The Spanish Constitution states that custodial sentences shall be aimed at re-education and social reintegration. After the hard experience of the dictatorship, the optimistic constituents of 1978 dreamed of ending the use of prison as an instrument of repression.
In the radical democratic ideal, prison is a lesser evil. Its essential function is neither punishment nor social revenge, but rather the removal of people who are a danger the community from society while their recovery is achieved.
In the times we live in, this approach has become an unattainable illusion. The punitive populism spread throughout society leads some people to constantly demand harsher penalties against all imaginable crimes. The enraged masses no longer ask for freedom but at the slightest, they cry out, "more prison!"
According to the law, the actual duration of the deprivation of liberty depends on the individual assessment of the progress of each prisoner
In the midst of this desire for revenge, the law resists as the last guarantee of constitutional imprisonment. After serving a minimum sentence, prisoners are entitled to access certain prison benefits that prepare them for life in society. According to the law, inspired by the humanist ideals imposed by the Constitution, the actual duration of the deprivation of liberty depends on the individualized assessment of each prisoner's progress.
This is what the law prescribes, even though in reality the lack of adequate means and resources too often leads to automatism and overly superficial evaluations.
These days, however, the Supreme Court seems determined to put an end, once and for all, to the democratic optimism of the Constitution. And, as on so many occasions, the excuse are the Catalan independence supporters.
The Catalan independence bid ruling, handed down in a politicised context, condemned social and political leaders to disproportionately harsh sentences. It did so without the possibility of appeal and even at the cost of inventing a crime that had not existed until then. The Supreme Court made little attempt to disguise the predetermined intention to defend the principle of Spanish unity by severely punishing those who would have stood out the most as secessionist leaders.
Now, by suspending their prison benefits, it is confirming that its objective is revenge and retribution. The orders that overturned the measures that the prison treatment boards and some of the surveillance judges had agreed on - in order to soften prison and favour the reinsertion of the prisoners - despise the constitutional ideal.
Basically, the Supreme Court motivates these orders with two arguments.
On the one hand, they said that the reintegration programme was valid only if it was connected with the crime of sedition. In other words, the prisons must re-educate the independence fighters so that they stop wanting to call for demonstrations and popular consultations.
The Supreme Court maintained that that was not contrary to their ideology, since there was an independentist in the Government of the Generalitat. As if the constitutionally protected ideology were only that of voting for one party or another, and social mobilisation, the right to decide or even civil disobedience were not ideology.
Not happy with that, the Supreme Court maintains, in its orders and in the press release that all the media have published in their headlines, that the benefits are premature. The law does not set a minimum time for these benefits. They are not granted for the amount of time completed - but for the possibilities of resocialization. Even in the case of prisoners who have already served a quarter of their sentence, which is usually the time required in order to receive the open prison regime, the Supreme Court finds it premature.
For the Supreme Court, contrary to what the Constitution and the laws say, the important thing is that these prisoners spend enough time in prison. They sent them to prison to punish them and they are not going to allow a democratic or constitutional conception of prison to frustrate this act of revenge.
This effort to punish the Catalan independence fighters at all costs is beginning to take an unbearable toll on Spanish democracy. The Supreme Court, politicized and obsessed by its desire for justice, continues to force the seams of the democratic system.
At some point in its drift, Spain's highest judicial body has forgotten that it is more important to live in a constitutional democracy than to maintain the territorial integrity of the State.
We live in sad times when the main threat to the rule of law is precisely the opinion of certain judges.