Complaining from within: prisoner complaints and legal consciousness

Sophie van der Valk, Post-doctoral Researcher, Vrije Universiteit Brussel (VUB)

Keywords: human rights, legal consciousness, complaint mechanisms, prisons

Prisoner complaint procedures form a core part of prison oversight frameworks and as set out in the European Prison Rules and the UN Mandela Rules should be available to all people held in detention across the world and should be available, accessible, confidential, safe, effective and traceable (Meijer 2024, 35-38). While a small number of cases concerning treatment in prison are dealt with by the courts in different countries, most complaints concern service-level issues or treatment by staff and as such are dealt with by quasi-judicial complaint bodies such as Ombuds institutions or complaint committees.  

These bodies employ a form of informal justice (Gill & Creutzfeldt 2018) to resolve complaints which are not suitable or do not meet the criteria for a legal challenge. These mechanisms are intended to address complaints at an early stage and avoid potential court cases (Calavita & Jenness 2015). Given the role of these bodies and the pluralistic nature of our constructions of law and justice (Hertogh 2004), they are likely to be perceived as part of a broader legal framework by the actors who use and work in them. As such, prisoner complaint processes can play a role in shaping and re-shaping the legal consciousness of those in prison through in-person interactions and via written communication with complaint handlers. Consciousness can change through testing it against experiences of everyday life (Merry 1990, 5), and complaint procedures can provide a moment of transformation in legal consciousness for those who have prior contact with the legal system as defendants. Legal consciousness traces ‘how legality, defined as the meanings, sources of authority, and cultural practices commonly recognized as legal regardless of who employs them and for what ends, is experienced and interpreted by specific individuals as they engage, avoid, or resist the law and legal meanings’ (Fox 2020, 112). Legal consciousness is therefore concerned with how people understand and use the law and is shaped by people’s experiences and expectations of it.

A broader understanding of the law needs to be considered when discussing legal consciousness in the prison context as prison rules and regulations control almost all aspects of prisoners’ daily lives from when to close a cell door to food choices. This creates additional moments for conflict and potential complaints about the role of the law in daily life.

Prison Complaint Processes

Complaint systems are embedded in prison rules and regulations. They are a quasi-legal process which can contribute to the legal consciousness of those who choose to use them or not. Depending on the jurisdiction and the level of the complaint, complaint procedures can straddle the line between formal and informal justice. While many complaint procedures focus on early resolution and in some cases formally include the possibility of mediation, they generally involve a review of compliance with prison rules and, as outlined in the European Prison Rules, prisoners have a right to appeal to an independent authority.

The process and the reference to rules in analysing a complaint, as well as potential legal reasoning in decisions means that complaint systems can feel legalistic and potentially shape people’s views of the law and influence their decision to utilise them as a legitimate means of conflict resolution. Additionally, some systems such as in the Netherlands and Belgium, require a legal trained person to sit on their complaint committees. This inevitably places a focus on the law in resolving complaints.  

What Shapes Legal Consciousness  

A multitude of factors shape legal consciousness such as prior legal experience and the experience of others from similar social groups or contexts. The decision to make a complaint is invariably shaped by both the cultural and the institutional context (Merry 1990, 6). Interactions with formal legal institutions and perceptions of them can shape people’s responses in other everyday situations,  the resources available to them (Fox 2020, 112) and the conception of legal boundaries and where the law fits into different situations.

Given the constant surveillance of prison life and close living quarters, negative experiences of the complaint system can be quite visible to others in the prison. Young et al (2024, 605) note that ‘understanding people’s perspectives about criminal justice means thinking critically about their perspectives on access to civil justice—and vice versa.’ In the prison context, everyone held in prison will have had prior experience to a greater or lesser extent with the criminal justice system and this can play a role in whether the law is perceived as a legitimate means to resolve problems or a system stacked against them. It is unclear to what extent experiences of one aspect of the justice system shape experiences and impact future usage. This is particularly relevant given the lack of perceived independence of complaint committees, for example, in Ireland (van der Valk 2025).   

Related to this are expectations of the prison itself and the complaint system, which can shape legal consciousness and subsequent decisions concerning mobilisation. People in prison bring different expectations with them about how prison should be and how it actually is. Expectations of prison treatment draw on a variety of sources including prior experiences of incarceration, vicarious knowledge of the prison system through family members’ incarceration or media representation of a prison system, and understandings of what punishment should and ought to be, in particular the fairness of one’s punishment as compared to other prisoners and their crimes (Sexton 2015, 129). The difference between these expectations and prisoner’s actual treatment in prison result in what Sexton refers to as a punishment gap (Sexton 2015, 128).

In order to mobilise an issue, it must first be named as such, blame must be placed somewhere outside of the person, and it must be shaped into a claim (Felstiner et al 1980). If prison meets a prisoner’s expectations, even if there are issues, a prisoner may not register a complaint due to a sense that prison is meant to be that way or it is incapable of being changed. These expectations shape how treatment in prison is experienced by different prisoners and may impact in turn their decisions to raise issues through a complaint system (van der Valk 2025). In the context of violence in prison, as discussed by Fritsche and Hofinger (2025, 275), the definition and naming of something as violence is based on a subjective assessment of the situation drawing on individual and group norms as well as the context. In Crewe and Laursen’s (2026) study of resistance in prisons in England and Wales and Norway, prisoners referred to ‘legitimate expectations’ as a reason for regular usage of the complaint system. The rules and regulations of the prisons were seen as a basis for how those in prison should expect to be treated.

In addition to experiences, perceptions can play a role in shaping expectations and, in turn, future decisions to engage with the law or not (Duan 2025, 498). A reinforcing cycle emerges as a result of belittling complaints:

‘[b]elittling shapes second-order legal consciousness; this consciousness, in turn, promotes strategic non-mobilization; and the resulting lack of formal complaints reinforces the perception that the organization is not responsible for addressing harassment, potentially leading to further belittling and perpetuating a culture of silence. This model highlights the subtle, yet powerful, mechanisms through which organizational hierarchies and cultural norms interact to suppress legal agency, even in the presence of formal legal prohibitions’ (Duan 2025, 501).

Legal mobilisation and legal consciousness therefore require a reconsideration in power-structured environments (Duan 2025). The mobilization of law can indeed ‘contribute to crystallizing conflicts, preventing their protagonists from finding their own means of resolving them’ (Durand 2014, 337). Law can therefore be seen as a risky choice of action in disrupting the fragile balance of social relations in prison.

Related to observations of the complaint system and a sense of rights in prison is the role of personal relationships in shaping legal consciousness, i.e. the relational nature of legal consciousness. Prisoners’ view of the complaint system can be shaped by other prisoners, staff members and members of complaints committees themselves. Legal consciousness is an ongoing dialogue, especially given the close ongoing relationships of those in prison with complaint handlers in some jurisdictions. The degree of relationship varies from country to country, but in some countries such as Ireland, prison officers, who may indirectly be involved in the subject matter of a complaint, are the first complaint handlers.

Conclusion                       

Complaint mechanisms in prison are a quasi-legal mechanism meant to resolve disputes at an early stage and give people in prison a means to raise concerns about their treatment. However, in practice they are not easily accessible to everyone in prison and may be viewed with suspicion by those with prior experience of the legal system. Research in Ireland found that people in prison did not trust the complaint system to resolve their problems and had a low sense of entitlement to rights (van der Valk 2025). Whether this is the case in other jurisdictions will be explored as part of the ongoing European Prisoner Complaints project.

This article is part of a FWO-funded senior postdoctoral fellowship entitled European Prisoner Complaints, project number 1209226N.