Leiden Law Blog

Punishing foreign national prisoners: deportation instead of resocialisation?

Punishing foreign national prisoners: deportation instead of resocialisation?

Criminal punishment serves various aims. Besides retribution, deterrence and the protection of society, rehabilitation is generally considered a fundamental principle of penitentiary law throughout Europe. Article 6 of the European Prison Rules states that “all detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.” And although there is no codified right to rehabilitation in the European Convention on Human Rights (ECHR), the European Court of Human Rights (ECtHR) has in recent years increasingly stressed that rehabilitation should be a crucial element of punishment.

In the Netherlands the principle of rehabilitation is commonly referred to as re-socialisation. Although not a legally enforceable right, it is generally considered that it takes a central role in the implementation of punishment. The principle is codified in Article 2 paragraph 2 of the Penitentiary Principles Act, which obliges the government to make sure criminal sanctions are carried out in a way that prepares the person involved for his or her return in society. Yet starting in the 1980s the country has experienced what has been referred to as a ‘punitive turn’, resulting in less focus on resocialisation and education possibilities. Imprisonment was on the rise and prison regimes turned considerably more austere.

A bifurcated reality

Yet this is not the whole story. Strong decarceration has in recent years resulted in lower prison rates across the board and resocialisation is still considered an important aim of punishment for at least some groups of prisoners. Penal policy in the Netherlands thus rather seems to be characterised by a process of bifurcation, with ‘inclusive’ sanctions for some groups of offenders and ‘exclusive’ sanctions for others. Whereas the first type of justice is aimed at keeping offenders in society, for example through reintegration activities, the second type is reserved for offenders who are deemed incorrigible and aims to refrain them from participating in society.

The division between these two types of justice runs along various lines, but becomes particularly clear in the management of foreign national prisoners without residence rights. Being both criminals and unauthorised migrants, these prisoners are confronted with both criminal law and migration law enforcement. As they are not allowed to stay in the Netherlands, non-custodial sanctions are normally not an option for these offenders. Once imprisoned resocialisation activities are generally not offered to them, as they are not supposed to return to the Dutch society.

Punish and deport?

As legal citizenship is a defining factor for the division between social inclusion and penal exclusion, matters of identity become a central part of the contemporary prison regime. Since a couple of years the Netherlands has a specific prison for foreign national prisoners. Located in the small town of Ter Apel, in the North-eastern part of the country, it houses only male prisoners who have been convicted for a criminal offence and are not allowed to stay in the Netherlands. This includes people who have been arrested at the border, people who were already staying illegally in the country and people who were legal residents but lost their residence permit as a result of their criminal conviction. With at least sixty different nationalities, it is a very diverse and multicultural prison.

The prison regime in Ter Apel is considerably more austere than in other Dutch prisons, mainly due to a lack of activities aimed at resocialisation. Prison officers I interviewed struggled to find satisfaction in their work, as preparing prisoners for their return to society is normally an important part of their job. Whereas from a migration control perspective it makes sense to exclude unauthorised migrants from activities that are aimed at preparing prisoners for their return into society, such policies do seem to challenge penal principles that for a long time were considered to be of fundamental nature.

The primary rationale for placing these prisoners together is to work more effectively on their deportation from the Netherlands. Making sure foreign national prisoners are able to leave the Netherlands at the end of their prison sentence means they do not need to be subsequently transferred to immigration detention. Therefore the Repatriation and Departure Service (DT&V) is embedded in the prison in Ter Apel. The prison thus takes on a whole new role, as deportation comes to constitute a central aim.

The how and why of punishment

The Netherlands is far from unique in this regard. Both Norway and the United Kingdom also have separate prisons for foreign nationals. And in recent years various European criminologists have documented how the growing intersection of punishment and migration control has fundamentally altered the nature and aim of imprisonment for foreign national offenders. In particular, punishment seems to take on aims that are traditionally within the realm of migration control. As a result, imprisonment is no longer meant to prepare prisoners for their return into society, but to permanently exclude them from the territory.

Over the last decade the number of foreign national prisoners has been on the rise in most Western European countries. In the Netherlands this group currently constitutes slightly over 22% of the total prison population. As processes of globalisation and increased international mobility are likely to keep presenting significant challenges to traditionally domestic criminal justice systems in the near future, we cannot understand the how and why of contemporary punishment practices without engaging with issues of citizenship and migration control.

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