Discipline and Punish by Michael Foucault

I. PROBABILISTIC JUSTICE

In modern America, a person is either innocent or guilty. The Ancien Régime French saw things differently. In an uncertain world, they argued, you can never be perfectly certain that the defendant is guilty. All you can do is take the probability that they are guilty into account during sentencing. A person who is 99% likely to be guilty should be punished more severely than a person who is 80% likely to be guilty.

Foucault documents several probability-based legal codes. One code divides evidence  into three categories: full proofs, semi-proofs, and clues. A full proof was a conclusive piece of evidence. Two unimpeachable witnesses testifying that they saw the defendant stab a victim, for example, constituted full proof. Semi-proofs were compelling but not conclusive evidence. They could, in theory, be contradicted by other evidence. A single eyewitness report or death-threats before a murder constituted semi-proof. Clues were suspicious observations such as rumors, the flight of a suspect, or his manner when questioned.

More convincing evidence merited harsher punishment. Full proof could lead to any punishment at all. Semi-full proof could lead to omnia cirta mortem - anything short of death. Clues could lead to fines. Weak pieces of evidence could be combined into stronger pieces of evidence according to precise arithmetic rules. Two semi-full proofs could be combined to make a full proof. Several corroborating clues could be combined to make a semi-proof. No amount of clues, however, could make a full proof.

The details of this penal arithmetic were hotly debated. Should two semi-proofs really equal a full proof? Shouldn’t it be three semi-proofs, or two plus several clues? A standard of “reasonable doubt” was occasionally considered but always rejected as “merely a matter of opinion.” Enlightened men, after all, must be quantitative.

II. THE KING’S REVENGE

Any penal philosophy must answer the question: “What is the purpose of punishment?” Why do we punish? A modern leftist might answer “punishment is rehabilitation”. An offender is, in some sense, unwell. Punishment should fix his problems. A modern rightist might answer “punishment is deterrence.” Crime can only be deterred by making examples of criminals. The judges of the Ancien Régime also had an answer. Their answer was “punishment is the King’s revenge.”

In a monarchy, any crime is a rebellion against the King. Crime rebels against his rulership, since the rule of law is the rule of the King. Crime rebels against him personally, since the law is the will of the sovereign. Punishment must not just restore the King’s justice. It must be a direct reply from the King to a rebellious subject. Its goal is not balance or fairness but excess. All must fear the King’s revenge.

To redress the harm that the criminal causes the kingdom, the public execution must reveal his crime and condemn it. It must contrast the weakness of the subject who has dared to violate the law with the strength of the king. To accomplish these goals, executions sometimes theatrically reenacted the crime. As late as 1772, just 17 years before the French Revolution, a serving girl from Cambrai who had killed her mistress was put to death in the same chair that her mistress had been sitting in when she was murdered. Her executioner reenacted the murder, striking her on the chest, on her left forearm, and then on her chest again with the kitchen cleaver used in the murder.

What punishment should a regicide receive? Clearly all of them, because a regicide does not attack part of the King’s will but all of it. This was not always possible - a human can only be killed once - but the executioners of the Early Modern Period did their best. Foucault documents the 16 day long execution of Balthasar Gérard, killer of William of Orange, in gruesome detail.

A public execution is a battle between the King and a rebellious subject. A scaffold was often surrounded by troops - cavalry of the watch, archers, guardsman, soldiers -  partially to prevent the people from intervening but partially to symbolize the military nature of monarchical punishment. In this battle, the executioner is the King’s champion. He is a shameful champion - traditionally, an executioner’s orders were not placed on a table but thrown on the floor - but a champion nonetheless. If the executioner triumphed, if he cut off the head in a single blow, he would show it to the crowd to rapturous applause. If he failed to execute the condemned man as directed, the crowd could attack him and carry off the prisoner.

Foucault has a wonderful collection of “public execution gone wrong” stories. In Tours, for example, a man called Pierre du Fort was condemned to be hanged. Whenever the executioner tried to throw Pierre down, Pierre caught his feet in the steps, preventing himself from swinging freely. Enraged, the executioner kicked Pierre repeatedly while his wife tugged at Pierre’s feet from under the gallows.

When the crowd saw that the executioner was causing Pierre too much pain, they began to hurl stones. As the executioner finally managed to throw Pierre down, the stones came faster, forcing him to dash to the ladder. The executioner descended so quickly that he fell off half-way down and smacked his head on the ground. He struggled to his feet, bayonet in hand, threatening to kill anyone who came near. The furious crowd rushed him, beat him, rolled him in the mud, nearly drowned him in the stream, and dragged him to the University and then to the Cordiliers cemetery. Pierre was cut down and the gallows was smashed, carried off by children, and thrown into the Rhône.

Pierre was carried to the cemetery to prevent his recapture and then to the church of Sainte-Antione. The archbishop, seeing the angry mob at his doorstep, wisely decided to pardon Pierre. He sent Pierre to the hospital and asked that that special care be taken of him. Lastly, Foucault adds as a kind of flourish, the crowd pitched in to have a new suit, two pairs of stockings and shoes made for Pierre. He was given shirts, breeches, and a wig.

The subtext of Foucault’s hilarious collection of stories: public executions could be politically dangerous. There is no point organizing a symbolic battle between the King and the criminal if the King can lose. To make matters worse, the people expected the King to be a graceful loser and pardon the condemned man should the execution fail. In countries like Burgandy, it was a custom. In order to abolish these expectations and customs, explicit instructions like “hanged by the neck until dead” had to be added to capital sentences.

Even with these changes, the public execution remained dangerous. The people flocked to the scaffold to hear a man with nothing left to lose curse the judges, the laws, and the government. Executions became Saturnalia where nothing remained to prohibit or punish. Under the protection of imminent death, the criminal could say anything and the crowd cheered. There was also, I think, the irresistible suggestion that if the executioner was the King’s champion, the criminal must, by process of elimination, be the people’s. The crowd was invited to side with the criminal - to fight the King’s justice. In the dying days of the Ancien Régime, reformers searched for a better system of punishment.

III. IRONIC PUNISHMENT

The case for reform was strengthened by the changing nature of crime. As Foucault tells it, during the feudal period crime targeted feudal rights. Common crimes included smuggling and tax-avoidance. These crimes violated the rights that the feudal system awards to groups of people. Smugglers, for example, violate the King’s right to tax trade. As feudalism gave way to capitalism and France became richer, crime began to target goods. Writing in 1764, Le Trosne complained that brigands could cost richer peasants up to a third of their incomes. The problem became worse when the newly created bourgeoisie began to buy the old feudal estates. Traditionally, the peasantry had the right to collect wood, to graze livestock, etc. in the landed estates. These rights were rejected by the new owners of the estates, who regarded these activities as theft.

As crime stopped targeting the rights of the old feudal nobility and started targeting the goods of the new capitalist bourgeoisie, the bourgeoisie began to panic. They became convinced that France was in the middle of a crime wave, even though in absolute terms crime seems to have been decreasing at the time of the Revolution. They began to search for a way to restore order. They reasoned:

        “A criminal commits a crime because he expects benefits from it. If each crime is associated with disadvantages which outweigh its benefits, there will be no reason to commit crime.”

On hearing this, a modern social scientist might respond:

        “Punishment doesn’t deter crime! Your approach won’t work! When modern America made drug sentences stricter, drug use didn’t decrease. People’s lives were ruined for nothing.”

The reformers had a ready response to this argument. If one of the bourgeoisie reformers was magically transported to the present, he would almost certainly reply:

        “Your system of punishment wasn’t ironic enough. A raver won’t be spontaneously reminded of jail when she is offered a tab of LSD. There is no psychological association between jail and LSD which would bring it to her mind. What you should have done is punish LSD users by sentencing them to a year long bad trip. Flood their bloodstreams with LSD! Scare them over and over! Make sure every schoolchild gets to see LSD users terrified by visions only they can see! Just looking at a tab of LSD will remind those children of the punishment that awaits them if they use it. Then you will deter crime.”

The reformers wanted to instill the French citizenry with a set of Pavlovian responses. A response would trigger whenever a citizen considered committing a crime and remind him of its punishment. Their scheme sounded so modern, so stereotypically Orwellian, that I briefly wondered if Foucault’s analysis was influenced by modern totalitarian thinking. I was quickly proved wrong. Servan, Minister of War of the Revolutionary Government, writes:

        The ideas of crime and punishment must “follow another without interruption. When you have thus formed the chain of ideas in the heads of your citizens, you will then be able to pride yourself on guiding them and being their masters. A stupid despot may constrain his slaves with iron chains, but a true politician binds them even more strongly by the chain of their own ideas.” He concludes: “on the soft fibers of the brain is founded the unshakable base of the soundest Empires.”

What punishments were suitably ironic? Vermeil, writing in 1781, suggests that speculation should be punished by fines, theft by confiscation of property, arson by the stake and murder by death. Poisoners should have a goblet of liquid thrown in their face and then be submerged in a cauldron of boiling water. Other reformers suggested that highwaymen be put to work mending the roads.

The reformers also hoped that ironic punishments would correct the impulses that led the criminal to commit crime. The beggar, they reasoned, begs because he is lazy. Hard work will teach him better habits. “One will not succeed in locking beggars up in filthy prisons which are more like cesspools. They will have to be forced to work.” A good punishment should subdue the passion that motivated the crime.

To form a psychological association between a crime and its punishment, punishment must be public. A secret punishment is a wasted punishment. The reformers wanted each place of punishment to become a Garden of the Laws that families would visit on Sundays. Children would be taken to these gardens to receive lessons in civics. Bexon, in a project presented to the King of Bavaria, proposed an entire penal heraldry. Poisoners should be made to wear a shift embroidered with snakes and other venomous animals on the day of their execution. Traitors should wear a shift labeled “traitor” and parricides a shirt embroidered with daggers or the murder weapon.

The system of punishment we have today, where all major offenses are punished by prison, would have surprised and disappointed the reformers. Imprisonment had a bad reputation in post-revolution France. It reminded the revolutionaries of the jails where political enemies of the King were imprisoned. Prison was also criticized for its practical drawbacks: it is costly, it is hidden from the public, it makes criminals more likely to reoffend. Imprisonment, they argued, is only fit to be the ironic punishment associated with crimes like abduction.

By 1810, however, basically all serious crimes were either punished by death or imprisonment. This surprised several deputies of the French Assembly, who wondered why ironic punishment had not been tried instead. One complained:

“If I have betrayed my country, I go to prison; if I have killed my father, I go to prison; every imaginable offense is punished in the same way. One might as well see a physician who has the same remedy for all ills.”

This raises the question: “what happened?” Why did France decide to punish crime by imprisonment without even trying the alternatives? Foucualt’s answer: during the nineteenth century, everything became more prison-like. Punishment just came along for the ride.

IV. CLOCKWORK SOCIETY

Bentham opens his essay “Panopticon” with a list of the benefits of a panopticon:

        “Morals reformed - health preserved - industry invigorated - instructions diffused - public burdens lightened - Economy seated, as it were, upon a rock - the gordian knot of the Poor Laws not cut, but untied - all by a simple idea in architecture!”

Bentham did not design the panopticon to improve prisons. He designed it to improve society. Bentham, along with many statesmen of the nineteenth century, dreamt of building a clockwork society. In a clockwork society, each citizen is shaped into a tiny machine. Their days follow a precise timetable designed to maximize their productivity. Their movements are choreographed to give them a mechanical consistency. They are trained to respond to signals rather than words. They are constantly monitored, and any citizen who proves defective is taken to a repair shop to be fixed.

Fantastically Orwellian? Perhaps. But as Foucault documents, the French took this project very seriously.

The Écoles mutuelles, or mutual improvement schools, timetabled their children’s lives in 4 minute increments. Foucault helpfully supplies an extract from their timetables:

        8:45. Entrance of the monitor.

        8:52. The monitor’s summons.

        8:56. Entrance of the children and prayer.

        9:00. The children go to their benches.

        9:04. First slate.

        9:08. End of dictation.

        9:12. Second slate.

The students’ movement was carefully choreographed. Take the command “Enter your benches”. On hearing the word “Enter”, a child was expected to place his hands on the table and put one leg into the bench. On hearing the words “your benches”, he should put his other leg in and sit down. Take the command “Take your slates”. At the word “Take”, a child was expected to grab the string that her slate is hanging by with her right hand and the slate itself with her left hand. At the word “slates”, she should unhook it and place it on the table.

Needless to say, boarding schools were preferred to day schools, because the environment that the children lived in could be completely controlled.

La Salle, in his book “The Conduct of the Christian Schools”, suggests that teachers should communicate to children via signals. To command a child to start or stop reading, a teacher should strike the signal once. To command a child to repeat a word that he has mispronounced, the teacher should strike the signal twice. If the pupil cannot find the word that he has mispronounced, perhaps because he has read several words beyond it, the teacher should strike the signal three times. The teacher should continue to strike the signal until the student found the word that he misread. La Salle hoped that whenever a good pupil heard the noise of the signal, he would imagine that he was hearing the voice of God calling him by name. Like the young Samuel, he would call out to God from the depths of his soul, saying “Lord, I am here.”

The statesmen of the late eighteenth and early nineteenth century tried to reorganize the whole of society along these lines. Factory workers were carefully monitored to prevent them from wasting their time. Workers were forbidden from telling stories during meal-breaks. Soldiers’ movements were choreographed precisely. The Prussian regulations of 1743 laid out a thirteen stage process for raising a weapon to one’s shoulder. Prisoner’s days were timetabled precisely. They were sometimes given instructions via signals. For example, an excerpt from Léon Faucher’s rules “for the house of young prisoners in Paris” reads:

        Art. 18. Rising. At the first drum-roll, the prisoners must rise and dress in silence, as the supervisor opens the cell doors. At the second drum-roll, they must be dressed and make their beds. At the third, they must line up and proceed to the chapel for morning prayer. There is a five-minute interval between each drum-roll.

The statesmen of the Enlightenment were fascinated by Rome both as a symbol of liberty and a symbol of order. The Rome of the Enlightenment was both the Rome of the forum and the Rome of the camps. It was the Rome of the Senate but also the Rome of the legions.

The legacy of these reforms is still with us today. Almost nobody disputes the right of the states to surveil its citizens and regulate them in certain conditions, for example, to prevent pandemics, terrorism and disorder. Most people agree that schools have the right to micromanage their children’s time, that companies have the right to monitor the employees to prevent them from wasting time. The great disagreement of our times is not if surveillance is legitimate but when. The difference between “free” countries like France and “not free” countries like China is fundamentally a matter of degree.

In a clockwork society, punishment is a medical procedure. Punishment takes place in a prison, which is a medical institution. A criminal is a sick man, a defective machine. Prison must fix him. It must rehabilitate him. It must transform him into a productive and obedient member of society. A judge is a doctor who must determine if a man is healthy or sick, that is, if he is innocent or guilty. If he is sick, the judge must choose a course of treatment. Trained psychologists help the judge decide whether the man would be best treated in a prison or in a mental institution. (Or rather, since a prison is a mental institution, which type of mental institution should treat the man.) Jailers, the nurses of the prison, monitor the man throughout his treatment. If the treatment seems to have worked, he may be released early.

In a clockwork society, a prison should teach prisoners good habits. Habits are formed through constant practice. Constant practice can only be enforced by constant monitoring. Constant monitoring requires a panopticon. In Bentham’s panopticon, cells are arranged in a ring around a central tower. Each cell has two windows: one facing inwards towards the tower, and one facing outwards towards the surrounding area. A prisoner, schoolboy, worker, soldier or patient is placed in each cell. Light is shone through the outward facing windows. This light allows a guard standing in the central tower to see the silhouette of the prisoner in each cell. Each cell is a tiny shadow-puppet theater that the guard can examine at his leisure.

A panopticon should remind its prisoners that they are constantly under surveillance. This doesn’t mean that they have to be constantly surveilled. Bentham suggests covering the windows of the central towers with venetian blinds. If the prisoners cannot see whether the tower is occupied, they cannot know whether they are being watched. All they know is that they might be. He suggests replacing the doors in the tower with zig-zagged corridors so that the sound of a door opening or a gleam of light from behind a door cannot betray the guard.

Today, jailers have access to an even better panoptic instrument: the CCTV camera. A CCTV camera can watch a prisoner 24-7. Their recordings can even be retroactively watched if there is reason to believe that the prisoner has misbehaved. The modern prisoner is not only watched by the people of the present: he is watched by the people of the future.

V. MODERN PUNISHMENT

The Ancien Régime kings, the revolutionary reformers, and the Enlightenment statesmen all had a philosophy behind their penal systems. The kings wanted to take revenge on criminals, the revolutionaries wanted to deter crime, and the Enlightenment statesmen wanted to rehabilitate criminals into well-adjusted factory workers. While their penal systems were strange, they were clearly directed towards a goal. Can modernity say the same?

Any modern philosophy of punishment probably centers on rehabilitation. Even the strictest advocates of deterrence will grudgingly admit, when pressed, that prisoners should leave prison better adjusted to society than when they arrive. Prison, however, seems to be very bad at doing this. Perhaps a penal system from the early industrial revolution designed to transform delinquents into obedient factory workers is not the best way to create well-adjusted information-age citizens.

What might a modern penal system look like? It might explicitly acknowledge the medical nature of rehabilitation. It might replace jails and jailors with mental institutions and psychologists. It might parole its patients when they seem re-adjusted instead of letting them spend their time uselessly in prison.

A medico-penal system must answer complicated questions. Is it right to release a murderer after a few months if he seems to be fully rehabilitated? Should a thief be jailed for years if he shows no sign of improvement? Should ex-prisoners be monitored to prevent them from relapsing? What values should be inculcated in prisoners?

Would a medico-penal system really work? Probably not. Medical institutionalization seems to have had limited success. It would be nice, however, to have a penal system designed for a particular objective. At the moment, our penal system neither rehabilitates nor deters crime. It wouldn’t even provide a king with cathartic revenge! Perhaps it is time to imagine a new penal system which better reflects modern ideas about punishment.