Voices from Inside: The Role of Soft Civil Oversight in Regulating Prisons in Japan and the Australian Capital Territory
Creators: name: Lawson, Carol
Publisher: name: The Australian National University
Year: 2024

description: States increasingly respond to public demands for scrutiny of prisons by establishing civilian monitoring bodies. This regulatory trend began after World War II, when European human rights advocates argued that civil oversight prevents abuses and promotes prison reform. Their sincere belief and the mechanism's rhetorical appeal led to rapid diffusion, aided by the 2002 Optional Protocol to the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT). This thesis examines 'soft' civil oversight, the simplest, purely persuasive form of the mechanism. Soft oversight bodies are included in the National Preventive Mechanism (NPM) networks that OPCAT state parties must establish. As soft mechanisms rely on dialogue and voluntarism, they seem to fit at the base of Ayres and Braithwaite's 'regulatory pyramid' (1992). However, theorists like Hood (2004) have warned that inspection and monitoring bodies are ineffective against risky government activity - and there has been almost no evidence of their efficacy in prisons. This mixed methods empirical study put soft civil oversight's commendable aims respectfully aside to investigate its nature and impact. It gathered data on the lived experience of 2,700 prisoners, staff, and overseers who animate these mechanisms at 50 prisons in Japan and the Australian Capital Territory (ACT). The study analysed these data using Valerie Braithwaite's social alignments and motivational postures theories (2017), which establish that persuasive mechanisms 'run on goodwill'. Regulatees - here prison staff - tend to cooperate with persuasive mechanisms when they see them as legitimate, beneficial, fair, and worthy - and otherwise resist, disengage, or 'game' their response. Japan's design emerged as rigid, minimalist and relying on community norms, while the ACT's flexible, expansive, human rights-oriented design seemed exemplary. Yet empirical analysis of the nature of both mechanisms in prisons revealed a shared defect that excluded both from the regulatory pyramid: they were designed to police, not to persuade. The findings on impact were also discomforting. Putting symbolic benefits aside, staff perceptions of benefits were greater in Japan and limited to public relations gains. No staff or prisoner cohort had experienced human rights protection or improved prison conditions. Only overseers - the least well informed of the three cohorts - perceived a wide range of benefits for prisons, prisoners, staff, and the public. There were also unintended consequences: excessive, frustratingly pointless workloads for staff and overseers; and negative psychological impacts for all three cohorts. Most notably, staff found the mechanisms intrusive and disrespectful, while they generated distrust and disillusionment in prisoners. Crucially, staff in both jurisdictions saw soft civil oversight as lacking credibility, fairness and moral resonance - and expressed resistant, disengaged or 'game-playing' responses. These sobering findings confound our expectations and will dismay those who advocate for human rights in prisons. Fifteen years after Japan and the ACT introduced soft civil prison oversight, it seems that it may be more provocation than panacea - with Japan's minimalist design indicating a prudent, not laggard, state. The study concludes by offering a pathway forward: a collaborative, co-regulatory approach to soft civil prison oversight that will suit jurisdictions wanting to achieve cost-effective regulation. This approach would include public interest groups, secure compliance in many cases, and achieve public relations gains - without alienating staff and prisoners. What is more, optimising soft mechanisms in this way will bring them within the regulatory pyramid and facilitate escalation to more resource-intensive and coercive measures in cases of non-compliance - including 'smart' networked arrangements that leverage 'hard' mechanisms.