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Human rights are those rights that all people have in virtue of our common humanity. They include liberties and claims, being used in political debate to remind governments both of the limits of their powers over their citizens (liberties) and of their obligations to create circumstances in which people can thrive and prosper (claims). International treaties and conventions have been established to clarify rights, to set standards, and to attempt to make all countries accountable to the international community. Human rights are especially important in criminal justice and punishment, where the coercive powers of the state are so manifest. Punishment may even be defined as a deprivation or suspension of rights. Yet hard questions arise about which rights are forfeit and which should be protected. The rights of serving prisoners are especially vulnerable, but there must also be concern for those subject to community sanctions and measures. At the same time, the rights of other people, in particular actual and potential victims, must also be part of an adequate ethical account. Principled ways must be found of dealing with circumstances where rights are in conflict, although such conflicts may be less common than political debate seems to assume. Some contemporary developments have particular implications for human rights – notably the policy in many countries to make community punishments as “prison-like” as possible in a quest for punitive credibility, the political predominance of risk, and preventive interventions. Such trends must be scrutinized with special care because of their potential not only to deprive offenders of their rights but to trespass on the rights of other members of the community without adequate justification. While debate often centers on offenders’ liberties, their claim-rights must also be affirmed. The discourse of human rights offers a way of framing guiding ethical principles for probation and could constitute a foundation for policy and practice.
What Are Human Rights?
Human rights are those rights that we all have by virtue of our common humanity. Since human rights are intimately bound to humanity and personhood (Griffin 2008), to fail to give weight to someone’s rights is to risk treating them as less than human. Earlier philosophers sometimes referred to natural rights – a conception that was found by critics (e.g., Jeremy Bentham) to be obscure and perhaps incoherent. Even so, the idea that people have rights that are not granted by the state – and which consequently may not be taken away by the state – implies the critical possibility of an ethical position from which the laws and practices of government can be appraised, circumscribed, and directed. In these ways, the language of rights can be deployed to remind governments of their limits and of their obligations, that ends may not be assumed to justify means, that individuals and minorities may not simply be disregarded in a proclaimed pursuit of the state’s conception of the general welfare, and that it is a duty of government to strive to create circumstances in which all may flourish.
Like most serious moral questions, the matter of which rights we have remains open, indeterminate, and inherently contested, and the rights that people have asserted for themselves and for others are many and diverse. Historically and politically, rights have been invoked in two main ways: to take a stand against cruelty and injustice and to articulate claims – aspirational statements about the social and economic conditions that should be created so that people may thrive (Gearty 2006). Most notably, for example, the United Nations Universal Declaration of Human Rights (UDHR) (1948) first sets out articles prohibiting oppression and cruelty, then articulates claims to human well-being.
This corresponds to a philosophical distinction between liberties and claims. Liberties include the right to life, a prohibition on torture, on inhuman and degrading treatment, on cruel or unusual punishment, bans on slavery, forced labor, and servitude. Claims express a commitment to human flourishing, to propitious circumstances and meaningful opportunities – for example, rights to education, employment, and participation in government – and to an adequate standard of living. These are claims that require more than the state’s forbearance and call for positive action by government.
By no means all rights are absolute – probably very few are. The European Convention on Human Rights, for example, distinguishes absolute rights (which may never be taken away), limited rights (which may only be compromised in explicitly identified, specific circumstances), and qualified rights (where individual rights must be considered alongside broader social and community interests). To assert a right, then, even convincingly, does not by itself entail that it would be unjustifiable to infringe that right, though it does mean that there is a need for moral judgement. But a human right may not be ignored or merely set aside as inconvenient: if it must be infringed (because other moral considerations turn out to be more compelling), then this calls for moral justification and should take place with a sense of regret and with an attempt to mitigate the implications for the right-bearer. This should also stimulate a search for other solutions which better respect the right.
The modern promulgation of human rights has been accomplished through international charters and conventions. The best known of these – and the foundation of most others – is the United Nations Universal Declaration of Human Rights (UDHR). In its Preamble, the Declaration begins with a clear statement that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Drawn up as it was in the aftermath of the Second World War, it goes on to assert that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.”
The International Covenant on Civil and Political Rights (ICCPR), monitored by the United Nations Human Rights Committee, developed the principles of UDHR and, in particular, delimits the powers of states with regard to the rights of liberty and security of persons (article 9). It also affirms rights to justice and to a fair trial (article 14). Like the UDHR, the ICCPR is signed and ratified by countries from all parts of the world. Over time, international regions have drawn up their own conventions, notably the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms. These seek to apply UDHR and ICCPR principles to the specific characteristics of each region, taking account of differences of culture and tradition. The charters and conventions are guarded by international courts – the European Court of Human Rights and the InterAmerican Court of Human Rights (a protocol establishing the African Court on Human and Peoples’ Rights is in force, but this Court, to be merged with the African Court of Justice, has yet to be established). Courts adjudicate, hearing and ruling on allegations of violations referred to them, but may also advise: the Inter-American Court of Human Rights, for example, advises on points of legal interpretation referred to it by the member states.
Signatories to these conventions have sometimes incorporated the same articles, or at least their principles, into their domestic law. There are still many reasons why an international framework remains essential. In particular, where there are conflicts between human rights and a government’s conception of the common good, it is not clear that the state is an evenhanded judge in its own cause. The protection of the law is accordingly required and accountability to an international community is a crucial bulwark.
Punishment And Human Rights
Human rights are an especially important consideration for criminal justice and punishment, where the coercive powers of the state are always near to the surface and often manifest. The censures and “hard treatment” of punishment necessarily involve at least a degree of deprivation of some rights. Rights that states are in other circumstances expected to protect vigilantly are taken away or compromised – not only contingently but deliberately, as punishment. But which rights are forfeit and which retained? How is punishment to be determined and administered in a principled way that respects the offender’s humanity?
Prison is a total institution and the conditions of imprisonment impact on all aspects of prisoners’ lives. The complete dependence and vulnerability of prisoners make their rights especially precarious and much of the literature on human rights and punishment accordingly focuses on imprisonment (for summary and discussion, see van Zyl Smit 2007). Yet developments in a number of countries over the past 40 years or so have started to raise hard questions about the human rights implications of probation and parole as well.
Parole, Probation, And Intermediate Sanctions
To guard against suspicions that early release constitutes an inappropriate reduction in the length of the prison term, parole is sometimes characterized as the continuation of a sentence, though now in the community. The emphasis of resettlement/reentry interventions is accordingly on tight supervision requirements, risk management, and strict enforcement. If parolees are seen as serving prisoners, the disciplines of imprisonment can legitimately be invoked and many of the rights enjoyed by other citizens may be withheld. In some parts of the United States, for example, parolees are not entitled to vote. The voting entitlement of convicted offenders varies considerably between countries, and indeed among the states of the USA, representing different views about the standing and rights of convicted offenders.
As well as post-release measures, changes in the character of community sanctions have raised comparable questions. Traditionally, probation was seen as a measure of support, assistance, and rehabilitation: in England and Wales, for most of its history, probation was instead of a sentence – not a punishment in its own right. But since the late 1980s, community sanctions have often been presented as punishment in the community, with the restrictive and punitive aspects of these sanctions deliberately emphasized. The idea is that tough community sanctions may reduce the prison population by persuading courts and the public that these are credible alternatives to custody. This aspiration, however, has a disappointing history: it is hard to find times or places when the introduction or toughening of community sanctions can be shown to have made significant reductions in the numbers of people in prison.
Similarly, the USA has seen a range of intermediate sanctions – sanctions, that is, intermediate between prison and community punishment. Michael Tonry (1998) attributed this development to three factors: the loss of confidence in the effectiveness of rehabilitation; the rise of a penal philosophy of just deserts, under which all court disposals had to be seen to be punitive in proportion to the offense(s); and the increased politicization of crime and punishment that led politicians to be very wary of an accusation that they might be soft on crime. These influences combined to lead to the emergence of a range of sanctions and measures that make clear demands on people’s time and (in the case of community service/unpaid work) their labor and can constrain their freedoms – for example, by requiring them to be at (or stay away from) particular places at certain times, to participate in programs, and to submit to tests for drug or alcohol use.
It should be emphasized that the treatment philosophy of an earlier time had quite as much potential to trespass upon individual rights. One of the reasons why America and other countries, partly under US influence, repudiated the treatment model of corrections was because of its disregard for due process and human rights constraints: interventions that were ostensibly designed to offer treatment (and could therefore be argued to be in the offender’s best interests) could countenance intensive and disproportionate interventions. While treatment has been disavowed in many countries, and even though just deserts should set limits, attempts to demonstrate punitive credibility have warranted increasing levels of intervention.
In short, the more “prison-like” community supervision aspires to be, the more likely it is to impinge upon offenders’ human rights. Liberal criminology’s opposition to imprisonment must remain principled, however: human rights matter here too and it is not true that anything goes so long as it is not prison.
Specific Issues For Community Punishment
Trends in the enforcement of community supervision and parole licenses are a matter for particular disquiet. In some countries, increasing numbers of people are in prison not because of the substantial harms they have been responsible for, nor even on the basis of assessed risk, but because of their failure to comply with the requirements of supervision (Padfield and Maruna 2006). This has implications for proportionality in sentencing and could also raise concerns about the processes of recall and the grounds on which such decisions are taken.
Another example is disclosure. There are complex questions about the proper boundaries between disclosures of personal information about offenders who are believed to pose a risk to the safety of potential victims and the rights of such (ex-)offenders to privacy and safety from harassment. Provisions like Megan’s law (laws in the United States requiring law enforcement authorities to notify the public about registered sex offenders) raise these questions starkly. It can also be argued plausibly that exposing these offenders to opprobrium and perhaps to vigilante reprisal will lead to some very dangerous people “going underground,” concealing their whereabouts from those authorities who need to monitor them. It is increasingly recognized that offenders’ cooperation and compliance depends on legitimacy, on their perception that they are being dealt with fairly. Due regard for their human rights is one indispensable component of this legitimacy.
While some infringements of rights are deliberate and intrinsic to the lawfully determined penalty, punishment normally has other consequences besides. Walker (1991) uses the term incidental punishments to refer to those consequences that are not intrinsic to the punishment, but side effects, as it were. For example, intensive community supervision (perhaps a requirement to report daily to probation) could interfere with the legitimate pursuit of employment – and in the process delay desistance from offending. This is not an intentional result of the lawfully determined punishment. Where rights are avoidably (even if not deliberately) infringed, it is arguable that these infringements should be recognized, minimized, and maybe compensated.
One immediate difficulty here, however, is that punishment, notoriously, has many purposes, including a just imposition for the wrong that has been done, the reduction of further offending (by rehabilitation, deterrence, or incapacitation) and reparation. In many countries, these purposes are often not defined, so that it is hard to tell the loss of rights that is intended to be part of the punishment and which is “incidental.” It might be possible to argue that a right is justifiably removed if, but only if, its removal is a necessary consequence of the sentence and contributes to a legitimate purpose of punishment. This is probably an incomplete safeguard: claims about public protection and an exaggerated confidence in the efficacy of deterrence could continue to countenance punitive excesses. Meanwhile the test of proportionality – that punishment must be in proportion to the crime – is probably the single most secure safeguard against undue infringement of the rights of offenders (van Zyl Smit and Ashworth 2004).
Walker (1991) also notes that punishment commonly has effects that fall upon other people – for example, offenders’ children, whose own rights to a family life and general well-being may well be prejudiced by the imprisonment of a parent. Stigma, surveillance and disclosure are likely to have their impact not only upon offenders but upon their families and associates as well. Their human rights too must be respected and not merely seen as part of the punishment of the offender.
Prevention, Risk, And Human Rights
Several scholars have drawn attention to and debated the significance of a shift in many countries from the traditional criminal justice tasks of the just punishment and rehabilitation of offenders towards an emphasis on crime prevention (e.g., Garland 2001). The identification, assessment, and management of risk have become a uniting objective for the several agencies of criminal justice and a priority for each of them. In the penal system, this has led to a range of preventive sanctions and measures that are less a response to what an individual has done than a preemptive intervention in anticipation of what it is believed that s/he might do. This same trajectory has led to modifications and compromises to the safeguards of due process (see, e.g., Ashworth and Zedner 2008 and references there cited).
In practice preemptive interventions in the penal system are taken mostly against those with a (typically significant) previous record of offending, so that it is not always easy to distinguish what is retributive (due punishment for wrongs done) and what preemptive. But plainly these developments raise hard questions about proportionality. Proportion used to be understood to relate to an appropriate fit between the crime and the sanction. There was a guiding principle of limiting retributivism such that the punishment may never exceed the seriousness of the crime (although in some circumstances it may be reduced because of mercy or mitigation). But this is now significantly complicated by the emphasis on prevention. One argument is that proportionality may be exceeded to prevent crimes – perhaps even the term proportionality should be understood to mean proportionate not only to wrong done but to wrong anticipated. If the term is extended in this way, however, it becomes a much less effective constraint upon excesses of punishment.
Probation is centrally implicated in these debates. An influential probation model, arguably dominant in most English-speaking countries, focuses on risks, needs, and responsivity (RNR) in assessment and intervention. The risks in question are mainly risks of reoffending; the relevant needs are known as criminogenic needs (those associated with offending); responsivity is the principle that interventions with offenders are to be delivered in a manner that engages them, encourages full participation, and takes account of their individuality. Among criminogenic needs are problems like homelessness, unemployment, substance misuse, and poverty. Since these are amenable to change, they have been sometimes redefined as dynamic risks, with the result that social exclusion and disadvantage could come to be seen not as reasons to provide support and fair access to resources but as an occasion for more intrusive intervention. Where RNR prevails, risk assessment and management are at the center of probation practice. Assessed risk is now most likely to determine the nature and intensity of intervention, which again has the potential to challenge the limits of proportionality.
In targeting potential offenders, preventive justice (Steiker 1998) goes beyond the penal system and has largely developed without the due process safeguards of criminal justice or legal regulation (Janus 2010). Since the category of potential offenders could be limitless, preventive strategies make a difference to everyone. Ways of thinking about crimes and victims and technologies of crime prevention pervade civil institutions – families, schools, and the workplace – to an extent where states may be said to be governing through crime (Simon 2007). Modern technologies offer unprecedented opportunities of surveillance, monitoring, and data collection and collation, and the “commodification” of security adds a commercial impetus to these developments. Crime prevention thus lends legitimacy to actions that would otherwise be seen as an unwarrantable trespass on people’s human rights.
When Human Rights Conflict
Proponents of preventive justice commonly defend their position by setting the rights of actual and potential victims and/or “community safety” in rhetorical opposition to the rights of offenders. Yet many offender rights – including almost all rights relating to the realities of sentencing implementation – do not in any way infringe the rights of victims or the community. The habit of supposing that the rights of potential or actual offenders must be in tension with the rights of victims or with community safety should be resisted. Such an assumption too readily slides into a belief that any enhancement of offender rights must entail some diminution of the rights of victims. Nor may it be assumed that practices that infringe human rights make for a safer community.
Where there are conflicts of rights, they should be considered carefully and managed in a principled manner. There is no easy formula – like “the rights of victims always outweigh the rights of offenders” – that will enable a decision to be taken summarily: it will depend upon the rights in question and of all those affected (see Ashworth 1996). As we have seen, asserting a right is unlikely to settle a moral problem – and indeed any way of talking about ethics that purports to dissolve substantial moral dilemmas should be viewed with suspicion. Meanwhile it is necessary to guard against the possibility that offender rights are gratuitously disregarded because they turn out to be inconvenient or are deliberately withheld as additional punishment – beyond, that is, the lawful imposition of the court – on an unexamined pretext that this is necessary to protect the community.
Challenges And Difficulties
It has been suggested that some misgivings about human rights – for example, that all rights are absolute, that offender and victim rights are intrinsically in opposition – rest on misunderstandings. Other objections need to be addressed. The first of these is that human rights, at least in penal affairs, are too general or even vague. Ethical principles ought to be action-guiding but can human rights offer sufficient guidance? Unless it is clear what these very general rights really amount to, if they cannot be deployed to guide policy and practice, they are at risk of becoming not much more than rhetorical claims.
Perhaps most importantly, court judgements establish a body of precedent that gives authoritative clarification to the articles of human rights conventions. But since this is a reactive (and slow) process, there have been attempts to develop instruments that apply the articles and principles of the conventions to the specific context of criminal justice and punishment (for discussion of the development of the international regulation of punishment in these ways, see van Zyl Smit forthcoming). The ICCPR takes significant steps in this direction. Again, the UN Standard Minimum Rules for Noncustodial Measures (The Tokyo Rules) seek to specify the implications of the UDHR for the position of defendants and offenders, while the European Prison Rules apply the European Convention to the particular circumstances of prisoners. European Probation Rules have also now been adopted (Canton 2010). In principle, such rules draw out what it will mean in practice to respect the rights of offenders, victims, and the community – and how to resolve conflicts of rights in a principled way. Rules thus contribute to a solution to this challenge of generality and remoteness.
A second objection is that rights are minimal: they are what is left when all else fails and are therefore of limited assistance in guiding the strategies and practices of a civilized and decent criminal justice system (see Nellis and Gelsthorpe 2003). Here, however, the legal principle of positive obligations becomes salient: both victim and offender rights can call for positive action, not merely forbearance – claims as well as liberties. This idea has the potential to challenge and to stretch the state’s duties. For example, in E. and others versus United Kingdom, the court held that the UK had violated Article 3 (prohibition of inhuman and degrading treatment) by failing to accord E. adequate protection from abuse at the hands of her mother’s cohabitant (Hofstotter 2004). In this way, a basic liberty-right may progressive evolve into something much stronger.
This is a principle with clear and significant implications for – in particular – the rights of victims of crime (as in the case of E.), but the principle should apply to offenders as well. Many offenders have experienced substantial social and economic disadvantage, and while their crimes entail a liability to punishment, their rights to fair opportunities should also be affirmed. Penal intervention should leave people better fitted to live well and without offending, and this could be conceptualized as a right with a corresponding duty that the state should assume. Once the sentence has been fulfilled, the state should accept a responsibility to create opportunities that the punishment may have curtailed – for example, an ex-prisoner may have a right to support to seek employment and accommodation. Rehabilitation through resettlement/reentry/aftercare could be seen as a right – not just a continuation of a punishment (Rotman 1994; Lewis 2005).
This reaffirms one of probation’s traditional missions of advocacy on behalf of offenders, encouraging the community to accept its responsibilities towards those of its members who have committed crimes and not only to insist on their putative claims against them. The role of interventions, programs, and services can be invaluable in helping people to learn how to manage the problems that beset them without recourse to crime, to develop the skills they need to thrive. Yet desistance studies show that motivation and skills may not be sufficient: people need genuine opportunities to develop and to lead lives in which offending has no place. Reintegration, after all, implies not only a motivated individual but also a community willing to believe in the possibility of change and to respect the legitimate interests of ex-offenders. As it is, many offenders continue to experience significant stigma and disadvantage long after the completion of the lawfully imposed punishment. At the least, probation should advocate for ex-offenders to have fair opportunity and access to services enjoyed by others in the community.
Conceptualizing rehabilitation as a right, then, lends ethical support to the findings of desistance research, which emphasizes the importance of social capital and social inclusion in giving people genuine opportunities to thrive. The origins of offending are bound up in the social order and responses to it cannot just rely on the mechanisms of criminal justice. Probation has a role here – in advocacy, in the negotiation of access to inclusive services – though the success of its work here will depend on wider socioeconomic factors.
A further objection to be considered is the accusation that the discourse of human rights is culture-bound: an attempt by the West to universalize their own ethical standards and impose them on others. Yet, while recognizing the force of this allegation, Clapham replies that
Human rights were invoked and claimed in the context of anti-colonialism, anti-imperialism, anti-slavery, anti-apartheid, anti-racism, and feminist and indigenous struggles everywhere. Western governments may recently have dominated the discourse at the highest international levels, but the chanting on the ground did not necessarily take its cue from them, nor did it sing to the West’s tune. (2007, p. 19)
To assert rights that belong to everyone, rights that do not have to be “deserved” and are not contingent on gender, race, age, ability, and socioeconomic status, sounds like a promising beginning in challenging oppression.
Human Rights And The Values Of Probation
It has already been remarked that human rights have been criticized as too remote and general to guide action. Yet a conception of human rights based on principles of personhood (Griffin 2008) – autonomy, choice, the ability, and liberty to act – could generate some specific guiding values for probation. The list below is an attempt to specify some such principles which could be derived from general rights as they apply to the work of probation. These could be considered as ethical parameters within which probation should be developed or perhaps as a benchmark for current policy and practice:
- Believing in the possibility of personal change, probation should help to create opportunities for people to lead fulfilling and crime-free lives, enable them to acquire the skills needed to avail themselves of those opportunities, and support them in their motivations to change.
- Recognizing people’s responsibilities and rights, probation should address offenders as responsible, self-determining people.
- As far as possible, offenders should be fully involved in (informed and consulted about) any decisions that affect them. They should be actively involved in assessment, planning, interventions, and evaluation.
- Probation seeks to gain the consent of offenders. Even when probation staff are obliged to take action against someone’s wishes, they should always try to secure the offender’s understanding of and, so far as possible, consent to any decisions that affect them.
- The purpose of intervention is to reduce the likelihood of reoffending. Interventions must accordingly be constructive and not punitive in character.
- Probation should countenance no imposition or limitation of rights unless this can be justified by some legitimate penal purpose.
- Probation must always have regard to the rights and interests of offenders, even when the rights and interests of others must take priority.
- Some limitation of rights is a necessary consequence of punishment but any such limitation of rights should be either regarded as part of the lawful sentence or minimized. Any restrictions on offenders’ rights must be proportionate to the offense.
- Offenders are members of the community some of whose rights have, for the duration of the penalty, been taken away or compromised. Once the penalty has been served, these rights should be fully reinstated (indeed, this is one meaning of the term rehabilitation – McWilliams and Pease 1990). In this respect, communities have responsibilities towards those of their members who have committed crimes.
- Social inclusion is a requirement of social justice and a key guiding principle in probation practice. Since people who do not have fair and reasonable access to the services and institutions of civil society (social exclusion) are more likely to offend, this principle also helps to reduce offending.
- To achieve the social inclusion of offenders, probation must work in close partnership with the agencies of civil society. Meeting the complex needs of many offenders calls for coordinated and complementary interagency work. Probation should use its expertise to help other agencies to make their services genuinely accessible to offenders. These principles attempt to connect the work of probation to the wider society. They go beyond organizational claims about the advantages of working in partnership to say that the services and institutions of civil society should be genuinely available to offenders as a matter of social justice and their legitimate claim-rights.
- All probation practices must respect the interests and rights of victims of crime, in work with them or on their behalf, as well as working with offenders to help them to recognize the harm that they have caused.
- Probation should explain its work and its significance to the public. Its values, policies, and practices must be open and must command the confidence and trust of the community. This is a requirement of legitimacy.
- Probation policy and practice should be evidence-led. Rigorous research and evaluation should guide the work of probation agencies. If probation’s objectives are worth achieving, the extent to which they are indeed being achieved must be appraised.
These principles may be in conflict with other ethical considerations. For example, while interventions should be constructive and not punitive, there are interventions – for instance, constraints on some offenders who seek to abuse or exploit the vulnerable – that will indeed be experienced as punitive and restrictive but are necessary to safeguard the rights of others. Similarly, while completion of the lawful sanction ought normally to restore people to their full rights, the continuing risk posed by some people means that their rights may have to continue to be circumscribed. These principles, then, are best understood as morally relevant considerations that ought always to be marked and allowed for when decisions are to be taken, even where they must give way to other moral considerations.
Probation research and policy have been dominated by the question of what works. Effective practice could indeed be seen as a right, shared by offenders (who should be enabled to participate in interventions that will help them to lead law-abiding lives) and by actual and potential victims, to the extent that further offending is thus reduced. A focus on human rights, however, is a reminder that probation should construct an ethical foundation for its policies and practices.
Probation and criminal justice in general give expression to a society’s values and are not reducible to their instrumental functions. It has been argued that a respect for people’s rights brings a legitimacy to practice that enhances individual offenders’ cooperation and compliance. A repressive approach to risk management can lead to strategies that tend to increase risk through stigmatizing and exclusionary approaches. This can endanger a community by undermining the trust and reciprocity on which community safety and well-being ultimately depend. In this way, it may be that a rights-based approach to probation practice could turn out to be its most effective foundation.
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