Indefinite Confinement in Switzerland

Abstract

This chapter presents the fundamentals of indefinite incarceration in Switzerland. It starts with a description of the legal definition of indefinite confinement—that is, indefinite incarceration and the in-patient therapeutic treatment of mental disorders—and then provides insight into the Swiss penal policy. It further explores the perspectives of the three groups of actors who most directly organize and shape prisoners’ everyday lives: penal enforcement authorities, prison management and prison staff. Finally, the two main features of life in indefinite confinement, namely indeterminacy (and thus an uncertain future) and an institutionally established ever-same present, are described from the perspective of those directly concerned: the prisoners.

The Swiss Criminal Code (SCC) distinguishes between prison sentences and measures, as the duration of the latter is not linked to the guilt of the offender but to the intended purpose of the measure, which could be to provide therapy or to ensure public security. Courts order such measures in addition to a sentence. In principle, these (preventive-oriented) measures should only last as long as is necessary to avert the risk of reoffending (Art. 56 SCC). In this book, I am interested in the two particular measures that entail indefinite duration: indefinite incarceration (Art. 64 SCC) and in-patient therapeutic treatment of mental disorders (Art. 59 SCC).

2.1 Legal Framework and Penal Policy

2.1.1 Article 64 and Article 59: Indefinite Confinement in the Swiss Criminal Code

According to Art. 64 of the SCC, the court shall order indefinite incarceration (Verwahrung) if the offender has committed murder, intentional homicide, serious assault, rape, robbery, hostage taking, arson, life endangerment or another offence that carries a maximum sentence of five or more years by which he has caused or intended to cause serious detriment to the physical, psychological or sexual integrity of another person (Art. 64 para. 1. SCC), and if a high risk of reoffending has been identified due to a) the personality traits of the offender, the circumstances of the offence, and his or her general personal circumstances, or b) a permanent or long-term mental disorder that played a role in the offence, and it is expected that imposing a therapeutic measure in accordance with Art. 59 SCC will not be successful (Art. 64 para. 1 SCC).

Until 2007 indefinite incarceration could only be ordered in the case of habitual offenders (Art. 42 of the former SCC) or mentally disturbed first-time offenders (Art. 43 of the former SCC); however, after the revision of the SCC in 2007, it could also be ordered in the case of first-time (‘dangerous’) offenders—with or without a (diagnosed) mental disorder. However, in contrast to the old law, indefinite incarceration today can only be ordered if a mentally disturbed offender is—in accordance with an assessment conducted by an expert—categorized as ‘untreatable’ (Art. 64 para. 1 let. b SCC). When a chance of recovery exists but the offender is nevertheless labelled ‘dangerous’, the offender shall be treated in a secure institution according to Art. 59 para. 3 SCC (Simmler, 2016, p. 94). Moreover, since 2007, the execution of the custodial sentence takes priority over indefinite incarceration, and provisions on parole (which is commonly granted after the offender has served two-thirds of the sentence, ordered by the competent penal authority) in relation to the custodial sentence do not apply (Art. 86–88 SCC). Yet, as soon as it is determined that the offender will be able to live life without reoffending again, he or she must be conditionally released, either during the execution of the preceding prison sentence (Art. 64 para. 3 SCC) or indefinite incarceration (Art. 64a para. 1 SCC).¹ In accordance with Art. 75a SCC, with a view to the authorization of any relaxation of the execution of indefinite incarceration (e.g. transfer to an open prison, the granting of release on temporary licence), the competent authority shall reach its decision based on the recommendation of an expert committee on risk assessment (Art. 62d para. 2 SCC). According to the law, prisoners sentenced to indefinite incarceration have to be housed in a secure therapeutic or penal institution (or a secure section thereof) in order to guarantee public safety (Art. 64 para. 4 SCC).

According to Art. 59 of the SCC, the court may order in-patient therapeutic treatment of mental disorders (stationäre therapeutische Massnahme zur Behandlung von psychischen Störungen) if the offender is suffering from a ‘serious mental disorder’ and if a) the felony or misdemeanour is related to his or her mental disorder and b) it is expected that the measure will reduce the risk of further offences in which his or her mental disorder is a factor (Art. 59 para. 1 SCC). In contrast to Art. 64 SCC, the implementation of the measure outlined in Art. 59 SCC takes precedence over a prison sentence, which is imposed at the same time (Art. 57, para. 2 SCC), and the deprivation of liberty associated with the measure must be considered when determining the penalty (Art. 57 para. 3 SCC). The deprivation of liberty associated with in-patient treatment according to Art. 59 SCC normally lasts for a maximum of five years. However, at the request of the competent penal authority, the court may order an extension of the measure for one or more five-year periods, if the requirements for release are not met after this period of time (Art. 59 para. 4 SCC). If the treatment does not promise any success and the offender is still considered dangerous, Art. 59 SCC can be converted into Art. 64 SCC (Art. 62c para. 4 SCC). Prisoners sentenced to in-patient therapeutic measures according to Art. 59 SCC should be placed in an ‘appropriate’ psychiatric institution or a therapeutic institution (Art. 59 para. 2 SCC). If there is a risk that the offender could escape or commit further offences, he or she may also be treated in a secure institution, such as a penal institution, if the required therapeutic treatment can be provided there (Art. 59 para. 3 SCC). Due to the possibility of extension and the fact that in-patient therapeutic measures for the treatment of mental disorders are increasingly executed in secure penal institutions, these measures have come to be known as ‘small indefinite incarceration’ (kleine Verwahrung) (Weber et al., 2016, p. 20).

According to Art. 56 SCC, these measures should only be ordered if a prison sentence alone is considered insufficient to counter the risk of further offending, if the offender requires treatment, or if treatment is required in the interest of public safety (Art. 56 para. 1 SCC).² Furthermore, the ordering of a measure must be consistent with the principle of proportionality: the effect of the related intervention on the personal rights of the offender must not be unreasonable in relation to the probability and seriousness of additional offences (Art. 56 para. 2 SCC). Finally, in ordering Art. 59 or Art. 64 SCC, the court shall base its decision on an expert assessment, which must provide an opinion on the necessity and prospect of success of any treatment of the offender, the nature and probability of possible additional offences, and the ways in which the measure may be implemented (Art. 56 para. 3 SCC).

Due to the fact that, since the revision of the SCC, indefinite incarceration can only be ordered in cases of ‘dangerous’ offenders who are considered ‘untreatable’, the courts today sentence fewer people to indefinite incarceration but many more to in-patient therapeutic treatment for mental disorders; as mentioned, these sentences can be extended (for additional five-year periods) (Art. 59 para. 4 SCC) or even converted into indefinite incarceration (Art. 62c para. 4 SCC). By the end of 2018, of the approximately 7,000 prison inmates in Switzerland (of which 1,843 were in pre-trial detention), 731 people were serving a sentence with no concrete date of release (Bundesamt für Statistik, 2019a) (see Fig. 2.1).

Fig. 2.1

(Source Author, based on data from the Swiss Federal Statistical Office [04.11.2019])

Average number of inmates sentenced according to Art. 64 SCC or Art. 59 SCC (1993–2018)Footnote

Before the revision of the SCC in 2007, those held in indefinite incarceration for security reasons were ‘habitual offenders’ sentenced according to Art. 42 of the former SCC. ‘Mentally disturbed’ offenders were sentenced following Art. 43 para. 2 of the former SCC.

According to international and European human rights requirements, indefinite incarceration can only be considered legitimate if its application clearly differs from that of a regular prison sentence. In its General Comment on Article 9 of the UN Pact II, the UN Human Rights Committee calls for explicit consideration of the non-punitive character of indefinite incarceration (or ‘preventive detention’ as it is termed by the UN). It further states that the conditions of such detention must be distinct from the conditions for prisoners serving a punitive sentence and aimed at prisoners’ rehabilitation and reintegration into society (UN Human Rights Committee, 2014). In 2009, in the case M. v Germany, based on the fact that the regime of detention for prisoners held in indefinite incarceration in Germany did not differ materially from that for those serving a prison sentence, the European Court of Human Rights (ECHR) stated that, in principle, indefinite incarceration can only be justified if the special character of the encroachment it constitutes is considered. If there is no ‘substantial difference’ between the execution of a prison sentence and indefinite incarceration in favour of the person concerned, this constitutes a punishment in the sense of Art. 7 para. 1 of the Convention (European Court of Human Rights, 2010). Following this ruling, in 2011 the German Federal Constitutional Court decided that prison officials must spatially separate inmates serving indefinite terms from inmates sentenced to a punishment and ensure,

that further burdens beyond the indispensable deprivation of ‘external’ liberty are avoided. This must be taken account of by a liberty-oriented execution aimed at therapy which makes the purely preventive character of the measure plain both to the detainee under preventive detention and to the general public. The deprivation of liberty must be designed in such a way – at a marked distance from the execution of a custodial sentence (‘distance requirement’, see BVerfGE 109, 133 <166>) – that the prospect of regaining freedom visibly determines the practice of confinement. (BVerfG, 2011)

This decision has been legally anchored in the German Penal Code (§ 66c) under the concept of Abstandsgebot (the ‘distance requirement’). In Switzerland, while a debate on this topic is emerging, the situation of prisoners held in indefinite incarceration has yet to be officially considered, either on a legal or practical level; the regime of detention is the same for prisoners experiencing indefinite incarceration as for those serving finite sentences (Künzli et al., 2016, p. 23).

2.1.2 High-Risk Offenders: Identifying Individuals Posing a ‘Danger to the Public’

As demonstrated by Holmes and Soothill (2007), the concept of dangerousness and the imprisonment of ‘dangerous’ individuals in so-called Western societies is nothing new from a historical perspective. However, as a relative concept that is socially constructed and influenced by public values and attitudes towards crime and punishment as well as the legal framework, the definition of what constitutes dangerousness, what can be regarded as dangerous, and how society should deal with danger, has constantly shifted. Yet, ‘[t]hose classified as dangerous […] have all represented similar threats to the values of normal society’ (Holmes & Soothill, 2007, p. 591)—they are the ‘ungovernables’ (Pratt, 1997, p. 97) over whom the state needs to introduce ‘special powers of control’.

In the late nineteenth and early twentieth centuries, in Switzerland and elsewhere, the ‘ungovernables’ included habitual criminals, namely ‘petty property offenders’ and ‘vagrants’—that is, ‘those people who lived by robbery and thieving’ and therefore threatened the population’s standard of living (Holmes & Soothill, 2007, pp. 591–592). As a response, many countries introduced indeterminate sentences in order to protect the general public, who were put at risk by these repeat offenders (Holmes & Soothill, 2007, p. 592). In Switzerland, with the introduction of the SCC in 1942, indefinite incarceration was also ordered for offenders who were considered ‘work-shy’ or having ‘a tendency towards dissipatedness’ (Art. 42 of the former SCC) (Die Bundesversammlung der schweizerischen Eidgenossenschaft, 1937, my translation).

As further explained by Holmes and Soothill (2007), together with a shift in the political rationality from classical liberalism towards welfarism and a strengthening of psychiatry in the second half of the twentieth century, these ‘habituals’ were more often placed in ‘corrective’ mental health institutions than prisons and therefore were no longer considered dangerous but rather ‘inadequate’ (Holmes & Soothill, 2007, p. 593). In Switzerland, this development led to the introduction in 1971 of the ‘mentally disturbed offender’ (Art. 43 of the former SCC) (Bundesversammlung der Schweizerischen Eidgenossenschaft, 2001, my translation), for whom rehabilitation would be provided through therapy in a psychiatric institute rather than imprisonment. Yet, indefinite incarceration was still an option in the case of an offender who was considered to pose a risk to the public (Art. 43 para. 1 Section 2.2 of the former SCC) (Bundesversammlung der Schweizerischen Eidgenossenschaft, 2001). Since the shift to neoliberalism and changes in values in the late 1960s, dangerousness has increasingly been defined with reference to the body. As a result, sex and violent offenders came to represent danger. Moreover, there was an increased focus on the risk offenders may pose—that is, ‘the crimes they might commit in the future’ (Holmes & Soothill, 2007, p. 594). Today, as mentioned in the introduction, they are often represented in the media and public discourse as ‘monsters’ or ‘beasts’, and are thus categorized as ‘evil and sub-human’ (Waldram, 2009, p. 4). They hence constitute today’s ‘absolute others’, not only physically excluded from society through imprisonment, but also completely detached from ‘the social, moral, and cultural universe of ordinary, decent people’ (Greer & Jewkes, 2005, p. 21).

In Switzerland, the systematic identification and labelling of sex and violent offenders as ‘dangerous’ can be traced back to a 1993 incident in which a young woman was killed by an offender on prison leave who had been sentenced to life imprisonment. This incident marked a turning point in criminal law and penal policy (Schneeberger Georgescu, 2009). First, the term ‘dangerous convict’ found its way into cantonal law and enforcement practices (Baechtold et al., 2016, p. 247). Second, between 1994 and 1997, six cantonal or regional expert committees were established to assess the ‘dangerousness’ of offenders and to advise the enforcement authorities responsible for placing the offenders, retaining the ability to loosen the regime of detention after some time (Baechtold et al., 2016, p. 248). With the revision of the Criminal Code in 2007 (and the restructuring of indefinite incarceration), the term ‘dangerous convict’ finally became anchored in Swiss national law, and the establishment of expert committees (Art. 62d para. 2 SCC) was declared compulsory (Baechtold et al., 2016, p. 249). Today, following Art. 75a para. 3 of the SCC, prisoners are considered to pose a ‘danger to the public’, ‘if there is a risk that the prison inmate will abscond and commit a further offence that severely prejudices the physical, psychological or sexual integrity of another person’. The committees, which at a minimum consist of representatives of the prosecution services, enforcement authorities and psychiatric professionals (Art. 62d para. 2 SCC), have to assess the danger an offender may pose to the public a) whenever he or she has committed a crime in terms of Art. 64 para. 1 SCC, and b) when the cantonal penal authority cannot satisfactorily answer the question of dangerousness. Generally, as mentioned above, the assessment of dangerousness is carried out with a view towards easing the regime for the deprivation of liberty, such as a transfer to an open prison, the granting of release on temporary licence, the authorization of day release employment or of external accommodation, or the granting of parole (Art. 75a para. 2 SCC).⁴ Since the 1990s, the number of individuals in indefinite incarceration has increased rapidly. As mentioned above, this stems not from an exceptional rise in condemnations but, more particularly, from increasingly severe practices with respect to the release of these so-called high-risk offenders. For example, between 2008 and 2018, a total of 40 persons sentenced to indefinite incarceration (Art. 64 SCC) were released. In 2017, not a single prisoner was released, and only three were released in 2018 (N = 148) (Bundesamt für Statistik, 2019b) (see Fig. 2.2).

Fig. 2.2

(Source Author, based on data from the Swiss Federal Statistical Office [04.11.2019])

Release of inmates sentenced under Art. 64 SCC (1984–2018)Footnote

It should be noted that before the revision of the SCC in 2007, people held in indefinite incarceration were either ‘habitual criminals’ sentenced according to Art. 42 of the former SCC, or ‘mentally disturbed’ first offenders following Art. 43 para. 2 of the former SCC. All inmates detained according to Art. 42 and Art. 43 of the former SCC were further re-evaluated in 2007 in order to keep them in prison following Art. 59 or 64 SCC.

While it has been argued that the systematic classification of offenders has increased the identification of dangerous offenders and so far has successfully helped to prevent further crimes of the same type, the committees’ work has also been criticized (Baechtold et al., 2016, p. 248). In particular, criticism was voiced, first, over the lack of participatory rights for offenders in terms of the classification procedure, which has been described as clandestine and non-transparent; second, that the offenders concerned have no legal remedy against the classification made by the expert committees; third, that the activities of the expert committees are not subject to any scientific assessment; and, finally, that today the label ‘dangerous’ is too often ascribed to offenders in order to avoid the risk of a person wrongly being classified as ‘harmless’ and then committing further crimes (i.e. a ‘false negative’). The error rate of so-called ‘false positives’ is estimated to be 60 to 70% (Baechtold et al., 2016, p. 248). Those who are wrongly classified as ‘dangerous’ are offered no chance to disprove this judgement, as they—due to their label—can rarely be released (Baechtold et al., 2016, pp. 248–249).

2.1.3 Institutional Placement and Handling of ‘Dangerous’ Offenders

Similar to regular prison sentences, indefinite incarceration or in-patient measures for the treatment of mental disorders are ordered by the court. The cantonal enforcement authorities and institutions are responsible for their enforcement and for the management of the prisoners. They must orient themselves using the relevant provisions of the SCC that are based on two constitutional principles: (1) respect for ‘human dignity’ and (2) the freedom of prison inmates to exercise their legal rights, as their rights may only be limited to the extent required for the deprivation of their liberty and their co-existence in the penal institution (Art. 74 SCC). Additional principles regarding the execution of sentences and measures include preventing reoffending after release, making institutional life as normal as possible, combating the harmful effects of spending time in detention, and the duty to provide proper care and to prevent offending while in detention (Art. 75 para. 1 SCC). These principles apply to the enforcement of all forms of prison sentences and measures. There is no specific (additional) legal basis regarding the conditions of detention for prisoners sentenced to a measure of indefinite duration. As mentioned above, the in-patient therapeutic treatment of mental disorders according to Art. 59 SCC should principally be executed in a psychiatric or therapeutic institution (Art. 59 para. 2 SCC), and only in a secure institution if there is a risk that the offender could escape or commit further offences (Art. 59 para. 3 SCC); however, due to a lack of appropriate facilities (and increasing prisoner rates), people sentenced under Art. 59 SCC are mostly housed in a secure prison (Weber et al., 2016, p. 44). According to the most recent survey conducted by the Conference of the Cantonal Heads of the Departments of Police and Justice (KKJPD), in Switzerland there are deficits of approximately 280 places in forensic psychiatric facilities and 90 places in secure penal institutions for offenders with ‘mental disorders’ (KKJPD, 2017a, p. 15).

As mentioned above, prisoners sentenced to indefinite incarceration must by law be housed in a (secure) therapeutic or penal institution (Art. 64 para. 4 SCC). As shown by the KKJPD, in 2016 85% of the prisoners who were sentenced to indefinite incarceration were held in a secure penal institution and therefore in the same conditions as prisoners serving a regular sentence (KKJPD, 2017b). However, in accordance with international human rights requirements, several national and cantonal recommendations call for an improvement in the living conditions for offenders sentenced to indefinite incarceration. As early as 2008, the Concordat of the execution of sentences in Eastern Switzerland recommended taking into account the ‘special situation’ of these prisoners and granting them ‘as much freedom as possible’ within the prison as ‘the lack of perspective may lead them to put themselves or others in danger, because they do not see any purpose in life or have nothing left to lose’ (Ostschweizer Strafvollzugskommission, 2008, my translation). In 2013, within the framework of the inter-cantonal planning of prison facilities (Anstaltsplanung der Strafvollzugskonkordate), it was argued that it would be appropriate to create special (secure) units for this prisoner population (Strafvollzugskonkordate der Schweiz, 2014). Finally, in 2016, the Federal Office of Justice recommended the provision of larger cells (i.e. more than 12 m²) for those held in indefinite incarceration (Bundesamt für Justiz BJ, 2016). However, as mentioned above, the living conditions today remain the same for these prisoners as for those serving a regular sentence. Prisoners held in indefinite incarceration are placed and handled in the same way as ‘ordinary’ prisoners. They receive no benefits despite their different status as prisoners who have already served their sentences (Künzli et al., 2016, p. 23). Yet, as they all at some point belong to the ill and elderly category, they are often placed in special units, such as the 60plus unit or the AGE. Therefore, some of these prisoners do benefit from a more relaxed prison regime (Künzli et al., 2016, p. 23).

2.2 Key Actors

In this section, I provide insight into the perspectives and experiences of the key actors most directly involved in the enforcement of indefinite confinement and concrete handling of the prisoners. I start with those who are furthest away from the prisoners—not only physically but also regarding the amount of time they spend directly with them—but whose decisions are most important: the penal enforcement authorities. In the subsequent section, I present the perspectives of prison management. Finally, I explore the experience of the prison staff, those who deal with these prisoners most directly and on a daily basis (see Fig. 2.3).

Fig. 2.3

(Source Author’s own graph)

Key actors in the enforcement of indefinite confinement

2.2.1 Penal Enforcement Authorities: Placing and Managing Prisoners

The cantonal penal enforcement authorities (hereinafter enforcement authorities) are in charge of the placement of convicted offenders in a suitable penal institution, which, as mentioned above, is generally considered to be a secure prison. Moreover, in accordance with Art. 64b para. 1 SCC and in reference to public safety, enforcement authorities are responsible for the periodic examination of the prisoners’ situations and the possibility of relaxing their conditions of incarceration, such as the annual examination of conditional release from indefinite incarceration, or the biennial examination of the possibility of converting Art. 64 SCC into Art. 59 SCC—or, in case of offenders sentenced to Art. 59 SCC, the extension of the measure or its conversion into Art. 64 SCC (according to Art. 62c para. 4 SCC). In order to investigate the future prospects of prisoners sentenced to indefinite incarceration, following Art. 64b para. 2 SCC, the enforcement authorities reach their decision on the basis of a report from prison management, the opinion of an independent expert (forensic-psychological assessment) and recommendations by an expert committee. They also must grant the offender a hearing. Finally, as explained above, the cantonal enforcement authorities also have the ability to formulate guidelines and recommendations regarding the institutional handling of prisoners.

As I was told by the enforcement officials I talked to, in terms of managing those sentenced to indefinite incarceration, they find themselves in a fraught position. On the one hand, they are charged with working with these prisoners for the purpose of rehabilitation. By law, enforcement authorities have to grant prisoners the opportunity to prove that they have changed for the better to enable them to progress within the penal system. On the other hand, these officials are confronted with political and public demands for zero tolerance for these so-called high-risk offenders. From the public and political points of view, ‘nothing must happen’ (Penal authority representative C., 15.3.2018). As a consequence, enforcement authorities today are more cautious regarding the loosening of the penal regime (e.g. by granting temporary prison leave) in the case of offenders sentenced to indefinite incarceration. For prisoners, the fields to prove themselves can therefore ‘almost only be created within the prisons’ walls’ (Penal authority representative C., 15.3.2018) and not in public. Moreover, as mentioned, public pressure has also led to stricter practices related to (conditional) release. This change in the handling of high-risk offenders has contributed to an increase in the number of long-term prisoners who not only have to stay behind bars for the rest of their lives, but also spend the end of their lives in a carceral setting (Hostettler et al., 2016). This also leads to critical remarks from both the public and academia, generally with reference to medical, legal and ethical issues and based on the assumption that dying in prison is per se ‘inhumane’ and ‘undignified’ (Handtke et al., 2012; Kinzig, 2012; Wulf & Grube, 2012).

As a result, the enforcement authorities and, in particular, decision makers are under constant observation. This puts a lot of pressure on them: ‘You always have to justify yourself, that’s exhausting’ (Penal authority representative C., 15.3.2018). They feel they are principally ‘measured by the failures’—when things are going well, which is usually the case, ‘it’s not recognized’ (penal authority representative C., 15.3.2018). However, whenever an incident occurs, the media—‘always in search of a story’ (Penal authority representative G., 27.1.2015)—immediately exploits the ‘scandal’ (Young, 2018). Moreover, such (rare) incidents typically have severe consequences—not only at the staff level but often also for all the other prisoners held in indefinite incarceration, of whom the authorities are in charge:

If an inmate [for whom we are responsible] kills someone on a vacation, [this is a] meltdown. […] [F]or the relevant executive council or head official, and of course the staff, [it’s] an incredible meltdown. And then it’s about proving to the public that you’re doing something. And this action is mostly to stop everything [all the prison leaves that have been granted] for everyone. We’ve already had that in the past. And until this is relaunched, the impact this has for all other inmates who are affected by this stop is of course dramatic. (Penal authority representative F., 28.5.2014)

Furthermore, today the prisoners’ potential ‘way out’, including the granting of temporary prison leave, almost exclusively leads through psychotherapy, which has been further developed and professionalized since the 1990s. In other words, progression within the penal system is nearly impossible without therapy. Although offenders sentenced to indefinite incarceration are by law defined as ‘untreatable’, if the potential for personal development and the possibility of converting Art. 64 SCC into Art. 59 SCC are identified by forensic psychiatrists, therapy can be provided. At the core of the treatment is the prisoner’s offence(s), which is therefore seen as the key feature of the convicted person:

In order to be able to assess possibilities for loosening the regime, we need to know something about the person, and so he or she has to work on the offense. There is an obligation to cooperate, […] but some refuse. So [in these cases] we cannot judge [regarding the loosening of the regime]. If there is any doubt […] we decide in favour of security. (Penal authority representative C., 15.3.2018)

As this excerpt suggests, the contemporary focus on prisoners’ offences in rehabilitative treatment, which is also present in other countries, is therefore oriented mainly towards public security. Crewe (2009) understood this development as a direct result of the punitive turn: ‘prisoners’ psychological “needs” [are] narrowly defined according to what is deemed to be desirable for the public rather than what prisoners might require to enhance their psychological wellbeing or address their social needs’ (Crewe, 2009, p. 115). While the majority of the official representatives I talked to agree with the therapeutic approach, a few of my interview partners also questioned this strong and paramount focus on the offence in a way similar to Crewe. They argued that socio-pedagogical support should also be offered, in order to grant prisoners the opportunity for individual development and ‘room for their competence’ (Penal authority representative A., 20.3.2018). From this point of view, the system as a whole should shift its main focus from the offence to the person—that is, to ‘his resources and ways of coping with everyday life’, ‘social relations’, ‘professional identity’ and ‘personal health’—considering all the related and observable changes in the risk assessments (Penal authority representative A., 20.3.2018). Therefore, while the current approach places responsibility for successful rehabilitation mainly on the offender, from which personal engagement is expected (showing remorse and undergoing psychotherapy; see also Sect. 2.3.1), from this critical perspective, the institution should also make a contribution by supporting the prisoner—that is, the person—as a whole.

Regarding the inter-cantonal recommendations that propose separation and the improvement of these prisoners’ living conditions, to some extent similar to the Abstandsgebot implemented in Germany (i.e. a differently designed system for indefinite incarceration, including strict separation of these prisoners from the rest of the prisoner population), my interview partners all rejected the idea of a complete spatial separation of these prisoners from the rest of the prisoner community. They argued that this would lead to ‘ghettoization’ (Penal authority representative C., 15.3.2018) and cut off important social relations that had been established over time between prisoners and prison staff members (Penal authority representative B., 20.3.2018). They generally support the status quo by emphasizing that the ‘Swiss standards’ in the penal system are generally ‘already high’, and certainly higher than in other countries. By contrast, one representative I talked to argued that the current carceral regime in Switzerland mainly ensures ‘peace and order’, which, in the long term, not only hinders any progress but may even have damaging effects on the prisoners, as it may lead to ‘regression’ (Penal authority representative A., 20.3.2018):

The question arises whether the execution of indefinite incarceration is currently organized in a way that promotes the resources of the person. How is the execution concretely organized? Is it all about peace and order or is it focused on [the prisoners’] resources? They [prisoners sentenced to indefinite confinement] too should have a perspective. The current practice doesn’t convince me. […] Today, people are breaking down, becoming stunted. We have calm and adjusted inmates, who have been prisonised. In the end, we perhaps hold persons in indefinite incarceration who do not even belong there. (Penal authority representative A., 20.3.2018)

Despite general support for the status quo, all of my interview partners supported, in principle, the idea of granting these prisoners more freedom and opportunities within the prison walls, such as more diverse leisure time activities or the possibility to keep pets. Yet, from their perspective, a lack of resources and public acceptance makes this endeavour impossible, at least for now.

Regarding their vision for potential improvements, the separation of these prisoners was nonetheless considered conceivable, but only within the prison, for instance by establishing a special unit. As one of my interview partners explained, such an arrangement—an ‘island within the prison’ (Penal authority representative A., 20.3.2018)—would allow an internal loosening of the regime (e.g. longer opening hours of the cell doors) ‘without disturbing the system’ and while maintaining a high level of security. Yet, it would require ‘professionalism and structures’ specialized in handling this particular population in order to establish a ‘counter-program to prisonisation’ (Penal authority representative A., 20.3.2018) or, to put it in the words of Liebling, to allow prisoners to ‘flourish’ (Liebling, 2014). From the perspective of my interview partner, this would include hiring additional staff trained in social pedagogy and care professions as well as professional handling and quality management, as is the case for institutions in charge of caring for disabled people.

Others find it difficult to imagine concretely what should or could be improved. They emphasized that some prisoners held in indefinite incarceration do not want and would not support any changes, in particular those who had ‘found a good daily routine’ (Penal authority representative D., 15.6.2018), those having one of the ‘popular jobs with responsibility’ (Penal authority representative E., 15.6.2018), and those with ‘important persons of reference’ (Penal authority representative C., 15.3.2018) inside the prison who ‘treat them very humanely’ (Penal authority representative D., 15.6.2018). It was suggested that the separation of these prisoners makes sense principally in cases of illness and old age, as is currently the case in the prisons of Lenzburg and Pöschwies.

For me, it’s unclear what precisely should be changed. Do we need to provide more assistance, does this really help? Often the prisoners do not want to undergo therapy, and we do not force anyone to do therapy; it’s an offer. […] It’s difficult. You have to look at each case individually. Many do not want anything else. And others, due to mental health issues, cannot be housed together with the general population, because there are too many stimuli and stressors. I think a lot of criticism comes from mobilising the human rights discourse in Switzerland at a very high level. […]. The demands are often unrealistic. Especially if one considers the fact that [for these prisoners] the way they are treated by staff is the most important aspect. And prison staff in Switzerland are doing very well: they treat these prisoners with respect and very humanely. (Penal authority representative D., 15.6.2018)

Yet, it was also emphasized that pressure to make improvements in these prisoners’ living conditions was certainly expected to increase, not only from human rights organizations and experts, but also from the prisoners themselves and their lawyers. However, from the perspective of most of the authorities I interviewed, changes should be initiated from the bottom up by prison management, because they are the ones who deal with these prisoners on a daily basis and can best evaluate what changes would be reasonable to implement and worthwhile to improve within the existing structures and with the financial resources available. This could then lead to the formulation of new (inter)cantonal guidelines, which would further influence jurisprudence and, perhaps, eventually lead to legal changes (Penal authority representative B., 20.3.2018).

2.2.2 Prison Management: Accommodating Prisoners

Framed by the institutional logics of punishment and rehabilitation, the prisons are in charge of carrying out the deprivation of liberty, while also providing care and support, work, training and further education as part of a prisoner’s sentence management plan (Art. 75 para. 3 SCC), as well as preparing prisoners for release (Baechtold et al., 2016, p. 155). Similar to enforcement authorities, the prison management team (including the prison director and department heads) is judged by the public regarding the security and safety it provides—that is, the prevention of escape and further criminal incidents, inside as well as outside the prison.

Prisons have always accommodated prisoners who were meant to be incarcerated for an undetermined duration. However, while they were generally released after ten or 15 years, today ‘they stay longer and grow old’ inside prison (Prison management member B., 18.10.2016). Moreover, while previous prison populations consisted of ‘habituals’, property offenders and vagrants, as mentioned above, offenders sentenced to indefinite incarceration today are generally sexual and violent offenders, all labelled ‘dangerous’.

The prison management team members I interviewed emphasized, first of all, that the majority of these prisoners—although they designated them as ‘not normal’, having ‘serious disorders’ (Prison management member B., 18.10.2016) or ‘special personalities’ (Prison management member A., 19.10.2016), and as being ‘stubborn and incorrigible’ people (Prison management member D., 4.11.2016)—do not generally stand out within the prison community. This means, for them, that ‘they pose few to no problems’ (Prison management member A., 19.10.2016). My interview partners advanced a number of reasons for this. First, these prisoners are few in number and hence constitute a minority in prison. At the time of my fieldwork, as I was told by the two directors, the JVA Lenzburg accommodated a total of 24 prisoners sentenced to indefinite incarceration, while the JVA Pöschwies had 40. Second, it was noted that long-term prisoners generally show conformist behaviour because, over time, they get to know how the system works. Furthermore, as these prisoners will stay for a longer period of time than short-term prisoners, or even for the rest of their lives, it was argued that they are generally interested in having ‘steady and quiet’ living conditions (Prison management member A., 19.10.2016) and therefore avoid behaviour or activities that might get them into trouble and lead to sanctions or further restrictions. This coincides with the expectations of the prison management and staff who are also interested in a calm and smooth daily routine, which leads, to some extent, to mutual dependency. As explained by one of my interview partners: ‘one’s more concerned about the other because we’re both [staff and prisoners] in here, right? One will maybe still working [here] for 20 years, the other one will be doing time for 20 years’ (Prison management member A., 19.10.2016). The fact that these prisoners do not particularly stand out—that is, cause problems—was therefore also seen as an ‘indicator that allows you to say: the way it is now [the way these prisoners are treated] is probably not that bad’ (Prison management member C., 27.10.2016). However, as (self-)critically added by another interview partner, certainly this is not only the result of good staff–prisoners relations, but also linked to the restricted institutional environment of secure penal institutions that gives prisoners little room for manoeuvre:

The secure [penal] institutions are not struggling with prisoners sentenced to indefinite incarceration. Why not? Because […] the secure institutions are mainly measured by the fact that [they] are running [without incident], and to keep something, to store something, that for me implies […] that it is a quiet story. And we are actually very good at this. […] This is actually one of our core competencies: having 180 men in one place, more or less orderly and quiet. And prisoners sentenced to indefinite incarceration fit in perfectly, so from this point of view, market-technically speaking, it is a client segment that fits very well in our range. They do not actually cause us any problems. (Prison management member E., 7.7.2016)

Yet, as I will show, some of these prisoners nevertheless do clearly stand out within the prison community: those who cause extraordinary trouble and those who are particularly well integrated and benefit from some privileges inside the prison.

Relatedly, I was told that there are certain prisoners from this particular prison population, although very few, who ‘push the system to its limits’ (Prison management member B., 18.10.2016): they do not respect the ‘house rules’, no matter how harshly and often they are sanctioned. From the prison management’s perspective, such prisoners are very complicated to handle and can even make the whole system (temporarily) ‘unable to act’ (Prison management member B., 18.10.2016). Due to the long-term nature of these prisoners’ stays and the prison’s obligation to provide adequate care and support, solutions must be found to achieve compliance, or, to put it in the words of one of my interview partners, ‘to make them willing to cooperate’ (Prison management member B., 18.10.2016). Such solutions include the (generally temporary) relocation of the prisoner to the high-security unit or another institution, the granting of exceptions, and situational negotiation between prison staff and the prisoner instead of a strict application of the rules.

One [prisoner] bangs his head against the wall until he becomes unconscious. And you have to stay with him; otherwise he gets a cerebral haemorrhage and dies. He is in our care, even when he puts pressure on us. […] In such situations [it is very challenging to find a solution]. You cannot be there [with him] for 24 hours, we cannot [are not allowed to] tie him up … so we have to hospitalise him. And then, when the acute phase is over, he is returned to us. So if a prisoner doesn’t cooperate, it’s very time consuming for us. That’s why we seek relative peace and togetherness so that we can get along with the resources we have. (Prison management member B., 18.10.2016)

Far more often than causing extraordinary trouble, however, these prisoners are remarkably well integrated into the prison routine and therefore are allowed to carry out work that is based on trust—such as running the prison’s library or cleaning areas that are generally only accessible to prison staff. As a result, the majority of my interview partners mentioned that they generally have much more contact with these prisoners than with those serving regular sentences and thus know them personally. However, my interview partners added that this kind of integration into the prison routine—and, more generally, the long-term nature of these prisoners’ stays—can also cause problems, especially for prison staff, as it automatically leads to the development of a sense of trust as well as normalcy. It is hence important not to abandon a critical attitude and maintain a professional distance.

Generally, from the point of view of prison management, severe problems and challenges with this prison population mostly arise when these prisoners grow older, become frail and ill, and eventually require special care:

As long as [they haven’t reached] a certain age, [lost] a certain mobility, [have severe health [issues], I think it is actually easy [to handle them]. I think problems arise especially when someone becomes immobile, when he is particularly ill, or when he is very old […] [and] needs special care. (Prison management member C., 27.10.2016)

As presented in Sect. 2.2.1, regarding the current debate around the institutional handling of this prison population, the members of the enforcement authorities I talked to agreed, in principal, that they should consider these prisoners’ special status and grant them more freedom and opportunities, but only within the secure penal institutions and when doing so is cost-neutral. As far as the prison management team members’ point of view, my interview partners also agreed that a strict spatial separation of these prisoners from the rest of the prison population would not make sense. Like the representatives of the enforcement authorities, they pointed to the small number of these prisoners, the already high standards required of Swiss penal institutions, insufficient financial resources and a lack of acceptance by the public as well as by most of the enforcement authorities. Moreover, my interview partners declared themselves to be in favour of mixing the prisoners, as this corresponds much more closely to the outside community, which also consists of people from different ‘classes, cultures, [with] different levels of education’ (Prison management member C., 27.10.2016), young people and elders—and thus meets the principle of normalization according to Art. 75 para. 1 SCC. From their point of view, it is clear that separation only makes sense in the case of illness and old age, which is already being implemented.

Nevertheless, ideas and plans are circulating (and currently being discussed) among my interview partners to grant these prisoners more privileges, freedom and individuality within the secure penal institution, such as systematically placing them (if they wish) in the few larger cells already available in these two prisons, equipping their cells with a fridge, and allowing longer cell opening hours, better remuneration and generally a more individualized and supportive approach by prison staff to provide them more autonomy and perspective inside the prison. This, however, would eventually require a separation of these prisoners within the prison, and the installation of a special unit for prisoners sentenced to indefinite incarceration (not least to avoid conflicts with prisoners serving standard sentences). Those who question the idea of granting them more privileges stressed that these prisoners are not the ones whom the prison has to prepare for reintegration into society and hence to ensure that they do not ‘unlearn’ life. This leads to particular reflections and questions, such as why they—and not those serving short sentences—should be allowed to cook their own food, or why these prisoners should have the ability to go on prison leave when they have only the smallest chance of being released.

Finally, from their perspective, many of these prisoners do not actually wish for changes or more freedom within the prison walls, or they have requests that are not feasible due to the current political and public attitudes towards them, such as access to the Internet or unaccompanied release on temporary license. Finally, it was also stressed to me that many of these prisoners do not take advantage of the offers and programmes that are currently available, and that it is difficult to motivate them to set goals for personal development, as they prefer to spend time in their cells—since they are not ‘normal’ people:

Not everyone is like you and me, so that you can say: learn Chinese!, because they have never done anything else other than reading Blick [a daily tabloid newspaper] and watching TV. So what do you want [to do] with someone like this? (Prison management member B., 18.10.2016)

For instance, we could offer yoga classes for prisoners held in indefinite incarceration, not only once a week, as today, but twice. […] I think from the ten prisoners who participate today, two of them are sentenced to indefinite incarceration. But I suspect there wouldn’t be more than the two who already participate … I fear that this probably wouldn’t make a difference. [Much like] [t]he gymnastics for elderly prisoners [offered in the unit for ill and elderly prisoners], there are three or four who participate. Actually, probably [all of the prisoners] there need it. But we do not want to force them: this would be stupid. And that’s where they [staff working in this unit] are a bit frustrated sometimes: you propose an offer and it’s not used. (Prison management member A., 19.10.2016)

2.2.3 Prison Staff: Daily Dealings with Prisoners

Prison staff members are those who deal directly with these prisoners on a daily basis. They are in charge of the implementation of prison norms, rules and regulations. They are responsible for the care, custody and control of the prisoners. Regarding long-term prisoners sentenced to indefinite incarceration, prison staff have no specific assignment and there are no additional resources available. They have to work within the given structures and instruments, such as the execution plan framed by the principle of rehabilitation, although this—release and reintegration into society—is not a realistic perspective for the majority of these prisoners. Given this particular situation, indefinite incarceration poses various challenges for prison staff.

The long-term nature of these prisoners’ stays is not primarily an issue for staff members working in the security service. As they mention, these prisoners provide them with ‘hardly any work’ (Security officer A., 2.9.2016). They are almost invisible, as they are the ones who generally follow the rules:

For us, they are just those, with a few exceptions, with whom we have nothing to do. You may have to empty their cell at some point once a year. Because this is their life, everything they have in there is somehow, that’s what they have. And they don’t have much more. That’s maybe the interesting thing. But otherwise, it’s actually … from the point of view of the security service, I can say, we have very, very little to do with them, we don’t really deal with them much. They are not the ones we have to sanction, those to whom we have to keep saying in the evening at eight: you have to be standing in front of the cell or inside now. That just works. (Security officer A., 2.9.2016)

While these prisoners do not appear on the radar screen of the security officers, staff members from other services, such as social assistants, foremen, chaplains and prison officers who are not only assigned to provide security but also care (in the units for ill and elderly prisoners), face a wide range of challenges in their everyday handling of these prisoners.

These challenges mainly result from the fact that, for these prisoners, rehabilitation is no longer a realistic goal. One of my interview partners compared indefinite incarceration to an incurable illness—a dramatic disruption in someone’s life course whereby ‘common-sense models’ that used to provide meaning in their lives lose their significance:

Indefinite incarceration, even if it is re-evaluated, it is 99 percent sure that you will never be released. […] Therefore questions about one’s own existence and its finite nature emerge in a different way than they do outside. It is like you get the diagnosis of an incurable disease. Although you still have five years to live, the common-sense models that used to give meaning to your life start to lose their significance. You have to find new ones. (Chaplain D., 4.2.2014)

Most of the prison employees with whom I spoke felt that many of these prisoners suffer from a lack of perspective and indeed have difficulty finding meaning in their lives. They further referred to the fact that these prisoners have to arrange themselves within a context characterized by routine and coercive structures, which almost completely deprives them of the ability ‘to create’ their own lives:

You really do not have to think of anything, you know exactly: the door opens, you go out, now the boss says: [work is] done, [you go] back. In the evening: sports, telephone time … everything is predetermined. This takes away independence, or the possibility to create your own life. (Social assistant B., 27.6.2016)

From the point of view of the staff, different prisoners respond differently to this situation. Some become restless, others give up and completely ‘let themselves go’ (Social assistant A., 13.2.2014). Still others seem to have decided to live in their ‘own world […] not in reality’ (Foreman A., 27.6.2016), or settle in prison and ‘find security in the structures’ (Foreman C., 7.7.2016). For some staff members, these prisoners seem to merge into the routine since not only is daily life ‘always the same’, but the prisoners become ‘always the same’ as well (Security officer A., 2.9.2016).

Generally, working with prisoners who do not have any concrete perspective was described as a challenging task:

I find it very difficult to deal with […] the prisoners held in indefinite incarceration, to deal with this situation. I find that very difficult. This is a tremendous challenge. [But] I’m convinced that there are perspectives. I just don’t know which ones yet. But I believe that there are perspectives in any situation of life. I am convinced of that. (Chaplain A., 8.4.2014)

As these prisoners have no perspective and are also not granted much room to prove themselves (e.g. through temporary prison leaves), it is difficult to develop future plans and goals with them, which is the formal task of the social assistants. I was told that with the younger prisoners it is sometimes possible to agree on goals such as education, therapy or abstinence from drugs. With the older ones, however, this was described as being difficult, often because they do not wish to think about or make any agreements regarding future steps (Fieldnotes, 22.2.2016). As a result, in the prisoners’ sentence management plans, I often found statements such as the following: ‘[To] continue to work in our firm framework and maintain the positive overall impression. It would be nice if [name of a prisoner] would be more physically active’ (Analysis of inmate files, 6.4.2106, my translation); ‘[Name of a prisoner] makes an open and sociable impression. Maintaining a good and positive impression; the possible improvement of his health is desirable’ (Analysis of inmate file, 6.4.2106, my translation).

In addition to the social assistants who try to create perspective for these prisoners inside prison by finding out ‘what they still enjoy’ or ‘what can still motivate them’ (Social assistant A., 13.2.2014), prison staff in general mentioned these inmates’ special situation and thus—within their scope of discretion regarding the implementation of prison rules—try to support them individually in finding perspective within the prison walls. Some also try to make their days a bit livelier, for instance by providing them with variety and change (e.g. at the workplace), or with as much autonomy as possible, for example by giving them freedom of choice (e.g. regarding the fulfilment of obligations, such as the timing of cleaning their cells). In this regard, some prison officers apply certain rules a bit less strictly, especially in the units for ill and elderly prisoners:

For example, usually you [as a prisoner] are not allowed to go out and smoke [in the courtyard] or do anything else during work or say: I will quickly go to my cell and so on. Some [employees] in here are very strict. They then say: no, it’s forbidden, now it’s time to work […]. I see it differently. Why shouldn’t he be allowed to go and get something he needs out of his cell? Why not? Why isn’t he allowed to go out [to the courtyard] now? ‘Yes, go out, have a smoke!’ Why not? He will be in here forever; he will die in here. Why shouldn’t I let him out for a smoke or to do anything else? (Prison officer I., 21.11.2013)

In addition to the lack of perspective, another aspect that is increasingly debated and sometimes questioned regarding prisoners held in custody until the end of their lives is the interdiction of physical contact between staff and prisoners, which is primarily designed to protect employees and includes all forms of physical contact. This rule, however, becomes simply impossible to follow during the increasing number of situations in which prison officers have to provide (medical) care and support, especially in the units for ill and elderly prisoners (see also Hostettler et al., 2016). Moreover, I also met prison officers who consciously allowed some kind of physical contact during situations other than those requiring medical care, being aware that there is no one else around by whom they can expect to be physically touched.⁶ As explained by one of the staff members:

[w]e humans, we need touch and these people [the prisoners held in indefinite incarceration] are all of them, let’s say, dried out regarding [physical] contact. […] For instance, he [a prisoner] wants to shake your hand every morning. […] When I am walking around with someone like [another prisoner], I consciously allow closeness, sitting next to him and giving him a nudge from time to time […] I’m not a Töpli [someone who easily and quickly touches others], this is dangerous, but when he’s sitting next to me, maybe I’ll say, ‘now listen, […]’, then I’ll touch him here [on the shoulder]: ‘hey, have you heard of that?’ (Prison officer B., 8.10.2013)

Finally, some of the staff members also discussed creating some kind of ‘free spaces’ for these prisoners. These moments are in particular initiated by those responsible for spiritual or medico-therapeutic care. Free spaces are described as moments in which ‘prison pressure is put in the background’, when they can ‘just be’ (Social assistant B., 27.6.2016) or even ‘let go’ (Medical staff member C., 18.2.2014), or which allow them to experience ‘the feeling of being at home’ (‘Beheimatung’) (Chaplain C., 15.1.2014).

Although it is the penal enforcement authorities who divide the prisoners into categories (in particular regarding their degree of ‘dangerousness’ and treatability) and determine the course of action, prison staff have substantial influence as well. For example, they have to write daily and weekly reports regarding prisoners’ behaviour that are later included in the prison reports for the attention of the enforcement authorities. Through these instruments, prison officers are forced to constantly observe and interpret the prisoners’ behaviours and activities. These interpretations are not only shaped by their obligation to ensure order and security, but also filtered through their personal norms and moral values (see also Hostettler et al., 2016, p. 156). For example, as I noted during fieldwork, some prisoners were categorized by staff members as ‘extremely grubby’ (Fieldnotes, 7.4.2016), or, in contrast, as having a ‘mania for cleaning’ (Fieldnotes, 5.4.2016); some were described as ‘unfriendly’, while others were reproached for displaying a ‘friendliness’ that is ‘exaggerated and ingratiating’ (Fieldnotes, 5.4.2016). These reports may have severe consequences for the prisoners (this also affects their everyday lives; see Sect. 2.3.1):

In the office of the staff: an employee informed his colleagues from the late shift about the events of the day. Each prisoner was briefly discussed. [A prisoner] who had been visited by the social assistant today was discussed in detail. Apparently, a transfer does again not seem to be an issue, although the employees think that it would be best to place him in a retirement home […] The employee announced that the social assistant had told him it was noted in a report a year ago that [the prisoner] had been ‘aggressive’ and resisted instructions from the staff ‘with all his bodily forces’. Given these statements, the commission would certainly come to a negative decision regarding the question of transfer. The employee reminded his colleagues of the importance of writing reports that are ‘as value-free as possible ‘, and ‘only to describe what happened’. An intense discussion ensued, and the employees didn’t agree on this issue. (Fieldnotes, 19.8.2013)

Furthermore, over time, as these prisoners hardly ever get released, prison officers often become the prisoners’ only remaining reference persons. This also means that they in some ways become a substitute for inmates’ families, especially in the units for ill and elderly prisoners, where prisoners and staff have more time and opportunities for interaction. As the following quote illustrates, for most employees this is still a new and unfamiliar situation, which can also disturb the fragile balance between proximity and distance and lead to role conflicts among staff members.

You spend much more time together with these people [compared to preventive detention], I mean much closer, you know […] you are the caregiver, you are the security officer, you are the prisoners’ contact person; you are almost a family substitute. This sometimes creates a bit of a role conflict here [in this unit]. (Prison officer B., 8.10.2013)

Most of the prisoners sentenced to indefinite incarceration not only grow old but eventually die in prison or another carceral setting. This creates special challenges for the medical service in prison, which is not equipped to provide long-term geriatric or even palliative care, but also for the prison staff, as it further questions the curative- and prevention-oriented prison logic of care (see Marti et al., 2017). However, public care institutions are mostly unwilling to accommodate ‘dangerous’ offenders (see Hostettler et al., 2016).

Regarding the future handling of prisoners sentenced to indefinite incarceration, prison staff agree that their particular status should be considered, either in the frame of existing structures or through the creation of new ones. Issues mentioned regarding adjustments to the existing structures include the granting of more individuality, freedom and autonomy in the prisoners’ daily lives (e.g. concerning the management of their wage, the possession of personal objects, the opportunity to cook their own food and do their laundry), fewer restrictions regarding social contact with the outside world but also within the institution (e.g. more generous cell opening times, organization and participation in social events inside prison) and more occupational opportunities (in addition to work), to shift the focus away from their crime and towards individual resources and to promote prisoners’ creativity. Some officers also wished for the availability of more resources for the handling of this prison population, including more time, additional staff with training in fields such as social pedagogy or work and occupational pedagogy, as well as additional care staff. Prison staff also outlined their visions regarding the future enforcement of indefinite incarceration by creating new structures. For example, several officers brought up the idea of converting a farm for the accommodation of these prisoners, especially for those for whom, perhaps due to their advanced age, it may no longer be necessary to have the security standards of a secure penal institution.

As has become clear throughout these three sections, the lives of the prisoners sentenced to indefinite incarceration are organized and shaped by a wide range of institutional actors. These actors all have different responsibilities, attitudes and interests regarding the enforcement of indefinite incarceration and are thereby challenged in different ways. These challenges range from the difficulty of working with these prisoners towards rehabilitation without taking the smallest risk, to the responsibility of accommodating prisoners who increasingly grow old and become frail and ill in prison, to the everyday handling of prisoners who are suffering from a lack of perspective and to become their last remaining reference persons.

2.3 The Sentenced Prisoners

By the end of 2018, 583 persons were incarcerated according to Art. 59 SCC, and 148 persons were held in indefinite incarceration following Art. 64 SCC. A large majority of these prisoners are male offenders with Swiss citizenship (Bundesamt für Statistik, 2019c). More concretely, among those held in indefinite incarceration (Art. 64 SCC), by the end of 2018 there were 146 male and two female prisoners. Most of them had Swiss citizenship and were at that time older than 45 years of age. These characteristics have varied little over the past ten years (see Table 2.1).

Table 2.1 Average number of inmates (Art. 64 SCC) according to gender, nationality and age (2008–2018)

Due to the legal and institutional frameworks, the everyday lives of the prisoners held in indefinite confinement (Art. 59 and 64 SCC) are, at a first glance, characterized by two key features: indeterminacy and an ever-same present. What this means for those directly concerned is addressed in the following two sections, investigated from a phenomenological perspective.

2.3.1 Facing Indeterminacy

As argued by Crewe (2011), prisoners sentenced to indeterminate sentences face particular ‘pains of imprisonment’, strongly related to feelings of uncertainty, dependence and disorientation. While the feeling of uncertainty is probably, in one way or another, inherent to all imprisonment,⁷ in the case of prisoners held in indefinite incarceration, it takes a particular shape, which relates both to their future and their present.

In light of the restrictive practice of release by enforcement authorities, the probability that these prisoners will remain in prison until the end of their lives has over the past decades become more and more certain. Yet, as mentioned above, as the possibility of release is legally anchored in both Art. 59 and 64 SCC, the prisoners’ futures (i.e. whether they will take place inside or outside the prison) nevertheless remain uncertain. Their chances for having a future perspective (outside prison) depend on the decision of the courts and the enforcement authorities, who evaluate the prisoners’ situations based predominantly on prison reports, psychiatric assessments and recommendations by committees of experts.

Prison reports in particular strongly impact the everyday lives of the prisoners who depend on positive reports in order to progress within the system. As emphasized by Crewe (2011), this generally puts significant pressure on prisoners because ‘whatever [the prisoner] does, it will be open to interpretation. If he explodes, his report may say that he cannot cope with frustration … if he keeps his own counsel, the reports may say that he is withdrawn and cannot come to terms with his offence’ (Crewe, 2011, p. 512). A similar statement comes from Paul, who told me the following:

I sometimes have the feeling that you only have to function in here. You must not get sick: it will be punished. You must not break down: you will be punished. Because then they say: he is not strong enough, it will be written in the report, which has negative consequences in terms of release. So you cannot do anything. You only have to work, function, function, work, work, work and be locked up. (Paul, 29.3.2016)

The fact that prisoners’ behaviour is reported also influences interactions between them. Lars, for instance, told me that he tries to avoid hanging around with the ‘really tough guys’ because this may create ‘a bad impression’ of him and be reported, even though he would actually prefer to spend time with them, as these long-term prisoners are the ones who are in the same situation and therefore do not include those who will leave the prison again soon (Fieldnotes, 9.2.2016). Given the fact that they must control their emotions, interactions among prisoners are generally framed by what Marco called ‘superficial friendliness’ (Marco, 3.5.2016). In this regard, another prisoner wrote to me that he ‘misses the human [das Menschliche]’ in prison and that although ‘everyone is friendly’, interactions are ‘formal and rigid’, which is why he sometimes does not ‘feel’ himself anymore (Letter from a prisoner, 21.11.2016).

In Sect. 2.2.1, I highlighted the importance of forensic-psychiatric assessments regarding these prisoners’ futures. A chance for a future outside the prison can today almost exclusively be achieved through (successful) therapy and/or a positive psychiatric report. However, as prisoners sentenced according to Art. 64 SCC are by law classified as ‘untreatable’, they are generally not granted any future-oriented psychotherapy—that is, only if forensic psychiatrists see some potential for converting Art. 64 into Art. 59 SCC—and generally do not get the chance to prove that they have changed for the better, within the scope of temporary prison leave, for example. The prisoners I met were aware of the fact that without therapy and proof, their chances for release are close to zero. At the time of my fieldwork, of those prisoners sentenced under Art. 64 SCC, only a very small number gained access to therapy—some with the perspective of a possible conversion of Art. 64 SCC into Art. 59 SCC and some without:

I can finally participate in an offense-oriented group therapy after a long struggle. Although I have no entitlement to get (intensive) therapy, I was able, together with my competent authority and with pressure from my lawyer, to enforce this. Since until now nobody has been really interested in rehabilitating me in some way, I had to act. I’m a perpetrator and not a victim they told me. (Letter from a prisoner, 27.6.2016)

Among those prisoners who were receiving therapy within the framework of Art. 59 SCC at the time I met them, some had bad and disturbing experiences and perceived the requirements necessary to (potentially) progress as unclear or unattainable, and therefore decided to stop. For instance, Louis had confusing experiences related to the evaluation of his therapeutically achieved progress:

All that I had achieved therapeutically during these nine years, which was also all confirmed by the experts, was then defined as negative in [another prison], as wrong, not possible to be […] Everything that was considered positive, the changes in my behaviour, the way I now address people, express myself, […] everything I have learned from therapy was suddenly considered negative. And they wanted me to start again from the beginning. And then I said: No! I’ve been playing this game for over 18 years now. Every time, wherever I go [to another prison], this is not good, while this is good, I have to start again and again … no! […] And at some point you just have to say: Hey, now it’s enough, now this has to stop. I then started to fight back a little bit and then I was transferred again, they brought me to [another prison] and there I stayed for a few months, and then they wanted to put me into [another prison] but I refused. I refuse to go to a therapeutic institution because why should I always start all over again? I was actually brought so far that I was ready to get out, now I’m virtually back in the hole, in the kennel. One is beaten on the mouth by the authorities or all together until the dog bites. So that one can say: look, this man is dangerous. (Louis, 22.3.2016)

Finally, some prisoners categorically refused the offer of therapy. They did not see any reason for therapy, as they did not consider themselves mentally ill or disturbed. Furthermore, only four of the prisoners I talked to were at that time benefitting from a couple of four- to eight-hour (accompanied) prison leaves per year (for more details, see Sect. 6.7). However, without therapy and proof that they have changed for the better, prisoners cannot get rid of the label ‘dangerous’ and may carry it until the end of their lives.

The results of the enforcement authorities’ examinations, which, as I was told, do not in fact take place as regularly as they should (e.g. two prisoners told me that the last time they had been visited by the competent authority was in 2007), are frequently perceived as arbitrary and inconsistent, and sometimes even deeply confusing. The following quote comes from Rolf. As he told me, one particular aspect of his life, namely the fact that he has a large social network in the outside world, had once been evaluated as extremely positive, the next time as negative:

All instances within the enforcement authority actually concluded that due to my big social network, I was well protected, and the risk of recidivism was considered to be minimal […]. Release was therefore within reach […] And then, one year later, just everything was messed up by the expert commission […]. So the same authority [that assessed the big network as positive] then twisted the argument regarding my big and good social network out there in the pure opposite direction. It was argued that my big social network would actually foster my escape and the risk of recidivism. […] And this shows how absurd the reasons set out sometimes are. Obviously it is only a matter of achieving something that seems more opportune because of a certain sentiment among the population, because of political agendas or whatever. That’s why many of us see ourselves as political prisoners. (Rolf, 6.5.2016)

As the quotations from Louis and Rolf illustrate, changing and contradictory statements regarding the prisoners’ personal attributes, behaviour or development can create confusion and additional uncertainty. Prisoners may lose orientation in their lives, not knowing anymore how to behave or where they stand. As argued by Crewe (2011, p. 513), this may lead to the experience of ‘ontological insecurity’ (Giddens, 1991) as these prisoners may face existential difficulties and lose faith in the reliability of the world beyond them.

In addition to the lack of orientation that would allow prisoners to ‘navigate’ their time in prison, without any concrete date of release, prisoners have ‘no goal, no perspective, no horizon’ (Louis, 22.3.2016). Following Tuan (2001 [1977], p. 123), the horizon, is—at least in so-called Western societies—a common image of the future. More concretely, phenomenologically speaking, it is the horizon of potentialities or ‘the future world of the not-yet’ that provides meaning to human existence (Meisenhelder, 1985, p. 42). Almost all the prisoners I talked to said that they accept the sentence they received, but struggle significantly with the lack of perspective that comes along with indefinite incarceration:

I’m in a place where I have no prospects, no prospects for the future. I’m on a path without an end. The durability here is dateless. They can say: I’ll keep you as long as I want. One is entangled in different feelings; one is angry, sad, depending on the condition, but mostly angry and sad. (Kurt, 3.5.2016)

Others described the condition of having no perspective as ‘mental torture’ (Rolf, 11.9.2013) or an ‘inhumanly long-drawn-out death penalty’ (Markus, 29.3.2016). Many of the prisoners said that they would prefer a ‘real’ life sentence or even the death penalty to indefinite incarceration. Prisoners serving undetermined sentences find themselves, in a certain sense, in a situation of ‘chronic crisis’ (Vigh, 2008) characterized by a lack of perspective and uncertainty regarding their future.

Given this situation, prisoners develop different attitudes towards or modes of being with time (Marti, 2017). Even though their chances are very small, I met prisoners who keep ‘fighting’ for their release. By continuously writing letters to the authorities, making complaints and objections, and imagining alternatives of what life in the future could be like, they keep hope alive. Their mode of being with time is concentrated on the future: they are constantly waiting for something that may happen—a visit by their lawyer, an appointment at the court, a transfer to a more open prison—and, possibly, their eventual release. However, as stressed by Marco, ‘waiting makes time pass very slowly’ (Marco, 4.5.2016). Moreover, because of their strong hope for change and their intense orientation towards the (uncertain) future, these prisoners are doing ‘hard time’ (Cohen & Taylor, 1972, p. 92). Without any concrete perspective, they are permanently suffering the ‘pains of uncertainty and indeterminacy’ (Crewe, 2011, p. 513) and have difficulty assigning meaning to their present life in prison. Moreover, for most of these prisoners, the idea of having a future outside of prison is connected to uncertainty as well. Some fear that, in the case of release, they would be too old to be integrated into the Swiss job market and that the pension they would be granted would be insufficient to live a decent life. Others fear that due to the crime they committed or simply because of their old age, they have lost the ability to establish any social relations. Finally, a lot of the places that used to be familiar to them no longer exist. Yet, as I show further below, some prisoners also imagine possible futures, often linked to the idea of starting a new life abroad.

Other prisoners, in contrast, try to concentrate on the present. According to Flanagan, this is indeed ‘the most effective method to reduce the uncertainty and ambiguity of the future’ (1981, p. 210). This mode of being with time is also illustrated in the following quote:

Me, as an inmate sentenced to indefinite incarceration, I cannot hope to be released. I cannot wait, though. I take the days as they come. You have to adapt to a certain degree to the setting, to know the rules so that you don’t ignore them and get into trouble, and to establish your own routine that makes you feel comfortable. Me, I feel safe and comfortable […] I don’t say time passes too slowly or too fast, I take it as it comes. I flow with the time, day after day. But this has nothing to do with simply living for the moment. It just helps me to protect myself and not to think too much about my situation. (Marco, 4.5.2016)

Prisoners who focus on the present generally told me that they try not to worry too much about their future but to accept the situation as it is. Some of them mentioned that they also try to use their time in prison as constructively as possible. As argued by Crewe et al. (2016, p. 10), this is a typical pattern for long-term prisoners beyond the early sentence phase: they no longer experience the present as a form of stasis because life is no longer considered ‘on hold’ (in the past, or being lived elsewhere),⁸ and the prison is now considered their ‘home’ and ‘the only place where life could meaningfully be led’. By concentrating on the present instead of an uncertain future, I argue that long-term prisoners actively ‘normalise’ indefinite incarceration and thus transform it into a (potential) ‘frame of action’ (see Vigh, 2008, p. 11). To perceive imprisonment as their ‘normal life’ allows them to feel comfortable and to go about their lives. However, those who decide to make the best out of their situation feel the need not only to accept but also to engage themselves in their situation. As I was told, this changing attitude requires the development of a certain awareness ‘of what this place can give you’ (Fieldnotes, 2.5.2016). In concrete terms, prisoners talk about developing the capacity ‘to take the day as it comes’ and ‘to appreciate the little things’ (Darko, 6.5.2016). For some, it also requires that they cut off contact with the outside world, even with their loved ones, and let go of their (pre-prison) selves as it is emotionally too demanding and too painful to live in two worlds at the same time:

I notice that the more I let go and just accept that I won’t get out, I actually find it easier to feel comfortable [compared to] when I am constantly worrying if I will ever get out, if there may still be a possibility, [and] put pressure on myself. […] But this also means that I would need to give myself up. I just talked to someone, just yesterday, who is in exactly the same situation as I am. He has now resigned, has given up. He denies everything, therapy and all that, and yes, he said he felt extremely comfortable. (Leo, 23.3.2016)

I don’t read any newspapers anymore […] I also gave away the television, where you anyway always see the same things […] I actually built my own world in here. With painting, programming, my budgies, my mates [fellow prisoners] … it’s kind of my own world in here that I have. (Franz, 10.9.2013)

Finally, I also met prisoners who described their present-oriented mode of being with time, in a certain sense, more radically, namely as ‘vegetating’ (Patrick, 3.5.2016), or having no expectations anymore and being ‘done with life’ (Lorenzo, 23.11.2013).

Simply put, regarding their future, prisoners serving undetermined lengths of time face a kind of existential dilemma: to focus on the future and to continue to fight for release means, for some, resistance and keeping hope alive but at the same time suffering the pains of uncertainty; to concentrate on the present and to accept imprisonment allows for the building of a life inside prison, but it also means giving up hope, cutting bonds to the outside world, and maybe even letting go of one’s former self, in order to create one’s own world inside the prison. As I show throughout Chapters 4, 5 and 6, the prisoners’ different attitudes and ways of dealing with the time-based indefiniteness of their incarceration—that is, their ways of being with time—are also expressed in their everyday practices, for instance in terms of the arrangement of their cells or organization of leisure time. However, as I noticed during fieldwork, many prisoners’ mode of being with time is not stable, but rather shifting, depending upon the circumstances and their personal life situation (e.g. a positive prison report). As I show in the following, whether prisoners continue to hope for their release or to accept incarceration, they all have to deal with the particularity of everyday life in prison.

2.3.2 Living in an Ever-Same Present

Prison life is characterized by coercion and heteronomy and a high density of rules and repetition (Goffman, 1961) that allows little spontaneity and few contingencies. Unexpected interruptions are rare, which leads to feelings of boredom, dreariness and stasis. Indeed, as pointed out by Toch (1996 [1977], p. 29), ‘the eventlessness of prison life over served time is a general stressor for inmates’. When nothing really happens, time seems to pass very slowly—or even to stand still:

Sometimes it feels as if time stands still. Especially because of the visual and the acoustic: it does not change much. You notice day and night, the changing seasons, but not much more. (Marco, 3.5.2016)

At the same time, because each day is generally the same in prison, inmates feel that retrospectively, time has passed quickly and that they have lost (life)time (see also Jewkes, 2005; Matthews, 2009):

I have lost many years by now that I cannot make up. Of course, someone who came in here 20 years ago, maybe already at age 19, has another problem. He is really missing something serious. But me, at least, I had a life before prison. (Darko, 24.9.2013)

From the point of view of the prisoners to whom I spoke, due to the unchanging rhythm created by the prison regime and the uneventful present, everyday life in prison leaves ‘no traces’ on individuals (Fieldnotes, 25.6.2013). In other words, it leaves ‘no more than a bit of dust in the soul’ (Serge, 1970, p. 101, cited in O'Donnell, 2014, p. 183), which can make inmates ‘feel empty’ (Jonathan, 24.9.2013).

The feeling of emptiness has significant impacts on inmates’ social relations both within and outside of the prison because there is not much to share or talk about. As Heinz told me, ‘in order to be able to talk about something, you must have experienced something. If you haven’t experienced anything, you cannot say much’ (Heinz, 3.5.2016). The same experience is described by Jonathan:

You know, when you’re here and someone is out there, these are two different worlds. The one outside is full of topics, and I am empty, I have nothing to say, what should I tell him, that I saw the foreman, that I ate a sausage? That’s of no interest to those outside. I notice when I’m in contact with my relatives, they are full of stories, they can talk for hours. And me, I just can’t think of anything, I’m kind of limited with experiences …. Me, I’m kind of empty. (Jonathan, 24.9.2013)

Moreover, as pointed out by O’Donnell, ‘the currency of the [pre-prison] past is soon spent’ (2014, p. 179). As explained again by Jonathan, ‘sometimes we [he and a fellow prisoner] sit together in silence because there are no themes to talk about, everything has been said, discussed, from our past … our youth, sports, holidays, family …’ (Jonathan, 24.9.2013).

Prisoners agree that the ever-same present has not only influenced their social relations but has also had harmful effects on their mental state. The younger prisoners in particular (both related to age and time served to the present) expressed their fears regarding mental deterioration and losing their sense of self (see also Leigey & Ryder, 2015). From their point of view, long-term imprisonment, combined with medication use and the fact that many prisoners ‘have given up’, has ‘dulled’ them (Leo, 23.3.2016) and made them look like ‘zombies’ (Anton, 24.3.2016), having lost all interest or ability to participate in interpersonal exchange:

Many of the Verwahrten [prisoners held in indefinite incarceration] in here, they are just sitting stubbornly in their cells, they don’t come out, have isolated themselves, cut themselves off. They are no longer interested in people, emotions, in having conversations as we have now. Many of them are like that. (Leo, 23.3.2016)

The ever-same present in prison—as well as the time-based indefiniteness of their incarceration—weighs heavily on prisoners. However, as I show in the following chapters, a closer look at their ways of living everyday prison life reveals that even though they are not able to change the forces that affect their lives in a negative way, these prisoners find new and individual ways to deal with time—as well as space.

2.4 Conclusion

While indefinite incarceration is nothing new (in Switzerland as elsewhere), the fact that sexual and violent offenders are today’s ‘ungovernables’, who have been preventively locked up, is a relatively new phenomenon embedded in wider social and political processes. With the exclusion of these prisoners from society comes their inclusion in the prison world, where they have to live under the same conditions as prisoners who serve ordinary (finite) prison sentences.

There are different institutional actors in charge of these prisoners, all having different responsibilities, obligations and attitudes towards them. As shown in this chapter, due to public and political pressure and calls for more safety, the penal enforcement authorities are today more cautious regarding the loosening of the penal regime or the granting of conditional release for so-called ‘high-risk’ offenders. As a consequence, most of these prisoners will have to stay in prison for the rest of their lives and will most probably die in a carceral setting. From the point of view of prison management, long-term prisoners sentenced to indefinite incarceration are generally those who exhibit conformist behaviour or, in contrast, cause extraordinary trouble, although this is much less often the case. They appear on the radar screen of prison management in particular when they grow older or become ill or frail, and it is for these men that the units for ill and elderly prisoners were established a few years ago. However, the way these units are currently equipped and staffed does not allow for the provision of adequate care for these prisoners (see Hostettler et al., 2016). Given the fact that their numbers will increase, further investment is inevitable. Prison employees who work with these prisoners on a daily basis are particularly challenged and also directly affected by the prisoners’ lack of perspective. Although they do not have any official mandate, many of the staff members try to consider these prisoners’ special life situations and support them in finding meaning and perspective within the prison walls. Prisoners sentenced to indefinite incarceration might stay forever, and staff members therefore often become the prisoners’ only remaining reference persons. This is still a new and unfamiliar situation that can lead to role conflicts among staff members. As I have shown throughout these three sections, among the key actors there is a broad spectrum of opinions regarding the future handling of this group of prisoners. Although there is general agreement that their special status should be considered, these actors do not necessarily agree on what in particular could or should be improved and how this should be implemented.

As noted in the last part of this chapter, the lives of prisoners sentenced to indefinite incarceration are generally framed by the time-based indefiniteness of their imprisonment and an institutionally organized daily life characterized by coercion and repetition as well as many rules and regulations. As my data indicate, this situation can have powerful effects on how the prisoners relate to themselves, others and to the world in general.