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The current appliance of the power to punish can be considered to beillegitimate when it is claimed to create too many inherent infringe-ments of human rights, when dehumanising penal regimes and brutal-isation are considered to be endemic to operational practice, when itPENOLOGY156Scott(Penology)-3644-Part-II-b.qxd 10/15/2007 7:10 PM Page 156
inevitably exceeds certain tolerable pain thresholds, or when it isbelieved to be entirely misapplied or that it inappropriately punishescertain categories of harm or wrongdoers. There are subsequently twodimensions to this ‘crisis of penal legitimacy’ (Fitzgerald and Sim, 1982):•political legitimacy;•moral legitimacy.Fitzgerald and Sim provide a classic statement of the crisis of politicallegitimacy:the sanction of imprisonment is invoked consistently against marginal, lowerclass offenders. In so doing, imprisonment serves a class-based legal system,which first, defines the social harm which are signalled out for punishment,and second, invokes different types of sanctions for different categories ofsocial harm.(1982, p. 24)For abolitionists such as Joe Sim, imprisonment cannot be understoodoutside of social context—i.e. the social divisions and structuralinequities of society around racism, sexism and poverty. Because we lockup the poor, the vulnerable and the powerless, rather than the mostdangerous, prisons do not do what they claim to do. In this sense, theyare politically illegitimate.The morallegitimacy of imprisonment has also been questioned. ForBarbara Hudson and a number of abolitionists from ContinentalEurope, imprisonment must be understood within the wider debates onpunishment (the intentional imposition of suffering). The very deploy-ment of the punitive rationale and punishment itself, rather than theliberal reductionist concerns with prison conditions or standards,become the central focus of a moral critique. For many abolitionists, thedeliberate infliction of pain is inherently morally problematic and so thepenal system also faces a crisis of moral legitimacy.The term ‘neo-abolitionism’ was first introduced by Dutch abolition-ist Rene van Swaaningen. Some neo-abolitionists (Scott, 2006) arguethat prisons are profoundly immoral and represent the negation ofhumanity, on the bases that:•the label ‘prisoner’ constructs a dehumansing context;•the pains of imprisonment are structured, and present inherent threats tohuman dignity and respect;•prisons are a spatial matrix that is predicated on violence and legalised terror;•prisons dehabilitate people.157FUTURE DIRECTIONS AND ALTERNATIVE VISIONSScott(Penology)-3644-Part-II-b.qxd 10/15/2007 7:10 PM Page 157
The prison is an inherently harm-creating environment that has directimplications for the health of those confined. For anti-prison critics,penal institutions are detestable solutions that we can live without—andthis implies their deligitimation.