Criminal Justice Theory, Volume 26

Explanations and Effects

Cecilia Chouhy, Joshua C. Cochran, Cheryl Lero Jonson, Cecilia Chouhy, Joshua C. Cochran, Cheryl Lero Jonson

• Editorial: Routledge
• Año: 2020
• ISBN:
  9781000029505
• Edición: 1
• Categoría: Sciences sociales
• Categoría: Criminologie

Criminal Justice Theory: Explanations and Effects undertakes a systematic study of theories of the criminal justice system, which historically have received very little attention from scholars. This is a glaring omission given the risk of mass imprisonment, the increasing presence of police in inner-city communities, and the emergence of new policy initiatives aimed at improving the quality and effectiveness of the administration of justice. Fortunately, however, a number of disparate theoretical works have appeared that seek to provide insight into the nature and impact of criminal justice. Based on 13 original essays by influential scholars, this volume pulls together the most significant of these perspectives, thus creating a state-of-the-art assessment of contemporary criminal justice theory.

Criminal justice theory can be divided into two main categories. The first includes works that seek to explain the operation of the criminal justice system. Most of these contributions have grappled with the core reality of American criminal justice: its rising embrace of punitiveness and the growth of mass imprisonment. The second category focuses on works that identify theories that have often guided efforts to reduce crime. The issue here focuses mainly on the effects of certain theoretically guided criminal justice interventions. The current volume is thus organized into these two categories: explanations and effects.

The result is an innovative and comprehensive book that not only serves researchers by advancing scholarship but also is appropriate for advanced undergraduate or graduate classroom use.

Part I

Explanations

1

Foucault and the Power of Criminal Justice: Discipline and Punish 40 Years On

Liam Martin

Being elected to a prestigious chair at the Collège de France provided Michel Foucault wide-ranging academic freedoms. He was not asked to fit research into the conventions of any academic discipline, or even teach regular courses, because the university does not have students or grant degrees. The job description was limited to an annual series of public lectures about his own work. Foucault used the privileges provided by the position to divert time and energy into political organizing. He gave his first lecture as chair at the end of 1970, and only two months later, held a press conference to announce the founding of Groupe d’Information sur les Prisons—the Prison Information Group (GIP)—to expose harsh conditions of confinement and push for change. His Paris apartment became the center of the group’s activities. Foucault held regular meetings with former prisoners and prisoner families, and engaged in the daily tasks of addressing envelopes, drafting press releases, and handing out leaflets. He organized a sit-in at the Ministry of Justice and got arrested protesting outside La Santé prison.

Foucault had previously published books on psychiatry, medicine, science, and what he called the “archaeological method.” But in these early years at the Collège de France, he turned his research focus onto the prison: publishing texts with the GIP (Prison Information Group, 1971a, 1971b, 1971c, 1972), giving public talks and interviews (Foucault, 1974, 1980a, 1980b, 2009), and dedicating his annual lectures to the topics of Penal Theories and Institutions and The Punitive Society (Foucault, 2015). The lectures acted as a rough draft for what would become his most famous book, Discipline and Punish (Foucault, 1979). This prison research was carried out at the height of his political engagement. Inside and outside the classroom, Foucault interrogated the role of criminal justice in control and domination.

More than 40 years later, this chapter returns to Foucault’s work on prisons and debates surrounding theory and research that centers on it. I will largely put aside his later lectures on governmentality, published after his death, which have also been developed and used by scholars in criminology and sociolegal studies (see Garland, 1997; Rose, O’Malley, & Valverde, 2006). The focus will be mapping the potential uses of the half decade of work where Foucault most directly studied criminal justice. I will examine how this work has been contested—on the grounds of both silences in theory and historical changes to criminal justice that may undermine core concepts and ideas—but also how it continues to guide and inspire research in the field.

Foucault completed his prison research before the rise of mass incarceration. The absence of any sustained attention to race makes the work an uneasy guide to studying a vast system of racially targeted imprisonment. The punitive turn has involved attacks on the reformative ideals central to disciplinary power, and in many places, penal governance appears dominated by practices of incapacitation and simple warehousing. This undermines his basic image of the institution. Yet he also positioned the prison as central to the power relations of modern society, and today, the sheer scale of the institution gives it unprecedented social and cultural influence. Foucault as theorist of the broad footprint of penal power has never been so important.

Foucault had a pragmatic attitude to theory as a set of tools for working on specific problems (Garland, 2014). He did not develop a theoretical system available to be applied by others or even clearly define core concepts (O’Malley & Valverde, 2014). Terms like discipline were left deliberately abstract and given flexible meanings specific to particular projects and historical contexts. Foucault took a similar attitude to using the work of others: he avoided extended citation and usually transformed the concepts he borrowed. “I prefer to utilize the writers I like,” he said in an interview. “The only valid tribute to thought such as Nietzsche’s is precisely to use it, to deform it, to make it groan and protest” (Foucault, 1980a, p. 53).

It is as good a license as any for criminal justice researchers to pragmatically adapt Foucault’s work to their own ends in the present.

Prison Genealogies and Power in Modern Society

The opening pages of Discipline and Punish describe the torture of Robert Damiens, a domestic servant who tried to assassinate the French king. The scene unfolds in a public square outside the Church of Paris in 1757. An executioner uses red-hot steel pincers, custom-made for the occasion, to tear chunks of flesh from Damiens’ breast, arms, thighs, and calves. Molten lead and burning oil are poured into open wounds. His arms and legs are tied to horses and the animals directed to rip away the limbs. The executioner helps the quartering by hacking at the thighs and joints with a knife. Once separated, the body parts are thrown on a fire and burned. Ashes are scattered in the wind. It is punishment as public spectacle utterly destroying the body of the condemned man.

Foucault then presents the timetable of a Paris borstal 80 years later. There the prisoner rises to a drum-roll and dresses in silence. At a second drum roll, they make their beds, and at a third, line up and walk to the chapel for morning prayer. At quarter to six in the summer, and quarter to seven in winter, prisoners go to the courtyard and receive a ration of bread. The day is split between labor in workshops and classes in reading, writing, and arithmetic. When work stops, bread is handed out for the last time. A supervisor reads a passage from an instructive or uplifting work for 15 minutes. At half past seven in summer, or half past eight in winter, prisoners are back in cells. A drum roll sounds and they undress, it sounds again, and they go to bed. Supervisors walk the corridors to ensure silence.

Foucault opens the book with this stark contrast in penal styles: on the one hand, a violent execution, on the other, a carefully managed timetable. It introduces a broad historical change in the prevailing practices of punishment. Between around 1760 and 1840, Foucault argues, there was a whole series of innovations in “political anatomy.” No longer would the body be violently destroyed in public displays of sovereign power—instead, it would be punished and disciplined at the same time, trained, and made useful and productive.

Foucault calls the techniques for training bodies the “disciplines.” There were methods of arranging buildings and objects to foster surveillance, distributing bodies in space so they could be effectively observed, and the formation of enclosed institutions internally partitioned to break-up groups and dangerous lines of communication. Cycles of repetition were established in time and arranged into segments building on one another into longer sequences. Examinations were developed to assess standards and identify nonconformity, creating records on individuals, ranking them, and comparing them with others. Torture disappeared as public spectacle not through a diminishing or scaling back of power, but a shift in political tactics, as social control methods were developed and adapted to the needs of modern institutions.

The prison emerged as part of this innovation, gathering within its walls methods of control invented in the rise of the disciplines. It borrowed the key architectural technology of the cell from medieval religious institutions, adapting the design to isolate convicts and force them to refllect on their crimes. It turned to the army for techniques of putting individuals in uniform and standardizing appearance, dividing time into consistent chunks and physically arranging large groups of people in space. The subtitle of Discipline and Punish is “the birth of the prison”—not the history of the prison—for the institution was born of technologies developed elsewhere: cells, uniforms, timetables (Valverde, 2017, p. 55).

A central premise of Discipline and Punish is that power is productive—it does not only constrain and repress, but creates (Foucault, 1979, p. 23). And the concentrated power of the disciplinary prison spawned new knowledges. Practices of observation and assessment provided a plethora of information on the criminal as distinct from the non-criminal. And authorities took advantage of having captive populations to refine methods that once perfected in prison could be used in milder ways on outside populations. Prisons become laboratories of social control in mainstream governance.

Foucault used “the panopticon”—a form of prison architecture—as a metaphor for the whole operation of power in modern society. This prison designed the physical environment to cultivate a sense among prisoners they were being constantly examined, hoping that over time, they would internalize the expectations of authorities. A central tower looked out at a rounded perimeter divided into tiers of cells. This simple arrangement separated a mass of prisoners in individual compartments all visible from one vantage point. Each cell was designed to maximize visibility: bars on the inside wall left the prisoner closed-in but observable from the central tower, while an outside window at the opposite end ensured light shone through the whole space. Even when the tower was empty, the prisoner could never be sure of that, so must act as if they were being watched. The goal was creating self-disciplined prisoners who followed regulations without any need for force or explicit instruction.

Foucault argues the panopticon embodies the operation of the disciplines. It constructs the built environment to insert soft power into social relations, inducing compliance by locating bodies in space and exercising hierarchical observation. And the basic “panoptic schema” could be adapted by any institution seeking to impose a task or behavior, not only those charged with reforming prisoners, but those treating patients, instructing schoolchildren, confining the insane, and supervising workers. Consider the familiar situations that mimic elements of the arrangement—the podium allowing a teacher to see each student and their papers and books, for example, or the glass-walled office above the factory floor signaling management are always watching. Yet the importance of the panopticon goes beyond its practical uses. For Foucault, it provides a metaphor or heuristic device for understanding how power operates in modern society.

Foucault uses the language of “the carceral” to articulate the power relations of panoptic societies. He describes how the boundaries between criminal justice and other institutions are blurred by the wide dispersal of penal methods of control: “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” (Foucault, 1979, p. 298). The resulting carceral system links the prison with the factory, the workers’ estate, the orphanage, the almshouse, the school, and the hospital. The word carceral can be translated as “of the prison.” Foucault argues the rise of the disciplines gives the entire social order a carceral texture.

There are opportunities to draw on these insights to reveal linkages and unexpected connections forged during the prison boom of the last four decades. But there are also silences in Discipline and Punish especially important to criminal justice scholars hoping to use the text to guide their own work, foremost among them a general omission of the category of race.¹ And when race is reintroduced, it raises questions about Foucault’s general picture of a shift from violence to discipline in the prevailing practices of punishment. The institutions of American criminal justice have always acted differently towards bodies of different colors—and there are long histories to today’s troubling patterns of racialized state violence.

Problems of Genealogy: Racial Silences and Legacies of State Violence

During the period Foucault was dedicating his time to criminal justice research and activism, he travelled to the State University of New York at Buffalo. The campus was not only the center of French studies in America, but just 30 miles from Attica prison, where less than a year earlier, prisoners had taken hostages and seized control of the institution. The uprising was brutally suppressed by state troopers, who invaded the facility in a hail of gun fire that killed 43 people, and systematically tortured prisoners in the aftermath (Thompson, 2016). Foucault met with the Attica Defense Committee, a group of attorneys and political activists formed to help prisoners charged with criminal offenses in the wake of the uprising, and talked with former prisoners of the institution. The head of the French department at Buffalo, John K. Simon, also arranged for Foucault to visit the prison (Foucault, 1974).

Racial conflicts were central to the Attica uprising. Most prisoners were Black while the guards were almost exclusively White. Muslim prisoners objected to routinely being served pork at mealtime. Only three weeks earlier, White officers killed Black Panther leader George Jackson at San Quentin Prison, creating bubbling animosity at a time when “Black and brown prisoners had turned America’s penal facilities into important civil rights battlegrounds” (Thompson, 2014, p. 158). Foucault’s work with the GIP, which explicitly linked the struggles of French and American prisoners, created personal connections to these conflicts (Heiner, 2007). After the group sent Catherine von Bülow to America to talk with George Jackson in prison, he studied the documents from their meetings in depth. Another GIP member and friend of Foucault’s, Jean Genet, spent three months in the United States at the invitation of...