Annotation: The article is a treatise on philosophical considerations and opinions on persons who, in a state of insanity or mental illness, can be dangerous to society, can commit serious crimes, and therefore must be isolated in a security detention institution. Which is currently a current phenomenon in Slovakia. Embedded media: https://open.spotify.com/embed/episode/5ORRk1J95SvTQ3NycBqEt2?utm_source=generator&theme=0
Motto: “Among the priorities of the Government of the Slovak Republic, as defined in its Program Statement, is the establishment of a detention facility as a special institution for ensuring care for persons with mental illness who require special conditions for the protection of both themselves and the public. In this context it should be noted that on 1 January 2020, the new detention execution law will come into force; on its preparation, as well as on the project preparation for the construction of the first detention institution in Slovakia, the Prison and Judicial Guard actively participated. Besides the Ministry of Health of the Slovak Republic, the Prison and Judicial Guard also cooperated with the Ministry of Justice of the Slovak Republic on detention issues in Slovakia. The detention facility will be a healthcare institution, while the Prison and Judicial Guard will ensure the security of the premises and internal safety. This institution will be built in the grounds of the Psychiatric Hospital in Hronovce in southwestern Slovakia with a capacity of 75 places; a tender for selecting the contractor is currently underway.”
General Ing. Milan Ivan, General Director of the Prison and Judicial Guard, conference on the Specificity of the Execution of Security Detention in the Czech Republic, Brno, 2019.
At present, the issue of a security detention institution in Slovakia is timely, as it is being implemented. The project for the security detention institution in Hronovce is conceived expansively, and it considers not only the main protagonists of the institution—the inmates—but also the institutional staff, since dwelling units for employees are included in the complex.
The idea of separating perpetrators of serious crimes committed in a state of insanity or mental disorder and illness from civil society is not new; in advanced European countries, security detention institutions have existed for many years. But from a philosophical perspective, attention should be traced back at least to the Middle Ages and beyond, since even then humanity was interested in “madmen” dangerous to people. Let us therefore reflect on the epistemological foundation that once contributed to the care of mentally disturbed offenders.
Epistemological foundations of security detention
The concept episteme is an ancient Greek term and denotes true knowledge and understanding. Epistemology (episteme), as understood by the major French philosopher Michel Foucault (1926–1984), is used to designate a type of thinking and knowing, a discursive mode of thought that characterizes a specific historical epoch. Episteme is a kind of “thoughtlessness” of a given time, and therefore it determines both the form and the limits of its thought. Episteme means a certain principle that makes possible an order of things with which we are in contact. As a particular interpretive cultural code, it forms an a priori structure that functions for human knowledge like a distant regulatory principle.
According to Foucault, discourse means a specific way of understanding and interpreting reality in a certain epoch and in a field, which in a characteristic way appears in language and so strongly shapes what can be expressed. In other words, in the development of each historical order, facts are evaluated differently and in another language than, for example, today. Discourse is therefore the background of every utterance that necessarily repeats it; it moves within the space it defines. At the same time it is what allows us to speak, what legitimizes our speech, and what it prevents us from saying by the same movement. See, for example, F. J. Řezáč – Prisons in Modern Ways (1851); M. Foucault – Discipline and Punish (1975); J. Sochůrek – Chapters on Penology I–III (2007), (in Jůzl, 2017, pp. 22–23).
In a publication on security detention, we will track especially its philosophical, historical, legal, and pedagogical-psychological premises, from which a theoretical foundation of security detention will emerge as part of penitentiary science.
Philosophical foundations
The philosophical premises of penology, and therefore of security detention, should enable us, in terms of understanding its knowledge, to comprehend the philosophy of punishment and penalization from a philosophical viewpoint, especially in the views of philosophers over the centuries, how they viewed penitentiary science, and above all how they understood the philosophical categories of freedom, justice, and also punishment in their time. It is not the purpose of the authors to proceed from individual philosophers and schools of thought to others and displace from their philosophies the narrower views on these categories relevant to the issue of security detention.
In Foucault’s approach to educational philosophy in detention, one should highlight his basic paradigm: that although education is necessary for society in order to preserve its stability, its negative side is the suppression of individual personality. This means that education is always discipline of the individual, a curtailment of his freedom, making him conforming, unifying, and normalizing. Thus, whoever does not want to behave according to rules instilled through education must be “suppressed, killed, isolated in prison, in a psychiatric hospital...” (Dolák, 2010, in Jůzl, 2010, p. 89). Yet that is precisely what penology, as primarily an educational discipline concerning the execution of punishment through imprisonment (loss of liberty), is about.
A part of Foucault’s educational philosophy is also the view that our society is under constant control, because we monitor one another to see whether we are crossing the norm. Therefore discipline tries to isolate the individual and subject him or her to the constant threat of punishment. Education therefore suppresses in a person freedom, creativity, and autonomy (Dolák, 2010, ibid.). Yet what society resists, humanity in general (permanent control and violation of discipline associated with the danger of sanctioning), is suitable for penology and is even necessary for it.
Punish, or treat?
By this motto philosophers and philanthropists have been guided already since the Middle Ages, and their humanitarian efforts culminate even today. The entire current problem of security detention is opened up by Michel Foucault, when he seeks its roots already seven hundred years ago and along the course of time thereafter. In this way he becomes one of the leading ideological founders of security detention institutions.
Michel Foucault (1926–1984), professor at Collège de France, philosopher and psychologist, was one of the leading representatives of the French intellectual avant-garde of the 1970s and one of the greatest thinkers of his time. His work on extreme forms of human experience (mental illness, delinquency, sexual behavior) and their historical development offers a new view of some civilizational phenomena, especially the theme of “humiliation and degradation” in power relations. In addition to History of Madness (1962), his works include Mental Illness and Psychology (1954), The Birth of the Clinic (1963), The Order of Things (1966), The Archaeology of Knowledge (1969), Discipline and Punish (1975), The Birth of the Prison (1975), and the unfinished History of Sexuality.
All of Foucault’s works appear mutually interconnected and became the philosophical overlay and epistemological-philosophical starting point for processing the professional and practical basis of security detention. In them he builds on Sebastian Brant (1457–1521) and his famous Ship of Fools, on Erasmus of Rotterdam (1455–1536) and his Praise of Folly, and in his own way also on Fyodor Mikhailovich Dostoevsky (1821–1881). Foucault’s Demons, Crime and Punishment and Humiliated and Insulted (here Dostoevsky again emphasizes the need to defend the poor and powerless against the cruelty of the powerful)—as psychological novels in which, according to Dostoevsky, suicide and despotism occurred mainly due to loss of religious grounding and excessive individualism—point to a transformed society according to Christian ideals. It is also known that Dostoevsky himself suffered from epilepsy. The autobiographical novel Notes from a Dead House offers testimony of his stay in the Omsk penal colony and of the people he met there. The novel has a documentary character and acquaints readers with the hard fate of convicted criminals in Siberia in the second half of the 19th century. The author describes artistically what he saw and experienced during the four years when he himself was a prisoner of a katorga camp in Omsk (in 1850–1854, where he was sent for his participation in the Petrashevsky movement. The novel was written between 1860 and 1862 and the first parts were published in the journal Vremya. He focused here mainly on the question of why a person becomes a criminal and whether punishment should be imposed at all.
But back to Foucault. He begins his 1962 work, History of Madness, with a Pascal quotation: “Men are so inescapably mad that without madness one would go mad in another way.” And he adds Dostoevsky in The Writer’s Diary: “By putting another person in an asylum, you show your own reasonlessness.” From these two seemingly simple sentences he develops his treatise History of Madness. It is precisely the history of this other mode of thought and madness: people, by an act of sovereign reason, put another into an asylum and recognize themselves and communicate with each other in the ruthless language of non-madness. At first, amid some undecidedness of reason and unreason, common communication existed; by the end of the 18th century, however, common language no longer existed, because madness had been established as mental illness.
Thus Foucault turned history on its head. In his (brilliant) study, madmen become the “normal” ones. He shows how society sometimes dealt—at times unbelievably cruelly—with mentally ill people. Its (still ongoing) stigmatization of individuals who “differ” proves that the truly mad phenomenon is actually institutionalization and the crowd. Fear of the unknown makes people behave like animals; the greatest irony is that they project their animality onto others’ difference.
Foucault locates the origins of “care for madmen” already in the period of developed medieval times, when patients with leprosy were institutionalized across Europe and their number was about 19,000 in 1266. From then on one can follow the beginnings of detention and confinement. By the end of the medieval period, leprosy was gradually eliminated, and houses called leprosaria gradually became other institutions—from the Renaissance onward, general hospitals, which were large internment houses where truly mad, intellectually disabled, and weak-minded people were gathered. This occurred throughout France, but also in Germany and England. Internment then accompanied the detention of the mad basically through the 18th century and the Great French Revolution. In the Renaissance, mad people were not only placed in internment houses but also in prisons. In addition, in the usual circulation of madmen arose the famous ships of fools, though Sebastian Brant presents them somewhat differently in his allegory, the so-called Narrenschiff. Mad people were actually loaded onto these boats, under the control of sailors and the surrounding waters. In the 17th century, the massive practice of detaining madmen became a matter for the police. And before internment took on a therapeutic meaning, it served a different purpose than treatment. Work as an imperative enforced it. Internment houses (therapeutic) gradually expanded further across Europe and rather became correctional houses. The demand for internment, in which economic and moral concerns were inseparable, arose from a certain understanding of work. For what is the source of disorder in society? Idleness. And this is treated only by work. Internment is an institutional invention of the 17th century. Its immediate breadth surpassed imprisonment as practiced in the Middle Ages. As an economic measure and social insurance, it has historical value. At the same time, the world at the beginning of the 17th century was strangely receptive toward madness. Madness was everywhere, in the core of all things, and people carried it within themselves as an ironic mark that confuses the traces between truth and chimera and therefore no longer resembles major tragic threats—it represented a life more confusion than danger, a comic convulsion inside society, the fickleness of reason (Foucault, p. 36).
Internment in the 18th century took the form of animality, since madness no longer remained hidden and became visible. It was no longer a monster in the human interior, but a creature of odd design, bestiality from which man had long since vanished. In the Enlightenment, madness was therefore no longer treated as a natural condition, as a human psychological source of irrationality that threatens and frames all forms of natural human existence. According to Foucault, the mad do not fall into determinism, but open into night. This hidden danger of irrationality, this threatening space of absolute freedom, Enlightenment rationalism managed to discern and keep watch over, more than any other period, and certainly better than positivism of the 20th century.
Between the 17th and 18th centuries, with the rise of the Enlightenment, the “psychiatric” terminology of forms of madness crystallized. Foucault always presents pairings: mania and melancholy, hysteria and hypochondria. Another pair is doctors and patients. In asylums, madness was not treated; their main task was to keep it outside and to correct it. Outside asylums, however, therapeutic practices concerning madness nevertheless developed throughout the Enlightenment: long-term cures were practiced that were intended not so much to heal the soul as to reform the entire person—the nervous fibers as well as imagery. The body of the mad person was viewed as a visible embodiment of illness: all these physical cures were based on a moral conception of the body and aimed at moral treatment. Treatments included strengthening, cleansing, cold water, and medicines (e.g., quinine, considered good for weakness, timidity, and despondency). French physician F. Doublet, shortly before the Great Revolution, divided four forms of mental illness: frenzy, mania, melancholy, and imbecility. As an effective therapy he recommended alternating hot and cold showers.
In the Enlightenment, madness was mixed with poverty, sloth, and vices in one and the same fault of non-reason. Mad people were imprisoned together with poverty and unemployment, but in this proximity to transgression they were also elevated into the image of decline itself. Thus madness now combined with social decay, which appears indistinctly as both its cause and its model and definition. Half a century later, mental illness became degeneration. The main and truly threatening madness will from then on rise from the depths of society. The life of the confined, the conduct of supervisors and physicians is organized so that moral syntheses occur through three means: silence, knowledge in the mirror, and continuous judgment, so that the mad person through silence and mirrored play judges himself. The asylum becomes a judicial instance with infinite powers.
At the beginning of the 19th century, however, there was no psychiatrist, no historian, no one who could resist a widespread wave of outrage because from all sides came the same moral and indignant rejection: “It is a shame to place the deranged in prison!” And Esquirol enumerates: the fortress of [Ha] in Bordeaux, jails in Toulouse, Rennes, prisons in Bicêtre, and many others. There are few prisons where one would not find raging madmen; these unfortunate persons are shackled and kept in common cells with convicts. What a monstrous pairing. Calm mad people are treated worse than criminals! And so Foucault slowly arrives at the conclusion that mad people—here we also see our inmates—must be interned because of their dangerousness, and at the same time must be treated. He adds warning words attributed to Geneva physician Mathey, a contemporary of Rousseau, from the end of the 18th century: “Do not be proud, you educated and wise; this presumed wisdom in which you brag can be clouded and swept away in a single moment; one unexpected event, one sudden emotional movement, is enough to make the most reasonable person instantly a wildman or an idiot.”
In the book History of Madness, subtitled The Search for the Historical Origins of the Concept of Mental Illness, he proceeds from the idea that there was once a starting line at which the concept of madness as mental illness had not yet been established and reason and unreason were not separated but lived side by side. From that beginning proceeds the whole history of separating reason from unreason, establishing borders and interpreting unreason. Foucault sees madness as the result of classificatory and repressive pressures of social institutions on the individual. For describing the history of madness he uses an archaeological method, which tries to grasp implicit knowledge (savoir) characteristic of a given society. This knowledge can be reached through the study of varied historical material that is not selected in a privileged way. In the book of interviews Foucault says, “Selections that we might be able to make are inadmissible and should not exist. We should read and study everything. In other words, we should have at hand at the given moment the total archive of a given period. And archaeology is, in the strict sense, the science of this archive—that is, a kind of metaarchaeology.”
Andrew Scull (1947), a British sociologist and psychiatrist working in America, wrote in 2015 an extensive treatise Madness and Civilization.
Scull proceeds systematically from the Bible to Sigmund Freud, from exorcism to mesmerism (Franz, sometimes also Friedrich Anton Mesmer, 1734, was a Swiss physician, the forefather of hypnosis and psychotherapy. In his therapy he used so-called animal magnetism and magnetotherapy. The method is also called mesmerism, from the so-called fools to psychiatric hospitals, from body-fluid theory to modern pharmacology; there he too, we are accompanied by the reflections of leading American psychiatry historian Andrew Scull. The author carefully traces how various civilizations over millennia approached unusual behavior and mental disorders, and notes changes in this relationship and its reflection especially in art. The center of his attention is not only Western civilization, but also how Western attitudes penetrated other parts of the world. The publication contains an extensive set of period illustrations with high evidentiary value.
The Ship of Fools is an allegory that has interwoven Western culture since antiquity. One of its earliest uses is found in Plato, who used the allegory in an argument against democracy.[1] In Plato’s version, its essence is the image of a ship without a captain, whose helm has been seized by force by reckless and frivolous passengers who are indifferent to or ignorant of the ship’s course. This rabble is capable of killing or poisoning anyone who stands in their way, and considers the true captain, knowledgeable in stars, wind, and steering, to be unnecessary. Through this allegory Plato projected the philosopher’s position and his rejection by the state.
Sebastian Brant, also Brandt (1457, Strasbourg – 10 May 1521, Strasbourg), was a German humanist and satirist. His best-known work is the satire The Ship of Fools (Das Narrenschiff, 1494). Plato’s concept stood at the source of Brant’s satirical literary composition The Ship of Fools (German Narrenschiff, 1494). Brant’s poem, in turn, inspired the famous painting by Hieronymus Bosch with the same title. Brant’s epic poem tells of a fleet of “ships of fools” that set out from Basel to Fool’s Paradise, Narragonia. The Ship of Fools also served as a parodic and satirical image of the Catholic Church, but various revisions of the ship motif, on a more or less symbolic journey, appear repeatedly in 15th-century literature and visual art.
The allegory was taken up in the 20th century by Michel Foucault in his History of Madness. In his image of the ship of fools, Foucault built an interpretation of medieval and early modern society, which kept its stigmatized members—such as vagrants, the poor, and the ill—outside its gates (both physical and symbolic), thereby giving them a status of disinheritance and even sacred isolation. Foucault therefore sees the ship of fools both as a historical fact, whose veracity is open to speculation, and as a metaphor of social hierarchy. His interpretation therefore differs radically from the original Platonic one.
In Praise of Folly by Erasmus of Rotterdam
In Praise of Folly (in our translation previously In Praise of Madness—this error came from a poor interpretation of the Latin-Greek title) is unquestionably Erasmus of Rotterdam’s most significant work. It is the monologue of Folly, a goddess whom the author includes in a choir of ancient deities, to the audience collective representing early 16th-century society. Folly calls upon its attendants—namely Self-Love, Flattery, Forgetfulness, Sloth, Pleasure, Madness, and Debauchery. In a long speech, Folly first reminds listeners that she is the most significant deity and proves it as such. She states that all people’s lives are permeated with greater and lesser follies, that the greatest advantages are attributed to jesters and fools, and that no one really wants serious sages. She contrasts perceiving strangers as fools with self-critical assessment of one’s own folly. Then the sharp language of Folly begins to criticize entrenched medieval dogmas. She shows that a person is part of nature and should act accordingly, which is why this may sound mad. Erasmus, through his Fool, rejects flattery and excessive self-love, which cause some people not to act as they should. He mocks hypocrisy and ironizes untouchable clichés. He puts everyone on trial: all social classes, people from the lowest strata and the highest ranks of secular and ecclesiastical power, he ridicules humiliating monastic customs and the corrupt behavior of nobility, even attacks his own ranks, while being very fair—each is rebuked to the extent deserved.
In the whole work, no specific name is used for criticism and ridicule. Erasmus did not want to alienate any persons against themselves; he only wanted to (true to his nature) show a true picture of bad human conduct. His interest was not to condemn individuals but the essence of actions. Those concerned were to recognize themselves in the lines. Unfortunately, most people simply did not understand that what Erasmus so cleverly and intelligently criticized also concerned themselves. Few simply saw themselves in the book, which was the original motive for Erasmus. As a result, one part of readers came to like the book as light reading and the other (mainly monks and church officials) was deeply angered by its content (so much so that Erasmus’s writings were placed on forbidden book lists). Erasmus’s original intentions were discovered only in the Enlightenment. Although he interpreted church dogmas very cautiously and in a measured manner, it was done in his own way, and therefore he still provoked the Church. He is often understood as one of the earliest critics of the Bible.
In the concluding phase, Fool turns directly to the Church, recalling in various ways the words of apostles and early Christian scholars, quoting Scripture and comparing ideas with ancient thinkers.
Erasmus did not choose Fool as the orator of his speech by accident; he did so based on the idea that fools had always been allowed to speak the truth, no matter how cruel. He also wanted to select something that would sharply contrast with the serious, ossified officials he attacks. The book is written masterfully, and in my view remains alive even today—indeed, I dare to call it “timeless.” Erasmus conveys deep and highly sophisticated ideas with lightness and irony, thereby actually educating the reader in an entertaining way. His book has enduring popularity, and its timeless message about human folly, vanity, selfishness, and ignorance remains preserved.
František Josef Řezáč and the role of the Church in prisons
As the founder of modern Czech and Austrian penology, František Josef Řezáč in his treatise Prison Life in Its Current Forms (1852) indirectly touches the problems of security detention and, without necessarily realizing it, already suggests, more than one hundred and fifty years ago, ways of dealing with insane, foolish, unruly, etc. inmates.
Especially regarding the Church, František Josef Řezáč in prisons, which also includes an initial form of detention, assigns an important position and role. On the one hand, he gives it, as has happened for centuries in confrontation with secular power, a certain autonomy and independence; on the other, he gives it the right and duty to intervene in the penitentiary process in education, influence, treatment, and pastoral and other penitentiary activities, from intake and selection of inmates to release. He bases this on a brilliant idea: “The state is obliged to care for the prisoner and his bodily needs; neither life nor health may be taken from him by imprisonment. Yes, the prisoner, though not immediately, would have to die by months, by years, if not cared for; and thus, law and society would have to approve homicide. Yet the Church stands in law and in duty toward prisoners.” (Řezáč, 1995, p. 23).
Řezáč defines the role of the prison chaplain as a kind of universal educational worker responsible for pastoral, psychological, pedagogical (educational), social, and legal care, while his main mission remains that of priest as mediator between human and God.
He proves the necessity of Church activity in prison with a basic question already in the second chapter: “It seems to me that prisons, as houses for mentally ill people, would require special care. Do not these very persons most need spiritual assistance and spiritual medicine? Should not the light of truth shine especially for them, and the warmth of reviving grace heat their hearts? Should they not especially taste divine compassion? Is there in Christian communities anyone who would deny the Church the right and vocation to exercise spiritual action among prisoners, who would measure such scope of spiritual action in prisons for her? Many, indeed some even well-wishers, do not want the Church to carry out its work among prisoners in its full force. Psychological needs must be initiated, souls saved from ruin by as many means as possible; this is and should be the Church’s calling in prisons. If someone thinks otherwise, he turns away from the truth in this matter, and if he establishes prisons for nothing other than punishment, they cannot be called houses of repentance, Christian, penitentiary.” (Řezáč, 1995, p. 24, in Jůzl, 2017).
František Josef Řezáč calls on the state, according to the Lord’s saying, “Render unto Caesar what is Caesar’s, and unto God what is God’s.” He did not prevent the Church from acting on prisoners in its own way, i.e., leading them toward wisdom, virtue, and piety using its priestly means. He stresses that moral influence must go hand in hand with the state—Church. He repeatedly raises the question of who in the past has contributed more to prisoners’ reform—the state or the Church, thus again recalling efforts by the Church to intervene in prisons since ancient times. As the reason for earlier discord and conflict of state and ecclesiastical conceptions, Řezáč mainly sees unequal relations between state and Church, the lack of unity between civil and spiritual law, and temporal shifts in the dominance of state or Church influence.
Řezáč also puts forward proposals for reforming contemporary imprisonment not only in Austria but in all of Europe. Again, it is indicated how the Church should participate. That is, in his view, the state should care for the civil side and the Church for the religious side, while both actors jointly observe a unified order, regime, and educational principles. From this perspective, the state is assigned the civic-legal sphere (legal), into which he includes security and health care; by contrast, the Church is responsible for teaching and religious exercises, especially services. The principal means for securing this mission should be the school and chapel (prayer room) and also the institutional library, with which each prison should be equipped. The third sphere, closely related to the preceding two, is the criterion of the guard’s or educator’s conduct and his professional duties; into it Řezáč includes “good classification or segregation; appropriate work; good household order; administrative inspection and proper discipline.”
Among the main officials ensuring prison operations, Řezáč lists these functions: guards, i.e., overseers (today’s officers), doctors, teachers, clergy, and director. Of this team of professionals, Řezáč emphasizes their unified influence on the inmate; otherwise, good effects cannot be expected, which today is considered the main pedagogical principle (moral education). Given the character of this treatise (the Church in prison), it is useful to focus on Řezáč’s view of the teacher and the clergyman, since these callings in prison are often combined. Řezáč first characterizes the teacher’s role and then recommends approaches to dealing with inmates in teaching; in the same way he devotes himself to the clergyman, whose work he describes even more thoroughly from his own experience. Hence he requires extraordinary (positive) qualities from them.
The teacher, to be suitable for prison work, must be educated and skilled in pedagogy. In the character traits of the prison teacher, Řezáč highlights devotion and humanism (humane kindness). He rejects superficiality, elementary knowledge, and clumsiness in interacting with inmates. He advocates for educational teaching, cultivation of reason, but also training of skills and habits, emotional education, especially for juvenile inmates. He provides methodological guidance for teaching reading, writing, arithmetic, drawing, and technical instruction. He stresses aesthetic-educational subjects, especially singing. The teacher should teach by using living examples from life and thereby reinforce principles of human morality.
Among teachers, Řezáč also includes the clergyman, but at a higher qualitative, professional, and human level, because it concerns the salvation of the offender’s soul. The education of clergy must be even broader and deeper than that of a teacher, especially in philosophical and theological sciences. Religious science must not be formal but should aim at correcting the individual. The duty of the prison clergyman is also to follow progressive tendencies in penology so that he can apply them in his pastoral work. Likewise, he should be educated in legal and psychological sciences—after the English, French, and American models. According to Řezáč, a priest should have pure, pious, and calm nature. He rejects both excessiveness and indifference in action and communication. He must be positively oriented, sharing, patient, and empathetic, while nevertheless firm, strict, and principled. A prison inmate quickly detects oversensitivity or coldness, volatility and inflexibility. Firm principles are required of the clergyman also in morality, piety, and stability of character without mood swings. This all appears in the clergy member on the basis of deep faith in God and in humanity. In all of this, the clergyman must also be cautious in relation to inmates (criminals), but not distrustful, which prisoners quickly perceive as well. In conclusion to his characterization of the prison clergyman, he emphasizes the importance of bodily health for work with inmates in an unhealthy prison environment, which is neither clean nor pleasant.
Řezáč, as one of the first penologists, points to the delicate question of the “second life of the sentenced” (for priests especially), leading to homosexuality, swearing, blasphemy, and crude speech, as well as violence between inmates. If work with inmates is done only formally, the expected result will not occur. Although prison presents many pitfalls for clergy, he must not yield to skepticism in his work. His effort is based on teaching inmates, on religious exercises, and church preaching, all directed toward inmates. Instruction and religious exercises occur either publicly (in the chapel or prison school) or privately (in the hospital, workshop, or cell in the jail). Sermons are usually combined with religious exercises—sacrament of confession and prayer.
Řezáč notes that the original role of priests in prison was mainly to handle liturgical services, care for the sick, provide communion, conduct one sermon weekly, and one catechism session—this was in his time considered the peak of spiritual care.
The conclusion of Řezáč’s treatise Prison... is completed by the chapter he titled “Moral Depravity.” In it he sets out causes of moral degeneration (already then dividing them into internal and external) and especially the means of countering it. In general, he sees them in general education of the people, in better organization of family and civic relations, and in overall increase of material well-being in society. He further elaborates and specifies these broad efforts, placing special weight on the establishment of associations for prison issues.
Still during Řezáč’s life, according to the Penal Code No. 117 of 1852 and on the basis of further imperial decrees, the influence of priests was strengthened especially in crisis situations of inmates in solitary confinement (Uhlík, 2007, p. 166). This is shown, for example, by an excerpt from the House Order (Hausordnung) for correctional institutions from 1893, prepared for the newly opened Zemská house of compelled labor in Pardubice (1891), where paragraph 16 remembers employment on holy days: “In Sundays and holidays, services are held in the institution’s chapel, and all healthy Catholic inmates are to attend and pray devoutly.
Meanwhile, while Catholic inmates remain in the chapel, non-Catholic inmates are to stay under supervision in workshops or dormitories, where they should conduct devotions according to their religion. Jewish inmates are to be given an hour for prayer on Saturday. The rest of the time on Sunday and holidays, inmates shall occupy themselves in the yards of the institution cultivating suitable games or reading, writing, etc. Books may be borrowed from the institution’s library. Catholic inmates shall, according to instructions of the institution’s pastoral administrator, perform confession several times during the year and receive Holy Communion. For non-Catholic inmates, services and other religious exercises shall be conducted in the manner agreed between the director of the institution and pastoral administrators appointed for that purpose.” (Kalábová, Kaláb, 2006, p. 64, in Jůzl, 2017). Paragraph 10, by contrast, provides in the daily schedule that “In the morning at the signal of the bell (in the institution), from 1 April to the end of September at 5:00 and from 1 October to the end of March at 6:00, inmates must rise, clean their clothes and shoes, wash themselves cleanly on head, face, and hands.
Řezáč himself was aware that prison systems cannot be reformed by government decrees from one day to the next. Re-educational work with a criminal requires much time, so one should first arm oneself with profound patience. The offender should be taken under legal protection, offered cooperation, and worked with persistently so that he may morally recover. As a professional, František Josef Řezáč understood that we are not capable of reforming all offenders. He therefore appeals to a revival of Christian spirit, referring to the long-standing and continuous positive influence of the Church on prisoners: “Would the state and the Church educate the people in this spirit in every possible way! Would the public soon be inspired by this and so prepared to complete such work! States would have less burden, communities would find their moral strength, which is declining, supported abundantly by it; and only then would it be hard to endure in a harsh prison and painful solitude, were one not to wish to dwell among one’s own patient and noble brothers.” (Řezáč, 1995). For then, according to Řezáč, the number of prisoners would be greatly reduced and therefore treatment of them much easier.
The current penal scene was marked by young Czech philosopher Antonín Dolák (1984) with his remarkable article Not Punish, but Treat (in Jůzl, 2017): “A person has no free will, which is proven by numerous brain studies: decisions to do something occur in unconscious parts of the brain much earlier than we become aware of them. Moreover, nothing happens without a cause, so our decisions too must have an external cause we do not control. The theory that everything that happens in the universe, including human actions, must necessarily be explained by determinism in philosophy.
The feeling of free will belongs inseparably—to his mind’s structure for its link with intentionality, that is, with the orientation and targeting of mental states—and is also a basic motivator, activator, and regulator of human action, often regulating it through guilt and motivating personal responsibility. Because we assume freedom in ourselves and others, we love and hate ourselves and others, we take pride in ourselves and others and place blame on ourselves and others. These feelings strengthen desirable behavior and, conversely, weaken undesirable behavior (for various reasons). From the feeling of free will therefore derives morality, which regulates and stabilizes human society.
If we are not free, however, all these feelings and attitudes and the evaluations flowing from them are false. There is no reason to blame or praise oneself or another; the entire idea of imprisonment or the judiciary is outdated and fundamentally wrong. Some object that without the feeling of free will human society would destabilize, no one would hold anyone responsible (and therefore punish or reward), and anarchy would prevail, with increased aggression and social anomie. One can respond that it is in everyone’s interest to have social stability and therefore everyone has an interest in the continued existence of courts and prisons. But these should not punish; they should only channel offenders toward correction. Offenders are not responsible for their acts; for society they are nevertheless a threat and so it is necessary to try to reform them, or (in uncorrectable cases) to isolate them.
A society should not punish and treat them as culpable if it does not contain free will; instead it should reform them and understand them as ill people (that is, acting against societal interests). Consider that if there is no freedom, the criminal happened upon a “haphazard” causal chain leading to the crime; in that case it would truly be barbaric still to reproach and punish him for his misfortune, thereby unjustly increasing his suffering, which is already so great. Similarly, those seen as successful and socially regarded as virtuous, successful, and capable may have had only random luck; yet their reward contributes to broad social reinforcement of this behavior and can motivate other people to similar acts (to the extent allowed by their own determinism).
Because of idealist (and often religious) thinkers and their unsupported arguments operating with non-empirical entities such as “God,” “soul,” “divine intervention,” and “divine grace,” the public and even legal and philosophical circles tend to preserve the view that the philosophical problem of “free will” is unresolved and generally has the status of an “unsolved case.” For this reason, in ordinary legal, judicial, or ethical practice, for philosophically unfathomable but evolutionarily unfortunately entirely understandable reasons (the illusion of freedom regulates our behavior through guilt and self-esteem and through rewarding and punishing other people in the community), it is assumed that we are free, although most arguments (including scientific ones, whether psychology, sociology, biology, genetics, neuroscience, or cognitive science—all sciences still work with causality and explain consciousness and “decision-making” as effects of external conditions) actually argue much more strongly against human free will. On this basis, “criminals” and otherwise “maladjusted” people continue to be condemned and punished, which unjustly increases human suffering (unfortunately evolutionarily functional, as mentioned above).
It can be objected that emotions such as guilt or, conversely, pride in one’s virtue strongly motivate and regulate people. Even if we retain these revised judgments and prisons, loss of such motivating and regulating emotions weakens people’s desire to be good and desire not to be bad (the concepts “good” and “bad” here are presented only in a vague way; by these I primarily mean prosocial versus antisocial behavior). That is true, but a strong desire for stability of one’s community will remain, and it likely will still lead people to praise (even if undeservedly, but functionally) good behavior and to correct (again, even if undeservedly, but functionally) delinquent behavior. But correction of the “bad” should no longer have the form of punishment but rather of “treatment.”
It is often argued that deterministic learning makes “re-education” or correction of offenders impossible. We could counter that the opposite may be truer. Advocates of free choice think that the offender committed his offense voluntarily and freely, nothing forced him to it. Thus he is fundamentally corrupt at the root, because though free, he committed some bad act. In contrast, determinists justify his action by various negative influences and optimistically claim that if these negative influences are removed and we induce the offender more positively, he may change. Determinism is therefore more optimistic than proponents of free choice. Of course, some genetic determinisms or determinations from early childhood are unremovable, but in this regard both determinists and defenders of free will agree.
Many argue that a deterministic doctrine would have a corrosive effect on society. It would be an enormous social experiment that could even increase people’s suffering and injustice. The reason would be the passivity it brings. Prisoners might begin to rebel that they are punished for something they did not cause, just as they would be punished for eye color. It can be objected, however, that they are indeed not guilty of their crimes, but these crimes are not nearly as harmless as eye color. Surely they themselves would want to protect themselves or their children from, for example, an epidemic of typhus, and for that reason they would not object to the sick and infected being separated and isolated in hospitals. Crime presents a similar threat to society and its stability; therefore offenders must be isolated. It can also be added that most convicted persons in these “Raskolnikov-like” categories of crime, guilt, and punishment do not consider their own situation in prison, so deterministic doctrine would have little effect on their understanding of their circumstances.
It should, however, influence legislators and the whole system of prison, judiciary, and police. Offenders should be treated much more humanely; given that they are not to blame for their acts, we should deal with them with infinite compassion as with sick persons, as with unconscious children who need help and correction, not hard punishment.
Another argument for humanization of the entire legal system and the system of dealing with offenders is, within determinism, the fact that no one knows (since no one is free) where the causal chain will exactly lead him and he can thus quite easily end up in prison himself. He has no defense against this, since he does not possess free will. It is therefore in his own interest that prisons and courts be more humane. Naturally, through determinism, we can also observe in our own nature and personality certain regularities and character traits caused primarily by our genes and early upbringing (in reality we can count on interaction between our genetic endowment and upbringing). Thus we can estimate how the behavior of our organism will further develop. But given many external causal influences (recall chaos theory, which shows the well-known “butterfly effect”), it is possible that “random” causality leads us to prison.
A similar argument is found in Cashmore, who discusses this problem with McEvoy. 3 He rightly states that the legal system can no longer be justified ethically and deontologically, but only pragmatically and utilitarianly. According to Cashmore, “punishments” should continue to exist but be justified differently. Such a legal system, according to him, would not differ in consequences from the current one. Yet Cashmore here omits the need to humanize this system: since offenders cannot be punished for their crimes, they should not be punished so severely, only as much as is necessary to protect the rest of society and their own reform.
Cashmore further claims that no longer should one consider the mental state of the accused, since no one can be guilty of their offense, therefore it is irrelevant whether the accused was mentally insane at the time of the offense or not. That is certainly true. Psychiatric evaluation of the defendant’s mental state for possible mitigating circumstances (crime of passion, temporary or permanent insanity, etc.) is very expensive because of psychiatrists, which could then be saved. On the other hand, one should say against Cashmore that this examination by psychiatrists and psychologists should continue to be done. Not now, however, for reasons of courtroom defense, but so that the causal chain that may have contributed to the crime (it may be, for example, mental illness) can be traced. This would then make it easier to find appropriate treatment or re-education (causal chains acting against the existing causal chains that “caused” the crime) for the offender.
This should probably be the decisive way to rehabilitate offenders. First, all causal influences that led to his act must be traced. Then it should be examined whether these influences can be reversed. If they cannot be reversed and the offender is dangerous to society, he must be permanently interned (of course under humane conditions). If they can be reversed, efforts should turn to finding causes that can do so and to quickly applying them to the offending person.
Someone could object to humanizing the judiciary or prison systems and the legal system generally by saying that it is impossible because we are determined. In general, this argument then goes that a person can do nothing, because he is determined. That argument suffers one confusion: it confuses political unfreedom with philosophical unfreedom. Only if we were politically unfree (e.g., imprisoned in chains) could we not do anything. But often we are not politically unfree, and our permanent philosophical unfreedom does not destroy our capacity to do things. Certainly, in fact we are mere means of causal agency; we are not true subjects (that is, first causes) of our acts, and in this sense we truly do nothing. But as means (intermediate links) of causally potent influences, we can act, and can therefore improve prisons and other things, if we are so determined. It is our activity in this sense in that it is carried out by our bodies; our activity is not ours in the sense that we would be its true origins.
Against this one can object, with a modified Hegelian credo, that what is real is evolutionarily functional; its long duration in time has tested that it works this way, and therefore it should not be changed. A legal system operating with free will has proven to be functional, so do not alter it if we do not want possible negative outcomes. To this one can respond that we are already seeing mitigation of responsibility in court and during adjudication for recognized determinants that influence a person (intoxication, drugs, mental disorder, passion, etc.). No major negative consequences have resulted.
The position mentioned—that relations should not be changed because they result from long evolution—could lead us to dogmatic conservatism and social statism, which clings to reproducing the existing order without the possibility of change, reducing adaptability and blocking our undeniable ability to humanize, improve, and update our current conditions.
A modification of the previous argument (“we are determined, therefore we cannot do anything and must punish offenders harshly”) is the well-known statement that, just as a murderer is determined to murder, a judge is determined to send him to execution. This is certainly true, but it overlooks one fact: precisely rational awareness of determinism. If judges are determined by deterministic doctrine, they would not be determined to send murderers to death. If judges are rational people, they will be most easily determinable through rational argumentation. It seems that argumentation in favor of determinism is highly rational. Therefore it may be well to determine judges too (still assuming, perhaps naively, that judges and decision-making are rational).
Against this one may say that humanizing prisons reduces people’s fear of prison, while this fear is often what determines them not to commit crimes. That is true, but isolation and re-education, which determinism must account for in the interest of social stability, will itself determine people toward law-abiding behavior. Also, one cannot punish an innocent person, and in determinism all are innocent. Therefore increased suffering of innocent people in prisons cannot be justified by claiming it strengthens beneficial fear of prisons among potential clients or possible inmates.
It may also be objected that humanized prisons will not provide the suffering that is unfair yet often necessary for re-education (we also punish a child with love and thereby cause short-term pain, but for long-term good). In response, one can say no one deserves suffering. But if suffering is a necessary part of treatment, one should consider whether its application brings good to society or also to the individual. If only to society, its application is problematic, though usually necessary for social stability; if it brings good to the treated person, its application is not problematic at all (unless the suffering is excessively great).
A deterministic doctrine should lead to much more effective re-education of offenders than exists now. From our perspective on offenders, the element of retribution carrying the spirit of the ancient “an eye for an eye, a tooth for a tooth” should be removed entirely. If everyone is not free, everyone is innocent. Therefore no one should be punished. Old or ill people should certainly not be imprisoned for their past “misdeeds” if they are now entirely harmless. The element of punishment should have no role in any state or private institution; such institutions should always be corrective, not punitive, and persons should not be labeled “convicted,” nor should we call offenders “convicts,” but at most sick people who cannot help their illness.
Where would deterministic re-education be more effective than the current “punitive” system, whose own name already derives from false knowledge (as is the case with the entire judiciary: even the ruling of the most respected judge rests on the error of believing in the free will of the person judged; the “rendering of the sentence” itself is then obviously a non-free act by the judge too)? One should start with identifying causes that led to the act and thus assess each case individually, always searching for concrete causes. Then one should investigate whether these causes can be countered by stronger causes, reduced, or are unchangeable. In the first case, determined efforts toward reform should be chosen; in the second, caregivers would try to attenuate delinquent behavior; in the third, treatment would not be applied, but that deliquent would be isolated if there is a future risk of harming society (but in a dignified manner, as are patients with contagious diseases isolated). If this risk is not present (as is clear, for example, with elderly “Nazi” or “communist” “criminals”), the offender should be released.
The current form of the legal order, the whole judiciary, and the prison system is based on a fundamental falsehood and therefore is wrong from the start and calls for thorough reform, destroying many established practices, judicial and penitentiary. Since judges’ and guards’ actions are based on a mistaken fundamental conviction, the system is ineffective and often fails to improve offenders’ behavior. It treats them all together and mistakenly as “culprits,” and thus treats them as such. It punishes where it should treat. It often exposes them to humiliation, both from fellow inmates and guards. Public opinion and the close circle of the convicted person often again unjustly condemn him. The convicted person, because of a randomly “fateful” causal chain that brought him to “crime” without his cooperation, suffers further. Since specific causes of this “crime” are often not sought, they cannot be removed. The individual is humiliated and, after leaving prison, often commits even worse crimes because prison hardened him and he gained negative contacts, or he leaves prison as a psychologically broken person. No one is responsible for this; whatever happens happens necessarily and there is no alternative history, but this very contribution of mine should be an attempt to pre-determine what is currently occurring, and thus was written necessarily (could not not be written, and its author bears neither merit nor blame for it, because one does not really act), and if other causal influences allow it, it may change something.
It is unnecessary to add that determinism would save money for the state treasury. Already no longer would harmless individuals be punished (such as elderly “Nazi” “criminals”), because there would be no reason to do so. Other offenders would be treated more concretely and effectively (of course without the use of violence; however, in cases where suppression of a delinquent is needed, sedatives would be used much more, while humiliating and primitive brute force would never be used), and therefore recidivism would be lower.
Money would also be saved on finding evidence whether a given “crime” was culpable or not, whether for example the accused acted due to mental illness, premenstrual syndrome, and therefore had reduced responsibility. No one has responsibility, and never has; thus there is no need to determine how large this non-existent property is (it has no magnitude because, for lack of existence, there is never one).
There are also specific economic questions regarding implementation of the whole humanization of the legal and prison systems. In other words, we ask whether the state would have to spend more than under existing measures. To that it must first be said that even if that were so, it does not change the fact that the current system must be changed because it is wholly founded on a mistake and therefore wholly unjust, increasing the suffering of innocent people (since everyone is innocent, always, whatever is done, because in reality no one acts; each is only compelled by external causes to act, therefore only to behave).
If no one can be responsible for anything, no one can be punished for anything, though this unfortunately happens today. If no one is responsible for anything, then no one should systematically be brought to feelings of shame, humiliation, disgrace, or guilt, to which the system tries to lead its convicted persons. The current system therefore unjustly increases suffering for those who do not deserve it. Many of them even realize this, which then leads not to correction, but rather to intensifying feelings of bitterness, anger, bitterness, hatred, and hardness—feelings that work against possible reform.
A well-known objection is the claim that it is possible to inflict suffering on one who does suffering to others. This argument would hold only if the offender made others suffer of their own free will. But that is never the case: nobody does anything; all of us are forced by external causes to do things. The same suffering would be caused, in other words, to other people by anyone of us influenced by the same causes.
Yet prison reform would, returning to the economic question, certainly save much money. Because everyone would be treated individually and we would seek to discover concrete causes that led to their act, there would be a greater chance that offenders “heal,” recidivism would be lower, and thus a large part of current prison and court expenditures would be reduced.
By tracking concrete causes in concrete offenders, it would also be found that some of them are incurable. These would be permanently interned. Certainly, they did not commit their act and internment causes suffering, but for reasons of social interest (their free movement would destabilize society, cause fear and suffering to others), it is necessary in their case. It hardly needs to be said that their isolation would need to be as dignified as possible and include elements that at least partly make life there tolerable. Their permanent isolation, causing them distress, should thus be compensated by some comfort, whether financial or otherwise. This is not absurd if we realize they could not commit their acts.
By reducing recidivism and permanently isolating incurable individuals, safety in society would also increase, with fewer criminal acts and less fear among ordinary residents.
As said above, money would be saved for persons who in the past committed some crime (they did not in fact commit it, but were driven by external causes to its commission), but it is now either certain or at least very probable that this crime will not be repeated in the future. The reason may be their illness, old age, or that the act was committed in an affective state that can strike anyone, and therefore there is no reason to imprison them and not, perhaps, all of us. Every person is, because governed by emotions they do not control (since we are all unfree, no one has completely free control over anything), potentially dangerous.
For offenders in whom it is found that their act was caused by a cause that will not recur (because it was incidental and external or because it was only a temporary deviation from the norm, as in the already mentioned affect), treatment should be entirely discontinued. There is no reason for it, and in addition the state would save money.
It should be noted that when I speak of “offenders,” “sick people” who “committed” some “crime,” I speak only metaphorically. No one can do anything, and no one is therefore more of an offender than anyone else; all are passive objects, so all are in the same position. Some, however, were randomly—because without anyone’s intention, without one’s own intention, without intention of God or nature or universe—“fated” by a random causal chain necessary for both themselves and society, which determined them to behave in ways harmful to society. They are absolutely not at fault; it is still necessary, where possible, to change them so that such behavior does not occur in the future.
Our natural language already presupposes human freedom in advance and is therefore based on error. This error permeates many linguistic structures on many levels (semantic, pragmatic, and grammatical, where the human is conceived as both logical and grammatical subject, that is, actor of the sentence) with which we describe human behavior. No one can truly “commit,” “do,” “perform,” “create,” “carry out,” “cause,” or “bring about”; no one can be a real “offender,” “causer,” “perpetrator,” etc. These are all erroneous concepts flowing from erroneous knowledge. In reality, only through some people (without their merit, effort, or guilt) do acts occur that cause others to suffer. It is therefore necessary to transform those people so that this does not happen in the future. The analogy with infection is obvious: a person with an infection does not infect others intentionally, nor can he be blamed for having that infection, but through him other people are infected through no fault or blame of their own. So we should treat him, not punish him. The same is true for people today mistakenly called “criminals.”
It is necessary to explain this situation to “offenders” and “convicts” so that they do not fall into feelings of guilt, humiliation, or even pride in their act. They should be told that they suffer from a kind of “social illness,” for which they are not responsible, and that we will try to cure it. They should also be informed about prognosis and course of treatment, i.e., a correctional program. Certainly not drastically, as in A Clockwork Orange, but with attention to their human dignity and human rights. Wherever possible, suffering caused by treatment should be compensated differently, through some valuable and dignified form of relief.
Economically, their treatment will surely be more costly in that each must be approached individually, as in hospitals or psychiatric institutions today, and specific causes leading to their act must be sought and tried to be removed. This process, however, may be more effective, minimizes recidivism, will not care for those who are unlikely to repeat their act in the future, and will permanently isolate the incurable, making society safer.
Author: Doc. PhDr. Miloslav Jůzl, Ph.D Author, born in 1949, has long dealt with penitentiary issues, taught at universities in Brno and Prague, and currently works at AMBIS University in Prague. He is the author of many publications on penal and penitentiary themes.
References used:
DOLÁK, A. Netrestat, ale léčit. IMS Brno, 2010.
FOUCAULT, M. Dějiny šílenství. Praha: nakladatelství Lidové noviny, 1993. ISBN 80-7106-085-2.
JŮZL, M. Penitenciaristika jako věda žalářní. Praha: UJAK, 2017. ISBN 978-80-7452-131-7.
JŮZL, M. Základy pedagogiky. Brno: IMS Brno, 2010. ISBN 978-80-87182-02-4.
1See Libet (1983) or Koukolík (2010): if the brain is a system entirely controlled by physical laws, this is convincingly and persuasively argued by Searle (1992), Searle (1994), and Searle (2004). 2For this issue and the question of determinism in general, the film The Butterfly Effect (2004) provides a fine illustration. 3Cashmore (2010a), Cashmore (2010b), McEvoy (2010).