Abstract
This article explores the chronology of change in the Spanish prison system, especially during the transition from the Francoist dictatorship (1975–1982). It indicates how the incarcerated population had come to reflect Francoism's management of social change (including via an increasing use of preventive detention). By the early 1970s, political activists represented a minority of those incarcerated, although a minority that had grown steadily again from the late 1960s. The article discusses relations between the different groups of inmate, the rapidly-deteriorating conditions inside the gaols, and the emergence in the early transition period (1976) of prison protests (COPEL) led by common prisoners whose main objective was inclusion in the gaol amnesty then being proposed as part of the exit strategy from dictatorship. The article analyzes the reactive rather than proactive response to COPEL of Spain's transitional governments, composed of reformist Francoists, and the eventual outcome in a prison reform law in 1979. The article assesses the law's limited practical effect inside the gaols, because of severe budgetary restrictions combined with Spain's rising prison population – the latter mirroring developments across Western democracies generally.
This article explores the situation in Spain's prisons from the end Francoism through the years of the political transition out of dictatorship. It pays close attention to the eruption during the transition period (1975–1982) of a new social protest movement inside the prisons, which was formed, and led, by common prisoners rather than by imprisoned political activists. The article seeks to show three things: first, that it was this protest movement – and, crucially, its strong reverberation in Spain's media and among the public – which impelled the prison reforms then agreed by the governments of the transition: government was thus reactive rather than proactive here. Second, while important qualitative changes occurred in the legal framework and rules/routines governing prisons which, in the post-Franco period, achieved a clearer legal status and level of protection and rights for inmates, these prison reforms would take much longer to realize than is commonly recognized in official government or prison service publications, and in many cases took longer to achieve than the transition period itself. Third, the article shows that despite these prison reforms, the reality of life for inmates did not become qualitatively improved in the years afterwards, for a series of reasons analysed here, but first and foremost because of the exponential increase in incarceration in Spain, as generally across the West, with the concomitant intense overcrowding. The approach taken in this article is broadly social-historical. While the article refers to the legislative framework, it does so in order to discuss the ways in which prison reform was impelled and shaped by grassroots activism in the prisons and on the streets during the years of political transition. 1 As such, the article offers a different interpretation to those by legal historians who, by ignoring the picture on the ground inside the prisons, present the reform process as unproblematically successful. 2
The Prison Population in the Final Years of the Franco Dictatorship
Around the time of Franco's death in November 1975 there were approximately 15,000 inmates distributed between 70 gaols. 3 The overwhelming majority were male (women were around 5 per cent of total), and the typical profile was that of young men (in 1975 almost 60 per cent of inmates were under 30) sentenced for crimes against property and with a high probability of reoffending. These young men had been born in the period between the harsh post-war years of the 1940s and the beginnings of Spain's transformation to an urban industrial economy in the 1960s. Many of these young male prisoners came from migrant families, i.e., those who formed part of the mass rural to urban migrations occurring under Francoism. This migration was undertaken for a mix of political and economic reasons, but we need to consider it as forced migration, because those undertaking it were compelled for reasons of basic livelihood and often sheer survival. These imprisoned young men were largely drawn from the poor peripheral neighbourhoods and shanty towns of the big cities, and were often without basic schooling and thus semi-literate. They had little chance of a job, especially once the economic recession began in the early 1970s. Petty theft and aggravated theft (with violence), stealing motor vehicles (cars and scooters) and the beginnings of drug consumption were, together, what landed them in gaol – with the additional factor of prostitution for women prisoners. 4 All these specific crimes were severely punished under the Francoist Penal Code of 1944 (lightly revised and reissued in 1973). Its notable harshness in sentencing was somewhat alleviated, however, by the Francoist system of ‘redemption [remission] of sentence through labour’: for every two days worked, an inmate's sentence was reduced by one day, which allowed all those to whom it was applied to achieve parole much earlier, albeit under very punitive conditions. Most common prisoners were eligible for this system in practice – political prisoners less so, and withholding ‘redemption of sentence through labour’ was a recognized form of punishment, since access was viewed as a privilege not a right. Prisoners’ educational activities were also in theory eligible to be counted towards this remission. But the prison system often blocked prisoners’ access to education, which, as with much else, was subject to ‘grace and favour’.
Another singular feature of the prison landscape was the system of ‘preventive detention’ which allowed custodial sentences to be imposed on individuals deemed to be, in the regime's terminology, ‘socially dangerous’, even though no specific crime had been committed. The system was used against the working poor who lived on the urban margins, which was a major feature of these years of urban development. The preventive detention system even in the 1960s often still defined those it processed in relation to somewhat antiquated categories of ‘vagrancy’, ‘drunk and disorderly’, etc. But published research on preventive detention to date has focused mostly on how the system was deployed, especially during the 1970s, in the regime's ‘war against homosexuality’. 5
Franco's prisons continued to incarcerate male and (in low numbers) female political activists, even though the state did not recognize the category of political prisoners as such. The levels of political incarceration varied over time from the 1950s to the 1970s depending on external events and the state's own waves of repressive action. Political incarceration remained between 5 and 10 per cent of the total prison population, rising towards the higher end of this range from the late 1960s. Yet even if we compute the under-representation of remand prisoner numbers in the official prison statistics, the overall figures never again came remotely close to the mass political imprisonment of the 1940s. 6 Of the political detainees, a majority were young men, but this time educated ones, with a level of political awareness and support networks outside gaol – things which virtually all common prisoners lacked. These few thousand young men – workers and, to a lesser extent, students – had been sentenced for among other things membership in trade unions or political parties, for participating in street demonstrations, and for distributing political leaflets. Most of them were linked to the communist movement – whether its party, the PCE, or the Workers Commissions’ trade union (CC.OO). But the political inmate population ran the gamut of anti-Francoist political affiliations, 7 including, by the late 1960s, all those of the New Left – for all were subject to the same state repression, but especially anyone belonging to groups espousing violent direct action against the dictatorship, most notably the radical Basque nationalist organization, ETA and the revolutionary left, FRAP. 8
The conditions of daily life inside, and an individual prisoner's perception of doing time, varied greatly according to the type of prisoner. For political activists, prison was, paradoxically, a kind of liberation, because it meant the end of the prior phase of torture and physical abuse which was the staple of their passage through police-station detention. 9 Once out of the clutches of Franco's notorious political police (the Brigada Político-Social or BPS), 10 political activists accepted gaol time as an integral part of their anti-Franco activism: in the words of one, ‘there wasn’t a before and an after, first the political struggle and then prison. These weren’t separate chapters, it was all part of the same story of our activism and resistance’. 11 Furthermore, political prisoners could fall back on the tradition of political collectives, or comunas inside gaol – small groups of political prisoners tightly knit into a ‘family’ group to look after each other, and connected to larger networks of solidarity and moral and material support outside prison. 12 In these ways, for the political prisoners of the late-Franco period, captivity actively consolidated their activism and political convictions.
At the opposite end of this experience of gaol, were most common prisoners, because they usually had no any group identity inside, or networks of support outside. Lacking as most did, too, any political consciousness or activist ‘training’, they generally did not have the psychological machinery or fortitude to deal with prison – that is to say, to resist its debilitating, and now very commonly recognized, institutionalizing effects. These effects produce forms of dysfunctionality – in which prisoners become totally conditioned by patterns of gaol behaviour, all of which ends by making many of them unable to re-adapt to patterns of life outside. On the other hand, there was one way in which common prisoners’ experience did reflect that of their activist counterparts, albeit with diametrically opposed consequences. For they also felt their prison time as a continuation of what had gone before. For most common prisoners – those young men from Spain's banlieues and shanty towns – their lives were already lived on the economic and social margins, ‘busking’ and fighting daily to gather the basic necessities of life, and, if repeat offenders, also already marked by the stigma of prison. 13 Little wonder then that, while for political detainees, being a prisoner in Madrid's Carabanchel gaol could be described as an educational experience akin to ‘university’ (as Stuart Christie for one termed it), for most common prisoners life there was not at all an improving experience, and was more like being in a ‘great hub of the marginalized’. 14
The Emergence of a new Social Movement
From the end of the 1960s, the calls for political amnesty had become for the anti-Franco opposition the essential precondition of any credible process of democratizing political change in Spain. The first fruits of this pressure came in November 1975 when, after Franco's death, the newly-crowned King Juan Carlos conferred a pardon. Its terms reduced overall sentences in proportion to the seriousness of the crime, a process which saw the release from gaol of some four hundred political prisoners and more than five thousand common prisoners. 15 But this was a long way from what the opposition was demanding by way of political amnesty, which meant wiping clean the penal record, leaving no trace. By contrast, a pardon waived the sentence without expunging the record (in other words the ‘crime’ remains listed as such, but the ‘criminal’ is absolved). The limited nature of what had been granted by way of pardon, plus the extent of political continuity between new monarchy and old dictatorship – the first government of the monarchy was identical to Franco's final cabinet – caused the pressure to mount on the reformist Francoists in power to prove they were serious about democratization. In the first half of 1976, this pressure crystalized in mounting strike action and street protests which were met by heavy police action. 16 Nevertheless there was also a two-part political response – first, the appointment in July 1976 of a new prime minister, Adolfo Suárez, a Francoist apparatchik who would use his insider contacts to make the political deals and trade-offs which propelled the transition forward. Second, also in July 1976, a partial political amnesty was conceded for activist prisoners not involved in violent direct action. 17 It was the paucity of this measure which caused the eruption of the protests among common prisoner populations. Diverse sources all agree that among them there had been a high expectation that many would be included in the terms of the amnesty. One political prisoner noted in his gaol diary for 18 July 1976 that ‘the question of the amnesty is really preoccupying the common prisoners; their expectation is palpable that at least they should get some kind of pardon next time the cabinet meets. One remarked to me only this morning that “we are Franco's prisoners too”’. 18 We should note that pardons for common prisoners had been a regular feature under the Franco regime. Their disappointment in 1976 was thus correspondingly fierce. 19 The day after the terms of the partial amnesty became public, a group of common prisoners took their protest to the roof of Madrid's Carabanchel gaol, demanding they be included in the amnesty. The protest was ended by the armed entry to the prison of riot police and the transfer of the protest's alleged ringleaders to other gaols. But the Carabanchel events triggered an extended cycle of prison protests which would continue across the next two years. Their underlying causes lay in the very poor physical condition of the gaols, and also the militarized discipline therein which exacerbated a notorious level of prisoner abuse.
The catalyst of the protests would be a new prisoner coordinating body, born when those inmates dispersed from Carabanchel to other gaols after the July 1976 rooftop protest were brought back to the capital's gaol after several months. About a dozen of those thus reunited decided, towards the end of 1976, to form this coordinating body, which would be known familiarly by its acronym, COPEL, Coordinadora de Presos en Lucha (Coordination of prisoners in struggle). 20 In spite of its name, COPEL was unlike any of the other political or union organizations then mushrooming in Spain following the dictator's death. For COPEL had no recognizable leadership or fixed structures, rather it was a loose – and necessarily clandestine – network which helped connect anonymous bodies of prisoners who would otherwise have had great difficulty communicating with each other between the different gaols. In spite of its restricted possibilities, COPEL nevertheless managed to get its manifestos and communiqués out to the press and media across the spring of 1977, with help from sympathetic lawyers, family members and occasionally even from one or two of the minority of prison officers of more progressive outlook. In their handwritten communiqués, COPEL drew attention to the poor conditions inside and the systematic abuses to which inmates were subjected. All in all, the existence of COPEL, whatever its organizational precarity, constituted a qualitative leap compared to earlier instances of prisoner protest in Spain. And here it seems clear that there was a certain historical awareness in and around COPEL of the tactical challenges of prisoner protest that had appeared during the years of Spain's socially reforming Second Republic in the 1930s. We see this in the way COPEL described themselves not as common, but as social prisoners (presos sociales). This was the term which the anarchist CNT had adopted in the 1930s to draw attention to the ways in which ‘common’ prisoners were the product of unjust and exclusionary state policies, just as much as political activists were. 21
The fact that COPEL adopted the term ‘social prisoner’ indicates the presence of politically aware cohorts within the movement. Moreover, the term's use was a conscious bid on COPEL's part to open up the definition of what a ‘common’ prisoner of the 1970s was – someone pressured into crime by what, for the urban poor, was the vicious underside of the ‘economic miracle’, an acute lack of job training and social provision, and then confrontation with the harsh penal laws of the dictatorship. 22 Crucially, COPEL's aim was to communicate this identity beyond the prison to the media and a broader public. In their communiqués COPEL argued that the prisoners they represented were also the victims of Francoism, and thus had the right to be included in the political amnesty. Aside from this demand (or, alternatively, the issuing of a parallel pardon for social prisoners) COPEL had several other key demands: an urgent reform of the Criminal Code and of existing prison regulations; the abolition of Franco's special jurisdictions as legally unsafe – beginning with the ‘Law of Social Dangerousness’ (LPRS) which governed the dictatorship's machinery of preventive detention; the demilitarization of prison discipline; and a process of ‘lustration’ and reform among prison staff. 23 Striking was COPEL's emphasis on the key importance of communicating their demands beyond the prison walls, and being able to connect with external interlocutors. COPEL's clarity over this again bespoke a historical awareness of the failures of the 1930s prisoner protests, which never achieved that leap beyond the prison walls. 24 This in turn allows us to hypothesize, with a considerable amount of circumstantial evidence – in particular the reappearance of the conceptual figure of the social prisoner – that the historical link was none other than the anarchist movement itself, and in particular the CNT's veteran activist prisoners. 25
In spite of what may now appear as the ‘blue sky’ ambition of COPEL's demands, in the tumult and fluidity of the transition period in Spain, with mass popular mobilizations on the streets and any number of new social and political movements and organizations questioning the foundations of Francoism and the legitimacy of its state apparatus, the prisoners’ demands found an echo beyond the walls of the gaols, achieving social and political support including from relatively influential sectors of public opinion. Across the spring of 1977, there were various meetings held in Madrid's Complutense University to discuss the COPEL phenomenon and explore its demands. 26 All these initiatives were an indication of the generalized influence in sectors of Spain's progressive intelligentsia of the spirit and events of 1968 in Europe. In particular, this had brought to the fore a critique of state institutions of repression, and its forms of social control, as encapsulated in Foucault's Discipline and Punish. 27 Nor was this a purely conceptual interest, because many progressive intellectuals had also done time in Franco's prisons. The support groups formed by Spanish intellectuals never became even the palest reflection of Foucault's GIP in France (Group d’information sur les prisons), which, in the years 1971 and 1972, had generated a vast amount of data denouncing the state of French prisons and the abuse of inmates. Nevertheless, the particular transitional moment in Spain created a strong media and public interest. Although this could have been driven more by the general desire to breach the limits of Franco's controlled press, than by any sustained interest in the problems of prisons.
Officially, the Spanish authorities, in the shape of the state body that controlled the prison service, the DGIP (Dirección General de Instituciones Penitenciarias), first sought to ignore COPEL, treating it – in classic Francoist mode – as a mere problem of (in)discipline. They therefore transferred out of Carabanchel those they considered its prime movers. But the conflict inside the gaols escalated dramatically. Prisoners initiated collective protests on a massive scale – sit-down strikes, for example in the prison workshops, hunger strikes (a form of mass protest typical of political prisoners, which common prisoners adopted in this period), as well as the harrowingly emblematic recourse to self-harm/self-inflicted wounds. This was often carried out as a group protest (cutting with knives or razors, swallowing risky foreign objects) in part in the hope of garnering public and media attention and thus putting pressure on the government to initiate reform. 28 The most spectacular of the COPEL protests occurred in Carabanchel itself on 18 July 1977 – a symbolic choice of day in that it was the anniversary of the 1936 military rising which triggered the war against the democratic Second Republic. For four days continuously hundreds of prisoners occupied the prison's roofs until police intervention put an end to it. 29 But even before this police intervention in Carabanchel, some twenty other gaols across Spain erupted into similar protests. The ‘battle of Carabanchel’ was a turning point in the evolution of the whole social prisoner movement, signifying the eruption of COPEL beyond the Madrid prison and right across the country – both through the transfer (yet again) of those deemed ringleaders to other prisons, and more generally through the effects of media publicity. Thus began an unprecedented period of conflict inside Spain's gaols which lasted an entire further year, and during which ‘the prison problem’ became for the political class as alarming as it was undeniable. (Even though the reformist Francoists who still dominated politics had little understanding of the issues.)
It was the sudden visibility of the conflict – i.e., its shift, media and politics-wise, from ‘inside’ the prison walls to centre of the national stage, which provoked the Suárez government to respond. The timing here is instructive: immediately in July 1977 the government approved a provisional reform of prison regulations to relax internal disciplinary norms, which were still militarized, in contravention of the UN stipulations of 1955 and 1966, to which Francoist Spain had formally adhered.
30
But the proposed changes to the prison regulations were too half-hearted to do much to appease the protesting prisoners, and new protests continued occurring in the gaols on virtually a daily basis. The situation grew bleaker after the Spanish parliament approved the Amnesty Law of 15 October 1977. Its terms saw the release from gaol of the last anti-Franco activists, that is to say, of prisoners of conscience, but at the same time closed off permanently the possibility of any mass pardon for other categories of inmate. The escalation of the prison protests thereafter was predictable, in view of the conditions inside the gaols and the anger of inmates at their definitive exclusion from amnesty. The four months from October 1977 would constitute the period of most intense violence and physical destruction inside the gaols. As one common prisoner put it: if there's no pardon for us by Christmas then COPEL will see to it that the prisons burn; there will still be men flinging themselves from the prison rooftops calling for their freedom. The watchword is this: a pardon, or the gaols burn by January.
31
In Barcelona's Model Prison, warder reports and prisoner testimony described the same tinderbox atmosphere with high levels of violence and destruction during these months. 32 Spain's Attorney General recorded more than fifty riots across 1977, nine of which involved large-scale fires and other major destruction, causing hundreds of injuries and leaving many thousands of prisoners on punishment detail. 33 The consequences of this escalation in prison protest from October would be counterproductive overall. For it strengthened the hand of the reformist Francoist government to resist calls in parliament for an inclusive pardon for common/social prisoners whose fate was sealed the following February when a draft pardon law was thrown out precisely for lack of parliamentary support. 34
The Stages of the Government Response
Throughout 1977, the prison protests filled the pages of the press and there was mounting pressure from public opinion demanding that the government address the issue of prison conditions. There were also a plethora of specialist reports and committees emanating from what we could term the beginnings of a civil society in Spain – from groups of jurists and lawyers as well as from other entities, all also demanding penal reform. By the end of the year, parliamentary commissions were appointed, and the Ministry of Justice began to take the lead. As the state geared up to reform ‘from above’, so COPEL would be increasingly, and deliberately, restricted – although the historical perspective inevitably raises the question of how much destruction and loss of life might have been avoided had the government responded earlier to what the emergence of COPEL meant, rather than treating it simply as insubordination, a pure problem of discipline to be met by repression. That very repression, unmediated for an entire year by anything else, was like trying to douse a fire with petrol. As a result of the vast escalation of violence and tension in the gaols across 1977, the authorities faced a much bigger challenge. December 1977 saw the Justice Ministry appoint as new head of the prison service (DGIP) a 40 year-old lawyer, Jesus Haddad. From a socially conservative background typical of the then political class, Haddad nevertheless belonged to the most liberal end of reformist Francoism. His brief was to oversee the preparation of a draft law of thoroughgoing prison reform. In the immediate term, the government's goal was the ‘pacification’ of the prisons, which saw Haddad implement novel measures, such as ‘Christmas passes’ for inmates who displayed exemplary behaviour. But the main thrust of this pacification betrayed the government's driving desire to neutralize COPEL: 500 prisoners deemed COPEL's core were transferred to a gaol at the other end of Spain, to El Dueso, on the Cantabrian coast.
Whatever the projected intent of future state reforms, inside the gaols remained a virtual war zone and the perpetrators were found on both sides of the ‘lines’. There were many deaths of prisoners in unexplained circumstances across the transition years, indeed the prison service itself gave an official figure for the years 1975–1982 of 379. 35 But even in this lethal landscape, the torture and killing by prison officers on 14 March 1978 of 25 year-old Agustín Rueda, an anarchist activist with links to COPEL, lit a fuse that could have capsized not only prison reform but potentially the political transition itself. Rueda's was the only case where the responsibility of prison staff was sufficiently evident eventually to go the distance to a court case, albeit inconclusively in the end. But far ahead of that was the immediate and violent reprisal taken on 22 March by the direct action group GRAPO (Antifascist Resistance Groups, First of October) which saw the fatal shooting at point-blank range of Jesus Haddad, the new head of the prison service, appointed only the previous December. Haddad's assassination certainly risked provoking a backlash against prison reform. Suárez's government moved fast to fill the vacuum, appointing as the new head of the prison service the 31 year old lawyer Carlos García Valdés, who, in his law professor capacity, had been heading up Haddad's team charged with drafting the new prison reform law. Already with considerable prison service experience under his belt, García Valdés was well aware of the challenge before him: ‘the [Justice] Minister told me in no uncertain terms, I had to resolve the prison crisis within six months, or the whole thing would end up in the hands of the Home Office’ by which was meant a hard-line approach. 36
In terms of policy, García Valdes continued in Haddad's vein of carrot and stick, implementing both concessions and punitive sanctions intended to try to stabilize the prison environment. Strategically, too, he permitted the provisional implementation of some of the new reformed (and de-militarized) prison regulations even before these had been formally ratified. García Valdés also spent budget, which was not plentiful, on a then demoralized prison staff weighed down by a very poor public image – salaries and officer numbers were increased. Money was also promised for what was on paper an ambitious project of investment to turn around decades of material neglect in prisons, but which was, as we will see, in the end realized in ways that looked rather different from the image of the reforms as presented in the early days of García Valdés' incumbency. Always high on García Valdes' agenda was improving public perceptions of state action in the prison sphere: he undertook an extensive tour of Spain's prisons, always accompanied by the press, and made some important – and at times contentious – changes which were symbolically significant, in particular to a younger, anti-Francoist public. For example, he closed down the notorious Francoist body which for 40 years had overseen the system whereby prisoners’ sentences were reduced according to days worked – The ‘Board of Our Lady of Mercy for the Redemption of Prison Sentences through Work’ (El Patronato Central de Nuestra Señora de la Merced para la Redención de Penas por el Trabajo), whose elaborate machinery of punitive welfare had long controlled prisoners and their families both inside and outside of gaol space. Its name redolent of Francoism's idiosyncratic blend of authoritarian Catholicism channelled as an instrument of modern state surveillance and punishment, the Board was by 1978 being wound down anyway in the months before the new prison reform law closed it. 37 Also symbolic, but of more immediate practical effect in 1978, was the prison service's rescinding of the contract to run the women's prison in Barcelona (Trinitat) from the Lay Order of Evangelical Crusading Sisters (Instituto Secular de las Cruzadas Evangélicas). Charged with the prison since it had opened in 1963, this order – founded in the Francoist zone during the Civil War – was the object of frequent and notorious criticisms for the crippling regime it imposed on inmates, which seemed transported straight from the world of the 1940s, and thus was tantamount to the psychological abuse/indoctrination of those women confined under its control. 38
The highly publicized promise of state-led prison reform saw a decrease in COPEL-led protests inside the prisons. At the same time, from the summer of 1978 the authorities stepped up their anti-COPEL offensive, by targeting its most active members inside the gaols – implementing hyper-surveillance and restricting their communication with others – and also by a concerted attempt to criminalize COPEL's support networks on the outside. 39 COPEL as such was less and less active and had more or less disappeared by the end of 1978. Although by no means did this mean the end of prison protests, which would continue on repeat cycles. But after the disappearance of COPEL the protests were far less organized and with ever less clear objectives.
The draft of the prison reform law was also complete by the end of 1978 but had to wait until after the passage of Spain's new democratic constitution in December before it was brought forward for discussion in the course of 1979. In formal terms its text made it the diametric opposite of Francoist norms, based as the new law was on principles and guidelines taken from the UN, the Council of Europe and from other international agreements on human rights. The law also borrowed facets from other Western European legal systems in which García Valdés and his fellow law-drafters were well versed. 40 In sum, Spain was now conforming its penal practice with the three basic principles of post-Second-World-War Western prison reform: first, that a prisoner's punishment consisted only in the fact of being imprisoned/deprived of liberty, without any additional restrictions or punishments; second, that the purpose of prison was re-education, to rehabilitate the prisoner for life outside in society; and, third, that the prison system/regime must at all times respect the basic rights of imprisoned persons. Under the new prison reform law and its parallel encapsulation in Spain's new constitution (Article 25.2), also drafted by García Valdés, re-education and social rehabilitation were to become the guiding principles, and all regulations as well as the daily prison regime were structured to address these aims. There were strict limits on how long a prisoner could spend in solitary confinement, prison work was put on the same footing as work outside, social security payments included, and the same equality was laid down for medical care. The practice of weekend/short-term passes was introduced for some prisoners and also a more liberal policy of prison visiting, including permitting conjugal visits inside the prisons. And for the first time in Spain the figure of the Prison Visitor was created (Juez de Vigilancia Penitenciaria (JVP)) as an extra level of judicial control over the behaviour of the state prison service, and of prison managements and personnel.
Paradoxically, the Spain of the transition was formally subscribing to these measures, and especially the guiding three humanitarian principles of post-1945 penal reform, at exactly the time when across Western Europe in the 1970s, states were chipping away at them in the name of greater state security in the face of organized crime and terrorism. The result everywhere would be the promulgation of tougher penal laws and the creation of high security gaols, the extension of regimes of solitary confinement for those prisoners deemed most dangerous (in turn increasing the risk of prisoner abuse), and a more rigid application of sentences – all of which would soon also make their way to Spain. 41 One might even say that this was prefigured in the parliamentary debates around the draft prison reform law. Although a spirit of consensus generally prevailed, the rejection of almost all the tabled amendments, and in particular the one related to the right of prisoners to ‘freedom of association’ in gaol, were a clear indication of the ghost of COPEL, and how the government (and all its supporting MPs) were set on preventing the emergence of a prisoners’ voice in that way ever again. The memory of COPEL was similarly present in the discussion of Article 10 of the law which made provision for regimes of solitary confinement for those (whether remand prisoners or those serving a sentence) deemed dangerous or ill-adapted to the normal open prison regime. Here, the state moved to close down the time such prisoners could spend with other inmates in order to impose greater vigilance and control. All but one of the five attempted amendments to increase judicial oversight of the state's powers under Article 10 (powers deemed too ill-defined and expansive by those tabling the amendments) were defeated. It was through this legislative route that high security prisons would come to Spain, even though under a different name. The prison reform law (LOGP) was approved by both houses of Spain's parliament in the autumn of 1979. 42 But in practice, for at least a year before its promulgation, a regime was already being applied to hundreds of prisoners in Spain which vastly restricted their contact with the general body of inmates, and for the express purpose of preventing prison protests. 43
Prison and Penal Reform After 1979: in Theory and Practice
The approval of the LOGP constituted a clear break with the Franco dictatorship, in that Spain's prisons were now regulated by a law with characteristics comparable to those of Europe's democracies. Another clear advance in 1979 was the modification of preventive detention, although, and significantly, not yet its end or formal abrogation – and we should remember that, even in its modified form after 1979, it was still being used against those who had committed no crime. 44 But some of its most flagrant abuses were nonetheless removed, such as the system's right to detain an individual indefinitely in prison on the authority of a single judge's assessment of their ‘social dangerousness’. In theory, it also became less easy for the police to deploy preventive detention/the Law of Social Dangerousness (LPRS) to persecute gay men – given the new democratic constitution of December 1978 had decriminalized homosexuality. But given the retention in the Criminal Code until 1988 of the legal catch-all of ‘public indecency’ (‘escándalo público’) which had been deployed extensively throughout the Franco dictatorship to police gender and sexuality, the real as opposed to legal picture remained far more uncertain, and police persecution of gay men (and to a lesser extent women) continued across the 1980s. 45
In general terms, too, it remained an uphill battle to implement the 1979 reforms, and above all with regard to the new prison regulations. Even from before LOGP's approval in September 1979, García Valdes at the head of the Justice Ministry's prison service, was confronted by major embedded opposition from prison officers which took the form of go-slows, working-to-rule and various forms of passive opposition. And although there is no conclusive proof, it also seems highly probable that some officers took their opposition as far as facilitating a major gaol break by 45 prisoners from Barcelona's Model Prison on 2 June 1978, with the express intention of undermining the reforms and forcing a return to hard-line management inside the gaols. 46 Prison officer opposition would prove enduring, and became a war of position over the succeeding months, to which was added pressure from the media and, increasingly, from conservative political sectors – even though García Valdés himself was scarcely a radical prison reformer. That he was not became rapidly apparent when, in response to what had become a vicious circle of prison officer action and gaol protests – the latter sometimes encouraged by the officers, García Valdés saw himself spending an exiguous budget on law-and-order responses which further weakened the reforms and his own credibility as a reformer.
Above all, however, it was the non-materialization of the long-promised major budget which did most damage to the reforms, as García Valdés himself well understood. 47 There was neither the money to adequately modernize the decrepit plant bequeathed by the dictatorship and further degraded by two years of prison protests, nor the funds to bring in the new professionals – teachers, medical staff, social workers, psychiatrists, etc., on whose labour the implementation of LOGP and, crucially, the new prison regulations, depended. Such specialists remained in the 1980s an infinitesimally tiny percentage of the total prison service staff. 48 Such budgetary constraints, and the lack of political will that they indicated, did much more than the resistance of prison officers to erode reform – or, put another way, it was the lack of money which made the warders’ blocking action successful. And there never would be any purging (depuración) of prison staff, as had been a key demand of COPEL. In part, one might see that as a sort of ‘recompense’ for the failure to raise salaries by much or improve working conditions overall – also consequences of the failure to reform. The October 1977 amnesty itself had of course already rendered all prison officers immune from legal challenge for past actions, as all servants of the Franco dictatorship were – as indeed had been the primary goal of the amnesty's architects. 49
‘Becoming Normal’: Spain's Gaols as Warehouses
If prison conditions already made change difficult to implement immediately after the García Valdés reforms became law in late 1979, then the rapidly supervening developments of the following years would see the chances of any improvement entirely evaporate. First and foremost among the problems was the massive and unprecedented expansion of incarcerated populations in the 1980s, not only in Spain (if one excludes the exceptionalism of the 1940s) but also across the West. 50 But so overwhelming and rapid was this process in Spain itself, that not much more than a year on from the implementation of the LOGP, the new director of Spain's prison service, Enrique Galavís, described the situation in the starkest terms: ‘The conditions in Spain's gaols make it impossible to rehabilitate their inmates; prisoners are packed in like sardines [‘hacinados’], the prison plant itself isn’t fit for purpose, the warders are too few and our budget insufficient’. 51 Inside Barcelona's Model Prison, a group of social prisoners, up against this bruising reality, made the same point in their handwritten prison news-sheet, and of Galavís’ predecessor commented: ‘Mr. Carlos García Valdés’ democratic penal reform law is a misnomer, because it has never materialized inside the prisons’. 52 All agreed that the resource-starved reforms of 1979 were stillborn.
Accelerating rates of incarceration in Spain since the 1970s broadly followed Western European patterns, and were driven by similar processes: a relative increase in crime, often linked to the continent-wide recession and then further exacerbated by structural economic change in the 1980s – i.e., deindustrialization – and the ensuing, rapidly rising unemployment. State responses to this were draconian initiatives across the board: the introduction of hard-line sentencing policies which were disproportionate to the actual increase in crime but intended to pacify societal panic – further reverberating around the media echo chamber – at the same time as addressing the perennial need of politicians to respond to their voters in the short term of the electoral calendar. 53
But within this more broadly applicable picture, there were also specificities about Spain. It was exiting a dictatorship at a time of escalating domestic economic crisis and unemployment, especially among younger people (indeed there are strong circumstantial arguments that mounting economic crisis was one of the main reasons driving that political exit). Circumstantially, too, but also not unconnected with the economic crisis, this was also the time when escalating drug use, in particular heroin, made an appearance in Spain as elsewhere, which also drove an increase in other forms of crime, including robbery with violence. The drug problem in Spain was severe but not unique to it, nor uniquely severe. However, the level of judicial response was singularly harsher, and we can see that as linked to the particular identity of a judiciary formed by and under Francoism, with its long use of preventive detention in the service of Franco's ideology of ‘social peace’ by means of close state surveillance. Also part of the context here was the parallel emergence of more sophisticated forms of violent organized crime and the ongoing violent conflict with ETA. Indeed, in 1979, the Spanish state explicitly set penal tariffs to equate one with the other. It also introduced swingeing new penal laws which saw the concentration in executive – i.e., political – hands of the micromanagement of penal policy and sentencing. 54
The tougher sentences imposed, especially in Spain, for ‘everyday crime’, produced a vast increase in remand prisoner populations – indeed, the fact that remand prisoners were kept inside gaol much more than in previous periods was the single factor which most drove the overall increase in incarceration. As elsewhere, this in itself produced huge delays in the wait to go to trial, which further exacerbated overcrowding. But the statistics for Spain are stark – in September 1981, 56 per cent of Spain's gaol population was made up of remand prisoners, which on average for each meant 18 months in gaol before trial. 55 In what was a far cry from the days of COPEL, prisoners now went on hunger strike not to petition for inclusion in amnesty, but for bearable living conditions and a speeding up of the trial process.
The social democratic PSOE government attempted an early pushback in 1983 against the rise in incarceration, especially of remand prisoners accused of petty theft, 56 even if they were reoffenders. Although a significant factor propelling the underlying problems was the economic policy of ‘industrial restructuring’, which the PSOE itself would continue to oversee across the 1980s – the running down and closure of Spain's mines, shipyards and heavy industry, with a concomitant astronomical rise in youth unemployment, from 300,000 in 1976 to more than a million 16–24 year-olds unemployed by the end of 1983, which by 1986 included almost half the young people in the Basque industrial heartlands. But immediate opposition in 1983 to the PSOE's penal pushback came from political opposition and the press, the latter fuelling further social alarm, indeed full-blown moral panic, around the issue of drug consumption, all of which obliged the PSOE to retreat over time to a more classic law-and-order line. 57
By the 1980s, there was also a notorious drug problem inside Spain's gaols. In terms of underlying causalities, it was a fall-out of economic crisis. The urban myths and conspiracy theories which abound on its more immediate causes – how the drugs got in – are just that. The explanation is simpler, if with no less devastating consequences. 58 It was the lack of prison reform itself that facilitated drug entry. Food provision inside the gaols was still so profoundly inadequate that prison managements could not in practice afford to apply the regulation which prohibited food parcels for prisoners from the outside. (Could not ‘afford’ either in terms of managing to keep prisoners fed or keeping de-escalated the tensions that otherwise risked triggering riots.) But of course it was in this way that drugs and other forbidden items found their way in, as Spain's Ombudsman Service itself pointed out in its report for 1988. 59 There was nevertheless for the authorities a certain collateral benefit, in that the spread of heroin like wildfire inside Spain's prisons destroyed the last traces of the relatively coherent group identity and goals among inmates which COPEL had once represented – not that long ago, but as if light years in the life and culture of Spain's prisons and prisoners. 60
Little about the ‘warehouse’ model, to which Spain's prisons now conform, resembles the revenge-taking model of classic Francoism, as exemplified in the 1940s but perpetuated long after by the dictatorship's implementation of ideologically-sculpting control over all those it held in institutions of confinement. That form of repression has gone, but the new massified prison and the conditions and pressures it produces, constitute another form of cruel and unusual punishment, even without mentioning the absence of re-education/rehabilitation. All this we can, as historians, read in a plethora of official data, press reports, documentary film and the testimonies of former prisoners. 61 What we know of prisons in Spain since the transition derives almost exclusively from the work of legal and technical specialists who offer no broader historical perspective. Only a tiny minority of scholars – mostly currently working in critical currents of criminology/social science – offer an analysis that could start to build towards a historical analysis of the post-Franco prison. 62 But, even more surprisingly, this turns out also to be largely true for Spain's prisons under urbanizing and industrializing Francoism in the 1960s and 1970s. It is overdue for historians to engage with this subject. For the emergence of the current ‘warehouse’ model in Spain (later prison massification notwithstanding) lies squarely inside the political evolution of Francoism as a developmentalist dictatorship. As historians, we are currently hampered by the de facto restrictions on access to state and institutional prison documentation. But it remains of considerable historiographical importance to identify the causal mechanisms and processes, of how, and why, the warehouse gaols of late Francoism connect with those of today. 63
Footnotes
Acknowledgements
Translated from Spanish by Helen Graham.