jus 501 - class' notes on re: transformation of punishment (foucault)

#1. What is Foucault’s argument about the transformation of punishment?

REBECCA

• Foucault first discusses the use of torture as a public spectacle, which he illustrates by the execution of Damiens who attempted regicide in 1757
• Since 19th century, almost universal adoption of the jury system, corrective character of penalty, less physical punishment, disappearance of torture and penalty adapted to individual offender
• The criminal’s body played a key role in penalty but this trend was being phased out as well; “The body of the target of penal repression disappeared” (8).
• “Punishment, then, will tend to become the most hidden part of penal process” (9)
• Punishment became “an economy of suspended rights” (no more pain involved in punishment) and the executioner was replace with “an army of technicians” (11)
• New morality concerning penalty instead of “thousand deaths” (quartering, disembowelment, the wheel, etc) the guillotine: equal for all, “one death per condemned man,” (not cruel), and least shameful (12)
• Use of black veil = condemned man was not to be seen
• By 1830-1848, public executions proceeded by torture were a thing of the past and but the “hold on the body” did not disappear until the mid-19th century
• Pain was replaced by loss of wealth or rights but penalties were still directed at the body (food rations, sexual deprivation, solitary confinement, forced labor)
• New penalty not to punish but to “supervise the individual, neutralize his dangerous state of mind , alter his criminal tendencies and continue even when this change has been achieved” to make offender “not only desirous, but also capable, of living within the law and of providing for his own needs” (18)
• Penal system began judging the soul of the offender rather than the crime
• Penalty not meant to reduce crime but is “linked to a whole series of positive and useful effects” (24)
• Penal system is less a consequence of legal theories than “a chapter of political anatomy” (28)
• Legal proceedings depended on confession through judicial torture
• At times, penalty was a “theatrical reproduction” (45)
• Penalty was as much a political ritual as a judicial ritual- crime is an attack on the sovereign because the laws are his will
o Penalty demonstrates dissymmetry between king and subject who dared violate his laws- a spectacle to show imbalance and excess- “exercise of terror” (49)
o Penalty does not reestablish justice but reactivates power (49) – king’s revenge
• Ceremony of excesses at times took place after death (51)
• Role of the masses ambiguous- witness torture so they will be afraid
o The unintended result was the beginning of social disturbances
o Condemned people became heroes of the masses
• These protests against the “confrontation between the sovereign and the condemned man” (73) led a reform of penalty and the end of the king’s revenge
• Crime became less violent and more an issue of private property and these property offenses were dealt with more sternly
• Varying degrees of penalty also demonstrates to abuses of the monarch
• When punishing one must calculate penalty not in terms of crime but in terms of future disorder and penalty measured in terms of economy not excess (93)
• Six major rules: minimum quantity, sufficient ideality (motive for crime = advantage, effectiveness of penalty = disadvantage), lateral effects (penalty has most profound effects on those that did not commit the crime), perfect certainty (laws published and open legal process), common truth (truth of crime only when completely proven), optimal specification (individualization of sentences)
• Suitable punishment “robs for ever the idea of a crime of any attraction” (104)
• Obstacle-sign constitute new arsenal of penalties must obey several conditions
o As unarbitrary as possible: “the idea of the offense will be enough to arouse the sign of the punishment”- natural consequence. (Vermeil) “those who abuse public liberty…deprived of their own” (105)
 “Power must act while concealing itself beneath the gentle force of nature”
o Complex of sign engage mechanics of force: penalty and disadvantages more lively the crime and its pleasures
 (Mably) “…source of evil” (vagabond-laziness) (106)
 Make penalty something feared (pride led to crime, let it be hurt)
o Duration integrated into economy of penalty (107)- facilitate proper action
 Punish diminishes as it produces effect (chacot, gene, normal)
o Penalty directed above all at potentially guilty (108)
 Penalty natural- retribution that guilty makes to his fellow citizens
 Body of condemned- from property of king to societal property
 (Cahiers) Public works: collective interest and visible/verifiable
o Learned economy of publicity (109) from torture (physical fear/collective horror) to decipherable sign/representation of public morality
 Ceremony of mourning (110)- from festival to school
 Secret punishment wasted (111)- criminal source of instruction
o Inversion of traditional discourse of crime: glory to misfortune (112)
• Reformers criticized imprisonment: incapable of corresponding to specific crime
o No effect on public so it is useless, even harmful to society (costly, causes idleness, multiplies vices) (114)
o Subject to defiance for citizens- obscurity causes suspicion of injustices
o Whole middle between light and death penalty
o Short transformation period
• 4 principle penalties remain in penal code all forms of detention- forced labor, detention, reclusion and imprisonment
• Scaffold replaced by prison with centralized administration (115)
• In <20 years, detention for every offense that did not require death penalty (116)
• Before, natural relation of crime to penalty (117) and security for someone, one does not punish (118) or to secure offenders (those not yet convicted)
o Prison disqualified because bound up with arbitrary, excesses of sovereign- used for philosophers and dissidents
o Counter to individuality of punishment (119) – punishes whole family
• What cause sudden shift to prison? Number of great models
o 1596 Rasphius in Amsterdam (120)- beggars/young malefactors
 Duration- could be reduces based on behavior
 Compulsory work (received wages)
 Strict timetables, obligations, prohibitions, supervision, religious readings link theory and spiritual transformation
o 1749 Ghent in Aloust- idleness caused most crimes
 Benefits: promoted work ethic, reduced taxpayer compensation to owners and number of criminal prosecutions, mass of new workers, true poor to benefit from charity (121)
 Prisoners earned wages & learned trade through compulsory work
 Duration related to length needed for correction
o English models added importance of isolation: provides terrible shock, apprenticeship, spiritual conversion (122)
o Gloucester model: total confinement for most dangerous criminals
o 1790 Philadelphia: continuously reexamined/transformed so not doomed to immediate failure like others (123)
 Constantly employed: defray expenses & to moral/material reform
 Strict timetable, limited solitary, duration based on behavior
 Penalty carried out secretly (124)
 Transformation process between convict and supervisor
 Work on soul: solitude, self-examination, religious exhortation
 Transformation based on knowledge of individual (125)
• Convergence of models: directed toward future (prevent repetition) (126), not to efface crime but to transform criminal, individualize penalties
• Disparity of models: technique of individualizing (instrument of transform) (127)
• Application of penalty to body and soul- instead of obstacle-sign, forms of coercion and schemata of constraint, applied and repeated (128) to restore juridical subject/shape obedient subject by general, detailed form of some power
• Special relationship between punished and punisher (total power free of 3rd party)
o Secrecy and autonomy imperative
o Contrary to 2 aims: citizen participation, render power adequate/ transparent to publicly defined laws (secret punishment not in legal code)
 New power as arbitrary/despotic as before (129)
• Prison=institutionalization of power to punish
• 3 way of organizing power: monarchical, obstacle-sign (130), reformist techniques of individual coercion
• Integral part of new prison system = surveillance and normalization through discipline as well as categorization/documentation
o This is illustrated by the Panopticon- designed for constant surveillance
o Panopticon is perfect exercise of power because “it can reduce the number who exercise it, while increasing the number of those on whom it is exercised” (206)- integrated into any function (medicine, education, production and punishment)- “new political anatomy” (208)
• Discipline is a “whole set of instruments, techniques, procedures, levels of application, target” (215) and “techniques for assuring the ordering of human multiplicities”
• Prisons became self-evident form of punishment for civilized society based on “deprivation of liberty” (232)- prison to pay one’s debts to society = natural
• Imprisonment covered both deprivation of liberties and transformation of criminal
• Complete/austere institutions (prison) = “exhaustive disciplinary apparatus” (235)
• Ideology imagined by reformers: isolation (intimate exchange between convict and power exercised over him), work and prayer (remedy against wandering imagination), prison instrument in modulation of penalty (once reformed, criminal must return to society)
• “Seven universal maxims of the good ‘penitential conditions’”(269)- essential function of transformation of individual’s behavior, convicts isolated/distributed based on gravity of offense (also age, mental attitude, technique of correction and stage of transformation), penalties altered based on individual, work essential element, education of convict crucial, prison supervised by people of moral qualities technical abilities of an educator, and imprisonment followed by measures of assistance/supervision until rehabilitation is complete
• “Crime constitutes a political instrument” (289)
• Carceral system completed in 1840- opening of Mettray (disciplinary form at its most extreme) (293)- inmates had numbers, were taught military exercises, conducted cleanliness inspections, forced work (9 or 10 hours per day), required education, isolation for even minor offenses- it produced bodies that were docile and capable (correctional facility for children)
o Deputies of Mettray were a mixture of judge, teacher, foreman, officer, and parent- lived in close proximity to inmates and rarely left prison
o Undisciplined/dangerous could be normalized through “technical elaboration and rational reflection” (295)
o Prison transformed punitive procedure into penitentiary techniques
 No longer offence but departure from norm
 Made power to punish natural and legitimate (lowered the threshold of tolerance for penalty- appears free of excesses and violence)- “nothing in it that recalls the former excess of sovereign power” (302)
 New form of law: mixture of legality, nature, prescription, constitution and norm
 Capture of body and perpetual observation “examinatory justice”
 Solidity of prisons through reduced utility of crimes and growth of disciplinary networks