Michel Foucault’s account of the emergence of the modern penal system, Discipline and Punish: the Birth of the Prison, is already hopelessly outdated. Not, however, because it has been superceded by a sharper analysis employing a more fruitful method, but because the penal system, at least in the United States and Great Britain, has fundamentally changed as an institution since Foucault’s study was first published in 1975. Foucault had been critical of the humanistic veneer with which we once made the urge to punish more palatable to our bourgeois consciences, since punishment, revenge, cruelty were at the end of the day hardwired into our wills-to-power and so, offensive to bourgeois sensibilities or not, ineradicable. Feel-good humanism had led to the proliferation of institutions ostensibly dedicated not to physical unpleasantness, but to the correction of these inmates’ wayward natures. The science of deviance, as distinct from the moralistic judgment of deviants, flourished. Foucault plausibly maintained that, as a consequence of the humanizing drive in Western penal systems, the cruelty only became more subtle: the punishers quit torturing the body and went to work instead on the soul. But no matter. They meant well.
Since the 1970s, in any case, the humanistic veneer has been scraped off, and we have returned to what Foucault, and Nietzsche before him, might consider a much more forthright reckoning of how we really feel about all those ne’er-do-wells: the rapists and the murderers and the bank robbers; and the petty drug dealers and the petty drug users and the poor. And in the United States we now have a penal system undergoing rapid growth, whose primary mission is to separate ne’er-do-wells from the rest of society and, to the extent possible under vestigial humanistic laws, to make this experience unpleasant.
In The Culture of Control: Crime and Social Order in Contemporary Society (University of Chicago Press, 2001), David Garland has written an archeology of the penal system for this most recent Anglo-American fin de siècle. He argues that the shift from correction to retribution can only be understood by looking at broader societal changes in the latter half of the 20th century, rather than trying to trace the new form of the prison back to developments in the fields of criminology and penology. Indeed, at just the time that the shift from correctionalism to punitive sentencing occurred, criminology was at its most radical, with prominent theorists in the field questioning the reality of the category of deviance altogether. Criminology broadly construed, we may see Foucault himself as representative of this trend.
The shift in broad public opinion that did not occur in narrow academic criminology was from concern for the criminal to concern for the victim. It was assumed that recognition of victims’ rights required a simultaneous diminution of concern for criminals’ rights. This position was clearly expressed by Joseph Lieberman on the 2000 campaign trail: "The liberal, criminal rights-oriented theories I took with me from law school ran smack into the reality of violent crime and street crime in my Hew Haven neighborhood. I knew people who were victims of violent crime and muggings; my house was broken into twice. Fear of crime was constricting freedom and stifling growth. So I began to propose tougher criminal laws, including the death penalty, and to focus more on victims’ rights and expedited criminal procedures."
What I find most odd about the retributivist, take-back-New-Haven position defended by Lieberman -for votes, to be sure, for votes- is not that it reverts back to an ends-blind vengefulness the Western world had gradually been overcoming since the Enlightenment. No, it was remarkable that we ever thought to strive to overcome this approach to transgressors in the first place. What is odd about the current situation is that true poetic or Hammurabic revenge remains, at least for the moment, out of the question, and the closest thing to retribution for, say, rape, allowed by law is to force the rapist to sit in a small room for a long time. Even if we may plausibly believe in revenge, the default setting of justice throughout the vastly greater part of human history, we may wonder what strange sort of cosmos would be set back in order through the simple incarceration of a violent criminal. The retributivists are constrained, at present, to work within the limits of a criminal justice system that emerged as a result of the humanistic, correctionalist ideology prevalent in Western society prior to the triumph of retributivism. And what we are left with, after thirty or so years of victim’s rights, Megan’s Law, the Brady Bill, and other such efflorescences of tough-on-crime populism, is an utterly senseless state of affairs, satisfactory to no one, in which politicians win votes by piling petty criminals on top of one another, for no other reason than to satisfy popular demand, in institutions that continue to be called ‘correctional’, but that in fact have no idea what their true purpose is, vacillating between the residual utopian good intentions of a bygone era and the sense that their purpose is to be tough, even as the law prohibits outright corporal punishment and other violations of human rights.
I worked for a time as a volunteer writing teacher at the Warren Correctional Institution, a maximum security prison in Lebanon, Ohio. The warden gave me a tour on my first day. He beamed with what I took to be genuine pride at the ‘campus layout’ of the prison. It was not a blocky, grey prison, as I had imagined all prisons are, as I had seen in movies. It did indeed look like a campus, with rolling green hills and clusters of dormitories (i.e., cell blocks), and central buildings that contained the cafeteria, the school, the barber shop. The warden assured me it was one of the most progressive prisons in the state. But he seemed to measure progressiveness in terms of the quality of the prisoners’ stay, rather than in terms of the prison’s capacity to set the inmates out, upon release, into a life of greater options and autonomy than their life prior to incarceration. This is what true correction would be. For all its progressiveness, the warden did not seem able to conceive of the prison as anything more than a holding bin.
Then there was Doc. Doc was the director of educational programs at the prison. He had earned a doctorate in education somewhere in Kentucky. (My Ph.D. in philosophy from Columbia, apparently, did not warrant a similar honorific. I didn’t press the issue.) Doc liked being called ‘Doc’ by the inmates. Doc needed to be in a position in this world where he could be held in high esteem by people who had never had the opportunity to figure out that, as a person, there was really nothing superior about him, nothing exceptional, or even noteworthy, other than an odd habit of inserting ‘take’ between modal verbs and those they accompany in most of his sentences: You’re gonna have to take and put all the metal you have in your pockets into that bin there before you go through the machine and Travis here gets you with the wand.
And there was the rest of the school staff, there just to receive their subsistence-level paychecks. One of the instructors in the school seemed nonplussed that I was volunteering to teach while she was forced to eke out an existence doing the same. She thought me naïve for believing I could, as they say, make a difference. And rightly. My volunteer work was desirable to the prison administrators because higher SAT scores from the prisoners would improve the ranking of the prison within the state sytem and, I presume, result in a larger piece of the state’s funding pie. Nothing, I should add, in the phrasing of the prison’s ‘facility mission’ would suggest that the school served any purpose beyond fund-raising. The purpose of the prison, evidently its exhaustive purpose, as we learn from its website, is "to achieve the correctional goal of effective supervision of adult offenders in a setting that is safe and humane for both adult offenders and the institutional staff who work with them." One might wonder what could plausibly be considered ‘correctional’ about safe, humane supervision. Safety and humanity might be among the conditions of possibility of correction, but this does not mean they are themselves correctional. Students were shuffled in and out of my class; I seldom saw the same student more than two or three times. When I asked why a particular student had not shown up, I was told he couldn’t attend for disciplinary reasons, or that he had had a hearing to go to. The students themselves, for their part, didn’t trust me. They assumed I was trying to bend and shape them for my own interests, just like everyone else in that massive enterprise. For doing good, too, is a sort of bending and shaping, and it rightly irks the fellow not open to having good done to him. I quit after a few months.
But I’ve failed to tell of the guard in charge of orientation. Barrel- chested and flat-topped, with memorabilia about his desk announcing connoisseurship of southwest Ohio’s woodlands and their fauna, it was his job to drill in some harsh realities about prison life before setting me loose among the inmates. Impatient with the mountain of forms I had to initial -by which I promised that I would not bring contraband in or out, that I would not receive or give sexual favors to any of the inmates, nor (what appeared indistinguishable from sexual relations from the point of view of the rule-makers) would I develop any ‘personal’ relations with the inmates- impatient with all this, the guard quickly became fed up and, summarizing the real import of all the paperwork for me, barked: "No fucking, no sucking, that’s it! Is that clear?"
While casual sex with prisoners is for obvious reasons a bad idea, this prohibition, and its emphasis, helped to drive home for me just how odd our current system of punishment is. Corporal punishment, it occurred to me, is only in some very narrow sense prohibited. For the body can be punished more subtly than by blows, and even Foucault, as a good materialist, would agree that there is simply no other way to get at the ‘soul’ than through the body and its five senses. Exposure, to take a limit case, involves no beating, but it does not allow the body what it needs: protection from the elements. Solitary confinement in a dark dungeon involves no beating, but it withholds light and contact and is most unhealthy.
I now see no reason to treat the relative confinement, for the most part not solitary, characteristic of the modern penal system as fundamentally of a different character than exposure to the elements or rotting in a dungeon. It is a difficult thing to distinguish between need and desire. Does the body in a dungeon need a bit of sunlight, or just crave it? How this question is answered might depend very much on whether it is the jailer or the prisoner who is asked. Evidently, the bodies of the prisoners at Warren weren’t getting what they, the way they saw things, needed. How else to explain the tremendous effort to suppress any potential furtive blowjobs between that queer (in, at least, the old-fashioned sense) volunteer from out of town and our perpetually horny charges?
I dwell on this only because one could easily get the impression from such an orientation session that the primary mission of an American prison, whatever mission it may openly announce, is to keep its inmates from getting off as they would if left to their own devices. And it is worth asking why such a project continues. In my view, it continues because deprivation, or at least the kind that isn’t immediately, clearly harmful to the body, is the only kind of corporal punishment still an option after the humanistic reforms of the early 20th century. You cannot starve a man, and you cannot beat him, but you can give him blueballs, and you can decide when he sits in darkness, and when he will be exposed to light. In the early 20th century this deprivation was, legitimately or not, conceived as part of a correctional program, a disciplinary regime, in Foucault’s language. Now it is just deprivation, straining, it would seem, to return to overt brutality.
Justin E. H. Smith teaches philosophy at Concordia University in Montreal, Canada. He can be reached at: firstname.lastname@example.org