CRJS 4476Senior Seminar

Lecturer #4

1.Course Administration• Class presentations• Canadore College next year

2. Foucault – Generalized Punishment

“let penalties be regulated and proportioned to the offences, let the death sentence be passed only on those convicted of murder, and let the tortures that revolt humanity be abolished” (1789)

• protests against public executions increased from this time

• hence began the search for another form of punishment

• “instead of taking revenge, criminal justice should simply punish”

• this change in attitude accompanied the grow of the criminological sciences and penology, flowing from the Enlightenment

• no longer the “vengeance of the Sovereign” but rather “man-made” justice

• punishment must have “humanity”

• Beccaria and the notion of proportionality

• from the end of the 17th century, a drop in the violence associated with many crimes

– and an increase in property crimes – and a shift from large gangs engaging in crime to more individualistic crimes

• but crimes became less violent long before punishments became less severe – in fact,

in the 18th century, the law became more severe

• this 18th century severity of law created a crime epidemic in Europe, much of it now property-based, and too often involving the death penalty

• courts during this period too powerful, too ignorant of investigation and procedure – hence justice too often arbitrary

• too much power of the part of the Sovereign, who could ‘sell’ legal offices to raise cash

• ultimately, what was required was a ‘redistribution’ of power in the legal system, to make punishment more effective and efficient, at lower overall cost

• reform, then, really attempt to punish ‘better’, not less, to punish with more universality and necessity, across a borader range of classes

• for Foucault then, the reform of punishment goes hand in hand with capitalist development; as development took off in Europe, more and more commodities were

created, more and more ‘property’, that requires protection: hence initially more severe law, which only creates more crime and overloads the system; what is really needed is greater universality of the law and more effective punishment

• the illegality of rights versus the illegality of property becomes separated along class lines

• the Bourgeoisie retained for itself the illegality of rights; and law became concentrated around the illegality of property – and punishment becomes centered on controlling property offences and violent crime in the poor and working classes

• “In short, constitute a new economy and a new technology of the power to punish;

these no doubt are the raisons d’etre of penal reform in the new eighteenth century”

• in the new social contract, each accepts the rule of law and the right of the law to punish; he who has broken the pact is the enemy of society, but he participate in the punishment practiced on him

• the right to punish has been shifted from the Sovereign to the defence of society – and proportionality relates to the amount the crime has impacted on the social order

• one punish exactly enough to prevent repetition – both specific and general deterrence (note here Beccaria on the punishment for homicide – perpetual slavery)

• certainty, celerity and due process

• “ “the art of punishing, then, must rest on a the art of punishing, then, must rest on a whole technology of representation”whole technology of representation”

- un-arbitrary punishment, a concordance- un-arbitrary punishment, a concordance between the crime committed, and the between the crime committed, and the punishment affixed (including pain)punishment affixed (including pain)- address the passions that underlie the - address the passions that underlie the crimecrime- temporal modulation - temporal modulation - general deterrence (‘everyone must - general deterrence (‘everyone must see punishment not only as natural, butsee punishment not only as natural, but in his own interest…”) - and the in his own interest…”) - and the ‘ ‘system of public works’system of public works’

• the linking of the the linking of the ideaidea of punishment, with the of punishment, with the realityreality of punishment, and the detachment of of punishment, and the detachment of the criminal from societythe criminal from society

• each punishment should be a lesson, a fable - each punishment should be a lesson, a fable - “ “the dramatization of evil”, the “confirmation of thethe dramatization of evil”, the “confirmation of the good” - a morality playgood” - a morality play

• the invention of a whole new range of punishments,the invention of a whole new range of punishments, in addition to imprisonment in addition to imprisonment

• the modern prison:the modern prison:- Rasphuis of Amsterdam (1596)- Rasphuis of Amsterdam (1596)- - maison de forcemaison de force at Ghent (c. 1749) at Ghent (c. 1749)- Philadelphia model (c. 1770) - do not publicize- Philadelphia model (c. 1770) - do not publicize the penalty, the prison as a system for altering the penalty, the prison as a system for altering minds - the total institution, an ‘observatory’ minds - the total institution, an ‘observatory’ where prisoners could be studied, and the where prisoners could be studied, and the knowledge used to manage, to control themknowledge used to manage, to control them

• legitimate authority and the ‘total power to legitimate authority and the ‘total power to punish’, and the need for secrecy - as the pre-punish’, and the need for secrecy - as the pre- eminent modeleminent model