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The period separating these two accounts is a “new age for penal justice” in
Europe and the United States that saw changes in the following areas:
-- Economy of punishment
-- Numerous projects for reform
-- New theories of law and crime
-- New moral and political justifications of the right to punish
-- The disappearance of old laws and customs (7).
In the span of only a few decades between the eighteenth and nineteenth
centuries, torture as public spectacle disappeared (7) as did “the body as the
major target of penal repression” (8). Two processes were at work in this
transformation:
(1) Disappearance of punishment as spectacle (8); and
(2) Slackening of the hold on the body (10)
Public spectacle turned the tables, enveloping the executioner, judge, and
other associated parties in shame and often the subject of the public’s
violence. The change from punishment as public spectacle saw the offender
unequivocally marked with the negative sign; the publicity shifted to the trial
and justice dissociated itself from execution, trusting autonomous others to do
the job (9-10). E.g., in France, prison administration duties were the
responsibility of the Ministry of the Interior, but responsibility for penal
servitude in the convict ships and penal settlements lay with the Ministry of the
Navy or the Ministry of the Colonies.
“If the penality in its most severe forms no longer addresses itself to the body,
on what does it lay hold?” (16).
“There is a substitution of objects: the quality, the nature, and the substance
of “crime” has changed in its sense as the substance of which the punishable
element is made (as opposed to its formal definition). Judgment is passed on
offenses as defined by law, but judgment is also passed on passions,
instincts, anomalies, infirmities, maladjustments, effects of environment or
heredity, aggressivity, perversions, drives, and desires” (17).
“Within the very judicial modality of judgment, other types of assessment have
slipped in, profoundly altering its rules of elaboration” (19).
“The whole machinery that has been developing for years around the
implementation of sentences and their adjustment to individuals creates a
proliferation of the authorities of judicial decision-making and extends its
powers of decision well beyond the sentence” (21).
“To sum up, ever since the new penal system – that defined by the great
codes of the eighteenth and nineteenth centuries – has been in operation, a
general process has led judges to judge something other than crimes; they
have been led in their sentences to do something other than judge; and the
power of judging has been transferred in part, to other authorities than the
judges of the offence. The whole penal operation has taken on extra-juridical
elements and personnel” (22).
“Today, criminal justice functions and justifies itself only by this perpetual
reference to something other than itself, by this unceasing reinscription in non-
juridical systems. Its fate is to be redefined by knowledge” (22).
“A corpus of knowledge, techniques, ‘scientific’ discourses is formed and
becomes entangled with the practice of the power to punish” (23).
“There may be a ‘knowledge’ of the body that is not exactly the science of its
functioning, and a mastery of its forces that is more than the ability to conquer
them: this knowledge and this mastery constitute what might be called the
political technology of the body. This technology is diffuse, rarely formulated
in continuous, systematic discourse, made up of bits and pieces, implements
a disparate set of tools or methods, cannot be localized in a particular type of
institution or state apparatus” (26).
“It is not the activity of the subject of knowledge that produces a corpus of
knowledge . . .but power-knowledge, the processes and struggles that
traverse it and of which it is made up, that determines the forms and possible
domains of knowledge” (28).
The body politic: a set of material elements and techniques that serve as
weapons, relays, communication routes and supports for the power and
knowledge relations that invest human bodies and subjugate them by turning
them into objects of knowledge (28).
The “soul” exists, has a reality, is produced permanently around, on, and
within the body by the functioning of a power that is exercised on those
punished, on those one supervises, trains and corrects, over madmen,
children at home and at school, the colonized, over those who are stuck at a
machine and supervised for the rest of their lives. This soul is born of
methods of punishment, supervision and constraint. It is “the element in
which are articulated the effects of a certain type of power and the reference
of a certain type of knowledge, the machinery by which the power relations
give rise to a possible corpus of knowledge and knowledge extends and
reinforces the effects of this power” (29).
“From the judicial torture to the execution, the body has produced and
reproduced the truth of the crime – or rather it constitutes the element which,
through a whole set of rituals and trials, confesses that the crime took place,
admits that the accused did indeed commit it, shows that he bore it inscribed
in himself and on himself, supports the operation of punishment and manifests
its effects in the most striking way. The body, several times tortured, provides
the synthesis of the reality of the deeds and the truth of the investigation, of
the documents of the case and the statements of the criminal, of the crime
and the punishment. It is an essential element, therefore, in a penal liturgy, in
which it must serve as the partner of a procedure ordered around the
formidable rights of the sovereign, the prosecution and secrecy” (47).
Public execution:
-- restores the total power of the sovereign;
-- is an exercise of terror to make all aware of the unrestrained presence of
the sovereign;
-- reactivates power;
-- is a triumph of law.
The precise function of torture, then, had judicial and political purposes:
-- It revealed truth and showed the operation of power.
-- It assured the articulation of the written on the oral, the secret on the public,
the procedure of investigation on the operation of the confession.
-- It made it possible to reproduce the crime on the visible body of the criminal.
-- The crime had to be manifested and annulled.
-- It made the body of the condemned man the place where the vengeance of
the sovereign was applied, the anchoring point for a manifestation of power,
an opportunity of affirming the dissymmetry of forces.
“Never did the people feel more threatened than by legal violence exercised
without moderation or restraint. The solidarity of a whole section of the
population with those we would call petty offenders . . .was constantly
expressed . . .it was the breaking up of this solidarity that was becoming the
aim of penal and police repression” (63).
At the same time, more “crime literature” was being written that served to
heroicize criminals and their deeds (67).
“What was emerging no doubt was not so much a new respect for the
humanity of the condemned – torture was still frequent in the execution of
even minor criminals – as a tendency towards a more finely tuned justice,
towards a closer penal mapping of the social body. Following a circular
process, the threshold of the passage to violent crimes rises, intolerance to
economic offences increases, controls become more thorough, penal
interventions at once more premature and more numerous” (78).
Regulating punishment and punishing “better”
The reformers were attacking the excessive nature of punishments, but “an
excess that was bound up with an irregularity even more than with an abuse
of the power to punish” (78). “The criticism of the reformers was directed not
so much at the weakness or cruelty of those in authority, as at a bad economy
of power” (79).
“The reform of criminal law must be read as a strategy for the rearrangement
of the power to punish, according to modalities that render it more regular,
more effective, more constant and more detailed in its effects; in short, which
increase its effects while diminishing its economic cost (that is to say, by
dissociating it from the system of property, of buying and selling, of corruption
in obtaining not only offices, but the decisions themselves) and its political
cost (by dissociating it from the arbitrariness of monarchical power)” (80-1).
“The illegality of property was separated from the illegality of rights. This
distinction represents a class opposition because, on the one hand, the
illegality that was to be most accessible to the lower classes was that of
property – the violent transfer of ownership – and because, on the other, the
bourgeoisie was to reserve to itself the illegality of rights: the possibility of
getting round its own regulations and its own laws, of ensuring for itself an
immense sector of economic circulation by a skillful manipulation of gaps in
the law – gaps that were foreseen by its silences, or opened up by de facto
tolerance” (87).
“In a penality employing public torture and execution, example was the
answer to the crime; it had, by a sort of twin manifestation, to show the crime
and at the same time to show the sovereign power that mastered it; in a
penality calculated according to its own effects, example must refer back to
the crime, but in the most discreet way possible and with the greatest possible
economy indicate the intervention of power’ ideally, too, it should prevent any
subsequent reappearance of either” (93-4)
The new political anatomy emerging in the eighteenth century has two
intersecting lines of objectification: that which rejects the criminal from the side
of a nature against nature; and that which seeks to control delinquency by a
calculated economy of punishments that results in the supersession of the
punitive semio-technique by a new political of the body (103).
How did models of imprisonment come to be popular given all the reasons
against imprisonment?
“The most important thing [in a prison] was that this control and transformation
of behaviour were accompanied – both as a condition and as a consequence
– by the development of a knowledge of the individuals” (125). “This ever-
growing knowledge of the individuals made it possible to divide them up in the
prison not so much according to their crimes as according to the dispositions
that they revealed. The prison became a sort of permanent observatory that
made it possible to distribute the varieties of vice or weakness” (126).
“No detail is unimportant, but not so much for the meaning that it conceals
within it as for the hold it provides for the power that wishes to seize it” (140).
Part III, ch 2
Foucault begins his discussion of the “coercion of bodies” (169) by informing
us that “[T]he chief function of the disciplinary power is to ‘train.” “Instead of
bending all its subjects into a single uniform mass, it separates, analyzes,
differentiates, carries its procedures of decomposition to the point of
necessary and sufficient single units…Discipline ‘makes’ individuals; it is the
specific technique of a power that regards individuals both as objects and as
instruments of its exercise.” This is the beginning of the invasion of the “great
forms” and mechanisms of the sovereign or state by disciplinary power in the
form of “humble modalities” Foucault considers three “simple instruments” of
disciplinary power:
“hierarchical observation” (pp. 170-177)
“normalizing judgement and” (pp. 177-184)
“the examination” (pp. 184-192)
Hierarchical Observation
“The exercise of discipline presupposes a mechanism that coerces by means
of observation” (170). “[T]he means of coercion make those on whom they
are applied clearly visible,” and improvements on technology increased the
potential for observation (171). Foucault gives a description of a military camp
as both an example of “a power that acts by means of general visibility” and
as a model of principles “found in urban development, in the construction of
working-class housing estates, hospitals, asylums, prisons, schools: the
spatial ‘nesting’ of hierarchized surveillance (171-72).
2. Foucault warns us here that the punishment of discipline was not just that
of a “small-scale model of the court” (178). Judgment was passed on those,
student or soldier, who did not achieve or perform to the dictated level. These
observable deficiencies resulted in both punishment and public relegation, in
the case of the student, to “the bench of the ‘ignorant.’ In a disciplinary
regime punishment involves a double juridico-natural reference” (179).
“In short, it normalizes” (183). Here Foucault contrasts the disciplinary to the
“judicial penality,” which referenced laws and binaries of moralities not
observed individuals and rankings. It is the “penality of the norm” that brought
about modern penality, not advent of human sciences, etc (183). “The
Normal” is perpetuated through institutions and manages to both homogenize
(through conformity)and individualize (through ranks and assessments).
Through measurement , “the norm introduces…all the shading of individual
differences” in a homogenized setting (184).
The Examination
Disciplines, then, “mark the moment when the reversal of the political axis of
individualization…takes place” (192). Whereas in the “feudal regime” the
practice and display of power made the powerful individual visible, in the
“disciplinary regime…individualization is ‘descending:’ as power becomes
more anonymous and more functional, those on whom it is exercised tend to
be more strongly individualized” (193). Here Foucault makes the productive
power of discipline explicit: “We must cease once and for all to describe the
effects of power in negative terms…[P]ower produces; it produces reality; it
produces domains of objects and rituals of truth,” in short, the “individual”
(194).
How, then, he asks, could “such power (be derived) from the petty
machinations of discipline” (194)? The answer:
Here we are warned that the secularization of power and its shift from
monarchic control, as with the police in Foucault’s example, is not a complete
shift of disciplinary functions to the “state apparatus,” as “’Discipline’ may be
identified neither with an institution nor with an apparatus; it is a type of power,
a modality for its exercise” (215): “one can speak of the formation of a
disciplinary society…[n]ot because the disciplinary modality of power has
replaced all the others; but because it has infiltrated the others” (216).
Foucault sums-up the shift from the spectacle to the surveilled that is made
concrete in Bentham’s Panopticon in a lyrical discussion on pp. 216-217,
where we are reminded that this has been a shift from persons being
“repressed” to individuals “fabricated” into a “social order.”
The turn of the 18th and 19th centuries saw the rise of detention as “the
penalty par excellence” (231). However, the “birth of the prison” was marked
by conjunction of a “justice that is supposed to be ‘equal’” and “a legal
machinery that is supposed to be ‘autonomous,’ but which contains all the
asymmetries of disciplinary subjection” (231-232). Foucault laments that the
concept of the prison has since become so naturalized that alternatives seem
unthinkable. It even seems to be an egalitarian punishment in that time is
assessed as opposed to fine in reparation for an offense against society.
Foucault intends to further investigate the “transformative role” of the prison,
and he cautions us to remember that the prison has been, from its beginnings
in the 19th century, a means of both “deprivation of liberty and the technical
transformation of individuals” (233), and he cites numerous sources to support
the importance of the latter. He also argues that prison “reform” has been
around for as long as prisons have, and that said reforms are a part of the
penal process, not an interruption of it (234-235), and that “in becoming a
legal punishment, (the prison) weighted the old juridico-political question of
the right to punish with all the problems, all the agitations that have
surrounded the corrective technologies of the individual” (235).
Foucault draws the chapter title, “complete and austere institutions,” from an
“L. Baltard” (pub. 1829; see “Bibliography”) in order to portray the exhaustive,
uninterrupted, and “despotic” disciplinary power of the prison (235-236), which
was to be applied to the re-education and “recoding of existence” of the
prisoner. This is contrasted with simple detainment and “the simple
mechanism of exempla imagined by the reformers at the time of the
idealogues” (236). He lays out the principles of the disciplinary prison as
follows:
The above techniques, to the extent that they exceed the state of detention,
then, are to be know as the “penitentiary” (248). The penitentiary, Foucault
argues, became a trap not only for prisoners, but for “penal justice” and
judges, “because it was able to introduce criminal justice into relations of
knowledge that have since become its infinite labyrinth (249). The prisons
observed not just for immediate control, but also to create a body of
knowledge regarding the individual and his response to reformation in order
“to exact unceasingly form the inmate a body of knowledge that will make it
possible to transform the penal measure into penitentiary operations” (251).
As the “offender becomes an individual to know,” a new character is created:
that of the “delinquent,” who is characterized less by his act” (offense) than by
his life (251). For the re-education of the prisoner to be complete, the
“penitentiary operation… must become the sum total existence of the
delinquent, making of the prison a sort of artificial and coercive theatre in
which his life will be examined from top to bottom” (251-252). This
“biographical” approach to understanding the delinquent “establishes the
‘criminal’ as existing before the crime and even outside it.” This psycho-social
concept of the “dangerous individual” is, according to Foucault, still with us
today (252), and came to be categorized and documented, ultimately a
“biographical unity, a kernel of danger, representing a type of anomaly” (254).
The dangerous individual, or delinquent, is an amalgamation of 18th century
prison objects: the extra-societal “monster” and the “juridical subject
rehabilitated by punishment” (255).
The years 1820-1845 also saw a critique of the prison, according to Foucault,
who cautions us against seeking to “pat” a timeline. He discusses five major
critiques, which, we are told, are “today repeated almost unchanged” (265; as
with previous discussions, Foucault cites 19th century sources throughout):
2. Prisons produce delinquents “by the very conditions (they) impose upon
(their) inmates” (266-267): “Useless work,” “violent constraints,” and various
abuses of power are cited.
3. Prisons bring together delinquents who then collaborate with one another
(267): Among his more memorable citations are references to prisons as
settings for “anti-social clubs” and “barracks of crime.”
4. Ex-convict status and the markings and surveillance that come with it
promotes recidivism 267-268).
In the late 18th and early 19th centuries, “popular illegalities began to develop
according to new dimensions…introduced by movements which…linked
together social conflicts, the struggles against the political regimes, the
resistance to the movement of industrialization, the effects of economic rises.
The “development of the political dimension of the popular illegalities” were
based in local actions (273-274), the “rejection of the law or other regulation”
as struggle against those who enacted them (274), and the increases in
regulatory functions of those wielding political or economic authority leading to
an increase in “the occasions of offences” by those who would otherwise have
been within the law (273-275). This increased politicization is tied by Foucault
t to the changing role of the ‘working-class” in 19th century France and he
cites numerous sources in support of the “class dissymmetry” affecting the
application of “law and justice” (276). Delinquency, as a form of illegality,
again becomes a means by which to categorize, etc, on behalf of the “carceral
system” (277). Foucault sums up: “We have seen how the carceral system
substituted the ‘delinquent’ for the offender, and also superimposed upon
juridical practice a whole horizon of possible knowledge” all of which “enables
them to reinforce one another perpetually, to objectify the delinquency behind
the offence, to solidify delinquency in the movement of illegalities” (277).
Why and how, then, he asks, does penality invest certain practices “in a
mechanism of ‘punishment-reproduction?” His first assertion is that by
defining and controlling a criminal element, a more supervisable, manipulable
group diffuses the possibility for more disruptive (political) illegalities (278-
279). His second is that it is used as form of “colonialism,” even domestically;
for instance as a mechanism for reaping the profits of prostitution and other
illegalities (279-280). His third, the political use of delinquents as “thugs” or
a “clandestine police force” in labor struggles in particular, all of which is made
possible by surveillance and documentation in collaboration with the prison
and judges (280-282). On pages 282-285 explores the biographies of Vidocq,
cop and criminal who ended the “Shakespearian age when sovereignty
confronted abomination in a single character” (283) and Francois Lacenaire,
fallen bourgeois criminal and cause celèbre.
Foucault chooses January 22, 1840, “the date of the official opening of
Mettray,” as the “date of completion of the carceral system” (293). Mettray, a
prison for the underage, he explains, “is the disciplinary form at its most
extreme, the model in which are concentrated all the coercive technologies of
behavior:” the family, the army, the workshop, the school, and the judicial
model” (293-294). Here, “the entire parapenal institution, which is created in
order not to be a prison, culminates in the cell, on the walls of which are
written in black letters: ‘God sees you” (294). The “chiefs and their deputies at
Mettray...were in a sense technicians of behavior: engineers of conduct,
orthopaedists of individuality” who produced controllable bodies through their
training (294-295). Foucault explicitly argues that Mettray produced inmates
who would then become the technicians of control in “the first training college
pure discipline” (295).
This time, minors were ostensibly being protected from the prison, then, is the
moment when, according to Foucault, penality escapes transcends the
boundaries of the prison proper: “The frontiers between confinement, judicial
punishment and institutions of discipline, where were already blurred in the
classical age, tended to disappear and to constitute a great carceral
continuum that diffused penitentiary techniques into the most innocent
disciplines” (297). The carceral system came to include a wide variety of
institutions that were ostensibly charitable or intended for the shelter and
protection of the poor and the young, eventually, reaching “all the disciplinary
mechanisms that function throughout society” (297-298).
Foucault summarizes: “We have seen that, in penal justice, the prison
transformed the punitive procedure into a penitentiary technique; the carceral
archipelago transported this technique from the penal institution to the entire
social body” (298). He then argues that there have been six key results:
3. The carceral system “succeeds in making the power to punish natural and
legitimate, in lowering at least the threshold of tolerance to penality.” It plays
“the legal register of justice and the extra-legal register of discipline...against
one another,” masking the true violence of penality. Society and the prison
now differ only in degree, and societal discipline (and the self policing it
entails) is accepted as proper, even when applied to the mildest
transgressions (pp. 301-303).
4. The “carceral network” has a great normative function, and “the judges of
normality are present everywhere” (p. 304)
5. The “real capture of the body and its perpetual observation” have created
the “knowable man,” “the object-effect of ... domination-observation.”
Foucault implies a relationship between the rise of the human sciences and
the penal process of power-knowledge (pp. 304-305).
Foucault asks that we “hear the distant roar of battle” and begin our own
“studies of the power of normalization and the formation of knowledge in
modern society” for which he has provided a background (308).