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Abstract
This paper explores the potential for deploying the discourse of human rights to invigorate debate about the ethics of penal practices and in particular the values of probation. Human rights are argued to be the most promising basis for an ethically principled opposition to both excesses of punishment and an unduly instrumental understanding of penal practice. Recent themes in penal policy are identified and an account of human rights is set out. It is argued that human rights are distinctively important in discussions of punishment and that an attempt should be made to disentangle those rights that are appropriately forfeit as legitimate punishment and which rights should be retained. Two misgivings about human rights are identified and addressed. The place of the Council of Europe in working out the real-world implications of the European Convention on Human Rights is considered. The Council of Europe can also help to develop a legal framework to support its ethical initiatives. It is concluded that penal practice grounded in human rights affirms the responsibilities of offenders and therefore constitutes an appropriate penal communication. Ethically informed penal practice promotes legitimacy and perhaps enhances effectiveness in reducing reoffending.
Key words: Human Rights, Penal Policy, Probation, Council of Europe, Probation Values
In this paper, I argue that the discourse of human rights represents the most promising basis of a strategy to reaffirm the suppressed significance of ethics in penal policy against both the excesses of punishment and a preoccupation with instrumental outcomes. Having identified some recent influential themes in penal policy, I put forward a particular conception of human rights, arguing that we can enrich penal debate with these ideas and principles. It will be suggested that the aspirations of the Human Rights Act, in the realm of penal policy at least, have to a large degree been frustrated. After offering some reasons for this disappointment, I consider ways in which human rights discourse might be more effectively deployed. It will be argued finally that the values of probation could - and perhaps should - be framed in the language of human rights.
Themes in Penal Policy
Cavad ino and Dignan have usefully identified three dominant 'strategies' that have influenced penal policy in recent years (Cavadino and Dignan 2008;...