When a person enters prison to serve a sentence, one of the first decisions that determines how their life within the penitentiary system will unfold is their classification into a treatment degree. That degree — first, second, or third — is not merely an administrative label: it determines the level of restriction to which the inmate is subject, what activities they may carry out, how freely they may move within and outside the facility, and within what timeframe they may access the penitentiary benefits that gradually bring them closer to freedom.
The penitentiary classification system in Spain follows a progressive and dynamic model: the inmate is not condemned to remain in the same degree throughout the entire period of their sentence. The system provides for the possibility — and promotes the objective — that through treatment, good conduct, and participation in reintegration programmes, the inmate progressively advances towards less restrictive degrees. It also contemplates the opposite: if the inmate's behaviour deteriorates, they may be regressed to a more restrictive degree.
In this article we explain what the penitentiary classification system is, what each of the three degrees entails, what criteria are used to classify inmates, how progression or regression in degree works, and what role a lawyer plays in defending the inmate's interests against classification decisions.
The Foundation of the Classification System
The penitentiary classification system is regulated by the General Organic Prison Law and the Prison Regulations, and is grounded in the constitutional principle that sentences must be oriented towards the re-education and social reintegration of the convicted person. Classification by degrees is the technical instrument that makes this principle operational: it divides the serving of the sentence into stages of progressive openness, aimed at preparing the inmate for reintegration into society.
Article 72 of the LOGP establishes that custodial sentences shall be executed according to the system of scientific individualisation, separated into degrees, and that classification must reflect an individualised study of the inmate's personal circumstances, criminal history, conduct, and progress. There is no automatic formula that determines the degree for each inmate: every case must be analysed with regard to its particular features.
The Treatment Board of each penitentiary establishment — composed of the specialists working with the inmate: psychologists, social workers, educators, legal advisors, and the director of the facility — is the body responsible for proposing the initial classification and subsequent reviews. Its proposals may be challenged before the Penitentiary Surveillance Judge by any inmate who disagrees with the assigned classification.
The First Degree: The Most Restrictive Regime
The first degree — also known as the closed regime — is the most severe level of classification in the Spanish penitentiary system. It applies to inmates who present extreme dangerousness, manifest and serious failure to adapt to the ordinary regime, or who have participated in serious disturbances of order within the facility.
Inmates classified at the first degree serve their sentence in closed-regime modules or facilities, subject to a far more intensive level of supervision than under the ordinary regime. The main features of life in the first degree are:
- A maximum of eight hours per day outside the cell, distributed across two periods.
- Activities in the module alongside other inmates under the same regime, with constant supervision.
- Significant restrictions on communications and visits.
- More frequent searches and inspections than in other degrees.
- No access to ordinary release permits for as long as the classification persists.
The first degree may take two forms: the special unit — for the most dangerous cases — where the inmate spends up to twenty-two hours per day in their cell, and the ordinary closed regime, which is somewhat less restrictive. First-degree classification must be reviewed at intervals of no more than three months, and the inmate has the right to have that review take place and to be informed of the reasons justifying its continuation.
The Second Degree: The Ordinary Regime
The second degree — the ordinary regime — is the classification level in which the majority of inmates in the Spanish penitentiary system are placed. It does not entail the extreme restrictions of the first degree, nor the openness of the third: it is the intermediate level of the treatment scale, designed for inmates who do not present extreme dangerousness but who do not yet meet the conditions for access to the open regime.
Second-degree inmates live in ordinary modules within the penitentiary establishment and have access to a broader range of activities: educational and training programmes, work within the facility, sporting and cultural activities, communications with family members under ordinary conditions, and participation in the treatment programmes that the Treatment Board considers appropriate for their case.
Within the ordinary regime, differences in restriction exist depending on the module in which the inmate is placed: respect modules and therapeutic modules offer more structured living conditions with greater involvement of the inmate in their own reintegration process, and are valuable tools within the second degree to prepare for progression to the third.
From the second degree, the inmate may access ordinary release permits when they meet the regulatory requirements: having served one quarter of the sentence, demonstrating good conduct, and obtaining a favourable prognosis of non-absconding. These permits, though short in duration, are an essential component of the reintegration process as they allow the inmate to maintain family and social ties, and represent the first concrete step towards liberty.
The Third Degree: The Open Regime
The third degree — the open regime — represents the form of sentence execution with the greatest degree of integration into society that the penitentiary system can offer before conditional release. An inmate classified at the third degree enjoys a freedom of movement far greater than that available in other degrees: they may leave the facility during the day to work, to participate in training activities, or to attend to family commitments, returning to the facility to sleep at night.
The possibilities of the open regime are varied and allow for considerable adaptation to the circumstances of each inmate:
- The full open regime allows the inmate to leave the facility during the day and return to sleep there, with periodic checks.
- The community living unit regime allows the inmate to live in supervised shared flats outside the penitentiary establishment, under the oversight of collaborating organisations.
- Attenuated imprisonment — which in some cases may involve serving the sentence at the inmate's own home under electronic monitoring — is another form of the third degree for inmates with special circumstances.
To access the third degree, the Prison Regulations require that the inmate has served half of their sentence, although in practice third-degree classification may occur earlier if the inmate's progress justifies it and the objective treatment criteria are met. Inmates with very serious and incurable illnesses may access the third degree without waiting to fulfil that minimum period.
The Classification Criteria: What the Treatment Board Assesses
The classification of an inmate into one degree or another is not arbitrary: it must be grounded in an individualised assessment that takes into account a series of objective and subjective criteria established by the Prison Regulations:
- The nature and gravity of the offence committed and the inmate's criminal history.
- The inmate's personality and behaviour within the facility: discipline, participation in activities, relationships with fellow inmates and officers.
- The social reintegration prognosis, prepared by the treatment team professionals on the basis of the available psychological, social, and criminological reports.
- The inmate's social and family ties: whether they have a home to return to, whether they have a family support network, and whether they have employment prospects.
- The inmate's attitude towards the offence committed and towards the victims, and whether they have made or are willing to make some form of reparation for the harm caused.
- Participation in specific treatment programmes designed to address the criminogenic factors of the particular case — drug rehabilitation programmes, violence management programmes, road safety education programmes, and so on.
None of these criteria is in itself determinative: classification results from a joint and balanced assessment of all of them. An inmate with a serious criminal history may be classified at the second degree — or may even progress to the third — if their development within the facility is positive and the reintegration prognosis is favourable.
Progression and Regression in Degree
The system is dynamic: the initial classification is not definitive and may change throughout the serving of the sentence, both in a positive direction — progression to a less restrictive degree — and in a negative one — regression to a more restrictive degree.
Progression in degree occurs when the inmate's development during the sentence — their behaviour, participation in treatment, and adaptation to the facility's regime — justifies moving to a less restrictive level. Progression from the second to the third degree is the most significant step in practice, as it marks the transition to the open regime.
Regression in degree occurs when the inmate's behaviour within the facility deteriorates significantly, when they commit a serious disciplinary infraction, when they fail to comply with the conditions of the degree in which they are classified, or when new circumstances arise that make the current degree no longer appropriate. Regression from the third to the second degree, for example, may occur when the inmate repeatedly fails to return to the facility on time or when they commit new offences while benefiting from the open regime.
Both progression and regression are proposed by the Treatment Board, but may be challenged before the Penitentiary Surveillance Judge. If the inmate considers that the decision is unjustified — that they are being regressed without sufficient cause, or that progression is being denied despite the fact that their progress warrants it — they may appeal to the PSJ for a review of the decision and an order for the appropriate reclassification.
The Role of the Lawyer in Penitentiary Classification
The criminal lawyer advising an inmate during the serving of their sentence plays an important role in all matters relating to penitentiary classification. They may challenge the initial classification if they consider it does not comply with the legal criteria, argue in favour of progression in degree when the inmate meets the requirements, contest regressions in degree that they consider unjustified, and provide documentation — psychological reports, programme completion certificates, employment records — that strengthens the inmate's position before the Treatment Board and the PSJ.
Specialisation in Prison Law is particularly valuable in this area, because the classification criteria have a technical dimension that goes beyond ordinary legal knowledge. A lawyer who is familiar with the criteria applied by the case law of the PSJ and the Provincial Court to penitentiary classifications, who knows which expert reports are most effective in supporting a progression application, and who understands the logic of the treatment system can act far more effectively than one who lacks that specific experience.
Frequently Asked Questions
When is the initial classification of an inmate decided?
The initial classification must be determined within a maximum period of two months from the convicted person's admission to their definitive destination facility. Before the classification is resolved, the inmate is in a period of observation — a provisional situation that allows the Treatment Board to assess their circumstances before assigning them a degree. During this period, the inmate already has rights and may participate in the facility's activities, but their situation is not yet defined for the purposes of progression.
Can someone be classified at the third degree from the very beginning of their sentence?
Yes, although it is exceptional. The system allows for initial classification at the third degree — or access to the third degree without having served half the sentence — when the inmate's circumstances justify it and when the sentence does not exceed five years. There is also a special form of the third degree for elderly inmates, those with very serious illnesses, or persons in certain exceptional personal situations. In serious offences, initial classification at the third degree is far more unusual and requires a very robust technical justification from the Treatment Board.
How often is the classification reviewed?
The law provides that classification must be reviewed at intervals of no more than six months for second- and third-degree inmates, and three months for first-degree inmates. However, a review may take place earlier if circumstances justify it — a significant improvement in conduct and treatment, or a serious incident that counsels regression. The inmate may also request a review at any time if they consider that their situation has changed in a material way.
Does a pending procedural situation — a new open criminal case — affect classification?
Yes. The existence of pending criminal proceedings — new cases opened in connection with other offences the inmate may have committed — is a factor that the Treatment Board takes into account when determining classification and when resolving progression proposals. An inmate with unresolved pending criminal cases may find progression to the third degree more difficult, as that situation may affect the reintegration prognosis and the assessment of the risk of reoffending. However, the existence of an open criminal case does not automatically prevent progression: it must be assessed in the context of the overall circumstances of the case.
Can an inmate in the third degree be automatically transferred to the second degree for committing a minor infraction?
No. Regression in degree is neither automatic nor does it occur immediately in response to any incident. It requires an assessment by the Treatment Board establishing that the inmate's behaviour is no longer compatible with the degree in which they are classified. Minor infractions may give rise to disciplinary sanctions without necessarily entailing a regression in degree. Regression is reserved for situations in which the inmate's behaviour objectively and materially demonstrates that they no longer meet the conditions that justified their classification at their current degree. And in any case, the regression decision may be challenged before the Penitentiary Surveillance Judge.
