configuration. Yuill and Mueller-Hirth (2019: 1533 emphasis added )

Such imperatives towards progress and change are implicitly (and explicitly) bound with normative conceptions about desired futures, which are tied to disciplinary regimes of knowledge or discursive formations (Fahlgren, 2009; Knezevic, 2020; White, 1998). White (1998) provides the example of theories of child development in child protection and welfare social work, where conceptual models of normative progression legitimise intervention to achieve correction when a subject deviates from established norms. For intervention to be affected the biographical

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‘subject’ must be brought into being according to temporalised narratives (Poso & Eronen, 2015). Linear conceptions of time are also linked to the bureaucratic rhythms of work and to the rationing of finite resources (White, 1998). However, while conceptualisations of linear time may occupy a hegemonic status within social work, other temporalities are also evident. These include the subjective lifeworld of the client (Fahlgren, 2009); embodied time; fragmentary and circular time; and even ‘silent time’ (where there are gaps in official records of people’s life stories) (Poso & Eronen, 2015). Some research has pointed to the potential disjunctures between the transformative aspirations of intervention and the life-worlds of subjects, and further illustrate how a failure of the client to conform to chrononormatativity can be viewed as further evidence of deviance (Fahlgren, 2009). These explorations of the temporalities of social work serve to highlight the disciplining nature of time and its power effects. The different temporal orientations of courts (narrow timeframe and process oriented) and social work (biographical and future correcting) are also evident.

Shifting Jurisdiction—The PSR Request as a Temporal Hinge Pre-sentence reports are reports prepared by the Probation Service on the request of a judge following a finding of guilt and in advance of sentencing. Pre-sentence reports provide contextual information on a person’s background and the circumstances of their offending. Research on pre-sentence reports in different countries shows an increasing focus on risk assessment within reports (Robinson, 2002; Tata et al, 2008; Persson & Svensson, 2012; van Windgerden et al., 2014). In Ireland PSRs conform to a specific structure, providing background information on the defendant (e.g., their family background, education, employment history, living arrangements and health circumstances), an analysis of the offence(s) before the court, any pattern of offending and the defendant’s level of insight into their offending, including victim awareness where relevant (Maguire & Carr, 2017).

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Informed by a structured risk assessment tool, (the Level of Service Inventory Revised, LSI-R) (Andrews & Bonta, 2010), the reports also include an assessment of the risk of reoffending and depending on the circumstances of the case, they may also include an assessment of the risk of harm. The reports typically conclude with the probation officer’s assessment of the defendant’s suitability for specific sanctions including community sentences such as a probation order, a community service order, or a part-suspended custodial sentence (which involves a period spent in custody followed by supervision in the community). As pre-sentence reports are not a legal requirement in adult cases in Ireland, the decision to request a pre-sentence report we argue acts as a hinge and shifts the jurisdiction of the case, opening up the subject to different temporal scales and logics of governance. This shift in temporal scale is exemplified in this judge’s explanation as to why she requests a PSR: Yes, well the court process is so fast, and you don’t have time and equally you can’t impose a sentence just in a bubble, when you know in your heart and soul that there is a reason for this offending and if you can get to the reason and the Probation Service they have the time to look into the background . [J05, emphasis added ]

As the excerpt above suggests, the judge sees the prospect of referral to the Probation Service for a PSR as affording the privilege of time to render the subject knowable—‘they have time to look into the background’. In the following section, we show the ways in which the pre-sentence report operates according to the logic of ‘social work time’, by situating the subject in a biographical mode opening up the possibility of alternative futures through the logic of risk. However, we show that these temporal logics are not necessarily straightforward narratives of progress, as the life-worlds of the subjects, particularly those of chronic offenders, temper the possibility of future work.

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Temporal Logics—Situating the Subject The PSR begins with an account of the subject’s criminal history and their response to previous sentences. The source of this information is gleaned from official records including criminal record information provided by the police (Gardaí) and where relevant the person’s previous probation case file. The following are excerpts from PSRs we analysed in our study: According to the information provided by the Garda Criminal Records Office Mr X has 54 previous convictions… A review of Probation Service [records] indicated that Mr X is known to this service since 1993 when he was referred by the Children’s Court at the age of 11 years. (CC01) According to information received from the Garda Criminal Records Office dated xxx, Mr X has appeared before the Court on fifteen occasions resulting in twenty-two previous adult convictions…Mr X has come before the District Courts between 2003 and 2012 for the following offences: unauthorised interference with a m.p.v (motor propelled vehicle), theft, 15 public order offences and 3 road traffic offences. He has been sanctioned on these matters by way of imprisonment, suspended sentence, probation bond, and fines. (CC03)

From the first sentences of the report, the subject is framed through this biography of offending that has unfolded over time. In some cases, report subjects were previously supervised by the Probation Service and reference is made to their prior record on probation, their progress, and the extent to which they complied with supervision in the past. These references to the subject’s past record therefore construct their prior ‘time of clienthood’ situating them as institutional subjects in the past, while also exploring their possibility of becoming such subjects in the future. These ‘institutional selves’, which Poso and Eronen (2015: 203) observe ‘are needed to conduct institutional business’ are also constructed

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according to temporal narratives, as in the excerpt below which includes the biography of Patrick’s4 engagement with services: Mr X is known to the Probation Service since [date] and has been the subject of numerous referrals for Probation and Community Service. His response to the involvement of this service has been mixed over the years and he attributes periods of poor engagement to his longstanding issues with addiction. More recently he was the subject of Probation supervision in [date] when his cooperation was favourable. …Information from Mr X’s Probation file and from consultation with my colleague who supervised Mr X during this period identified being a participant on [name] programme as having a positive effect in terms of routine, outlet and confidence building. [CC04]

Patrick is a chronic and persistent offender,5 or to coin a phrase he is a ‘well-kent face’ (Schinkel et al., 2019), to the Probation Service and the Courts. And while such cases are far from uncommon, they do require an account of how chronicity can be managed. As the extract above illustrates there is a requirement to explain why the defendant is before the court again, why previous court orders have ostensibly ‘failed’, and why Patrick should be provided with another ‘chance’ to avoid custody. The linking of Patrick’s offending with a biography of addiction provides context and exculpation up to a point. The report proceeds as follows: Mr X has a long history of poly drug abuse which has been a contributing factor in his offending behaviour. As noted, the majority of his previous convictions are for theft/burglary which were linked to a need to fund his habit. He outlined being addicted to heroin from his early teens having first experimented with a needle aged 11… He also reported having periods of addiction to cocaine, crack cocaine, amphetamines and benzodiazepines. [CC04] 4 All names used in this chapter are pseudonyms and anypotentially identifying features of cases have been removed. 5 As Soothill et al. (2003) note language around ‘persistent’ and ‘chronic’ offenders has varied over time, citing Pratt and Dickson (1997: 363), they observe that these different nomenclatures have reflected a set of concerns. Chronic and persistent offenders ‘have been successfully perceived as dangerous, inadequate, invisible and career criminals.’ At various times therefore ‘chronic’ and ‘persistent’ offenders have become the explicit targets of governmental intervention.

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This narrative of a chronic offender who is before the court for the umpteenth time (over 40 previous convictions are tallied in the report), builds up to the following conclusion: It is my view that Mr X would benefit from a further period of Probation supervision. It appears that he progressed well while on the [name] Project and responded well to routine and structure in his life. The offence before the Court today occurred during a time of having no daily occupation or structure as his period of supervision had ended and he experienced a loss in his life as [xxxx] passed away. Mr X has commenced addressing his risk factors by commencing an alcohol detox and could benefit from the support of this service and addiction services to complete this programme. This process is at a tentative stage given his addiction history. [CC04 emphasis added ]

This culmination of the story told in the report deploys different temporal registers, shifting backwards and forwards in Patrick’s life. He has ‘progressed well’ and part of this progression is linked to a temporal ordering of his life (routine and structure), which is implicitly positioned as a corrective against the chaos of addiction. Earlier in the report, it is noted that Patrick cannot provide an account of his offending because ‘his exact recollection is unclear due to intoxication’. The past is invoked through references to Patrick’s experiences of bereavement and the possibility of future correctives through addressing risk factors is mooted. However, the prospects for ‘taming the future’ are tempered; recognising the complexity of Patrick’s story and the chronicity of his offending, the report author acknowledges that the process is ‘tentative’. This narrative therefore is not a straightforward tale of progression. How can it be? The ‘future work’ orientation of social welfare and social work agencies as described by Fahlgren (2009) and others (e.g. Juhila et al., 2015; Yuill & Mueller-Hirth, 2019), is necessarily complicated by this biography of chronic offending and drug use, the term ‘chronic’ of course a temporal definition, describing persistence, and recurrence over time.

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Redeeming the Future—Transforming the Subject The Probation Service’s guidance on the preparation and presentation of pre-sentence reports notes the requirement for the Level of Service Inventory-Revised (LSI-R) risk assessment to be used in estimating the risk of reoffending within a specified period. Additional specialist risk assessment tools for sexual and violent offences are also recommended to assess risk of serious harm, and report authors are required to integrate these assessments into the PSR (Probation Service, 2014). The LSI-R risk assessment tool accords with the Risk-Need-Responsivity (RNR) model of offending behaviour, namely that specific criminogenic needs (or dynamic risk factors) can be identified and targeted for intervention (Andrews & Bonta, 2010; Wilson & Gutierrez, 2014). As HannahMoffat (2005) observes, this shift in emphasis towards dynamic risk factors as evinced in the RNR model shows how the target of intervention becomes a ‘transformative risk subject’, that is a subject who is amenable to change (2005: 29). The formulation of ‘needs’ in the RNR model accords with narrow conceptualisations of what contributes to offending behaviour and entails a specific focus on the individual’s own decision-making and cognitive processes with the proposition that these areas should be the explicit targets for intervention (Hannah-Moffat, 2005; Wilson & Gutierrez, 2014). Hannah-Moffat (2005) and others (e.g., McNeill et al., 2009; O’Malley, 2000; Robinson, 2002) have argued that rather than representing a fixed mode of ‘actuarial justice’: ‘…risk knowledges are fluid and flexible and capable of supporting a range of culturally contingent penal strategies’ (Hannah-Moffatt, 2005: 30). Through this hybrid ‘risk/need governance’, some subjects are deemed possible targets for intervention (i.e., capable of transformation), while others may be categorised as too risky, becoming fixed risk subjects thereby requiring control and management. As well as providing a logic for action, such categorisations also provide a rationalisation for resource allocation. These assemblages of risk/need governance entail a prospective assessment with a view to transforming or managing subjects in the present and into the

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future. As such practices of risk assessment are reflected in the presentence reports, they both produce temporalized subjects as well as establishing the rationalities for temporalized governance. The extract from Daniel’s report below, following a conviction for drug-related offences, illustrates how risk assessment tools are typically referred to in reports: The assessment has been informed by the Level of Service Inventory Revised (LSI-R) risk and need assessment instrument, which has been used to estimate the likelihood of re-offending over the next twelve months and to identify the dynamic risk factors which are the most useful targets for intervention. (DC03)

Towards the end of Daniel’s report, the LSI-R is referenced again, this time to provide evidential weight to the assessment and the proposal regarding what should happen to address the subject’s future risk of reoffending: The LSI-R Risk Assessment Instrument places Mr X in the medium risk category for reoffending within the next twelve months unless he addresses the dynamic risk factors identified. The risk factors include his cannabis use, attitude towards his offending, lack of structured routine, mental health difficulties, poor financial management skills and lack of engagement with pro-social leisure activities. (DC03)

The report then concludes with the following proposal to the court: Mr X presents as a man who would benefit from Probation Supervision. This would give Mr X the opportunity to avail of support in addressing the risk factors identified above. Should the court consider dealing with this matter by placing Mr X on Probation Supervision, may I respectfully propose a period of six months’ Probation Supervision with conditions to attend all appointments, and to engage with addiction, mental health and education and training services be attached. (DC03)

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This proposal follows from the narrative constructed in the report of a biographical subject who requires intervention.6 Reference is made to the fact that the defendant, now in his thirties, has the support of his parents who have had no contact with the criminal justice system. Daniel’s relationship with his parents is characterised as a ‘protective factor against offending’. Daniel is simultaneously presented as a biographical subject with a past life (extending in the report as far back as infancy), as well as being positioned as a future ‘risk subject’. Through these dual registers the subject is temporally materialised—both as a person with a past that explains where he is today, and as a person amenable to intervention through targeting ‘risk factors’ to change the trajectory of his future, that is to say as a transformative risk subject (Hannah-Moffat, 2005). In criminal court time, these constructions and associated logics would not have surfaced in the same way (if at all). Thus, in the narrative of the report the social work temporal scale and logics of governance come to the fore.

The Chronotope of Adjourned Supervision The reappearance of chronic and persistent offenders in the courts presents a challenge for the administration of justice because as we have noted the court’s focus is on processing cases and reappearances by familiar characters complicates this institutional narrative of momentum. Explaining his decision to request a pre-sentence report, this judge explained his motivation as follows: If it gets the punter out of the system that’s what you want . You don’t want to punish someone. You want to get them to repay society in some way but then get them out of the system. You can punish them by a fine and by imprisonment but does that cure the problem? I don’t necessarily think it does because you get them back again. What you

6 While in this instance, the probation officer recommends a period of probation supervision (i.e., a probation order), the court ultimately adjourned sentencing in this case for a further period, while still requiring that Daniel engaged with probation services (i.e., he continued under adjourned supervision). As we explain in the next section, this process continued for some time, before the case was finally ‘struck out’.

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want to do is to find out why they are offending and try to get them away from that. [Judge, 05 emphasis added ]

The court must find the means to get ‘the punter out of the system’ and a request for a PSR provides a mechanism to shift from case processing mode, or the imposition of what this judge characterises as ineffective punishment (‘that does not cure the problem’), towards another field in which the emphasis shifts towards the diagnostic (‘why they are offending’) so that change can be enacted—even if as they recognise (or precisely because they recognise) the prospects of change are complicated. As well as bringing the subject into being through temporal formations, the report recommendations also illustrate the spatio-temporal power effects of the court and probation processes. In Daniel’s case, the report specifies a time frame (6 months) in which to address ‘the risk factors identified’, and to assess progress in this period. These activities are to be carried out by Daniel in the community. The report author also recommends conditions (a requirement to attend appointments and to engage with services), which will involve governance of Daniel’s time across particular spaces. This shift subjects Daniel to a different form of governance. He will be required to attend appointments with the probation officer in this liminal period of adjourned supervision (i.e., between adjudication and final sentence), and to engage with services in the community to address his drug use. This shift in spatio-temporal domain also entails a form of self-governance and is in fact what Daniel is being tested on. Other reports contained similar recommendations, which were frequently grounded in addressing a ‘lack of day-to-day structure’ (CC02), typically coinciding with problematic drug and alcohol use and long histories of unemployment. In Daniel’s case when the report was presented to the Court, the judge decided not to follow the recommendation of a 6-month probation order and instead to again adjourn sentencing, with a requirement that Daniel engage with the Probation Service in the interim period. For Daniel, this period of legal limbo, where he has been found guilty but not yet sentenced and where he is required to engage with services in the community in the interim, includes a return to court four months later

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when an update report is provided by a supervising probation officer. The update report notes that Daniel has been compliant, to the extent that he attends appointments, and that he has planned changes in his life, including a move to another part of the country: Mr X has cooperated with all appointments during this period of adjournment…Mr X has in the past months decided to make a clean start and look for rented accommodation in [place name] …Mr X is aware that he needs to address his prolonged misuse of cannabis and asserts that the move to [place name] will provide a basis for change and a life review. (DC03, Update Report)

The narrative presented in this update is therefore one of incremental progress, albeit tempered with a degree of scepticism. The probation officer’s use of the verb ‘asserts’, firmly frames the decision to move to another part of a country as a means ‘for change and a life review’, in the lap of the defendant. The possible forward momentum associated with this ‘change’ is countered by the preceding reference to Daniel’s ‘prolonged misuse of cannabis’. Daniel is situated at the crossroads of different temporal registers (prolonged, chronicity) and change (life review). This then leads to the following recommendation: Given Mr X’s long history of cannabis misuse the Court might consider a further 3-month adjournment to ensure that he has committed to engage with relevant services to him. (DC03, Update Report)

In Daniel’s case, the court agreed with this recommendation and extended the period of adjourned supervision for a further 3 months. When the case eventually returned to court, the issues regarding cannabis use remained, but there had been no further recorded offending and Daniel was deemed to have complied with the requirements placed upon him during the period of adjournment. His case was therefore ‘struck out’ (a possibility allowed under the 1907 Act), with the benefit that he did not receive a criminal record. Such practices of adjourned supervision sometimes therefore worked in the subject’s favour, and in fact they accord with one of the original conceptualisations of probation (the etymology of probation meaning a

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period of testing before adjudication). However, in this liminal time– space Daniel was neither a convicted offender nor a free person, in other words, he was suspended part way through a ritual which would lead to an ascription (Jewkes & Laws, 2021; Turner, 1974). While a referral to probation provided the ‘hinge’ between two different jurisdictions and governing logics, this in-betweenness has attendant temporalised power effects. This is encapsulated in the following quote from a judge explaining his rationale for requesting a PSR and the ensuing process of adjourned supervision: … if you were adjourning the matter for a probation report officially, unofficially you are giving that person an extra piece of leash to...use the Probation Service as an assist in getting themselves detoxified or, or stabilised in terms of their accommodation and so on and so forth. [J03 emphasis added ]

This ‘extra piece of leash’ means extending the period before a decision is made to achieve a desired outcome (detoxification, stabilisation, accommodation), while the defendant remains tethered to the legal process and probation intervention. The leash is also quite literally a symbol of control and restraint: it affords the defendant a certain degree of movement, while it also can be pulled when required. But this extension was only possible by way of a jurisdictional shift from court time to social work time. As various critical analyses have demonstrated, control over time plays an important role in social methods of inclusion and exclusion (Schwartz, 1974; Sharma, 2014). Auyero’s (2012) powerful ethnographic study of the ‘politics of waiting’ for instance, conveys the means by which control over time is unevenly distributed according to socio-economic status. The reference the judge makes to the ‘unofficial’ nature of this practice acknowledges the fact that adjourned supervision is a practice that disrupts the temporal logics, scales, and modes of governance typically employed by the criminal law. It is also a particular time–space. In Daniel’s case, the request for a PSR was the hinge that led to that shift in jurisdiction that ended without a conviction or sentence partly because the temporal logics, scales, and modes of governance of social work time prevailed over those of criminal court time.

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Adjourned supervision therefore stands out as an interesting example of a specific spatio-temporal practice, or chronotope, with attendant power effects, whereby the logics, scales, and modes of governance of social work time become intertwined with and ultimately prevail over those of criminal court time.

Conclusion In this chapter, we have shown that deploying elements of Valverde’s framework for the analysis of the dynamic nature of governance, by focussing on jurisdiction, scale, and logics, enables us to demonstrate the power effects inherent in the process of adjournment for the preparation of a pre-sentence report. As Valverde (2014, 2015) observes, the question of jurisdiction, i.e., the ‘governance of legal governance’ often receives limited analytical attention because of its taken for granted nature. But important effects flow from the logic of jurisdiction, including the whom and how of governance, that are too often bracketed-off because of the assumed inherent logic of the starting point. Previous accounts regarding the functions of pre-sentence reports and the interplay between probation and judges in this domain illustrate power differentials between these different professionals, with probation often situated in a less powerful role (e.g., McNeill et al., 2009). Here we illustrate that switching jurisdictions to social work with an emphasis on constructing the redeemable subject can supersede the dominance of legal temporalities which focus on the ascription of responsibility for past acts and the imposition of punishment to repay past harms. We have illustrated that this shift from the jurisdiction of the criminal court to the social work domain of the Probation Service involves a shift in temporal scales—from the immediacy of court processes which are oriented towards addressing the specifics of a past crime, towards a different temporal domain, where the report subject is situated along a historic biographical narrative but is also envisioned as a redeemable subject in the future. This is particularly evident in the practice of adjourned supervision, which we argue constitutes a specific time–space

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or chronotope, where time and space (within the community rather than the court) intersect to give power effect. As the excerpts from the interviews with judges who refer people to the Probation Service for a pre-sentence report illustrate, there is a recognition of these different temporal scales, and indeed they form part of the rationale for a report request and the practice of adjourned supervision. These different temporal scales are imbricated with different logics. These include the construction of a biographical subject with a past, present, and anticipated redeemable future in order to formulate a proposal to the court. The logics of risk assessment are also relevant, in that situating the defendant as a risk subject provides the basis for the formulation of the template for intervention. These temporal logics are fundamental to governance.

References Andrews, D. A., & Bonta, J. (2010). The psychology of criminal conduct (5th ed.). LexisNexis Matthew Bender. Annison, J., Eadie, T., & Knight, C. (2008). People first: Probation officer perspectives on probation work. Probation Journal, 55 (3), 259–271. Auyero, J. (2012). Patients of the state: The politics of waiting in Argentina. Duke University Press. Bakhtin, M. (1981). The dialogic imagination: Four essays. University of Texas Press. Beyens, K., & Scheirs, V. (2010). Encounters of a different kind: Social enquiry and sentencing in Belgium. Punishment and Society, 12(3), 309–328. Carr, N., & Maguire, N. (2017). Pre-sentence reports and individualised justice: Consistency, temporality and contingency. Irish Probation Journal, 14, 52–71. Chowdhury, T. (2017). Temporality and criminal law adjudication’s multiple pasts. Liverpool Law Review, 38, 187–206. Courts Service. (2018). Annual report 2018. Court Service. Courts Service. (2020). Annual report 2020. Court Service. DeMichele & Payne. (2017). Taking officer time seriously: A study of the daily activities of probation officers. Probation Journal, 65 (1), 39–60.

250

N. Carr and N. Maguire

Fahlgren, S. (2009). Discourse analysis of a childcare drama. Or the interfaces between paradoxical discourses of time in the context of social work. Time & Society, 18(2/3), 208–230. Farmer, L. (2010). Time and space in criminal law. New Criminal Law Review: an International and Interdisciplinary Journal, 13(2), 333–356. Feeley, M. M., & Simon, J. (1992). The new penology: Notes on the emerging strategy of corrections and its implications. Criminology, 30 (4), 449–474. Hannah-Moffat, K. (2005). Criminogenic needs and the transformative risk subject: Hybridizations of risk/need in penality. Punishment & Society, 7 (1), 29–51. Healy, D., & O’Donnell, I. (2005). Probation in the Republic of Ireland: Contexts and challenges. Probation Journal, 52(1), 56–68. Hogarth, J. (1972). Sentencing as a human process. University of Toronto Press. Hunter, R., Roach Anleu, S., & Mack, K. (2016). Judging in lower courts: Conventional, procedural, therapeutic and feminist approaches. International Journal of Law in Context, 12(3), 337–360. Jewkes, Y., & Laws, B. (2021). Liminality revisited: Mapping the emotional adaptations of women in carceral spaces. Punishment & Society, 23(3), 394– 412. Juhila, K., Gunther, K., & Raitakari, S. (2015). Negotiating mental health rehabilitation plans: Joint future talk and clashing time talk in professional client interaction. Time & Society, 24 (1), 5–26. Kelman, M. (1981). Interpretive construction in the substantive criminal law. Stanford Law Review, 33(4), 591–672. Kilcommins, S., Leahy, S., Moore Walsh, K., & Spain, E. (2017). The victim in the Irish criminal process. Manchester University Press. Knezevic, Z. (2020). Social change in developmental times? On ‘changeability’ and the uneven timings of child welfare interventions. Time & Society, 29 (4), 1040–1060. Langbein, J. H. (1978). The criminal trial before the lawyers. University of Chicago Law Review, 45 (2), 263–316. Langbein, J. H. (2003). The origins of the adversary criminal trial . Oxford University Press. Mack, K., & Roach Anleu, S. (2010). Performing impartiality: Judicial demeanour and legitimacy in the lower courts. Law and Social Inquiry, 35 (1), 137–173. Maguire, N., & Carr, N. (2017). Individualising justice: Pre-sentence reports in the Irish criminal justice system. Probation Service.

9 Criminal Court Time and Social Work Time: Pre-Sentence Reports …

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Mawby, R., & Worrall, A. (2013). Doing probation work. Identity in a criminal justice occupation. Routledge. McConville, M., & Mirsky, C. (1995). The rise of guilty pleas: New York, 180–1865. Journal of Law and Society, 22(4), 443–474. McNeill, F., Burns, N., Halliday, S., Hutton, N., & Tata, C. (2009). Risk, responsibility and reconfiguration. Penal adaptation and misadaptation. Punishment and Society, 11(4), 419–442. O’Malley, P. (2000). Risk societies and the government of crime. In M. Brown & J. Pratt (Eds.), Dangerous offenders: Punishment and social order (pp. 189–208). Routledge. O’Nolan, C. (2013). The Irish district court. A social portrait. Cork University Press. Persson, A., & Svensson, K. (2012). Shades of professionalism: Risk assessment in pre-sentence reports in Sweden. European Journal of Criminology, 9 (2), 176–190. Phinnemore, D. (2020). ‘Northern Ireland: A ‘place between’ in UK-EU relations? European Foreign Affairs Review, 25 (4), 631–650. Poso, T., & Eronen, T. (2015). Five years in care: Documented lives and time trajectories in child welfare. Child & Family Social Work, 20 (2), 202–210. Pratt, J., & Dickson, M. (1997). Dangerous, inadequate, invisible, out: Episodes in the criminological career of habitual criminals. Theoretical Criminology, 1(3), 363–384. Probation Service. (2014). Policy and procedures for the preparation of presanction reports for courts. Probation Service. Probation Service. (2021). Probation service annual report 2020. Probation Service. Robinson, G. (2002). Exploring risk management in probation practice. Contemporary developments in England and Wales. Punishment and Society, 4 (1), 5–25. Rokkan, T., Phillips, J., Poldena, S., & Kensey, A. (2015). How was your day? Exploring a day in the life of probation workers across Europe using practice diaries. European Journal of Probation, 7 (3), 201–217. Schinkel, M., Atkinson, C., & Anderson, S. (2019). Well-kent faces’: Policing persistent offenders and the possibilities for desistance. British Journal of Criminology, 59 (3), 634–652. Schwartz, B. (1974). Waiting, exchange and power: The distribution of time in social systems. American Journal of Sociology, 79 (4), 841–870. Sharma, S. (2014). In the meantime. Temporality and cultural politics. Duke University Press.

252

N. Carr and N. Maguire

Soothill, K., Ackerley, E., & Francis, B. (2003). The persistent offenders debate: A focus on temporal changes. Criminal Justice, 3(4), 389–412. Tata, C., Halliday, S., Hutton, N., & McNeill, F. (2008). Assisting and advising the sentencing decision process: The pursuit of “quality” in pre-sentence reports. British Journal of Criminology, 48(6), 835–855. Tata, C. (2020). Sentencing: A social process, rethinking research and policy. Palgrave Macmillan. Turner, V. (1974). Dramas, fields and metaphors. Cornell University Press. Valverde, M. (2009). Jurisdiction and scale: Legal ‘technicalities’ as resources for theory. Social & Legal Studies, 18(2), 139–157. Valverde. (2010). Questions of security: A framework for research. Theoretical Criminology, 15 (1), 3–22. Valverde. (2014). Studying the governance of crime and security: Space, time and jurisdiction. Criminology and Criminal Justice, 14 (4), 379–391. Valverde, M. (2015). Chronotopes of law: Jurisdiction, scale and governance. Routledge. van Wingerden, S., van Wilsem, J., & Moerings, M. (2014). Pre-sentence reports and punishment: A quasi-experiment assessing the effects of riskbased pre-sentence reports on sentencing. European Journal of Criminology, 11(6), 723–744. White, S. (1998). Time, temporality and child welfare: Notes on the materiality and malleability of time(s). Time & Society, 7 (1), 55–74. Wilson, H. A., & Gutierrez, L. (2014). Does one size fit all? A meta-analysis examining the predictive ability of the Level of Service Inventory (LSI) with Aboriginal offenders. Criminal Justice and Behavior, 41(2), 196–219. Yuill, C., & Mueller-Hirth, N. (2019). Paperwork, compassion and temporal conflicts in British social work. Time & Society, 28(4), 1532–1551.

Index

A

C

Abbott, A. 118, 125, 131, 132 Adam, B. 2, 24, 101, 195–197 adjourned supervision 23, 227–230, 232, 244–249 aims of punishment 45, 165 anticipatory waiting 156–158 Armstrong, S. 2, 5, 6, 12, 13, 20, 47, 94, 97, 105, 117, 140, 197

capital 205 carceral geography 3, 10, 118 Carlen, P. 178, 194, 204, 205, 210, 220 celerity 4 chronic and persistent 240, 244 chronology 2, 172, 190 chrononormatativity 237 Chronos 5, 125, 172, 190 chronotope 228, 232, 234, 235, 244, 248, 249 Cohen, S. & Taylor, L. 6, 7, 79, 90, 93, 94, 97–99, 101, 105, 107, 112 consequentialism 4, 40 courts 15, 16, 23, 25, 39, 44–47, 50, 53, 55, 98, 130, 138, 145–148, 203–222, 227–230, 232–238, 240, 241, 243–249

B

Beccaria, C. 4, 36, 37 Belgium 14, 22, 144, 145, 147, 165 Bourdieu, P. 148, 205, 206, 214, 215, 217, 218, 221 bureaucratisaion 235

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 N. Carr and G. Robinson (eds.), Time and Punishment, Palgrave Studies in Prisons and Penology, https://doi.org/10.1007/978-3-031-12108-1

253

254

Index

Covid-19 pandemic 90–92, 95, 97, 108, 111, 112 Crewe, B. 7, 8, 40, 92, 109, 112, 144, 147, 153, 156, 160, 185, 191 criminal court time 228, 233, 236, 244, 247, 248

D

de-synchrony 23, 173, 183, 187, 188, 190, 195, 197 detention 12, 22, 37, 40, 44, 45, 52, 53, 55, 143–145, 151, 153, 154, 156, 160, 164, 165, 177, 193 deterrence 4, 5, 74 discretion 119, 130, 150, 234 Distant Voices: Coming Home project 178 dynamic risk factors 242, 243

social field 205 flexibility 119, 127, 129, 130, 132, 139 Foucault, M. 18, 93, 118, 145, 213

G

Germany 14, 39, 43, 49–51, 53 Goffman, E. 77, 92, 94, 99, 101, 108, 112, 128 governance 92, 119, 228–232, 238, 242, 244, 245, 247–249

H

habitus 25, 35, 206, 215 Hassard, J. 5, 6, 172, 190 human rights 21, 38, 40, 43, 47–49, 55 hysteresis 25, 215

I E

efficiency 16, 23, 24, 204, 209, 211, 216, 218, 220, 234 Elias, N. 21, 35, 36, 54, 55 embedded/embeddedness 11, 23, 93, 95, 173, 187–189, 205–208, 220–222 England and Wales 39, 42, 43, 203–205 event 2, 20, 66, 67, 79, 80, 82, 118, 119, 125–127, 131–135, 140, 146, 155, 210

F

field

imprisonment 6–12, 14, 21, 22, 36–38, 40–43, 45, 47–54, 61, 64, 65, 68, 143–145, 148–150, 153, 154, 163, 165, 171–174, 177, 180, 187, 188, 193, 194, 197, 198, 239, 244 incapacitation 4, 5, 21 Ireland 23, 227, 228, 230, 232, 233, 236–238

J

juridical field 205, 206, 211, 214, 221, 222 jurisdiction 13, 21–23, 25, 39, 54, 228–233, 238, 247, 248

Index

255

K

O

Kairos 5, 172, 190

O’Donnell, I. 7, 14, 21, 41, 90, 92–94, 98, 100, 101, 104, 109, 143, 144, 146, 147, 183, 184, 186, 187, 230

L

Latour, B. 122 Lefebvre, H. 22, 119, 124, 131 legal theory 38, 39 life sentences 3, 21, 36–38, 40–55, 185, 191 limbo 104, 177, 193, 197, 245 liminal 10, 104, 228, 245, 247 lockdown 22, 25, 80, 89, 90, 92, 95–108, 110, 111 logics 3, 4, 24, 228–232, 234, 235, 238, 244, 247–249

M

max(ing) out 22, 144, 152, 159, 160 McDonaldization 204, 216 Ritzer 204 Medlicott, D. 8, 68, 83, 94, 99, 100, 104 mental health 73, 101, 105, 106, 110, 236, 243 mobility 11, 79, 117, 118, 124, 136 Moran, D. 9–11, 92, 118, 124, 174, 175, 188, 190

N

narrative 20, 118, 119, 124, 135, 139, 162, 191, 197, 214, 237, 238, 240, 241, 244, 246, 248 Nellis, M. 13, 16, 17, 220, 221 Norway 12, 52

P

pains 4–7, 9, 10, 13, 21, 22, 36–38, 41, 61, 62, 101, 143, 144, 147, 158, 163, 164, 197 parole 6, 15, 18, 37, 41, 42, 46, 47, 103, 148–152, 157, 160, 162, 163, 177, 190, 192, 198 penal theory 38, 39 plan(s) 22, 65, 104, 108, 119, 122, 124, 126, 128–135, 138–140, 144, 148, 150, 151, 156, 158–160, 175, 209 pre-sentence report(s) 23, 206, 207, 209–211, 227–229, 235, 237, 238, 242–244, 248, 249 preventive detention 21, 37, 38, 43, 51–54 prison crisis 91, 100, 112 routine 22, 68, 69, 73, 90, 93, 97, 98, 111, 187 sentence 3, 5, 11–13, 45, 46, 48, 52–54, 74, 97, 103, 144, 145, 147, 149, 151, 152, 159, 161, 164, 165, 194 transport 22, 117–120, 124, 126, 127 visits 7, 9, 10, 106, 155, 187 prisonization 9 probation 5, 15–17, 23, 25, 177, 204–212, 214, 215, 217–222,

256

Index

227–230, 232, 235, 236, 238, 239, 244–248 processual sociology 118 progression programmes 103, 111 proportionality 5, 44, 193 punishment philosophies 4

Rosa, H. 10, 24 routine 3, 15, 22, 24, 69, 72, 81–84, 90, 97–99, 101, 110, 131, 133, 138, 183, 187, 194, 208, 212, 213, 231, 240, 241, 243

R

S

readiness 23, 103, 173, 190, 192, 197 re-entry 22, 153, 164, 171, 173–177, 188, 194, 196–198 rehabilitation 4, 5, 12, 13, 15, 17, 40, 45, 46, 50, 75, 76, 165, 172, 178, 190, 193 reintegration 11, 15, 23, 144, 145, 148, 150–154, 156, 158, 160, 163–165, 176, 177, 179, 191, 197, 198 release 8, 11, 23, 37, 44, 45, 50–52, 54, 65, 73–75, 80, 96, 103, 105, 118, 133, 144, 145, 147–153, 157–165, 172–175, 177, 188, 190, 192, 195, 197 early 22, 144, 145, 147, 148, 152, 153, 156, 158–160, 163 gradual 144, 147, 149, 156, 158, 163 reparation 5, 13, 148 restorative justice 5, 206 re-synchrony 173, 183, 188, 190, 197 retribution 12, 45, 193 risk assessment 5, 41, 164, 212, 215, 237, 238, 242, 243, 249 Risk-Need-Responsivity (RNR) 17, 242 ritual 82, 118, 247

scale 20, 78, 79, 153, 171, 188, 228–232, 238, 244, 247–249 schedule 6, 14, 75, 83, 84, 93, 94, 97, 119, 122, 124, 126–130, 133–135, 138, 147, 161, 162, 187, 207, 210, 217, 220 Scotland in Lockdown study 90, 95, 96 Scottish prisons 89, 90, 92, 95, 96, 108, 109, 111, 179 secondary effects 9 Sentence Implementation Courts 144, 148–152, 159, 161, 162 Sharma, S. 127, 206, 211, 213, 221, 223, 247 social reintegration 4, 48, 52, 148, 150, 151 social work time 23, 227, 228, 235, 236, 238, 247, 248 sociology of nothing 22, 91 solitary confinement 7, 21, 41, 62, 68, 70, 71, 73, 77–79, 81, 84, 90, 92, 98, 118 spatio-temporal 12, 23, 228, 229, 232, 245, 248 speed 16, 21, 23, 66, 67, 72, 73, 75, 76, 81, 84, 183, 188, 204, 209, 210, 213, 215, 217 speeding up 204 Sweden 120, 121

Index

synchronisation/synchronicity 10, 93, 187, 206–210, 221–223 T

tariff 4, 37, 54, 55 temporal agency 22, 144–147, 159 temporal capital 214, 215, 218, 220–222 temporal disorientation 7, 90 temporality 2, 3, 5, 6, 8, 10, 12, 15, 17, 18, 20, 21, 24, 63, 78, 90, 93–95, 99–101, 110–112, 130, 173, 179, 184, 197, 211, 221, 228, 232–234, 236, 237, 248 temporal markers 109, 235 temporariness 180, 193, 195, 197, 198 time clock 2, 16, 79, 80 dead 62, 147, 206, 216, 218–220 emotional aspects of 138 experienced 119, 124, 125, 131, 135, 138, 140, 172 family 9, 105, 106 interpersonal aspects of 136, 138, 140 linear 63, 236, 237 lived 119, 124, 131, 135, 184 objective 16, 68 planned 119, 124, 125, 131 prison 7, 8, 10, 11, 62, 76, 79, 90, 93, 95, 97–99, 111, 112, 146, 174, 175, 184–187, 190, 193, 197

257

sticky 155, 160 subjective 3, 5, 7, 81, 94, 97, 100, 111, 237 usage 74, 75 time anchors 80, 81 time and space 3, 10–12, 22, 24, 117, 124, 128, 136, 164, 173, 249 timeframe 234, 237 timetable 7, 11, 15, 23, 77, 82, 83, 93, 94, 124, 143, 145, 207, 209, 210, 221 transformative risk subject 242, 244

U

ultimate penalties 36 Urry, J. 117, 123

V

Valverde, M. 4, 23, 228–232, 235, 248 Van Zyl Smit, D. 3, 36, 37, 40–42, 44, 46, 47, 49, 52 virtual visitation 131

W

Wahidin, A. 8, 10, 90, 93, 94, 102–104, 174, 175, 190 waiting 11, 12, 14, 67, 76, 105, 134, 138, 140, 147, 154, 155, 157, 159, 162, 190, 217, 218, 221, 233, 247 work-life balance 127, 209, 222