Associate Professor Catherine Cox (University College Dublin) and Professor Hilary Marland (University of Warwick)
Prisoners’ Right to Health
Can we argue that there is a ‘long history’ of debate and intervention concerning prisoners’ ‘right to health’? Or were prisoners, by virtue of their having broken the law, and thus the social contract, deemed to have passed outside the state’s obligations, including an obligation to ensure the right to health? Can we frame nineteenth-century debates on prisoners and healthcare as part of what Michael Barnett refers to as ‘alchemical humanitarianism’, a form of humanitarianism with an explicitly political agenda inflected by spiritualism that seeks to remove causes of suffering? If so, in what ways has this manifested itself in wider debates and in prison practices, especially those related to the health and wellbeing of the incarcerated?
Dual Loyalty and Prison Healthcare
The culmination of the prison reform movement in the mid-nineteenth century emphasised prisoners’ faculty to be redeemed through individual, spiritual reflection in the isolation of the cell and was enforced by the separate and silent systems. In these environments, prison regulations charged medical officers with adjudicating on inmates’ fitness to withstand taxing and strenuous prison regimes, allegedly guarding against the unnecessary infliction of cruelty on physically and mentally ‘weak’ prisoners. ‘Penal Benthamism’ influenced much nineteenth-century policy and practice. This incorporated both the ‘humanitarian’, that the ‘ordinary condition’ of convicted prisoners should not allow gratuitous physical suffering or danger to life and health, and the ‘punitive’, ‘the rule of severity’ and the principle of ‘less eligibility’, that measured the care of prisoners against the ‘scarce good’ of health care for the general population. This resulted in an enduring dilemma in prison health care provision. Joe Sim and others have also claimed that prison medical officers were hampered in their ability to work either independently or benevolently by the constraints of ‘dual loyalty’. It produced tensions between doctors’ status as employees of the prison system, including their roles in monitoring and approving the disciplinary aspects of the prison regime, and their obligation to care and lobby for the health of their prisoner/patients. Dual loyalty, alongside prison doctors’ overwhelming workload in challenging environments, may well have overpowered the potential among medical officers to pursue regimes based on prisoners’ right to health. ‘Rather than operating within an independent set of discourses designed to care for the confined’, Sim argues, ‘medical workers were integral to the control and disciplinary apparatus of the modern prison’.
Punishment and Health
As the initial optimism about the benefits of separate confinement faded, prison regimes became more penal and harsh, particularly with the appointment of Edmund Du Cane as Chairman of the Prison Commission and of the Directors of Convict Prisons in 1869 and the centralisation of the prison system after the 1877 Prison Act. Seán McConville has described how the punishment inflicted on prisoners was carried out beyond the limits of health and sanity. Dietary was a key area of concern that was debated on a national level as well as in individual prisons. On the one hand, prisoners were to be maintained in ‘less eligible’ conditions, but, on the other, there was a concern to avoid cruelty, damage to health and even death. Efforts to enforce a greater uniformity in dietary provision across the prison system in the 1870s, particularly the no. 1 minimal diet when combined with hard labour, provoked great anxiety amongst some prison officers, prison reformers and other observers. In a letter to The Times in 1882, William Tallack argued that when the no. 1 diet was given to a man engaged in hard labour on the treadwheel or crank, it could inflict fatal injury ‘especially on the bodies of the large class of prisoners already enfeebled either by vice or deprivation’.
Penal labour in the form of the six-hour treadmill task was made uniform throughout the prison system in the 1880s, and medical officers were required to adjudicate on the fitness of prisoners to undergo this regime. The treadmill had been in use in prisons for some time; its introduction to Mountjoy Prison, Dublin, resulted in the fatal injury of a prisoner who fell and cracked his skull when put on it. At Liverpool Borough Gaol, the treadmill was in full operation by 1868, with prisoners spending six to seven hours a day on it, and was regarded as having a beneficial deterrent affect, particularly on ‘old offenders’. Both the prison Governor and medical officer claimed that it did not adversely affect the health of the prisoners, though they might have lost ‘a little flesh’. Though generally in favour of it, Francis Archer, the prison surgeon, observed in his 1869 report that treadmill labour had a severe effect in a few cases and that constant watchfulness on part of the prison officers, notably the medical officers, was required. In that year he reported that one-fifth of prisoners sentenced to hard labour on the treadmill had to be excused on medical grounds.
Criticism of Penal Policy
There were prison officers who sought reform. For example, Dr Edward Thompson, of Omagh Prison, frequently complained of the dietary in Irish prisons, while the medical colleagues of Dr Robert McDonnell, Medical Officer at Mountjoy Prison (1857-1867) and member of the Royal Commission on Irish Prisons (1884), claimed that he had been relieved from his post at Mountjoy in 1867 because he was ‘an inconveniently compassionate medical officer’ who had advocated for improved conditions for prisoners. Such advocacy of improved conditions was articulated in humanitarian terms, while comments from outside observers became increasingly strident in their criticism of late nineteenth-century prison policy. In their evidence to the 1884 Royal Commission, members of the Home Rule Party, who had been imprisoned during the Irish Land War, described the use of plank beds as a form of torture.
The Return of Reform
When reform came, and as Du Cane’s system was dismantled toward the end of the nineteenth century, it was largely prompted by those outside of the prison system, the press, political prisoners, prison authors, and reform organisations, such as The Howard Association, who urged a shift back to the spiritual evangelicalism of the mid-nineteenth century. In 1894 the Humanitarian League and W.D. Morrison, chaplain at Wandsworth Prison, publicly stated that the prison system was ‘pitiless, indiscriminating and needlessly and culpably severe’. By the 1890s Du Cane was on the defensive and rapidly losing the support of the Home Office. In 1894, Herbert Asquith appointed the Gladstone Committee to investigate the workings of English prisons and this was promptly followed by Du Cane’s retirement in 1895. The committee heard evidence from those outside of the prison system, as well as from commissioners, medical officers, governors and other staff who worked within the system and ex-prisoners. While avoiding a direct attack on Du Cane, the committee recommended substantial changes in terms of education, labour, training and a ‘relaxation of the extreme severities of the Du Cane system’. It stated that ‘the prisoners have been treated too much as a hopeless or worthless element of the community’, ushering in a revived emphasis on reform and an emphasis on a responsibility that extended beyond the prison walls.
Return to Background Reading
Image Credit: ‘Prisoners Working At The Tread-wheel, And Others Exercising, In The 3rd Yard Of The Vagrants’ Prison, Coldbath Fields’, from a photograph by Herbert Watkins in Henry Mayhew and John Binny, The Criminal Prisons of London (London, 1864), plate 22. Public Domain.
 L. Hunt, Inventing Human Rights: A History (New York and London, 2007), introduction.
 M. Barnett, Empire of Humanity. A History of Humanitarianism (New York, 2011), p. 22, p. 75.
 M. J. Weiner, ‘The Health of Prisoners and the Two Faces of Benthamism’, in R. Creese, W.F. Bynum and J. Bearn (eds), The Health of Prisoners (Amsterdam and Atlanta, GA, 1995), pp. 47-8.
 J. Sim, ‘The Future of Prison Health Care: a Critical Analysis’, Critical Social Policy 2 22:(dam and Atlanta, GA, ry of Humanitarianism (New York, medical officers, governors and other staff who worked within the s22:2 (2002), p. 301.
 S. McConville, English Local Prisons 1860-1900: Next Only to Death (London and New York, 1995).
 The Times, 13 April 1882. Cited McConville, English Local Prisons, pp. 310-11.
 National Archives of Ireland, Government Prisons Office, Letter Books, 1853-55.
 Liverpool Record Office (LRO) 347 JUS 4/1/2, Minutes of Justices Sessions Gaol and House of Correction, October 1864-1870, Reports of the Governor, Chaplain, Prison Minister and Surgeon of the Liverpool Borough Prison (1868), p. 5.
 LRO H 365.32 BOR Reports of the Governor, Chaplain, Prison Minister and Surgeon of the Liverpool Borough Prison (1869), Governor’s Report, p. 13.
 Ibid., Surgeon’s Report, p. 26.
 Dublin Medical Press and Circular, 9 March 1870.
 Royal Commission on Prisons in Ireland, Vol II Minutes of Evidence (1884-85), p. 325, p. 343.
 Daily Chronicle, 1 February 1894. Cited W.J. Forsythe, Penal Discipline, Reformatory Projects and the English Prison Commission 1895-1939 (Exeter 1991), p. 23.
 Forsythe, Penal Discipline, p. 27.