Marco works as CEO of RESHAPE and Invited Assistant Professor in higher and university education at the Polytechnic University of Viseu (Portugal). He has an academic background in the legal field and accumulated experience in the justice sector in advocacy and public policy, R&D and in the non-profit sector, in several countries. He is currently taking his PhD degree at NOVA School of Law, after concluding undergraduate, masters and postgraduate courses in Portugal. He has also participated in several academic and research exchanges. As a higher education and university professor, he currently teaches master’s courses for the specialization area of social inclusion law. He is a researcher with work published in Portugal and several countries.

Work is one of the most essential components of human life. For the law, work is a right that in some countries is safeguarded in the Fundamental Law itself – the Constitution.

It is a right of enormous importance and is even considered by some authors to be a presupposition of the right to life itself, as a right to survival. Technically, the labour right consists of the right to obtain employment or to engage in a professional activity, and it is this dialogue – right < > duty – that justifies that individuals also have a right to an act or provision from the state when they momentarily find themselves without this right for reasons of health or the labour market and unemployment.

The truth is that the term “work” is a concept that varies according to a historical moment, social context and space. If work was once considered primordial in the individual’s life and in the construction of their identity, this role has been changing, and this centrality has been increasingly lost. Transporting this concept to the justice systems, we witness a contextual and historical asymmetry of the very role of work in the pathways of people deprived of liberty during their sentences. On the other hand, it will also be necessary to attend to the historical instrumentalization of labour for the political purposes of domination and mass and propaganda. With time and the path toward societies more committed to the sustainability of human rights, work has become more unstable, but also precarious and scarce. Work is an activity that allows people to support themselves, support others, and support the needs of the larger community. Too often prison systems take away this crucial part of people’s lives or reduce it to simple manual labour. Thomas Edison said that “the opportunity is missed by most people because it is dressed in overalls and looks like work”. If we take away people’s opportunity to make a living for themselves and their families, we take away a part of their humanity.

Work for convicted people is often a right of the convicted person. Since it is a right, the person may choose to exercise it or not. But what if work is an obligatory part of serving a sentence, even if the protections (including by international treaties) are safeguarded, how can we continue to claim work as a right for sentenced individuals? The state has a duty to defend the highest and most stable level of jobs possible. In this statement, could we replace “defend” with “enforce”? No, of course not! It would be an unfinishable quest. At this point, another question arises: How can justice systems promote the availability of work for all convicted people? Without employment, any citizen will find it difficult to provide for all their needs. As a result, their life becomes erratic and meaningless. These situations are often the ideal conjugation for engaging in criminal resolution. We know that work influences the lives of individuals to a great extent. Work can change the personality, and it is through work that affective ties, routines, and experiences are established, and these are the learnings that support the effective social reinsertion of people who have committed crimes. It is also because of all this that work has always been present in justice systems.

How can detention houses provide a healthy ecosystem where people can contribute their time and skills to society? Social enterprises like Reshape Ceramics in Portugal run by RESHAPE are one example of how to organize this. The work starts with a training process in the professional field of ceramics, followed by an internship and finally employment while still inside the prison. When the legal situation of the convicted person changes and they re-enter, the person can choose to continue working on the social project already in freedom and in an atelier outside the prison.

In most of the countries of the European Council, the work of people deprived of their liberty is regulated and among these examples, most of them see this work as compulsory. We know that this work is often facilitated by justice systems, but especially by private companies that establish protocols with justice systems. But what are the ethical and fair limits for this work done by convicted people? We know that there is a concern to clarify that work done by convicted individuals, even in countries where prison labour may be mandatory, is not considered forced labour. In this regard, Convention no. 29 of the International Labour Organization on Forced or Compulsory Labour states that “all work or service required of an individual as a consequence of conviction arising out of a judicial decision shall not be considered as forced labour, provided that such work or service is performed under the supervision and control of public authorities and that the same individual is not placed at the disposal of private individuals, companies or private morals.”

In the same direction, the International Pact on Civil and Political Rights, in article 8, indicates that the work required of an individual who is detained as a result of a legitimate judicial decision is not considered forced or compulsory labour. This clarification is relevant because many of these people prefer to be working rather than remaining locked up in their cells and, as the justice services know. This could lead to exploitation situations. We know some examples of healthy and fair work in prison, but still too few. The case of Delta in Portugal, a coffee company that invested in the creation of coffee machine maintenance workshops inside prisons and establishes working relationships with people deprived of their liberty based on legal premises analogous to the same situation in freedom, ensuring that workers have the same conditions of choice, contract and payment as they would have in the same situation in freedom.

The reality is that it is not enough to make work available, it is often necessary to train these people for the activity. Training is essential not only for work but – particularly – for the social reinsertion of convicted people. In Portugal, at the beginning of the 20^th century (around 1937), the justice system was very much focused on work as a reintegration tool, and there are well-known norms and several projects that, at that time, already made it possible, among other things, for people, once they were released, to continue to be part of work brigades until they found a job, keeping a rotating system of days off in order to look for work outside sentence spectrum and stigma. This accumulated knowledge, a bit like in other countries, has no application nowadays. Essentially, after all these years, public policy has not changed – work is still central – but research findings allow us to affirm that its function has been reformed with more focus on training and not so much on the subsistence of legal labour relations. This is a defining issue since we know that the line between defining what is “work” and what it means to be “busy” is very thin and can be very dangerous from the point of view of the human person’s rights. Foucault wrote that “work must be one of the essential parts of the progressive transformation and socialization of persons deprived of liberty. (Prison) work should not be considered as an addition and, so to speak, as an aggravation of the sentence, but rather as a softening whose removal would be entirely possible.”

We believe in this regard that in Detention Houses convicted people can work inside or outside the house environment in learning and training contexts, but also in productive activities in the labour market outside the house. Empowering the person with skills to perform a professional activity, there are well-founded hopes that once they are free, they will be able to obtain a job, which will be fundamental for their society re-entry.  There seems to be no doubt that an ecosystem of detention houses accelerates access to employment for convicted persons, reduces the scale and focuses on making the criminal justice system re-evaluate work policies.