Decisions of the courts have the potential to alter penal policies in radical ways. As the Plata litigation before the Supreme Court of the United States has shown, judicial decision making can disrupt policies of penal expansionism, and even reshape how prison is conceived of. While this is so, criminology has paid rather limited attention to litigation as an influence on the penal policymaking process, and also to judicial decision making as an indicator of a state’s penal culture.
The Irish experience of prison litigation is developing slowly, but a series of cases have determined the contours of how the judiciary conceives of the rights of prisoners. These statements are essential to the legal regulation of Irish prisons, but are also important sources of understanding about the nature of Irish penal culture and practice. This blog traces the development of judicial discussion of whether and how prisoners are holders of rights in Ireland.
Several decisions have held that, while imprisonment inevitably involves the deprivation of rights, those rights which are not necessarily diminished must continue to be upheld.
In Mulligan v. Governor of Portlaoise Prison the High Court held:
any attenuation of rights must be proportionate; the diminution must not fall below the standards of reasonable human dignity and what is expected in a mature society. Insofar as practicable, a prison authority must vindicate the individual rights and dignity of each prisoner”.
In Murray v. Ireland it was held that the rights which may be exercised by a prisoner are those which do not depend on the continuation of liberty, and which are compatible with the reasonable requirements of the Prison Service or do not impose unreasonable demands on it.
In Holland v. Governor of Portlaoise Prison it was held that a prisoner is obliged to suffer such restrictions on constitutional rights as necessary to accommodate the serving of a sentence. Subject to this proviso however, McKechnie J held that all other rights should be capable of being exercised. McKechnie J also considered prisoners to have the right to free communication, the right to practice one’s religion, and the right to natural and constitutional justice, holding that this was not an exhaustive list. The court reiterated that any restrictions on the constitutional rights of prisoners must be proportionate.
In Devoy v. The Governor of Portlaoise Prison Edwards J recognised the broad discretion vested in each Governor, but held that:
the application of the Rules must be in a manner which is respectful of and intended to vindicate the constitutional rights of the prisoner to the extent that they are not abrogated or suspended by the very fact of his being sentenced to a term of imprisonment. Among the residual constitutional rights of a prisoner which are not abrogated or suspended is the right to be treated humanely and with human dignity.
Perhaps some of the most uplifting language on the rights of prisoners is to be found in Connolly v. Governor of Wheatfield Prison where Hogan J held:
The obligation to treat all with dignity appropriate to the human condition is not dispensed with simply because those who claim that the essence of their human dignity has been compromised happen to be prisoners….
For even though prisoners may have strayed from the path of righteousness and even though … they may have severely and wantonly injured other persons, the protection of the dignity of all is still a vital constitutional desideratum. This is because the Constitution commits the State to the protection of these standards since it presupposes the existence of a civilised and humane society, committed to democracy and the rule of law and the safeguarding of fundamental rights. …
All of us are, of course, sadly aware of the great failures of the past and the present where these rights seemed and seem like hollow platitudes. But this is not quite the point, since it is by upholding these values and rights that we can all aspire to the better realisation of the promise which these noble provisions of the Constitution hold out for us as a society.
In Kinsella v. Governor of Mountjoy Prison the High Court had no difficulty in accepting that a prisoner has a right to bodily integrity and that this right encompasses a person’s psychological wellbeing.
We may well see the judiciary becoming a more influential factor on penal policymaking. As Justice Kennedy in Plata held:
A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.
If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment [prohibiting cruel and unusual punishment] violation.
These statements are crucial indicators of our approach to the treatment of prisoners. They deserve greater attention within criminological scholarship. Furthermore, we must never lose sight of the fact that lawyers and judges engaged in prison law cases play an essential role in ensuring accountability and the upholding of the rule of law in places which are very far from public view.
 Brown v Plata, 131 S. Ct. 1910, 1923 (2011).
 See further, Simon, Mass Incarceration on Trial, The New Press, 2014.
  IEHC 269.
  ILRM 465.
  2 IR 573.
  2 IR 573, at p. 594.
  IEHC 288.
  IEHC 288, at paragraph 88.
  IEHC 334 Paragraphs 15-18. Internal citations omitted.
  IEHC 235.