The Architecture of Prisons: The Built Space of Confinement

As lawyers, busy with our files, hunched over case law, we seldom stop to think about the other disciplines connected to our world. Sure we think about other areas if we have a specific reason too. As evidenced by the Goudge Report, which cautions lawyers to take a deeper view of expert evidence particularly medical evidence, other worlds do collide in the courtroom. But, what we really fail to consider is the construction of our legal world: who builds it and how.

In a previous blog, I wrote about the courtroom as a bounded space and what that means in terms of public perception and how we, as lawyers, bridge that spatial divide. In this posting, I want to take that built space further and talk about the built space of confinement – prisons.

This subject matter came to me through familial connections – my son is studying architecture and he has shared with me many an interesting article. CLOG, a thematic architectural digest, recently released the CLOG: PRISONS edition. It’s an immensely interesting read and I encourage you to go straight to your nearest bookstore and purchase it or purchase online here.

 

You can’t miss the book – it’s dressed in bright orange – for two reasons: orange is the ubiquitous colour of many remand jumpsuits (as in orange is the new black) and it also happens to be the primary colour, along with bright blue, of the Schie Penitentiary in Rotterdam (as in orange is The Netherlands national colour – think William of).

The facility designed by architect Carel Weeber also designed the controversial Peperklip housing in Amsterdam and is at the forefront of social housing design, which is not such a short step to designing a prison. However, in this instance, the somewhat colourblind Weeber tapped master colourist and visual artist, Peter Struycken, to lend the colour ambiance. Schie is truly a study in post-modernism.

Instead of merging into the background, as the Metropolitan Correctional Centres do in Chicago, New York, and San Diego through their stylistic skyscraper image, the Rotterdam jail rushes out to say “we are here.” 

Also present is the necessary bike path to the entrance. However, what works for the outside is not necessarily what works for the inside: jails will always serve two communities, the public, who desire the separation, and the offenders who loathe it. Once, the interior of the Schie facility shone out as well with exuberantly coloured walls – a cross between a Matisse painting and a Keith Haring jig – but after prisoners’ protests, the walls were re-painted a calming grey – prison grey to be exact. So much for the hipster imagined prisons.

Arrestingly, CLOG opens with Editor Jacob Reidel’s smart piece on prison barges with a fascinating look at the historical significance of the prison afloat. He starts with the newest version found in NYC at the Vernon C. Bain Correctional Centre (VCBC), an 800 person jail barge, which is part corrections and part navy, a throwback to the galley prisoner, who could choose death or a life of fortitude aboard Europe’s most magnificent battle ships.

 

Insightfully, Reidel ends his piece with these words:

The prison ship therefore perfectly exposes the tenuous relationship between prisons and what is most valued in architecture. If 200 years ago buildings assumed a role once left to ships, the VCBC’s resumption of the role exposes the sad failure to improve the purpose and architectural reality of incarceration. Like the stacked container ships the VCBC resembles, the modern prison remains a space for storage and removal.

The containment theme is continued in the article on solitary confinement by Aaron White and how the building of the first such prototype jail, Pennsylvania’s Western State Penitentiary, conceived by architect William Strickland in 1818, became the first design to describe the punishment as well. It was demolished in 1833 as an obsolete structure of faux experimental social policy.

Interestingly, Strickland also designed the idyllic United States Naval Asylum. It is of course the ideal, which Strickland and others were attempting in the 1800s based upon the ideal form of justice, theorized and designed in the late 1700s by non-architect social theorist, known to all lawyers, Jeremy Bentham. Bentham’s Panopticon, the penultimate design for social control would be the model of reform into and past the Victorian era. Bentham’s vision, where the ideal and the idyllic live in constructions in the clouds, is succinctly felt in The Panopticon Writings:

Morals reformed - health preserved - industry invigorated, instruction diffused - public burthens lightened - Economy seated, as it were, upon a rock - the gordian knot of the Poor-Laws are not cut, but untied - all by a simple idea in Architecture!

CLOG: PRISONS gives us a mere visual clip of the features of erecting space: the social policy driving the design, such as the Egyptian theme of John Haviland’s New Jersey State Prison in Trenton and the moral dimensions of designing Guantanamo Bay. I would therefore add Clog’s Prisons to my earlier list of essential criminal lawyer’s reads. If we are part of the system, which sends people to prison then we have an obligation to understand what that means. 

Parties Part 2 – Common Intention: Episode 24 of the Ideablawg Podcasts on the Criminal Code of Canada

Last episode I introduced the concept of parties in criminal law and we discussed in detail section 21(1) of the Criminal Code, which describes when an accused person becomes a party as an aider or abettor. In this episode, we will look at section 21(2), which is a more general party section relating to the common intention between two or more persons. Caution: do not confuse this section with the inchoate or unfilled crime of conspiracy. They are not the same and in fact a person can be a party to a conspiracy by aiding and abetting the conspirator but we will get to that way down the road when we finally reach section 465.

Section 21(2) reads as follows:

Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. 

This section is jammed packed with information. First, the section refers to “an intention in common” or what we will call a “common intention.” Typically, and strategically, this section is used when the principal accused person has committed crimes beyond which the parties intended to aid and abet and the party “know or ought to have known” those acts “would be a probable consequence of carrying out the common purpose.”

This section is jammed packed with information. First, the section refers to “an intention in common” or what we will call a “common intention.” Typically, and strategically, this section is used when the principal accused person has committed crimes beyond which the parties intended to aid and abet and the party “know or ought to have known” those acts “would be a probable consequence of carrying out the common purpose.”

“Unlawful purpose” simply means contrary to the Criminal Code. The actus reus is not confined to the specific offence the principal commits and may be any included offence. So, a principal may be convicted of robbery but a party may be acquitted of the robbery but convicted of the lesser-included offence of theft. The same reasoning applies to murder and the lesser-included offence of manslaughter but before we discuss that, let’s discuss mens rea of the section.

Second, is the mens rea requirement. The Crown must prove beyond a reasonable doubt a formation of the common purpose and knowledge that the offence would be a probable consequence of carrying out the unlawful purpose. As there are two categories of mens rea - objective or subjective – the Crown must prove either subjective knowledge, for those offences requiring subjective mens rea, or objective forseeability for those offences requiring objective mens rea.

We have not as yet discussed the difference between these two types of criminal liability. I have written previous blog postings on this issue in The Subjective/Objective Debate Explained and in Is This The End of Subjective Intention? The Supreme Court of Canada and the Walle case. I encourage you to review these postings for more details for further explanation but for our purposes, I will give you a fairly brief definition.

The subjective standard requires the Crown to prove, beyond a reasonable doubt, that the accused intended his or her actions while the objective standard requires the Crown to prove, beyond a reasonable doubt, that a reasonable person would have not acted as the accused did in the circumstances of the case. By using a standard of reasonableness as opposed to this particular accused person’s intent, the objective liability is a lower standard of liability and therefore easier for the Crown to prove beyond a reasonable doubt. As a result of the Charter, however, certain crimes must require subjective liability and cannot require objective. Murder is the best example of a purely subjective liability offence. However, the lesser-included offence of manslaughter is considered an objective liability offence, which only requires an objective forseeability of bodily harm.

This difference in mens rea is important for s.21(2) parties. If an accused is charged under the section as a party to a murder, the Crown must prove beyond a reasonable doubt that the accused “knew that the commission of the offence would be a probable consequence of carrying out the common purpose” NOT “ought to have known.” If, however, the accused is considered a party to a manslaughter, then the “ought to have known” phrase applies as it signifies an objective standard.

For punishment purposes, a party faces the same punishment as the principal although a party’s sentence may be lower than that of a principal based on lesser participation in the crime.

Next podcast, we will discuss section 22 and counseling a crime that is committed.

Episode 24 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 21(2) Common Intention Parties