Hamlet: [...] what have you, my good friends, deserved at the hands of fortune, that she sends you to prison thither?
Guildenstern: Prison, my lord!
Hamlet: Denmark's a prison.
Rosencrantz: Then the world is one.
Hamlet: A goodly one; in which there are many confines, wards and dungeons.[1]
No doubt many of my readers, even those who are well-educated or widely read, think that the prison -- the place where dark deeds are darkly answered[2] -- is an ancient institution, a barbaric hold-over from barbaric times. In fact, the prison is of relatively recent origin, and this tells us a great deal about the pretentions and realities of modern times, and the wisdom and high degree of development of the ancients.
So that there's no confusion, I'll define exactly what I mean by "the prison," which has approximately a dozen distinctive features. A prison is (1) a massive, fortified structure, which is (2) surrounded or enclosed by walls and fences that dramatically limit entrances and prevent unauthorized departures. Prisons are often (3) built within city centers or other highly populated areas. To prevent passersby from seeing what goes on inside its walls, and to prevent inmates from looking out, a prison (4) contains very few or very small windows, which are typically tinted or otherwise rendered opaque.
The high wall, no longer the wall that surrounds and protects, no longer the wall that stands for power and wealth, but the meticulously sealed wall, uncrossable in either direction, closed in upon the now mysterious work of punishment, will become, near at hand, sometimes even at the very center of the cities of the nineteenth century, the monotonous figure, at once material and symbolic, of the power to punish.[3]
(And so I do not include among prisons of the modern type such proto-prisons as convict-ships, islands or whole countries to which criminals are banished, or structures that are built on wastelands or remote areas.)
The primary purpose of the modern prison -- the method by which it punishes -- is (5) detention, that is, the deprivation of liberty, the freedom to move wherever and whenever desired. (And so I do not include among modern prisons the debtor's prison, in which inmates are held, not as punishment, but as surety for their debts, which -- once re-paid -- entitled the inmate to his or her freedom.) Prison inmates are detained in (6) partioned spaces; indeed, the entire internal space of the prison is carefully partioned. As Michel Foucault says:
Each individual has his [sic] own place; and each place its individual. Avoid distributions in groups; break up collective dispositions; analyze confused, massive or transient pluralities [...] One must eliminate the effects of imprecise distributions, the uncontrolled disappearance of individuals, their diffuse circulation, their unusable and dangerous coagulation [...] The prison must be designed in such a way as to efface of itself the harmful consequences to which it gives rise in gathering together very different convicts in the same place: to stifle plots and revolts, to prevent the formation of future complicities that give rise to blackmail (when the convicts are once again at liberty), to form an obstacle to the immorality of so many 'mysterious' associations.
The most effective partition, and thus the most common, is the monastic cell, first utilized by the Carthusians in 1084 in France.
In prison, other forms of spatial control -- control made possible by and exerted through partitioned or "cellular" space -- include (7) areas reserved for solitary confinement and areas from which all inmates are prohibited. To the extent that human beings take up and exist in space, one must also include those forms of punishment that work directly upon the body, such as (8) obligatory medical observations and psychological examinations, food quality and food rationing, and sexual deprivation.
Given that inmates are detained in prison for certain periods of time, there are also temporal forms of control, such as (9) probationary periods, roll-calls or "counts," timetables and schedules that "establish rhythms, impose particular occupations, [and] regulate the cycles of repetition" (Foucault). Because all of the above involve what Foucault calls "small-scale legal systems and parallel judges" such as psychiatrists, psychologists, clergy members, educationalists, and officers who oversee implementations, the prison consists of (10) their offices and (11) all the written reports, examinations, documents and files that they generate, store and communicate to the prison's central administration.
Each individual prison doesn't exist alone, but is part of (12) a complex and hierarchical structure, the different levels of which correspond to the different levels of the state apparatus. And so, according to the seventh edition of Black's Law Dictionary, there are "jails" for those awaiting trial, awaiting sentencing or convicted of misdemeanors; "prisons" for those convicted of felonies by the state or federal government; and "penitentiaries" for those in need of "correction" and sentenced to long terms of detention. (Note well the confusion: aren't all jails and prisons "penitentiaries"? Don't they all detain inmates for the purposes of "correction"?)
Finally, the entire system as a whole is (13) distinct and even autonomous from the judicial system, that is to say, from the judges who sentence people to jail. As Foucault points out, there is a "double system of protection that justice has set up between itself and the punishment it imposes." Because there is "no glory in punishing," the judges delegate it to others, who are specialists in its administration; and because punishment often involves or is inseparable from cruelty and even torture, the judges prefer to think that they do not punish at all, but simply correct, reclaim or rehabilitate those who are judged. If the prison bureaucracy is close to any other state apparatus, it is the police; and, unlike judges and district attorneys, police officers and sheriffs are not elected officials; they are either hired or appointed, and so are completely beyond or outside of "the will of the people."
Why, any man will accept the bloodprice paid
for a brother murdered, a child done to death.
And the murderer lives in his own country --
the man has paid enough, and the injured kinsman
curbs his pride, his smoldering, vengeful spirit,
once he takes the price.[4]
No detention, no imprisonment, not even for murder; the only judicial options are fines or banishment. Look at Stories of Changing Forms, also known as The Metamorphoses, written by Publius Ovidius Naso (Ovid) around 20 B.C. Though terrible crimes are committed, including murder, rape, incest, betrayal and hubris, none of the punishments meted out by the gods -- who are "fair in judging mortals"[5] -- include imprisonment. Instead, the offenders are "sentenced" to undergo incredible transformations, to become animals, plants or mineral formations; to go into exile as new beings. Strictly speaking, there are no death penalties in Ovid, only the penalty of not being allowed to remain the same.
Look at The Divine Comedy, written by Dante Aligieri around 1300 A.D. Though both the Inferno and the Purgatorio describe prison-like structures that are full of souls who are either permanently or temporarily detained, and subject to terrible (but just) tortures or cleansing corrections, Dante never refers to the existence of man-made prisons. Only God has the right or power to detain and punish. This idea also appears in Hamlet, written by William Shakespeare around 1600 A.D. The ghost of Hamlet's father says that he is,
Doom'd for a certain term to walk the night,
And for the day confined to fast in fires,
Till the foul crimes done in my days of nature
Are burnt and purged away. But that I am forbid
To tell the secrets of my prison-house,
I could a tale unfold.[6]
This is no man-made prison: it is a divine purgatory, which Hamlet's father cannot describe or explain because, unlike Dante, he has no Beatrice to forgive him or guide him through and away from his sins.
There are man-made prisons in Shakespeare's Measure for Measure, but they are quite unlike our modern prisons. They are not used to detain convicts for "a certain term," but to prepare them for death at the hands of an executioner. These convicts are all "for the Lord's sake."[7] And, though Duke Vincentio says to a constable, "Take him to prison, officer:/Correction and instruction must both work/Ere this rude beast will profit," the convict will only "profit" when he is ready and willing to be put to death.
Perhaps the most telling prison in the works of Shakespeare is the one in which Sir Tobias detains Malvolio:
Come, we'll have him in a dark room and bound. My niece is already in the belief that he's mad: we may carry it thus, for our pleasure and his penance, till our very pastime, tired out of breath, prompt us to have mercy on him.[8]
But Sir Tobias ends his prank prematurely, well before his pleasure has been satsified and Malvolio's penance has been wrung from him:
I would we were well rid of this knavery. If he may be conveniently delivered, I would he were, for I am now so far in offence with my niece that I cannot pursue with any safety this sport to the upshot.[9]
One feels that Sir Tobias has been scared, rather than amused by, the awesome power to detain a man in a dark, hellish place, without seing him or hearing him cry out in pain, confusion and anger. Sir Tobias has realized that the role of gaoler is not to be played, or played with, lightly: it is a dark, terrible business. As for Malvolio, he has not been "corrected and instructed": he's emerged much worse than he was when he entered. His last words are menacing: "I'll be revenged on the whole pack of you."[10]
According to Foucault, the first of the "great models of punitive imprisonment" -- the Rasphius in Amsterdam -- was opened in 1596. It is interesting that Foucault doesn't consider the Jewish ghetto in Venice as one of the first modern prisons. Established in 1516, the ghetto was an entire neighborhood, whose center was a former foundry building, to which the city's Jews were confined. It was a sealed, walled-in place, which was strictly regulated by the authorities. Inside, the inmates were forced to wear distinctive uniforms (red strips of cloth). It is worth noting this brief account of the ghetto in Turin, which was one of the last established in Italy (it was created in 1679):
The Jewish families of the city were crowded into a large paupers' hospital in the center of the city; its windows were walled up so that the Jews might not look into Christian houses, and its iron gates closed for the night at nine.[11]
It wasn't until the last quarter of the 18th century that "real" modern prisons were built and filled with inmates. Foucault mentions the Hanway in England (1775) and the Walnut Street in Philadelphia, Pennsylvania (1790). Speaking broadly, Foucault dates "the birth of the prison" between 1760 and 1840, that is to say, a mere 200 years ago. He gives several reasons for the prison's rather late appearance in human history. It had to wait until or, rather, could only be deployed as part of the sweeping reform of the entire criminal-justice system that took place as monarchies were overthrown and replaced by constitutional republics. As part of this revolutionary transformation, explicit criminal codes and unified rules of procedure were formulated; the jury system was almost universally adopted; penalties were defined as corrective, not punitive; torture was abandoned as both a means of obtaining evidence and as an element of "correction"; public executions were abolished; and penalties were adapted or designed to fit individual offenders. Because of its basis in the monastic cell and the "humanitarian" aspects of its reliance on detention, the prison came to be seem as an attractive option.
As Foucault points out, "the criticism of the reformers was directed not so much at the weakness or cruelty of those in authority, as at a bad economy of power [...] a badly regulated distribution of power, [...] its concentration at a certain number of points and [...] the conflict and discontinuities that resulted." Foucault goes on to say,
The true objective of the reform movement [...] [was] to set up a new "economy" of the power to punish, to assure its better distribution; [...] so that it could be distributed in homogeneous circuits capable of operating everywhere, in a continuous way, down to the finest grain of the social body. The reform of criminal law must be read as a strategy for the rearrangement of the power to punish [...]; in short, [to] increase its effects while diminishing its economic cost (that is to say, be dissociating it from the system of property, of buying and selling, of corruption in obtaining not only offices, but the decisions themselves) and its political cost (by dissociating it from the arbitrariness of monarchal power).
Here again, the prison was an attractive option: while the hardship of bribes, fines and banishment fell harder on the poor than on the wealthy, the hardship of being deprived of one's liberty and freedom fell equally upon all, both poor and rich people alike.
The nature of crime itself changed during the 1760-1840 period. Fewer crimes were committed:
[B]lasphemy [...] lost its status as a crime; smuggling and domestic larceny some of their seriousness [...] A General movement shifted criminality from the attack on bodies to the more or less direct seizure of goods; and from a "mass criminality" to a "marginal criminality," partly the preserve of professionals. It was a if there had been a gradual olowering of level -- "a defusion of the tensions that dominate human relations, . . . a better control of violent impulses" -- and as if the illegal practices had themselves slackened their hold on the body and turned to other targets. Crime became less violent long before punishment became less severe.[12]
But "human nature" wasn't changing, becoming nobler or more enlightened. What was changing was human society or, rather, its political economy, e.g., "the development of production, the increase of wealth, a higher juridical and moral value placed on property relations, stricter methods of surveillance, a tighter partitioning of the population, [and] more efficient techniques of locating and obtaining information" (Foucault). But the birth of capitalism didn't entail, require or lead to the eradication of crime; capitalism needed criminality to continue, and not because it was more corrupt than the feudal monarchies that preceded it. Like its predecessors, capitalism required a certain margin of what Foucault calls "illegality."
The reciprocal interplay of illegalities [he writes] formed part of the political and economic life of society. Or, rather, a number of transformations [...] had operated in the breach that was being widened every day by popular illegality; the bourgeoisie had needed these transformations; and economic growth was due, in part, to them. Tolerance then became encouragement.
For capitalism to spread and take hold, certain illegalities needed to be suppressed, while others needed to be encouraged. "Or, to put it another way," Foucault says, "the economy of illegalities was restructured with the development of capitalist society"; "penal reform was born at the point of junction between the struggle against the super-power of the sovereign and that [struggle] against the infra-power of acquired and tolerated illegalities."
Here again, the prison or rather, its immediate and obvious failure as an institution, played a decisive role. It is striking that "penal reform" was born at virtually the same time as the birth of the prison itself. In 1767, F. Serpillon, the author of the Code criminel, wrote, "Imprisonment is not to be regarded as a penalty in our civil law." In 1883, A. Desjardin, author of Les Cahiers des Etats generaux et la justice criminelle, wrote, "Humanity rises up against the frightful thought that it is not a punishment [but a form of torture] to deprive a citizen of his most precious possession, to plunge him ignominiously into the den of crime, to snatch him from everything that is dear to him, to bring him perhaps to ruin and to deprive not only him but his unfortunate family [as well] of all means of subsistence."
But objections to or rejections of the prison system weren't merely philosophical or theoretical: they were also based upon the prison's actual results. Prisons did not and still do not lessen the crime rate, which either remains the same or even increases. Detention causes recidivism; ex-inmates are more likely to go back to prison than those who have never been incarcerated. Prisons produceRapport au conseil general de la societe des prisons, wrote, "The feeling of injustice that a prisoner has is one of the causes that may make his character untameable. When he sees himself exposed in this way to suffering, which the law has neither ordered nor envisioned, he becomes habitually angry against everything around him; he sees every agent of authority as an executioner; he no longer thinks that he was guilty: he accuses justice itself." Worse still, the prison allows, even encourages, the formation of an organized underclass of delinquents. In 1839, an anonymous entry in L'Almanach populaire de France stated, "The first desire that is born within him [the first-time offender] will be to learn from his cleverer seniors how to escape the rigors of the law; the first lesson will be derived from the strict logic of thieves who regard society as an enemy; the morality will be the informing and spying honored in our prisons." delinquents: not only do prisons fail to correct, educate or rehabilitate, they also inculcate attitudes that make rehabilitation and reintegration into society more difficult, if not impossible. In 1819, F. Bigot Preameneu, the author of It is here that Foucault's analysis comes full circle. The capitalist society that emerged between 1760 and 1840 requires and maintains an underclass of delinquents, which can be tapped as a ready source of informers, spies, thugs, strike-breakers, assassins, patsies and agents provocateurs, all of whom are expendable, plausibly deniable, easily returned to prison or eliminated. Capitalism can also make use of the spectacle of criminality as a whole, which 1) can be deliberately confused with the illegalism of the workers' movement (unionizing, prohibited associations, strikes, absenteeism, pilfering, machine-breaking and other forms of sabotage), the validity of which is thus discredited; 2) can be contrasted with "non-violent" forms of crime (insider-trading, fraudulent reporting, money-laundering, tax evasion, price-fixing and other "white-collar crimes"), the virulence of which is thus minimized; and 3) can be high-lighted at the expense of national and international organized-crime networks (sales of nuclear secrets and technology, trafficking in conventional weaponry, the processing and distribution of illegal drugs, and "terrorism"), the eradication of which is made to seem impossible.
A vicious circle, to be sure: "Police surveillance provides the prison with offenders, which the prison transforms into delinquents, [who are] the targets and auxilliaries of police supervisions, which regularly send back a certain number of them to prison" (Foucault). But, like all machines, this one requires fuel and constant maintenance by knowledgeable technicians, both of which may soon be short supply. Look at the growing number of states that have passed medical marijuana laws (11 of them so far). Look at the recent curtailment of some of the most stringent, even draconian, provisions of New York State's "Rockefeller" drug laws. These developments suggest that "the war on drugs," which places tens of thousands of offenders in prison every year, is losing support. Look at the growing number of defeats that both Bush in America and Blair in England have been dealt by high courts that have ruled on the legality of detaining "enemy combatants" and alleged terrorists anonymously, indefinitely and without informing them of the crimes that they allegedly committed or planned to commit. Look at recent news reports concerning the political radicalization of Muslims being held in prison on charges unrelated to "terrorism."[13] These developments suggest that "the war on terrorism," which builds upon and aggravates the racism of "the war on drugs," is (also) an abject failure. Like Melampus, I can hear the worms in the edifice of the World Prison: they are discussing how thoroughly they have undermined its structure.[14]
Bill Not Bored, October-December 2004.
Author's footnotes:
[1] William Shakespeare, Hamlet, Act II, Scene II, lines 245-252.
[2] William Shakespeare, Measure for Measure, Act III, Scene II, line 187.
[3] Michel Foucault, Surveiller et Punir: Naissance de la prison (1975), translated as Discipline and Punish: the Birth of the prison by Alan Sheridan. So that there is no confusion, let me state clearly that I am not a "Foucaultian," and that, despite its great merits, Discipline and Punish is a seriously flawed work. For more along this line, see Foucault and Debord.
[4] Book IX, lines 772-777.
[5] Book XIII, line 69.
[6] Act I, Scene V, lines 9-15.
[7] Act IV, Scene III, line 21.
[8] Twelfth Night, or What You Will, Act III, Scene IV, lines 148-153.
[9] Act IV, Scene III, lines 72-77.
[10] Act V, Scene I, line 387.
[11] Alexander Stille, Benevolence and Betrayal: Five Italian Jewish Families under Fascism (1991).
[12] Foucault, Discipline and Punish; internal quotations from N.W. Mogensen, Aspects de la societe augeronne aux XVIIe et XVIIIe siecles, 1971.
[13] "Islam in jail: Europe's neglect breeds angry radicals," The New York Times, 8 December 2004.
[14] See Hesiod's Theogony.
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