Most of a nation on probation?

[Faustine]

Declan wrote:
 
> I haven't followed this discussion closely, and I am sympathetic to
> the position that far too many non-violent activities are crimes. But if
> someone is a violent offender, I don't see why we should be concerned
> at all with their "suffering" in prison.


Well, just because someone is a scumbag doesn't mean he automatically loses 
his humanity and therefore deserves whatever torture and rape anyone in the 
facility cares to dish out to him every day for the rest of his life. What 
happened to OUR humanity in not being concerned about that? No need for the 
quotes around "suffering" in far too many places in the US, either.  

You know as well as I do that labeling someone "potentially violent" is a 
quick and easy way to take away their rights. For that reason alone, not 
caring about the rights of "violent offenders" seems like the first step 
along a slippery slope into full-blown authoritarianism.

In a sense, it all comes back to your idea of the nature and role of 
punishment in society. Here's an excerpt from a review of Foucault's 1975 
work "Discipline and Punish: The Birth of Prison" which I found useful...

~Faustine.


*** 

If punishment serves a social function in healthy societies, it stands to 
reason that the nature and character of punishment will change along with 
the society. Different societies will have different modes of punishment, 
and what counts as the legitimate exercise of violence by the state will 
change over time. That is to say, punishment has a history. Foucault 
examines the history of punishment in the West, concentrating specifically 
on the historical shift in the practice of punishment from the 18th to the 
19th century. There is a movement from the public spectacle of dramatic 
torture to the rise of incarceration in the 19th century and the 
disappearance of spectacle. 

It is easy to see the spectacular punishments of old described by Foucault 
in the beginning of this section as a means of persuasion. The emphasis on 
publicity and on visibility shows clearly that the goal of punishment is to 
persuade society through spectacle. Modern forms of punishment still 
function persuasively, but somewhat differently, as the spectacle has 
disappeared from public view, and punishment has become a more pervasive 
and less overtly performative affair.

Foucault finds two processes at work:

disappearance of punishment as spectacle: punishment goes into hiding. It 
is everywhere and nowhere at the same time. An invisible yet ever present 
threat (even a certainty, an inevitability). "justice no longer takes 
public responsibility for the violence that is bound up with its practice," 
(9). 

loosening of punishment's hold on the body: with torture, pain is applied 
to the body directly and publicly. With the disciplinary society of the 
19th century forward, the body still feels pain, but it is no longer the 
object of pain but the medium through which pain is applied as a corrective 
measure to something else - the soul. "Far from being an art of unbearable 
sensations, punishment has become an economy of suspended rights," (11). 
Of course, physical pain accompanies incarceration, but it is transformed 
in its purpose and object: "There remains, therefore, a trace of 'torture' 
[supplice] in the modern mechanisms of criminal justice - a trace that has 
not been entirely overcome, but which is enveloped, increasingly, by the 
non-corporeal nature of the penal system." (16) 

What is punished in the 19th century is not the body but the soul. 
A "substitution of objects" takes place - the idea of crime has changed 
fundamentally. Crime, the object of concern in the penal system, has 
profoundly changed in quality. We no longer punish criminal activity. We 
now punish criminal personalities and souls rather than behavior. Our 
judgment is not on the act but on the quality of person who commits the 
act. Our punishments teach us a lesson about who we are and about who the 
criminal is. "the sentence that condemns or acquits is not simply a 
judgement of guilt, a legal decision that lays down punishment; it bears 
within it an assessment of normality and a technical prescription for a 
possible normalization," (20-1). 

Foucault also notes the incorporation of medical and therapeutic discourses 
of the human sciences into criminal justice discourse. The law incorporates 
these discursive formations into criminal justice to remove human 
accountability from the process of judicial decisionmaking. Punishment 
becomes a function of the social machine rather than an action carried out 
by individuals against other individuals. This process tends both to give a 
scientific and rationalistic legitimacy to punishment as well as to make 
punishment (and its particular form) seem like something inevitable and 
unchangeable. 

Foucault's "genealogical methodology": 


situate "repression" and "punishment" within larger sociopolitical 
contexts. Punishment is treated as one phenomenon within a complex social 
function, a series of discourses about punishment and crime. 

punitive methods are analyzed as specific techniques of a general strategy. 
That general strategy is the exercise of power. Punishment is seen as one 
method of exercising power. Punishment is thus a political tactic; like war 
it is one way of exercising power. For Foucault, punishment and war belong 
to the same general discursive formation. 

look at the common matrix among discourses which are not normally 
considered coextensive -- e.g. punishment and war, or punishment and the 
human sciences. Penal law and human science are not different discourses 
that just happen to intersect; for Foucault they are manifestations of the 
same underlying discursive formation -- an "epistemologico-juridical" 
formation. 

Investigate whether the entrance of the soul into the terrain of criminal 
justice is not "the effect of a transformation of the way in which the body 
itself is invested by power relations," (24). 
Overall, Foucault argues that we must look at punishment with cognizance of 
its concrete (and positive) social functions. It is not just a way to 
prevent crime (negative); it is also a positive system that produces social 
effects which are desired by the social body. 

The individual body, Foucault posits, is invested with political power; it 
is the object of a complex of political repressions, tortures, markings, 
etc. What is more, these investments are symbolic. The body is forced 
to "emit signs," (25). The subjection of the body to pain is a means of 
making the body speak, just like a red "A" or a yellow star of David. 

The techniques of power - violence applied directly to the body, 
interrogation, arrest, detention, internment, etc. - may be coherent in 
their results. But the application of these techniques is disparate and 
pervasive - it cannot be localized in the state, the private sector, the 
church, the school, etc. Apparatus and institutions such as these all 
distribute the exercise of power -- they operate what Foucault calls a 
microphysics of power. 

Such a microphysical study of power requires a new understanding of power:


Power is not a property but rather a strategy. It is not something people 
have or possess. It is a mode of operation - a matter of technique, 
tactics, maneuvers, etc. The model of power relations is a "perpetual 
battle" - power relations are constantly in motion and in flux. Power is 
exercised rather than possessed. 

power is not purely negative. Those who are dominated are not repressed or 
without power. In fact, power "invests them; it is transmitted by them and 
through them; it exerts pressure upon them, just as they themselves, in 
their struggle against it, resist the grip it has on them," (27). Power 
produces. 

power relations are "not univocal." They exist in myriad webs of the 
exercise of power, from the interactions in the supermarket or parking lot 
to the police station. Power says many different things; it is not a simple 
matter to "overthrow" it. Also, power relations cannot be localized in the 
state or in the police - power acts through us all. 

relation of power to knowledge: "power produces knowledge ... power and 
knowledge directly imply one another; ... there is no power relation 
without the correlative constitution of a field of knowledge, nor any 
knowledge that does not presuppose and constitute at the same time power 
relations." (27) 
Foucault's project, in the end, is a genealogy of the modern soul. 
The "soul" is understood not as a religious, ideological, or metaphysical 
myth, but rather as the "present correlative of a certain technology of 
power over the body," (29). The soul is understood materially as a product 
of penological discourse. "This real, non-corporal soul is not a substance; 
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.... The soul is 
the effect and instrument of a political anatomy; the soul is the prison of 
the body," (29-30).