Introduction
The intrusion of the law in prisons and jails is now commonly viewed as one of the major forces transforming contemporary correctional institutions. Depending on national contexts, the law intervenes primarily through two sources: domestic litigation—most notably, in the United States since the 1960s (Jacobs Reference Jacobs1980; Di Iulio Reference Di Iulio1990a; Feeley and Rubin Reference Feeley and Rubin2000; Simon Reference Simon2014)—and the importation of human rights standards by courts and international organizations. The latter are often adopted in countries reliant on international aid (Martin Reference Martin2014; Jefferson and Gaborit Reference Jefferson and Stoltze Gaborit2015; Piacentini and Katz Reference Piacentini and Katz2017). Both sources have shaped prison law in Western Europe, and France is no exception. Since the late 1990s, new norms regulate life in French prisons, and new actors have emerged to enforce them (Salle and Chantraine Reference Salle and Chantraine2009; Bérard Reference Bérard2014). Starting in 1995, the French administrative courts began claiming jurisdiction over an increasing number of prison decisions. Administrative agencies, such as the Ombudsman and the General-Controller of Places of Deprivation of Liberty, are tasked with responding to complaints by incarcerated individuals (Durand Reference Durand2014). Additionally, legal precedents set by the European Court of Human Rights impact incarceration policies and national courts’ jurisprudence (Durand, Suremain, and Ferran Reference Durand, de Suremain, Ferran, Cliquennois and de Suremain2017). This landscape has even led socio-legal scholars to suggest that European prisons are now under intense scrutiny, caught in a sort of “inverted Panopticon” (Cliquennois and Snacken Reference Cliquennois and Snacken2018). This article explores how these changes in the legal landscape have affected power relations within correctional facilities.
From an ethnographer’s perspective, the law’s influence behind bars is somewhat paradoxical. Prison is a “legal-institutional context” (Calavita and Jenness Reference Calavita and Jenness2013, 52), and individuals convicted or accused of crimes interact continuously with aspects of the law and law enforcement: they have been arrested by the police, prosecuted and defended by attorneys, and sentenced by judges. Additionally, many prisoners interact with various welfare agencies before their incarceration and, once imprisoned, rely on the prison administration for nearly every aspect of their daily lives.Footnote 1 Yet, despite unprecedented levels of intervention from external legal authorities, this article’s empirical findings suggest that the role of the law in daily interactions between prisoners and prison officials may be overstated or at least misplaced. While talk of taking legal action does occur quite frequently in prison corridors and offices—prisoners often critique the prison environment in terms of how it deprives them of their basic rights, as has been noted elsewhere (Calavita and Jenness Reference Calavita and Jenness2014; Rudes et al. Reference Rudes, Magnuson, Ingel and Hartwell2021)—actual legal actions are scarce, and interactions with staff rarely involve reference to the law.
Law is both “all over” (Sarat Reference Sarat1990) and hard to locate. Where, then, is the unsettling “force of the law” to be found (Bourdieu Reference Bourdieu1984)? Law can take many forms: a body of formal norms; a language of entitlement in various discursive settings; a set of procedures, some used in court; or even a kind of formalization of social relations within written, standardized, and enforceable communications. Below, I explore which aspects of the law might have transformative power within prison life and what their effects might be. This approach offers a different perspective from examining how prison officers’ everyday decisions constitute “rights-in-between” (Rudes et al. Reference Rudes, Magnuson, Ingel and Hartwell2021) as it will show how legal references, procedures, and formats shape everyday practices and relationships in prison.
Building on Robert Kagan’s (Reference Rosenberg1991) theorization of “adversarial legalism,” I argue that the material and rhetorical shadow of the law—a distorted presence cast upon spaces where the actual thing is absent or elusive—has more force in guiding everyday prison interactions than does actual legal action. In France, interactions between incarcerated individuals and prison officials are marked by instability, oscillating between the distance and impersonality of legalism and the interpersonal informality of asymmetrical negotiation. In this context, Kagan’s notion of adversarial legalism becomes inadequate; it falls short of describing this new relational economy where the formal shadow, or form, of the law is far more present than its actual substance. I introduce the notion of “adversarial formalism” to capture this new kind of party-influenced method of dispute resolution, where controlling the design, production, and storage of legal forms is a crucial resource.
Modes of policy making, sets of every practices, and relational economies
To that end, I build on Kagan’s (Reference Rosenberg1991) analysis of styles of policy making. His classification aims to capture the variation within an increasingly “legalized” and “judicialized” world, which includes prisons and jails (Barnes and Burke Reference Barnes and Burke2020, 474). The expansion of legal recourse for incarcerated individuals, including judicial remedy and grievance mechanisms, has indeed led Jeb Barnes and Thomas F. Burke (Reference Barnes and Burke2020, 477) to describe prison litigation as one of the “classic examples” of what Kagan (Reference Rosenberg1991) calls “adversarial legalism”. The notion describes the characteristics of policy making, policy implementation, and dispute resolution in the United States in contrast with the more centralized styles of government in Europe. The two main features of adversarial legalism are formal legal contestation, in which competing interests invoke legal rights and pursue formal legal actions such as litigation, judicial review, or judicial remedies, and litigant activism, in which plaintiffs, rather than judges or public officials, drive legal contestation (Kagan [Reference Kagan2001] Reference Page, Phelps and Goodman2019, 10).
Adversarial legalism is analytically distinct from the other forms of governance and dispute resolution that Kagan names in its density of legal control—from informal to formal—and in the way in which it organizes authority—from hierarchical to participatory (see Table 1). It is similar in its degree of formality but more participatory than bureaucratic legalism, which relies on a hierarchical system in which the regulatory authority is a centralized bureaucracy designed for the uniform application of legal rules. Bureaucratic legalism is more formal and more hierarchical than Kagan’s category of negotiation and mediation, in which “neither procedures nor normative standards are dictated by formal law” (Kagan Reference Page, Phelps and Goodman2019, 11). Kagan’s concept of expert or political judgment involves hierarchical authority similar to adversarial legalism but lacks its formality. It could also be termed “arbitrary power” in a prison context. These are, of course, ideal types, whose heuristic potential depends on how they clash or converge with real-life governance systems.
Modes of policy making, policy implementation, and dispute resolution
Source: Robert A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge, MA: Harvard University Press, 2019).
Barnes and Burke (Reference Barnes and Burke2020, 474) emphasize that Kagan’s adversarial legalism is both “a structure of governmental authority” and “a set of everyday practices.” The tension between the two is uniquely heuristic in explaining how government structures are applied daily. As Kagan (Reference Page, Phelps and Goodman2019, 15–16; emphasis in original) notes, “[i]nstitutionalizing the methods or structures of adversarial legalism—that is, establishing the kinds of judiciaries, legal rules, and law firms that facilitate adversarial litigation—does not completely determine how often conflicting parties actually use those institutions.” This perspective allows us, as Barnes and Burke (Reference Barnes and Burke2020, 476) propose, to “think of Kagan’s [typology] as an inventory of individual variables as opposed to a fixed set of closely related characteristics” and “explore what happens when specific attributes of legal practice vary.”
This article examines interactions between prisoners and staff to see how changes in prison governance have affected their everyday practices and relations. To do so, I introduce the notion of relational economy to describe the “set of everyday practices” to which Barnes and Burke point and, more precisely, the relational practices between prisoners and staff. Though connected to the idea of a “moral economy” (Fassin Reference Fassin2009), a relational economy is not macro-sociological—in other words, defined on the scale of an entire society. Rather, it is a meso-sociological notion. Nina Eliasoph (Reference Eliasoph1996) described the public sphere as a tangle of discursive situations shaped by actors. Similarly, relational economies can be defined as an ensemble of relational practices by specific actors—in this case, prisoners and prison authorities. The notion encompasses the circulations, tensions, and adjustments among the various constraints that shape social relations within an organization or social setting.
My analysis of the prison relational economy builds on Kagan’s typology in two ways. First, it allows me to capture the complexity of prison relations as evidence of Kagan’s four ideal types can be observed in interactions between prisoners and staff. Second, I move beyond merely acknowledging the mixed nature of these relations to characterize the prison relational economy using Kagan’s theorization of legal control and its organization of authority. I propose adding a new ideal type to Kagan’s typology—that of adversarial formalism. This addition aims to clarify the ongoing debate on the tension between legalization and bureaucratization in prison policies, linking it to more ethnographic accounts of the informality present in prison relations.
Legalization, bureaucratization, and informality in prisons and jails
Gerald Rosenberg (Reference Rosenberg1991) claimed that even landmark litigation does little to change the social realities that it was intended to transform, and it may actually worsen them. His idea stirred significant controversy among socio-legal scholars, expanding the focus of what might be considered a consequence of legal action (McCann Reference McCann1994). As James Jacobs (Reference Jacobs1980, 429) noted, “[s]imple studies of compliance with judicial decrees do not capture the complexity of changes occasioned by legal activity.” Prison scholars have argued that, beginning in the 1960s, extensive litigation efforts in the United States resulted in decision-making systems that combined adversarial and bureaucratic legalism. One indirect consequence has been the increased bureaucratization of prison administrations and the professionalization of prison staff (Feeley and Rubin Reference Feeley and Rubin1992): “Despite the concern with individual rights, the language of prison conditions litigation—that of both plaintiffs’ attorney and judges—is the language of bureaucratic development” (Feeley and Swearingen Reference Feeley and Swearingen2004, 467).
Building on the notion of “legal translation,” Heather Schoenfeld (Reference Schoenfeld2010, 734) argued that court decisions undergo “back translation” during implementation. In other words, prison officials do not simply comply with court mandates; they translate these mandates into bureaucratic logic. A striking analysis of such translation is provided in Keramet Reiter’s (Reference Reiter2012) history of solitary confinement litigation in the United States. Reiter shows how litigation in the 1960s and 1970s led to court decisions that were incorporated into the design of a new custodial structure, the supermax prison. This structure proved to be not only as inhumane as, but also more resistant to litigation than previous forms of, solitary confinement (Reiter Reference Reiter2012).
The tension between adversarial and bureaucratic legalism extends beyond a simple contrast between US and European styles of policy making (Bignami and Kelemen Reference Bignami and Kelemen2018). It is at the heart of controversies over normative assessments of the indirect effects of litigation. Notably, Lauren Edelman (Reference Edelman1992) has argued that organizations “managerialize” their legal environment by building merely “symbolic structures” of compliance. Courts tend to devolve the protection of rights to these symbolic structures (Edelman, Uggen, and Erlanger Reference Edelman, Uggen and Erlanger1999). For example, in response to court decisions, businesses may develop structures that appear to respond to the new rights and grievance procedures but are tailored to their own needs and interests. The courts then recognize and legitimate these businesses’ actions (Edelman Reference Edelman2016).
The same phenomenon has occurred in prisons where internal “inmate grievance” policies end up serving “bureaucratic control purposes” (Bordt and Musheno Reference Bordt and Musheno1988), creating a semblance of compliance that is more illusion than reality—akin to a “Potemkin’s village” (Feeley and Swearingen Reference Feeley and Swearingen2004, Reference Feeley and Swearingen2018). However, Charles Epp (Reference Epp1998, 24–25) favored a more optimistic view of these two forms of legalism. He argued that they reflect an “aspiration to make legal rights real in the administrative state.” This effort becomes possible when activist pressure for law-based reform combines with conflict within managerial professions over how to create legalized accountability.
I argue that policy- and organization-centered approaches do not adequately describe the extent of the changes brought about by the presence of the law in daily prison life. In this, I build on Kitty Calavita and Valerie Jenness’s (Reference Calavita and Jenness2014) important research on the grievance procedures within the California Department of Correction and Rehabilitation. Drawing from interviews and text analysis, they tracked tensions in the logics of captivity and rights at the cultural, institutional, and daily management levels. They found that, while internal grievance systems were designed to limit prisoner litigation, they also “inevitably incorporated the prevailing logic of rights [and] serve as concrete and daily reminders to prisoners of their right to contest their treatment” (4). However, Calavita and Jenness (Reference Calavita and Jenness2014) focused only on a formal grievance mechanism and were not given the opportunity to observe how the logic of rights might be shaping and transforming mundane interactions between prisoners and staff, which, as Erving Goffman (Reference Goffman and Donald1961b, 76) observed, mostly “[take] the form of ‘gripes’ or requests from the inmate.” The “eclipse of prison ethnography” (Wacquant Reference Wacquant2002), however partial, in the United States and other countries has left a blind spot in our understanding of how legal norms actually impact correctional institutions and, more broadly, how organizations adapt to their changing legal environment.
Everyday interactions among prisoners and staff are best described, in Kagan’s typology, through the ideal types of negotiation and arbitrary power. In correctional institutions, daily interactions between prisoners and staff mostly comprise informal and asymmetrical negotiations. As early as 1958, in a monograph about a maximum-security prison in New Jersey, Gresham Sykes ([Reference Sykes1958] 2007, 57) observed that, when guards found themselves unable to enforce the daily routines of detention, they had to “make ‘deals’ or ‘trades’ with the captives in [their] power.” The centrality of direct negotiation has remained one of the most documented elements in prison studies from a variety of national contexts (Mathiesen Reference Mathiesen1965; Kauffman Reference Kauffman1988; Liebling, Price, and Shefer [Reference Kagan2001] Reference Liebling, Price and Shefer2009; Chantraine Reference Chantraine2004a; Ibsen Reference Ibsen2013). By distributing individualized privileges outside of any formal regulatory system, prison staff ensure that incarcerated individuals cooperate in day-to-day operations (Chauvenet, Orlic, and Benguigui Reference Chauvenet, Orlic and Benguigui1994; Symkovych Reference Symkovych2018; Rudes et al. Reference Rudes, Magnuson, Ingel and Hartwell2021).
Other scholars, however, have suggested that this is changing. They have documented a shift toward more bureaucratic, distant, and uncertain interactions, inflicting new “pains of imprisonment” (Crewe Reference Crewe2011) and augmenting the structural violence of prison life (Armstrong Reference Armstrong2020). A few studies have also explored the growing importance of written communication in prisoner-staff interactions (Goodman Reference Goodman2008; Calavita and Jenness Reference Calavita and Jenness2014; Chantraine and Sallée Reference Chantraine, Sallée, Deborah, Earle and Sloan2015). Yet this literature does not explain how the increased influence of the law on correctional institutions has fostered a new relational economy rooted in bureaucratic and adversarial legalisms. It also does not describe how these legalisms coexist with daily interactions that are based on negotiation.
Following the seminal work of Jack Goody (Reference Goody1977) and more recent developments in the anthropology of bureaucracy (Hull Reference Hull2012), I argue that the material environment for interactions between incarcerated people and correctional staff plays a crucial role in the reorganization of power relations in prisons and jails, far more than actual references to the law by prisoners or prison officers. While actual legal action is rare in prison life, my findings show that it is the threat of legal action that has changed the form of prison social relations. In response to these threats, prison administrations have become bureaucratized, which has given rise to countless registries, grievance forms, and written reports, further reshaping social relations. By the same token, the traditional relational economy of asymmetrical negotiation has also been challenged and redefined by increased traceability and an insistence on proof. All of this has created something different from the “adversarial legalism” that Kagan described. As my findings will show, the material and rhetorical shadow of the law changes the adversarial nature of negotiations within prisons and jails.
The case of French prisons
In terms of prison policy, France is neither extremely punitive nor characterized by “exceptionalism,” meaning that it is rarely held up as any kind of example (Ugelvik and Dullum Reference Ugelvik and Dullum2012; Reiter, Sexton, and Sumner Reference Reiter, Sexton and Sumner2018). Its prison population is average for European countries. With 73,162 detainees in May 2023, its incarceration rate was 106 per 100,000. These numbers are so starkly different from those in the United States that the two countries are difficult to compare: France is neither draconian enough nor progressive enough to be held up as a foil. But existing comparative studies have tended to idealize French correctional facilities by contrasting them with the extreme conditions in American facilities (see, for instance, Whitman Reference Whitman2005). Positively, a great deal of literature on French prisons and jails has been produced since the 1990s, providing rich accounts of the experiences of prisoners, their relatives, and correctional staff (Chauvenet, Orlic, and Benguigui Reference Chauvenet, Orlic and Benguigui1994; Combessie Reference Combessie1996; Rostaing Reference Rostaing1997; Le Caisne Reference Le Caisne2000; Chantraine Reference Chantraine2004b; Touraut Reference Touraut2012; Bouagga Reference Bouagga2015; Fassin Reference Fassin2017; Milhaud Reference Milhaud2017; Durand Reference Durand2023).
Comparative studies with other European countries have largely portrayed France as a “laboratory with regard to the legal protection of the rights of prisoners,” particularly regarding the inclusion of European monitoring in its system (Durand, Suremain, and Ferran Reference Durand, de Suremain, Ferran, Cliquennois and de Suremain2017, 37; see also Smit and Dünkel Reference Smit and Dünkel2001). Martine Herzog-Evans (Reference Herzog-Evans2020) claimed that this compliance is mostly formal as empirical analysis shows that the European standards for prisoners’ human rights are unmet in France. Similar arguments have been made about disciplinary action against prisoners (Céré Reference Céré2017). One reason is that, unlike for many of the country’s neighbors—the Scandinavian countries, Germany, or the Netherlands, for example—the French incarcerated population is still on the rise. In twenty years, the number of prisoners has increased by almost 50 percent, leading to dire overcrowding (a similar phenomenon is occurring in Italy and Belgium). In a landmark 2020 decision, the European Court of Human Rights found that French correctional institutions were engaging in “inhuman or degrading treatment.”Footnote 2 Their finding prompted high hopes for structural reform, but, so far, it has resulted only in a legal mechanism that allows prisoners deemed to be suffering from inhumane and degrading conditions to be moved to another facility, with no guarantee that living conditions there will be any better.
Prior to and now alongside European standards, the French court system has gradually expanded its role in protecting prisoner rights. In 1995, a significant court decision allowed prisoners to appeal in court the decisions made by the correctional administration, opening the first breach in the notion of “mesure d’ordre intérieur,” which had shielded correctional decisions from judicial scrutiny for over half a century.Footnote 3 This ruling determined that courts could now review questions over the legality of punishments.Footnote 4 Court oversight has since broadened to include other aspects of prison life, including solitary confinement,Footnote 5 transfers to higher-security facilities,Footnote 6 and regular transfers of the same individual to prevent escapes.Footnote 7 Additionally, the state can now be held liable for suicides,Footnote 8 accidental death by fire in a cell,Footnote 9 and damage to personal belongings.Footnote 10
Most of these decisions were won through activism and legal action by prisoners’ rights groups and other non-governmental organizations (NGOs). One of these, the French section of the International Prisons Observatory has been key in many of these cases, often guiding court actions to maximize their impact on policy (Commission Nationale Consultative des Droits de l’Homme 2014; Cliquennois and Herzog-Evans Reference Cliquennois and Herzog-Evans2018; Durand and Israël Reference Durand and Israël2022). The significance and breadth of these court decisions certainly show how important adversarial legalism is in France. However, many argue that litigation alone cannot fundamentally change prison conditions because French administrative courts are reluctant to order measures that are not directly tied to particular cases (Ferran Reference Ferran2015). While the scope of “mesures d’ordre intérieur” is shrinking, it still affects important aspects of prison life (Habouzit Reference Habouzit2022). Additionally, security concerns have given prison administrators broad discretionary power (Péchillon Reference Péchillon1998), even within areas that are heavily regulated, such as the punishment of prisoners (Céré Reference Céré2011; Fouchard and Simon Reference Fouchard and Simon2024).
Alongside these incremental judicial changes, other reforms have been led by the correctional administration itself and by Parliament. A notable example is the landmark legislation passed in 2009 that instituted a code of ethics for correctional staff and extended the rights of incarcerated people. Though vague, these rights included somewhat expanded access to voting in elections and to collective expression inside prisons and jails (Poncela Reference Poncela2010; Chabbal Reference Chabbal2016). Moreover, that same year, the French prison administration voluntarily adopted a truncated form of the European Prison Rules adopted by the Council of Europe in 1973 (Snacken Reference Snacken2015). Since the Council of Europe’s 308 rules (in 2006; they were last updated in 2020) are not mandatory, the French prison administration selectively implemented eight of them in amended form, claiming that these were “priorities” chosen “for their ability to help the prison system evolve.”Footnote 11 One of these priorities was the “introduction of a formalized procedure for handling and monitoring grievances”Footnote 12 in all prisons and jails. The back-translation dynamic identified by Heather Schoenfeld (Reference Schoenfeld2010) was obvious here; most notably, the new grievance system did not allow appeals to an independent authority. The system created set channels for routing grievances through specific submission forms and processing software. The process ensured traceability by registering and archiving all correspondence related to the requests. These steps were aimed to standardize and control the practices of the correctional professionals as well as to regulate prisoners’ options for lodging requests and complaints.
This pursuit of traceability within the prison administration (Froment and Kaluszynski Reference Froment and Kaluszynski2011) is part of a broader administrative reform influenced by the plural principles of New Public Management (Bezes Reference Bezes, Cole, Le Galès and Levy2008, Reference Bezes, Elgie, Grossman and Amy2016). Introduced in the 1980s and further developed in the 1990s, New Public Management was shaped and augmented in the 1990s by public choice theory, which called attention to the tendency of administrations and staff to use available resources in their own interests. As a result, public choice theory posits that it is necessary to impose centralized procedures and impersonal rules to limit civil servants’ room for maneuver (Aucoin Reference Aucoin1990). The development of standardized procedures is also part of a managerialization of administrative practices that aims to enhance both hierarchical and jurisdictional control (Bessières Reference Bessières2017; see also Bryans Reference Bryans, Bennett, Crewe and Wahidin2008; Carlen Reference Carlen2002). As we shall see, these new material conditions have significantly shaped everyday legality in French prisons and jails.
Method and setting
This article draws primarily from ethnographies conducted in two correctional facilities. The first took place from October to December 2014 in a prison that I call Marignu, a two-century-old medium-security facility where around three hundred people are incarcerated. Nearly 70 percent of the prison population was made up of sex offenders, which had demographic implications: prisoners there tend to be older and slightly more socially advantaged than the general prison population. Terms served by this population start at five years and often go for more than ten. Many people at Marignu were nearing the date when they could apply for parole. Since misbehavior might endanger the possibility of early release, Marignu is known for being a calm establishment, and threats of physical violence toward prison officials were rare.
The second ethnography was conducted from August to October 2015 at a facility near a French city I am calling Tormeilles. The facility was newly constructed at the time of my study and held some 660 men and forty women. Some of these people were pretrial detainees, while others were serving short-term sentences. Still others were awaiting transfer to other facilities to serve longer sentences. The Tormeilles jail has an operational capacity of 570 beds, meaning that it was severely overcrowded. Around forty prisoners slept on mattresses on the floors of cells built to accommodate just one individual. Tensions among prisoners and staff were rife.
These two facilities were selected to reflect the diversity of the French prison system, without claiming to represent all possible cases. The purpose of this article is not a point-by-point comparison of the two. Rather, I use the diversity of situations observed in both to build analytical categories using an ethnographic case method (Dodier and Baszanger Reference Dodier and Baszanger1997, 51), in an approach similar to the constant comparative method (Glaser Reference Glaser1965). The correctional administration granted research access to these facilities on the condition that the identity of prisoners and staff be protected at all stages of the research. As a result, all names of people and places have been modified. Compared to what has been reported in the United States (Rhodes Reference Rhodes2009; Reiter Reference Reiter2014; Gibson-Light and Seim Reference Gibson-Light and Seim2020), access was obtained fairly easily, after just one meeting with the correctional administration’s department for research and a four-month wait for signed authorization. I then had to request authorization from the management of each prison, which again proved to be quite easy (as opposed to the experience of Jewkes and Wright Reference Jewkes, Wright, Jewkes, Crewe and Bennett2016).
In principle, I was to apply for specific access authorizations for each day I spent inside and was to be supervised at all times. Access was then renegotiated daily (Ugelvik Reference Ugelvik2014; Beyens et al. Reference Beyens, Kennes, Snacken and Tournel2015). In practice, after a few days, most staff members allowed me to move freely through most areas of both facilities. This created a benign form of a common carceral experience in which the rules varied arbitrarily depending on the staff member and the time of day. Typical days in the field lasted around six hours and were organized around the strict schedule of prison life: three hours in the morning and three in the afternoon, with at least one hour in between and one hour after to clarify the handwritten notes I took during observations and interviews. I was not allowed weekend visits. I spent an average of four days per week in the field, for an approximate total of eighty-one days of fieldwork, roughly divided between the two facilities.
This fieldwork combined semi-structured and informal interviews with incarcerated persons and staff, direct observation of their interactions, and in situ document analysis. I adopted a multi-situated strategy to observe prison grievances (Marcus Reference Marcus1995): I observed places and situations in which injurious experiences could occur (in courtyards, cells, interactions with lawyers from NGOs, and so on); actual appeals to authorities (in-person hearings, written grievances to prison officers, and so on); and places where prison staff and outside authorities dealt with these grievances. In Marignu between 5 October and 5 November 2014, I observed around 148 formal interviews and hearings with various prison authorities.Footnote 13 Most of these hearings were with the chief custody officer, the head of housing, and the head of inmate labor. In the Tormeilles jail between 1 September and 31 October 2015, I observed seventy-eight formal interviews and hearings, mostly with cell-block chiefs, deputy wardens, and the warden.
I also conducted interviews with fifty-eight staff members and forty incarcerated individuals to understand how they made sense of the relational economy of detention. Following the example of Patricia Ewick and Susan Silbey (Reference Ewick and Silbey1998), I asked participants about their daily life in prison and their relations to other prisoners and staff. I did not mention grievances or rights but asked follow-up questions when participants spoke of disputes or discontents. As much as possible, the interviews were conducted in quiet places that were familiar to the interviewees (offices, activity rooms, or cells with no other prisoner present). On numerous occasions, I had to settle for less suitable spaces, such as the prison wings where guards spend most of their time, or the same small, austere rooms that prison staff use for individual meetings with prisoners (see also Seim Reference Seim2016). Interviews lasted between thirty minutes and three hours and were not recorded to reduce potential pressures around revealing emotions, discontent, or personal details. Observation notes were qualitatively coded using Atlas.ti software, with an inductive codebook (Glaser and Strauss Reference Glaser and Strauss2017).
In the Tormeilles jail, I was given access to all scanned requests and grievances from the last week of September 2015 (340 in total). These included requests for changing cells, employment, visiting permits for relatives, canteen purchases, or meeting with a prison official. These requests were made by 132 prisoners, of whom thirty accounted for one-third of the demands. In the Marignu prison, since written requests and grievances were not yet systematically recorded, I collected and analyzed the grievances I encountered during my ethnographic study (ninety-seven in total). My analysis combined quantitative and qualitative coding to ascertain the formal and rhetorical similarities and differences among these grievances.
This article also draws insights from a one-month observation of the Prison Legal Appeals Office of the French correctional administration at the regional level. I requested access for this observation in 2016 after finishing both in-prison ethnographies. Over fifteen full days, I observed the work of its four employees, particularly focusing on the person managing prisoners’ appeals of disciplinary decisions. I also accompanied her to a two-day legal training session that she taught for mid-level managers at a Parisian jail, whose goal was to improve the legal compliance of their disciplinary procedures. Current standards in French research institutions did not require me to obtain any further ethical approval, allowing me to bypass the “final barrier to research in US prisons,” which are institutional review boards (Reiter Reference Reiter2014, 420). Nevertheless, as amply noted by other prison ethnographers (Crewe Reference Crewe2014; Drake, Earle, and Sloan Reference Drake, Earle and Sloan2015; Jewkes and Wright Reference Jewkes, Wright, Jewkes, Crewe and Bennett2016), prison fieldwork involves numerous ethical and emotional challenges: how to respect privacy in an environment built for surveillance; how to express empathy without jeopardizing my position with either staff or prisoners; how to avoid implicitly condoning violent or degrading behaviors while documenting them; and under what circumstances should I report something I saw or heard to authorities? These dilemmas arose from confronting the power imbalance between prisoners and staff (Gibson-Light and Seim Reference Gibson-Light and Seim2020) and were managed on a day-to-day basis through discussions with colleagues and relatives rather than by relying on clear-cut answers or formal rules (see also Liebling Reference Liebling2015).
Findings
The persistence of negotiation and arbitrary power
As noted earlier, in 1958, Gresham Sykes ([Reference Sykes1958] 2007, 49) wrote a transactional analysis of the social life of prisons in which he stated that force was inadequate to maintain order over the long term: “A ‘come-along,’ a straitjacket or a pair of handcuffs may serve to curb one rebellious prisoner in a crisis, but they will be of little aid in moving more than 1,200 inmates through the mess hall in a routine and orderly fashion.” His analysis of the “defects of total power” concluded that it is “the agent at the lowest levels of the bureaucracy of confinement [who] is the crucial figure” (53). Daily negotiations between incarcerated individuals and officers translate the structural conflict of incarceration into a myriad informal transactions and relationships. Since Sykes’s pioneering study, the relationship between prisoners and guards has been the focus of considerable—too often exclusive—attention and has come to be seen as “the essence and raison d’être of the prison” (Chantraine Reference Chantraine2004a, 202).
My ethnographic observations bear witness to this dynamic in contemporary French prisons. Informal exchanges between incarcerated people and front-line prison officers remain central in the daily management of prisons and in the experience of incarceration. Whether at morning roll call, when meals are distributed, or when prisoners leave their cell for work or yard time, a prison officer is always standing behind the cell door as it opens. Activities such as exchanging objects between cells, checking visit times with family or friends, confirming account balances, changing sheets, taking a shower, or taking out the trash—all depend on prison officers. These everyday concerns are negotiated through interpersonal interactions outside formal regulations. Officers often present their actions as “favors” that can be withdrawn if prisoners do not behave in a satisfactory manner. By the same token, prisoners remind officers that incidents could occur if incentives to cooperate are not provided, making the officers’ work much harder.
This relational dynamic—a relational economy of asymmetrical interpersonal negotiation—is not a mere holdover from a time before bureaucratization. It can also be observed in interactions between prisoners and middle management, who, in contrast to front-line officers, hold significant bureaucratic power over daily operations in prison life. Despite their importance, middle-ranking officers have been largely overlooked by the growing literature on prison mid-level bureaucrats (Reiter and Chesnut Reference Reiter and Chesnut2018), which focuses on more senior positions such as prison administrators (Jacobs Reference Jacobs1977; Di Iulio Reference Di Iulio1990b; Liebling and Crewe Reference Liebling, Crewe, Simon and Sparks2012; Bryans Reference Bryans2013; Rubin Reference Rubin2016), secretaries of corrections, or senior officials of departments of corrections (Lynch Reference Lynch2010; Reiter Reference Reiter2016). Middle-ranking officers are situated between front-line officers and prison administrators. They primarily focus on overseeing prisoners (Calavita and Jenness Reference Calavita and Jenness2014). In hearings and face-to-face meetings behind closed office doors, they exercise great discretionary power in their efforts to negotiate cooperation from prisoners (Durand Reference Durand2018).
In grievance hearings, negotiation entails more than exchanging material favors for cooperation—the Goffmanian “system of privileges” (Goffman Reference Goffman1961a). Prison officials try to maintain a sense of cooperation even when denying requests. For example, to a prisoner who asked to switch cells, a Tormeilles cell-block chief explained: “If it takes time, it’s not that we don’t want to. It’s just that we don’t have any other solution at the moment.” To that end, they put effort into showing that they are listening and that they wish to grant requests when possible. They might also offer to problem solve by serving as informal mediators or providing advice on personal matters. These actions help sustain cooperative and personal relationships between themselves and incarcerated individuals. This approach is particularly important when officials cannot directly grant or deny requests because those decisions fall within the jurisdiction of other professionals:
A prisoner enters the office of the head of housing for Marignu prison. He asks permission for one of his relatives to give him an electronic toothbrush during their next visitation hours. With his face hollowed out and his features tired, he presents a medical certificate attesting that a third of his teeth have recently become loose. The officer cannot grant the request, but he picks up his phone to call the appropriate department. Throughout the phone conversation, the officer silently signals his annoyance with mimicry to the prisoner; his replies are overtly ironic, underlining the malfunctioning of the service. He hangs up with a resounding sigh: “There’ll be a memo on the subject.” His interlocutor comments with a smile: “It’s complicated for a toothbrush!” The officer adds: “Everything’s complicated here!” Footnote 14
Acting as an intermediary allows the officer to show benevolence while he reaches out to other departments to find solutions for his interlocutor. Most importantly, doing this favor allows him to show he understands and empathizes with the prisoner’s frustration and even anger. Direct negotiation involves not only trading favors, but it also requires establishing the shared moral understanding that fosters cooperation, even if it is asymmetric.
Face-to-face meetings between incarcerated individuals and prison managers are usually guided to encourage open communication on the part of prisoners. After a request has been processed, discussions often move to more general topics about the prisoner’s life. While these conversations did not start naturally, officers in both facilities often asked open questions such as “Other than that, how is it going?” to show they were interested in the prisoner as a person, not just in keeping the prison running smoothly. Officers would also acknowledge when they were meeting with a prisoner they had not seen in a long time, making remarks such as “I don’t see you that often!” or “My door is always open.” These invitations cannot be taken literally, especially in Tormeilles, where prisoners must submit a written request to be escorted by a guard from their cell to the supervisors’ office, and demand for hearings far exceeds the available time. In reality, no doors are always open in a prison. Senior managers prioritize meetings that they believe can prevent incidents, such as violent outbursts toward the staff or other prisoners or self-inflicted harm that could make the administration liable (Cliquennois and Champetier Reference Cliquennois and Champetier2013b). For example, when one officer wanted to grant a hearing to a prisoner requesting a cell change, another argued for giving the cell to someone else: “Yours hasn’t snapped yet; mine has.”
Prisoners are mostly aware of this strategic granting of requests. Many told me that, to get a hearing, you needed to make trouble or at least threaten to do so and be willing to face disciplinary consequences. But many prisoners mentioned “getting along” with certain officials. They did not necessarily believe these officials had their best interests at heart but acknowledged that they would benefit from the moral and material trade-off. Thus, grievance hearings are best understood as an informal—in the sense of Kagan’s ([Reference Kagan2001] 2019) typology—and asymmetrical quid pro quo.Footnote 15 As such, it is neither fully participatory nor completely hierarchical.
Adversarial legalism and the unsettling of negotiation
The informal nature of such interactions can be called into question. Perhaps unsurprisingly, allusions to the law are rare in these personal encounters, but when they occur, they inevitably transform the dynamic of an interaction. I found little mention of the law in communications with prison authorities, either in written petitions or in meetings. Of the 340 grievances recorded by the Office for Detention Management in the Tormeilles jail during the last week of September, only three mentioned legal norms. The rest justified their request based on need or suffering, claimed privileges associated with prison seniority, or provided no justification at all. The same was true of written grievances from the Marignu prison. More legal references were made during in-person meetings, mostly because of selection bias: incarcerated people with a history of causing trouble, including by lodging formal complaints with the courts, are more likely to be summoned to meet with prison officers. Out of the seventy-nine hearings I observed in the Tormeilles jail, prisoners mentioned some form of legal norm or action in only six instances.
In such settings, mentioning the law leads to arguments where each party’s capacity to take action is rhetorically put on display and compared. When prisoners bring up legality, prison officials seem to see it as a direct challenge to their authority:
In one meeting I observed where an incarcerated person in Tormeilles requested a single-bed cell, the deputy warden said, “If we could, we would. If we double up single cells, it’s because we don’t have any other choice.” The person making the request was not mollified by this profession of good faith, and pointed out that some prisoners did have individual cells. Rather abruptly, he evoked the possibility of violent action (“What’s the alternative? Do I have to hurt someone?”), then of legal action: “You know damn well you’re not respecting standards. You’re lucky I’m not filing a complaint!” Immediately, the deputy warden matched his tone: “We can start a power struggle. But you will lose. You’ll get your private cell—in the hole!” Lowering his voice, the deputy warden then attempted to offer a compromise: if the petitioner agreed to share a cell, the deputy warden would try to speed up his request for employment. The individual, in no mood for compromise, indicated that he was ready to go to disciplinary confinement, adding, “I see we’ll need to get procedural!” The deputy warden replied, “Do what you have to do! You want to play against me, against us, against the establishment, go ahead!”
In the grievance hearings I observed, participants tended to focus on benevolent, cooperative, and asymmetrical forms of relations with authorities. From this perspective, both the prisoner and the deputy warden seemed to treat the possibility of physical violence and legal action on the same basis: as a show of force in an adversarial rhetorical comparison of their ability to act. Both physical violence and legal action disrupt the usual relational economy of in-person interaction between incarcerated people and prison officials.
This often led to an attempt to de-escalate, as when the deputy warden lowered his voice to suggest a compromise: if the prisoner refrained from taking legal action, the deputy warden would help him get a paid job inside the prison. The individual’s refusal was also a refusal to return to a form of asymmetrical negotiation. It kept the tone combative, and the encounter ended with him being thrown out of the room. This situation suggests that adversarial references to the law should be placed in a more agnostic relational economy than the traditional economy of favor asking and personal benevolence. In a way, threats of legal action are more disturbing than threats of physical violence because they challenge the power asymmetry between the incarcerated and the administration. Resolution is easier around physical violence where officers can remind prisoners that they have the means to quell rebellion. With the threat of legal action, the asymmetry of power is less clear as the final say falls to the courts. The deputy warden’s ominous “go ahead” was a veiled threat, indicating that the power struggle was far from resolved.
The fear of litigation: adversarial legalism and its shadow
Though mentioning the law and threatening legal action can unsettle negotiation and arbitrary power in a carceral setting, actual legal action is quite rare.Footnote 16 Only a small minority of prisoners ever undertakes it. Most incarcerated people interact with judicial or administrative authorities only in relation to their criminal charges and have no contact with these authorities otherwise. Whether they took legal action or not, many prisoners I spoke with saw legal action as a “personal fight,” highlighting both the adversarial nature of these interactions and the personal nature of their conflicts with the administration. One thirty-year-old individual I interviewed, despite having many problems with his experience in jail, said he would not file an external grievance or lawsuit because he did not see himself as a fighter: “I’m no fighter at heart,” he explained. “Well … a fighter—you see what I mean! I’m not one for struggle.” There was a common belief among those I interviewed that pursuing legal action would likely incite retaliation from prison officers. In the Tormeilles jail, for example, several people talked about a fellow prisoner who had reported a prison guard who had allegedly assaulted him: “He filed a criminal complaint against a guard, and now they have his picture everywhere, saying that guards should not talk to him. Guards hate him.” The prison officials with whom I spoke confirmed this: they considered this person to be a “pathological manipulator” and had given formal instructions to staff never to interact with him alone.
The frequency of prisoners’ communications with judicial and administrative authorities can be measured in the “Registre des autorités,” a log kept by prisons and jails to track every letter sent to or from the institutions with which prisoners are allowed to correspond unmonitored by the prison administration. Over the course of ten months—from December 2014 to October 2015—forty-one outgoing letters were recorded by mistake as they were addressed to non-protected authorities (NGOs, local police, labor courts) and 134 to non-judicially protected authorities.Footnote 17 Of these letters, most were mostly addressed to the French Ombudsman or its delegates (thirty-one letters), the General-Controller of Places of Deprivation of Liberty (twenty-six letters), the Ministry of Justice (twenty letters, but, as noted, these may have regarded ongoing criminal cases), regional and national levels of the prison administration (fourteen letters), and the French president (ten letters). Out of the almost two thousand individuals held over those ten months,Footnote 18 sixty-nine prisoners had sent letters, and half of these had been written by just seventeen people. These “frequent filers” often contacted several authorities over a short period of time. They also often sent several letters to the same authority, sometimes within the same week.
These letters are exceptional, given the overall size of the Tormeilles prison’s population, and they raise the question of to what degree attempts at legal action actually disrupt the relational economy in custodial institutions. Epp (Reference Epp1998) stressed the “fear of litigation” as a major factor at play when he examined a new administrative model that emerged under activist pressure. Confirming this, in my observations, legal action by incarcerated individuals came up most often in statements by prison officials. Although few officials have directly faced legal action, stories about litigation circulate among them, making the threat of legal action seem real. As a case in point, during my fieldwork in the Tormeilles jail, only one prisoner had actually reported a crime allegedly committed by a guard. Despite being an isolated incident, this event was frequently mentioned in conversations and interviews, as were similar cases from the past or from other institutions.
Prison officials’ fear of legal action and personal liability has become a structuring element in their professional culture (Chauvenet, Rostaing, and Orlic Reference Chauvenet, Rostaing and Orlic2008). Their fear of legal action can be traced to two intertwined sources. First, the stories that prison officers—and, to a lesser extent, middle-ranking officers—tell each other often concern criminal charges brought against an individual staff member following a prisoner’s report. These stories are alarming because they threaten individual criminal sanctions and the staff’s overall authority over prisoners. They fit into a narrative, promoted by officer unions, which claim that the profession is weakened by a lack of support from public authorities, the granting of too many rights to prisoners, and prisoners’ access to prestigious lawyers and NGO support (Froment Reference Froment1998; Cliquennois and Champetier Reference Cliquennois and Champetier2013a). Despite the actual rarity and low success rate of such legal actions, these stories are culturally effective and widely circulated, similar to tales of violence against staff (Vacheret and Milton Reference Vacheret and Milton2007).
A second source for professional fear comes from prisoners’ complaints to administrative courts. These are less concerning for front-line officers, as such claims only involve the administration’s liability. However, prison managers’ careers can be impacted if their decisions cause the prison administration to spend money on legal fees or compensation. Moreover, litigation might be seen as a sign of poor management. The warden of Marignu prison mentioned that she now pays closer attention to how she justifies disciplinary sanctions, knowing that her decisions “are sent to the interregional department of corrections bearing my signature.” The possibility of court oversight reinforces hierarchical control. The prison administration has a vested interest in fostering fear of litigation among the staff and in blurring the distinctions between criminal decisions, which target individual staff, and administrative courts decisions, which place financial burdens and other consequences on the prison administration:
I witnessed this dynamic in a two-day legal training session organized by the regional prison administration for officers working in a large jail near Paris. Fifteen experienced mid-level prison officials took the course, which was taught by a recent law school graduate with no professional experience in corrections. The course focused on disciplinary procedures and administrative proceedings. The young lawyer opened the session by saying, “I always side with the law, and today’s goal is to make sure you are also on the right side of the law, so I can protect you.” The tone of the course was often argumentative: the lawyer would assert the letter of the law, and the prison officials would respond by affirming traditional authority. With each disagreement, the lawyer highlighted the risk of legal action, stressing the potential costs of a lawsuit against the prison administration and personal liability for the attendees. Several times, she mentioned a recent criminal lawsuit against a prison warden, adding, “If a warden can be sued, don’t think for even a minute that you can’t be, too!”
It is true that several prison governors have been charged following prisoner deaths at the hands of other prisoners. Prosecutors have argued that placing prisoners with dangerous individuals without proper surveillance should be considered involuntary manslaughter. One such case involving a high-profile prison governor was still fresh in the participants’ memories. Yet the courts eventually dismissed all these cases, as they do most criminal cases against prison officers. The prison administration’s strategy of stimulating officers’ fear of personal liability is aimed to make them more invested in preventing lawsuits, whose costs overwhelmingly fall on the administration. Explaining recent changes in disciplinary procedures at the Tormeilles jail, the assistant chief of custody pointed out to me that litigation-avoidance strategies had become a major consideration in his work: “We are in an atmosphere of fear of appeals to the courts.” Living in “an atmosphere of fear” does not imply that the officers actually experience threats or even believe they will. As the newly appointed warden noted, “[w]e are not swamped with requests.”
A cell-block chief showed me a written grievance from a prisoner who lost personal belongings during a transfer and which stated: “I think I am going to file a complaint.” The cell-block chief sighed and said to me: “Three people out of four who say they are going to file a complaint never do it. For a few pair of pants or whatever, it would be a lot of time to spend.” Yet stories about legal action are shared frequently among officers. Even though both prisoners and professionals often dismiss the real possibility of legal action, this “atmosphere of fear” has significantly influenced daily communications between incarcerated people and prison officials.
Litigation avoidance and the formalization of relations
As mentioned above, Epp (Reference Epp1998, 24–25) has argued that the kind of fear described above stems from activist pressure and administrative efforts to circumvent litigation, which can be useful when it results in what he called “legalized accountability.” Other scholars have been more critical of this type of linkage between adversarial and bureaucratic legalisms, suggesting that litigation avoidance strategies such as grievance mechanisms are merely “symbolic” (Edelman Reference Edelman1992). To address this controversy, a different interpretation might be found in observing concrete translations of these policies (Carrabine Reference Carrabine2000; Lascoumes and Le Galès Reference Lascoumes and Le Galès2004).
While legal action is rare in everyday prison life, the possibility of it poses a risk to the prison as an organization and, to a lesser extent, to its staff. The threat of legal action, combined with the influence of New Public Management, has prompted prison administrators to increase their use of written communication for the sake of traceability and proof. This shift toward formal and standardized processes has given rise to various “graphic artifacts” (Hull Reference Hull2012, 14)—such as standardized paper and electronic forms—and has disrupted traditional power dynamics. Originally used in industry to manage technological risks, traceability has been adopted by administrations to monitor processes and people, preventing and addressing incidents such as lawsuits (Torny Reference Torny1998). This need for traceability is part of a broader push for managerial accountability. It became a key measurement tool after a sweeping financial legislation package from 2001, often described as France’s financial constitution, which required all public administrations to be evaluated using quantitative indicators (Bezes Reference Bezes, Cole, Le Galès and Levy2008, Reference Bezes, Elgie, Grossman and Amy2016).
Prison officials are very aware that traceability requirements are met to control their professional practices on the ground and, for this reason, are often reluctant to follow the recommended procedures. For example, when a new operating system was installed in the Marignu prison’s computers, the chief of custody explained that he felt it was a needless expenditure to allow regional and national authorities to access prison databases in real time. “The day I get a phone call from the regional management asking about a specific decision I made to move someone to a new cell,” he concluded, “I resign.” Grievance forms, both paper and electronic, are one concrete translation of the combined influence of bureaucratic and adversarial legalism. Simple handwritten ledgers and letters are gradually being phased out and replaced by more complex bureaucratic artifacts designed to increase managerial control and reduce the risk of lawsuits.
This shift toward formalized written communication creates a distant and utilitarian way of interacting, minimizing personal relations as prisoners seldom know who will read their requests. The Marignu prison’s chief of housing, who was close to retirement age, criticized the change. He noted that now every face-to-face meeting with an incarcerated person must be recorded in the prison management software: “The inmate has become a legal person. They are no longer flesh-and-blood: they are moral persons.” In French law, the notion of a “legal person” or “legal entity” (personne juridique) refers to the basic ability of a person to hold rights and be subject to obligations. The officer’s use of this expression is a distorted echo of Max Weber’s ([Reference Weber1921] 2013) coupling of impersonal rules with the enforcement of written procedures. His comment points out that the shift toward formalized written communication reframes interactions with prisoners around legal obligations rather than interpersonal moral obligations. In French law, legal entities can be either physical when referring to people or moral when referring to organizations (companies, administrations, and so on). Prisoners are of course recognized as the former, as the officer knows full well. Calling them “moral persons” is a way to criticize how the insistence on traceability has led the prison administration to see prisoners as an impersonal collection of records rather than as individuals.
Another result of the formalized grievance process, especially the provision of an expected response time, seems to be higher expectations from prisoners regarding the legality of their requests. One person told me that electronic grievances are more binding than letters or oral requests: “It’s in the computer, so they’re required to deal with it!” Another prisoner indicated that providing an expected wait time implies a deadline, past which prisoners could appeal to regional authorities. Content analysis of different grievance formats shows that formal legal language, such as “I, the undersigned” or “reasonable deadline,” is more common in more constraining communications. Such communications, which are designed to symbolize the legal environment inside prisons and jails, also remind prisoners of their rights (Calavita and Jenness Reference Calavita and Jenness2014). These observations underline the ways in which formalized communication appears to foster more bureaucratic and adversarial relations, leading to impersonal detachment in situations where order was once achieved through the informal, personalized interactions between prisoners and staff.
The agonistic control of the form of the law
The formalization of communications has also changed how prisoners and staff view documentation, even in more traditional instances of asymmetrical negotiation. While prison officials complain about the time-consuming nature of bureaucratization and managerial oversight (Chantraine and Sallée Reference Chantraine, Sallée, Deborah, Earle and Sloan2015), they also see written and digital communication as progress. Digital storage provides an effective way to conserve communications for future reference when it is needed as evidence against prisoners’ allegations. Staff consider it impossible to keep track of the numerous grievances submitted each day by prisoners. Of the voluminous pile of grievances stacked in his office, the chief of custody in the Marignu prison said: “These are just the ones from last month, and I throw away most of them. I should put them in inmates’ individual files but I don’t have the time.” He added: “So I throw them away every once in a while.” Only a few that he considered exceptionally important made it into prisoners’ individual files. For this reason, he was quite enthusiastic about paperless grievance procedures, which make it possible during a hearing to access every previously recorded grievance submitted by a given incarcerated person.
It has become common practice to use an incarcerated person’s writing as evidence against them. A cell-block officer reported that he regularly checks whether a prisoner has requested a different cell when that person files a complaint about their living conditions or there is an administrative inquiry into a problem in a cell. He had started asking prisoners to file a written grievance before changing cells, even if he had already agreed to the change. He was particularly cautious with prisoners he thought might complain later: “For me, it goes on paper or I don’t lift a finger. Especially with guys like that!”
Above all, prisoners’ signatures are instrumentalized to prevent lawsuits. Their signatures are collected in daily prison life and filed as proof that a prisoner was present or involved in a process or situation. For example, during the disciplinary process, prisoners must sign more than ten documents over at least three separate occasions. National and international court decisions have indirectly increased the occasions when prisoners must provide their signatures outside of judicial and disciplinary proceedings. In the Tormeilles jail, for example, newly arrived prisoners are asked to sign a form waiving their right to an individual cell during their intake period (which typically lasts about one week). The deputy warden explained that, since prison regulations entitle incoming individuals to a single cell, they created this form to protect against legal claims. Similarly, an overcrowded jail in the greater Paris region asked incarcerated individuals to sign consent forms to sleep on the floor as insurance against potential lawsuits (Le Canard Enchaîné 2016). Such signatures have no legal value since prisoners cannot waive rights protected by French laws or the European Charter of Human Rights.Footnote 19 The Tormeilles deputy warden admitted that she was unsure if such consent forms were enforceable but believed that they deter prisoners from pursuing legal action since they show prior consent.
In other instances, officers act without seeking prisoners’ formal consent, relying on their monopoly over the form of the law:
In Tormeilles, I witnessed a cell-block chief arguing with a prisoner who refused a new cell assignment. The prisoner, angry, claimed he had been in jail for long enough to have earned the right to an individual cell. The cell-block chief ignored his anger and countered with two other options, both obviously worse than the individual’s current situation. The prisoner refused both. “Okay, so you’re going to go back to the waiting room,” said the chief. This interaction, which lasted less than three minutes, allowed the chief to submit a report that would send the prisoner to disciplinary confinement to await a proper hearing. Following a standard report template that was pinned above his desk, the chief wrote a request for immediate disciplinary action on the grounds that the prisoner had been offered two solutions, had refused both of them, and then had physically resisted returning to his cell.
This last part was a total fabrication, but officers’ testimonies are largely self-substantiating. Prison officials prove the legality of their actions simply by abiding by current legal formulas. In appeals, the only evidence examined is the disciplinary report. Several times in my fieldwork, I saw incidents that led to immediate disciplinary action, documented by officials using pre-written legal templates. Prisoners also noted this unfairness: “If they want to put you in the hole, they will.”
Prisoners have also adopted this culture of keeping proof. Many people who I interviewed said that they keep all administrative papers as vital evidence, including documents and envelopes that seemed useless to me. They often mentioned having written evidence in their cells (“I’ve got all the evidence upstairs, I’ll show it to you”). In the Marignu prison, where I had more access to prisoners’ cells, several prisoners showed me large collections of documents. They were keeping the documents to protect themselves against the administration and as evidence for future lawsuits. One prisoner in Marignu prison, who was serving a long sentence and had formerly been a union representative, showed me a long list of complaints that he had documented over his time behind bars. He explained that he was waiting until his release to file a formal complaint since he feared retaliation if he did so before. I came across these attitudes frequently; many prisoners mentioned their rights and the possibility of legal action but noted that it was impossible to pursue while in prison. One prisoner said that he had documented his incarceration in two notebooks that he planned to use “once I don’t have any more trouble with the justice system.” This adversarial culture of seeking proof in documentation creates a strong power imbalance imbedded in bureaucracy. It is very different from the older prison culture, which relied on honor and reciprocity to maintain order.
Discussion
Adversarial legalism has been identified in numerous studies as one of the key forces reshaping prison governance both in the United States (Jacobs Reference Jacobs1980; Di Iulio Reference Di Iulio1990a; Simon Reference Simon2014; Feeley and Swearingen Reference Feeley and Swearingen2018) and Europe (Smit and Dünkel Reference Smit and Dünkel2001; Cliquennois and Suremain Reference Cliquennois and de Suremain2017; Cliquennois and Snacken Reference Cliquennois and Snacken2018). In France over the past two decades, we can see many aspects of adversarial legalism, including more complex rules and regulations, more formal and confrontational procedures for resolving disputes, increased litigant activism, more frequent judicial review, and greater court involvement in administrative decisions and processes (Kagan [Reference Kagan2001] 2019, 8).
In daily life in French prisons, however, the law seldom comes into play through actual litigation. There are several reasons for this. Empowered to act in the interest of incarcerated individuals, NGOs now handle a significant proportion of administrative litigation without involving individual prisoners (Durand and Israël Reference Durand and Israël2022). Additionally, prisoners find lawsuits too costly, not necessarily in monetary terms but also in terms of personal and relational impacts. Even introducing the idea of litigation in front of outside authorities disrupts the traditional relational economy of prison life, which relies on asymmetrical interpersonal cooperation (Sykes [Reference Sykes1958] 2007; Mathiesen Reference Mathiesen1965; Kauffman Reference Kauffman1988; Benguigui, Chauvenet, and Orlic Reference Benguigui, Chauvenet and Orlic1994; Liebling, Price, and Shefer [Reference Kagan2001] Reference Liebling, Price and Shefer2009; Chantraine Reference Chantraine2004a; Ibsen Reference Ibsen2013; Durand Reference Durand2018; Symkovych Reference Symkovych2018). For example, prison staff have considerable discretionary power to deny prisoners basic rights, which can undermine prisoners’ notion of having rights that are enforceable (Rudes et al. Reference Rudes, Magnuson, Ingel and Hartwell2021). Indeed, one of the central findings of this article is the infrequency of explicit references to the law in daily interactions between prisoners and staff. In keeping with Kristin Bumiller’s (Bumiller Reference Bumiller1987) “ethics of survival,” when prisoners do resort to mentioning the law—for instance, in threatening to sue the administration—they are often reminded of the risk of losing the benefits of asymmetrical cooperation.
Locating the force of the law behind bars requires us to pay attention to its unsettling power. When the law does emerge in daily prison life, whether in interactions between prisoners and staff or among professionals, it mostly acts as a rhetorical bugbear, a ghost story designed to portray courts and legal norms as scary and powerful forces, even when they are nowhere to be seen. This “fear of litigation” is key in explaining the connection between adversarial and bureaucratic legalism in prisons and jails (Epp Reference Epp1998). Supernatural metaphors provide insight into this paradoxical situation, where the threat of legal action is far more pervasive than its actual occurrence. Scholars have used these metaphors to account for the reach of penality, in addition to its actual presence, as in the cultural creation of suspect identities and social insecurities through haunting stories of violence (Linnemann, Wall, and Green Reference Linnemann, Wall and Green2014; Linnemann Reference Linnemann2015); the “pervasive absent presence” of recidivism by sex offenders (Werth Reference Werth2022); the “zombie”-like persistence of outdated penal practices (Page, Phelps, and Goodman Reference Page, Phelps and Goodman2019; Rubin Reference Rubin2021); or the lingering effects of prison’s afterlives (Miller Reference Miller2021). Similarly, tales of legal action in prisons and jails can be compared to ghost stories. They have similar structure and characters (the lying and unscrupulous prisoner, the greedy and powerful lawyer, the cowardly chain of command, and so on). They are designed to scare people into acting in certain ways, even when participants have never experienced what is described in the tales and do not appear to actually believe in them.
Litigation avoidance strategies contribute to, and align with, bureaucratic expansion (Edelman Reference Edelman1992; Feeley and Swearingen Reference Feeley and Swearingen2004, Reference Feeley and Swearingen2018). Matthew Hull’s (Reference Hull2012) anthropology of bureaucracy helps us understand how these dynamics affect the traditional relational economy in correctional institutions, highlighting changes in both the material nature and content of daily interactions between prisoners and staff. As Richard McClerry (Reference McCleery1957) suggested, examining “communications patterns” can improve our understanding of “systems of authority and power” and how these new forms of communication are reshaping social relations between incarcerated individuals and prison professionals. In this context, the law can be seen as haunting the ever-proliferating written communications between prisoners and prison officials.
The bureaucratic logic of traceability, with its standardized forms, lists, and checkboxes, has introduced the form of the law into the most banal communications between prisoners and authorities. Previous research has described the “new pains of imprisonment” caused by these bureaucratic environments (Crewe Reference Crewe2011), suggesting that they are replacing the previous pains identified in the mid-twentieth century (Sykes [Reference Sykes1958] 2007): “The carceral experience is less directly oppressive, but more gripping—lighter but tighter” (Crewe Reference Crewe2011, 524; emphasis in original). My findings differ. They point to the importance of considering how multiple relational dynamics play out at the same time. The types of adversarial legalism that I found show that distant, written communications and the antagonistic relationships they imply have become mixed with the prison’s interpersonal moral economies of favors and personal benevolence, which rely on face-to-face conversations. The news pains of imprisonment have not replaced the old ones; instead, the carceral experience has become both directly oppressive and tighter. This combination adds an important new factor for understanding the lives of people behind bars: an unstable relational economy, which can easily shift between personal, asymmetric benevolence and agonistic formalism.
Kagan’s ([Reference Kagan2001] 2019) typology has been particularly useful in analyzing this new mixed relational economy. The ethnographic data collected in the Marignu prison and Tormeilles jail fit all four of his ideal types. Negotiation—that is, a participatory but informal way of organizing everyday practices—is still a core aspect of life in custody, as we have seen. Prisoners must negotiate crucial aspects of their lives in prison using their cooperation with prison order as a bargaining chip. These negotiations are both participatory and hierarchical: they involve both prisoners and staff, but the staff has much more power as they can deny requests, place prisoners in disciplinary confinement, and transfer them to another prison. It is important to remember that prison negotiations are not strictly informal, even though they are not fully regulated by law. Furthermore, the rise in litigation, judicial reviews, and reforms led by administration or parliament over the past two decades has substantially densified the normative environment of prisons and jails, placing them at the intersection of adversarial and bureaucratic legalism. These changes have altered everyday interactions both materially and morally. The use of paper and electronic forms, signatures, and systematic archiving of written communications has contributed to this change. When prisoners refer to legal norms or legal action, it happens against this backdrop, making the law a haunting, but constitutive, presence.
Kagan’s ([Reference Kagan2001] 2019) typology helps us to see how these different elements fit together, where previous works have tended to overemphasize one element over the others. The interactions that I observed leaned in different directions depending on the setting (for example, disciplinary actions are more hierarchical than in-person hearings), on officers’ management styles (for example, entering notes in the computer system during hearings versus after), and on prisoners’ attitudes and reputations (for example, a “frequent filer” versus an “old school gangster”). The relational economy of French prisons is better characterized by this competition of unstable forms of interaction, pulling between the distance and impersonality of legalism and the informality of interpersonal negotiation. This particular relational economy, where the ghostly presence of the law is far more present than its actual substance, is located at the barycenter of Kagan’s four original ideal types. I suggest calling it “adversarial formalism.” This approach responds to Jeb Barnes and Thomas Burke’s (Reference Barnes and Burke2020, 476) suggestion to “think of Kagan’s [typology] as an inventory of individual variables as opposed to a fixed set of closely related characteristics.”
In adversarial formalism, the key variation is that the material and rhetorical shadow of the law has more force in guiding everyday interactions than actual legal action. I define “shadow” as a distorted presence cast upon spaces where the actual thing is absent or elusive. In prison, documents are kept as evidence but rarely used; legal procedures are threatened, feared, and alluded to but seldom experienced; signatures with little or no importance in the eyes of the law are required of prisoners. This shadow of the law is redefining the resources available in negotiations between prisoners and staff without changing their structural asymmetry. Adversarial formalism describes a method of dispute resolution where the design, production, and storage of legal forms is a crucial resource. In prisons, one key facet of adversarial formalism is that the administration maintains control over most documentation, although it should be noted that this control is not absolute and prisoners mimic these practices.
The scope of this article did not allow us to determine whether the discrepancies between our findings and previous research (including the work of Kitty Calavita and Valerie Jenness [Reference Calavita and Jenness2013, Reference Calavita and Jenness2014]) are due to methodological differences (interviews versus ethnographic observations) or context (California versus France or the United States versus Europe). It remains to be explored whether Californian prisoners invoke their rights more often than French prisoners and whether the form of law has similar influence in informal settings. The different timelines, scales, and impacts of prisoners’ rights movements and the resulting administrative and political responses will play significant roles in prison life and the relational economies of prisons in each setting. My findings are a promising beginning, and more comparative ethnographic research is needed to better understand how different governance changes affect correctional institutions. With a richer understanding, we can identify what factors lead to greater informality or centralization of power in different national contexts.
Acknowledgments
Previous versions of this article have received generous feedback from Nicolas Dodier, Lauren Edelman, Marc Hertogh, Liora Israël, Jérôme Pélisse, Susan Silbey and Mariana Valverde. Many thanks to the anonymous reviewers for their insightful comments. Linguistic editing was financially supported by the Centre d’études des mouvements sociaux (EHESS/CNRS/Inserm) and the Centre de sociologie des organisations (SciencesPo Paris/CNRS).
