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Emergency shelter is not prison, but there are overlapping human rights concerns 

December 24, 2019 Category: ColumnFeaturedLongMethod


This is part two of a three-part series of guest columns written by Andrew Huff, a case manager for Bethesda Project’s Church Shelter Program. Read part one here.
Shelter is not prison… technically speaking. Yet as I wrote in a previous article, the traditional power structure in emergency shelter closely resembles the power structure in prison.

Individuals residing in these institutions are expected to be obedient, docile, and submissive to staff at all times and in all circumstances. Each institution is also similarly defined by the experience of social rejection, sexual frustration, loss of autonomy, material scarcity, chronic stress, disturbed sleep, and emasculation.

Meanwhile, the prevailing social dynamic in male prisons — what sociologists call “the convict code” — is nearly identical to the prevailing social dynamic amongst homeless men — “the code of the streets.”Both are behavioral and cultural norms premised on hyper-masculinity, exploitation of weakness, dominance, and violence.

They are two sides of the same coin.

There is also significant overlap between prison and shelter populations — with people experiencing homelessness significantly more likely than the general population to have a criminal record, and nearly 20% of city shelter users entering shelter directly after incarceration according to one study.

This overlap means elements of prison culture regularly find their way into emergency shelters. In fact, in my experience, it is not uncommon to hear shelter guests reflexively and matter-of-factly refer to each other as “inmates,” refer to staff as “guards,” refer to the shelter itself as “the prison,” or refer to the curfew as “lock up.” When enough of our guests have this kind of prison mentality, we reach a tipping point and the shelter culture virtually becomes a prison culture. Yet even if we don’t, it remains the case that for many men residing in shelter in Philadelphia, “shelter” and “prison” aren’t all that different.

In that sense, we can say that shelter and prison are experientially alike, but categorically distinct. After all, there is an explicit and meaningful difference between me saying I work for “Bethesda Project’s Church Shelter Program” as opposed to “Bethesda Project’s Church Prison Program.”

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This helps explain why, for example, the United Nations has separate international standards for emergency shelters and for prisons — namely, because shelter is not prison. Simply “experiencing homelessness”— having no home or housing — is not a crime, just as being a refugee, internally displaced person, or stateless person is not a crime. Nor is the act of residing in a homeless shelter a legal form of punishment in the way that being sentenced to prison is.

Because shelter is not prison, we should reasonably expect that a person residing in shelter experiences more liberty, rights, and privileges than a person residing in prison. This is another way of saying we should reasonably expect shelters to meet and exceed the minimum standards for prisons.

So let’s take a closer look at whether or not they do.

The United Nations Standard Minimum Rules for the Treatment of Prisoners were first adopted in 1955 and then revised in 2015, at which point they were renamed the Nelson Mandela Rules (in honor of the former President of South Africa). In total, the United Nations lists 122 rules, although the term “rules” can be misleading. They are meant to describe general principles of practice for prison operation, rather than mandating a specific prison model.

The rules concern matters that range from personal hygiene and exercise to filing systems and instruments of restraint. Together, they affirm that “incarceration” does not mean “anything goes.” When a person is incarcerated, their change in social status does not diminish or negate their humanity. In prison — as in shelter — people retain their human rights.

Unfortunately, when we look closely at the Nelson Mandela Rules, it appears that the experience of residing in shelter in Philadelphia fails to meet at least three of these baseline standards.

Rules that confine, monitor and control

First, Rule 5 of the Nelson Mandela Rules states: “The prison regime should seek to minimize any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.” When emergency shelters institute arbitrary rules that confine, monitor, and control the lives of shelter guests, their property, their activities, and their movements, we are not respecting the liberty due to them as human beings.

Instead, we are incarcerating them on our terms — and incarceration on our terms is still incarceration. Even if our approach to incarceration is less restrictive than prison, we should be asking ourselves whether it is more restrictive than life outside both prison and shelter. If it is, then we are in violation of Rule 5 and depriving people of their liberty when they have not been convicted of a crime.

Rules that impede self-governance

Relatedly, in a previous article I described how the United Nations High Commissioner for Refugees Emergency Handbook articulates a standard of self-determination and empowerment for people residing in shelter. This standard reappears in the Nelson Mandela Rules, specifically in Rule 40, which states: “No prisoner shall be employed, in the service of the prison, in any disciplinary capacity. This rule shall not, however, impede the proper functioning of systems based on self-government.”

This rule serves as an indirect affirmation that self-determination, empowerment, and self-governance are appropriate in prisons. As I see it, if the world’s leading human rights organization has legitimized their use in prisons, then surely we can consider them legitimate in emergency shelters.

The standards articulated in Rules 5 and 40 actually intertwine. For example, the notion of “life at liberty” means you have freedom of movement and freedom from arbitrary detention, while “self-governance” means you get to participate in deciding the rules that you have to live by —and which may impact your liberty. Taken together, they imply that shelter staff should remove all curfews and restrictions on movement (i.e. “Once you enter the shelter, you are not permitted to leave until the next morning”) — unless the guests themselves decide otherwise.

In that sense, compliance with Rules 5 and 40 in emergency shelters also involves democratizing management procedures. Typically, staff members claim a monopoly over establishing curfews, budgeting, managing cleaning supplies, organizing laundry schedules, resolving disputes, etc. However, these are also things that shelter guests will do when they exit shelter into housing, and things that many of them are capable of doing now. As it turns out, according to the Nelson Mandela Rules, it is reasonable to say that they also have a right to do these things now.

Rules that set disciplinary standards

The third area where it can be said emergency shelters fail to meet the United Nations standards for prisons involves disciplinary standards. Rule 39 of the Nelson Mandela Rules states that: “Before imposing disciplinary sanctions, prison administrations shall consider whether and how a prisoner’s mental illness or developmental disability may have contributed to his or her conduct and the commission of the offence or act underlying the disciplinary charge. Prison administrations shall not sanction any conduct of a prisoner that is considered to be the direct result of his or her mental illness or intellectual disability.” Although the word “sanction” can mean both “penalize” and “permit,” in the context of “disciplinary sanctions” (as it is used here) it means “penalize”.

In my experience, I have encountered no clear or explicit restrictions on my ability as a shelter staff member to sanction or discipline a shelter guest for behavior that is a direct result of his mental illness or intellectual disability. On the contrary, the expectation has always seemed to be that I will sanction or discipline any shelter guest for any behavior that is threatening, violent, or which otherwise seriously disrupts the shelter community — regardless of what prompted the behavior.

In Philadelphia, given the high percentage of people experiencing homelessness who also live with serious mental illness or intellectual/developmental disabilities, the suggestion that we not discipline problematic behavior resulting from them almost seems to suggest an “anything goes” attitude.

But that’s not what the United Nations is saying.

Rule 39 specifically prohibits sanctioning and disciplining certain kinds of behavior — but it does not prohibit responding to it, resolving it, or transforming it. Nor does it prohibit restoring safety, trust, dignity, and community after harm or wrongdoing has occurred. In that sense, the Nelson Mandela Rules are not prohibiting justice. They are, however, prohibiting punitive responses to incidents where a mental health diagnosis or intellectual disability is a key variable.

What Philadelphia homeless services can learn from Rule 39 is that non-punitive, restorative justice practices in shelter settings aren’t just innovative — they’re actually the standard. With that in mind, I encourage emergency shelters to begin reformulating their disciplinary protocols to align with restorative justice practices, as we’ve begun to do in Bethesda Project’s Church Shelter Program.

This kind of transformation may not be easy, but it is necessary — because shelter is not prison, nor should it be. If we take that distinction seriously, and I certainly hope that we do, then emergency shelters have an obligation to meet and exceed the minimum human rights standards for prisons.

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