The (in)distinction between remand imprisonment and prison sentence: Revisiting pre-trial detention within Turkish youth justice system

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Abstract

Around 3.3 million people worldwide are in pretrial detention, and 14 million people are held in such detention per year. Despite the high numbers, remand imprisonment has received little attention in penal theories. Over the past couple of decades, Turkey has constructed high-security remand prisons for young pretrial detainees, indicating a transition towards securitization in the form of remand imprisonment. In these prisons, the element of ‘space’ and spatial control has taken precedence, while ‘labour/discipline’ and ‘time’ have lost significance, reflecting the securitization process. Research conducted in juvenile courts and prisons in 2014–2015 demonstrates how marginalized youth end up in remand prisons that have become social control facilities. Remand imprisonment is interpreted as a crime control and deterrence mechanism by both the prisoners and legal practitioners, and attains roles in crime control that correspond to the residual welfare regime.

Introduction

‘Remand prisoners’, ‘remandees’, ‘awaiting trial detainees’, ‘untried prisoners’, ‘unsentenced prisoners, ‘unconvicted prisoners’ and ‘pretrial detainees’ are all categories of prisoners who are incarcerated within the interrogation and prosecution process but have not (yet) been sentenced to prison. At any time, between 3 million (Walmsley, 2017) and 3.3 million people (OSF Justice Initiative, 2014) are incarcerated as remand prisoners worldwide. Moreover, per year, the pretrial detention process affects between 11 million (Dobbie et al., 2018) and 14 million people (OSF Justice Initiative, 2014) around the world. At least 410,000 children are held in detention every year in remand centres and prisons worldwide, and on any given day, there are an estimated 160,000–250,000 children in remand centres and prisons (Nowak, 2019). However, there are no systematic, year-by-year figures that distinguish between young people on remand and sentenced young people. The very specific nature of remand imprisonment has occupied little space in imprisonment and penal theories, or in critical criminology literature. Theoretical and empirical literature on juvenile pretrial detainment is limited (Walker and Herting, 2020). Certain developments regarding remand imprisonment in the Turkish youth justice system over the last couple of decades indicate the necessity to address it in penal theories.

Prior to empirical research, I observed three aspects of youth remand imprisonment in Turkey that led me to this inquiry. First, over the past couple of decades, high-security remand prisons for young pretrial detainees have been constructed. Officially called ‘Children and Young People's Closed Institutions for Execution of Punishment’, these remand prisons have been specifically constructed to separate young prisoners from adult prisoners, for the sake of the security of the former group. Children who have been found guilty and sentenced to imprisonment have been held in juvenile reformatories since the time of the Ottoman Empire in the late 19th century. Today, reformatories are officially called Juvenile Education Houses, and they are low-security, open-type labour-based prisons by design, in contrast to the high-security remand prisons. Gradually, the high-security remand centres have come to outnumber the low-security reformatories for convicted youth and have gained importance within the youth justice system. Second, the proportion of young prisoners who are on remand (as opposed to serving a sentence) has not been lower than 60% in the last couple of decades. Third, low-security Juvenile Education Houses work with intrinsic disciplinary rules and punishments. The most frequently practiced disciplinary punishment1 is to temporarily send the inmates to a high-security remand prison, where they are deprived of opportunities given by Juvenile Education Houses. These practices indicate that there are extra-legal socio-economic, historical and structural factors that cause youth remand imprisonment to acquire roles within crime control, beyond its legal definition.

The legal definition, i.e., the Turkish Code on Criminal Procedure, stipulates that suspects can be detained on remand if there is a suspicion they might flee, destroy, hide or change the evidence, or put pressure on witnesses or victims. Suspects can also be put on remand if they are accused of committing some specific crimes stipulated in the Turkish Penal Code, such as genocide, murder, sexual assault, aggravated theft, or crimes against the security of the state.2 However, there are judicial control mechanisms3 to be implemented before using remand imprisonment as a last resort.

The use of pretrial detention in Turkey has been problematized and addressed for individual cases, based on the definitions in the above Code on Criminal Procedure and the principles of the European Court of Human Rights (ECHR). Correcting individual cases enables some mitigation by fixing a court's decision. But the explanations of the (ab)use of remand imprisonment are restricted to the legislative framework. This framework remains limited in providing an analysis of how remand imprisonment attains roles beyond its original formalization. The resolution to use remand imprisonment requires an analysis of the implications of extra-legal socio-economic, historical and structural factors. I propose scrutinizing the (in)distinction between remand and sentenced imprisonment and considering remand imprisonment, itself, within crime control rather than confining it to bureaucratic definitions in law on the books. I revisit the problematization of remand imprisonment and demonstrate how it acquires roles in crime control in relation to transformations in Turkey's political economy and its welfare regime.

Revisionist theorists of imprisonment (Rusche and Kirchheimer, 1939; Foucault, 1977; Melossi and Pavarini, 1981; Matthews, 2009) have revisited the explanations of forms of punishment that imprisonment embodies and have proven that forms of punishment correspond to productive relations and political economy. Rather than explaining the transition from physical punishment of pre-modern times to imprisonment in modern times, in a modernizing, humanistic/moral approach, they have focused on the correlation between productive/economic relations and forms of punishment. Matthews (2009) particularly analysed imprisonment in the light of three elements, namely ‘space’, ‘time’ and ‘labour/discipline’. So far, the revisionist explanations have only considered the prison sentence, as it is the ultimate form of punishment. Can the revisionist literature elucidate the roles of remand imprisonment? And reversely, can everlasting remand imprisonment and prisons emerging only for defendants tell us something about modern penal theories and politics in terms of imprisonment's three elements? I propose scrutinizing remand imprisonment, both in youth justice4 and adult criminal justice systems, in relation to political economy and welfare regime.

In the following sections, I first provide an overview of the recent literature of remand imprisonment and how it relates with elements of time, space and labour/discipline. I then analyse the transformations in the Turkish youth prison regime in correspondence to Turkey's welfare regime and reveal the process in which remand imprisonment has acquired a central position in Turkish penal politics. After presenting the methodology, I provide the empirical findings from my research on Turkish youth courts and prisons (2014–2015), which reveal the indistinction between remand imprisonment and prison sentences in the perceptions and actions of both legal practitioners and prisoners themselves despite the clear separation in the legislation. The conclusion is a reflection on the relationship between the welfare regime and remand imprisonment.

Section snippets

Remand imprisonment in the policy documents and recent literature

Governments, civil society organizations5

Revisiting remand imprisonment through the elements of time, space and labour/discipline

Revisionist literature has shown how certain forms of punishment such as imprisonment tend to correspond to certain productive relations, such as the capitalist mode of production (Rusche and Kirchheimer, 1939). Like Foucault (1977), Melossi and Pavarini (1981) have seen the parallels between the prison as a technology of punishment and the factory as a site of production, both of which require discipline. While one explanation for the prison emerging as the major form of punishment with the

Revisiting Turkey's youth remand imprisonment with elements of labour/discipline, time and space

Convicted children are held in Juvenile Education Houses, which are open-type, low-security prisons based on vocational training that were first established in the late 19th century as reformatories. The original reformatories were founded primarily for destitute children, and are regarded as the first successful industrial training schools (Öztürk, 1995). Between 1933 and 1953, reformatories were ruled as labour-based prisons (Sipahi, 2006) and until 1995, a significant financial resource of

Methodology of the empirical study

The roles of remand imprisonment as interpreted by the legal practitioners and young prisoners, presented in the following section, are drawn from empirical research carried out in 2014 and 2015. The analysis of the meanings attached to youth remand imprisonment is based on the data generated from interviews with 50 young prisoners in 6 different prisons in 4 different cities, as well as interviews with 38 youth justice professionals, together with information from 65 hearings in 3 different

Within four walls: the irrelevance of being convicted

Before entering the field, I had expected to hear verbal insurrection from remand prisoners on their status as unsentenced prisoners. However, this did not emerge as a primary narrative. The vast majority of the young defendants did not make a distinction between remand and sentenced imprisonment. 48 out of 50 young defendants did not mention their right to presumption of innocence, and 49 did not question their legal status as a defendant in order to object to their incapacitation. In fact,

Conclusion

‘Living law’ (Lin and Shen, 2016), reveals an indistinction between remand imprisonment and imprisonment for convicts. If one of the objectives of the contemporary justice system is to develop strategies of containing the unwanted, remand imprisonment appears to be the means to achieve this end in the interpretations of youth justice professionals. This process is not necessarily the result of deliberate calculations of an oppressive central governmental regime, i.e. its hidden purpose.

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