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Posts Tagged ‘punishment’

“Imprisonment requires the disposition of prisoners’ bodies within the spatiotemporal setting of the prison, and there is still some hope of seizing the opportunity of their time in custody to improve them.

This diffuse hope found expression in the recurrent debate over the cellular system. A strange trajectory indeed, that of the cell. In early times, during the glorious epoch that saw the birth of the penitentiary, cells were regarded as the paradigmatic instrument of reform, settings in which the prisoner’s mind could be systematically worked on without undue interference from other prisoners. But the cell did not fade into memory along with the decline of reform sentiment – quote the contrary…[they] strongly approved of the cell as a key instrument for isolating the prisoner from the society of his congeners…

In this discourse, the cell becomes the preferred instrument of management, an administrative cure-all making up for the notorious insufficencies of classification. However, while most observers agreed on the advantages of solitary confinement over differential treatment by category or class, they differed markedly on the value of confinement as a treatment. Here again, the waning of reform as a purpose of imprisonment is evident.  ,…some criticized twenty-four-hour solitary confinement only because they favoured more humane treatment for criminals; he continued to believe that nightly lockup was necessary. Some observers argued that total isolation drove prisoners insane. Reform had to rely on other methods such as supervised parole. Moreover, a notable semantic shift was taking place among the advocates of the cellular philosophy, which was now regarded as contributing to a new form of socialization (rather than isolation) of the prisoner.”

– Jean-Marie Fecteau, The Pauper’s Freedom. Translated by Peter Feldstein. Montreal: McGill-Queen’s Press, 2017. French edition 2004.  p. 123.

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“We believe that society has the right to do every thing
necessary for its conservation, and for the order established within
it; and we understand perfectly well, that an assemblage of
criminals, all of whom have infringed the laws of the land, and all
of whose inclinations are corrupted, and appetites vicious, cannot be
governed in prison according to the same principles, and with the
same means, as free persons, whose desires are correct, and whose
actions are conformable to the laws. We also conceive perfectly well,
that a convict who will not labour, ought to be constrained to do so,
and that severity ought to be used in order to reduce him to silence,
who will not observe it; the right of society seems to us, on this
point, beyond all doubt, if it cannot arrive at the same end by
milder means; but in our opinion that is not the question.”

– Gustave de Beaumont & Alexis de Toqueville, On The Penitentiary System in the United States and Its Application in France. Translated by Francis Lieber. Philadelphia: Carey, Lea & Blanchford, 1833. p. 44.

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“If the diet in our prisons be dreaded, the idlers will not direct their steps so often towards these establishments. There are in the cities of Montreal and Quebec a certain number of rogues who quit the prisons to return to them, after an absence of a few days; for these miserable wretches – the greater number of whom are without any home – like to establish their abode at the common jail, where they find clean beds, an agreeable temperature, chiefly in winter time, and a certain abundance of food, comparatively speaking, all of which induce them to consider the prison as palaces.

Before building [a new central prison, for which the inspectors have been making the case for twenty years], it must be borne in mind that it is intended for all classes of criminals; that it will have to shelter the scum of society, wretches, who, half the time, have neither home, nor food, nor clothing, picked up by the police in the filthy streets and in the haunts of vice and infamy in our cities; and that, accustomed as they are to every misery and privation, it would not be right to lodge them in a palace, in a building which would create a desire to remain in it, in a word a dwelling affording more comfort than the dwellings of half the honest people of the country…The inhumanity and barbarity of by gone ages must be carefully avoided; but on the other hand we must not be carried away by a ridiculous and dangerous philanthropy.

If…prompted by an exaggerated sensitiveness,, a mistaken idea of philanthropy, we place these criminals in a better position than they were in before committing their crime, does not the punishment become an illusion, a mockery, I may even say a reward for crime. Let us ask ourselves whether the treatment of criminals in our gaols and penitentiaries is in the interest of society and of the state.”

– “Thirteenth Report of the Inspectors of Prisons, Asylums, &c.,&c. for the Province of Quebec for the Year 1882,” Quebec Sessional Papers, Volume 16, pt. 15, pp. 15-17.

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Dear Sir,
I ask permission from the Minister [of Justice] to inflict corporal punishment (Leather paddle) on P. J. O’Reilly, an incorrigible convict who persists in openly defying the officers and calling them ‘sons of bitches’, ‘Bastards’, &c., &c. He has been kept in punishment cell for weeks at a time and has been tied to cell door during working hours for three weeks. He then went to his work and after a week or so has again refused to work is now in punishment cell where he abuses the officers passing his cell. I do not think the hose a safe or proper punishment in his case and recommend the paddle unless the surgeon reports him insane or unfit for punishment.

Yours sincerely,

J. M. Platt

Warden.

To: Inspectors of Penitentiaries,
Ottawa.

Letter #539

June 1, 1909

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George Grosz, Punishment (Strafe). Watercolor and opaque watercolor on paper, 1934. Gift of Mr. and Mrs. Erich Cohn. Object number: 169.1934. MOMA.

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“Restorative justice has gathered increasing attention over the past two decades. As Kathleen Daly has shown, in the past 10 years, over 60 edited collections or book-length treatments of it have been published in English. In her opinion, ‘no other justice practice has commanded so much scholarly attention in such a short period of time’. The concept of restorative justice has captivated not only academics and scholars, but researchers, policy makers, activists and advocates, and governments. Important questions are still debated, for example, whether or not it should be an informal or a formal mechanism, whether it is the polar opposite to retributive forms of justice, and the extent to which ‘professionals’ and ‘experts’ should be involved in its projects. Yet despite these continued debates, and the diverse range of projects usually associated with it (e.g. victim offender reconciliation programs, sentencing circles and family group conferences), restorative justice proponents tend to agree upon the following core elements:

( a ) an emphasis on the role of victims in the justice process;
( b ) the involvement of all the parties concerned with the criminal event (including the victim, the offender, supporters of each and the wider community); and
( c ) a central focus on ‘solving’ crime ‘problems’ by restoring balance among all affected parties, and successfully reintegrating victims and offenders back into their communities.

It seeks to extend the logic of informal mediation and arbitration beyond the settlement of business disputes and into the realm of individual conflicts. A primary concern is to reduce state control of the criminal justice process. Many would say the approach is based upon a critique of more ‘formal’ mechanisms, and by extension, of dominant criminological theories that see the state as the only legitimate arbiter of criminal justice. Though it is now widely supported by various governments and politicians, most restorative experiments were started by criminal justice professionals, voluntary workers and allied reformers working within the existing (rehabilitative) system. This grew from dissatisfaction with ‘formal’ procedures, but also with rehabilitative projects that centered on the state, its experts and state-supported and directed correctional systems. Restorative projects respond to these problematizations by ridding criminal processes of ‘experts’ and by locating the authority and responsibility to solve crime problems within the communities that are affected by them. This is intended to move the crime ‘problem’ and ‘solution’ into community forums where the autonomy and embeddedness of local authorities is said to reside. The autonomy of state experts in governing crime posed problems for accountability to local interests. As a solution, restorative forums allow local interested parties to have a more central stake in matters pertaining to crime and delinquency within their communities. This broadens the corrective gaze to include parties other than the offender, and to encompass the entire community including the victim. The offence is thus shifted from a wrong committed against the state, to be corrected by state experts focusing on the rehabilitation of individual offenders, to a wrong committed against the proper balance of a ‘community’. It is to be the community that mediates, sanctions and supports the correction of crime problems. In re-centering the victim in this process, restorative justice attempts to avoid rehabilitation’s identified problem of focusing overly on the offender to the detriment of victims.

Yet despite these significant changes, there is a considerable thread of correction and reform embedded in restorative justice. It seems safe to say that rather than rupturing modern penality, these differences take restorative justice beyond rehabilitation’s identified problems while maintaining and modifying several of its underlying principles. Some of these continuities become evident as we draw out the similarities between the two programs. For example, both restorative justice and rehabilitation share an action plan to address the underlying causes of offending behavior and to prevent re-offending. They both perceive crime as caused in part by (social) factors beyond an individual’s control, and attempt to address those factors through reform (broad social programming in the case of rehabilitation, and more ‘targeted’ reconciliatory and reparative programs in restorative justice forums). Further, both concern themselves with aiding and changing offenders in some way, and they both focus on ‘correcting’ the crime problem rather than simply containing or controlling it. This demonstrates an implicit belief that crime is a ‘problem’ that has a solution and is solvable. As Lucia Zedner has noted, restorative justice operates as a powerful rival to punitive orthodoxies, and may even signify a rebirth of rehabilitation. Restorative justice, in this sense, has quite a bit more in common with rehabilitation than it may at first appear, which in part may rebut the proposition that it is just another new weapon for crime control (though this may at times be its effect). Along with the significant political capital that restorative justice is beginning to have – which stems in part from its promise to ‘do’ something about crime – it satisfies current (neo-liberal) demands by centering individual responsibility, keeping experts out of the justice process
and involving the community in corrections. But at the same time as it responds to criticisms of state-centered (welfare) rehabilitation, restorative justice projects re-articulate the modernist portion of the recipe in important and perhaps unrealized ways. It may quite rightly be seen as a re-invention of correctionalism rather than a significant departure from it.

Such projects have already acquired significant leverage in many western countries. In 1999, the United Nations Economic and Social Council passed a resolution endorsing its principles and inculcating them into various international resolutions. Related projects numbered over 1000 in 16 different countries in 2001. Examples include ‘reintegrative shaming’ ceremonies in New Zealand and Australia, which are even being used in white-collar crime cases, and the proliferation of the ‘Wagga’ model throughout Australia and elsewhere, introduced in the UK in the early 1990s. In New Zealand since 1988, the rate of institutionalization of youth offenders has dropped by more than half and perhaps by as much as 75 percent, and most cases that proceed beyond the formal laying of charges end up being diverted into some form of restorative conference. In the UK, Adam Crawford and Tim Newburn have noted that both the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999, both pieces of national legislation, are grounded in the principles underlying the concept of restorative justice. In Canada, La Prairie has likewise documented a shift away from ‘punitiveness and punishment’ towards ‘reconciliation, healing, repair, atonement, and reintegration’. More specifically, there are now more than 100 ‘restorative projects’ across Canada so labeled by the Department of Justice and Correctional Services. The RCMP, Canada’s national police force, now champions ‘Community Justice Forums’ (CJFs), which center on restorative principles and the Gladue Courts in Toronto now solely handle Aboriginal offenders through a culturally sensitive judicial process that stresses restoration and repair. 

In the United States, however, restorative justice is often regarded as less prominent than elsewhere. Richard Ericson for example, notes that in the USA a more exclusionary style dominates, whereas other countries including Britain, France, Australia and Canada, prefer a more inclusionary and restorative approach. The US Department of Justice did sponsor several conferences on restorative justice in the later 1990s, and at present, all 50 states have restorative programs in some stage of development. Unfortunately this does not indicate the (likely varying) level of state commitment to restorative justice, and as Daly has remarked, ‘legislation establishing and funding restorative justice initiatives, of the sort that exists in Australia and New Zealand, and to a lesser degree, in England and Wales […] is absent in the USA’. Nevertheless, in all 50 states restorative justice is now a penal option, though a poorly funded and supported one in many cases. Yet we might say that as is the case with most criminal justice innovations, where some jurisdictions have taken more to restorative justice, others have seen different developments – which may be no less correctional.”

–  Steven Hutchinson, “Countering catastrophic criminology: Reform, punishment and the modern liberal compromise.” PUNISHMENT & SOCIETY 8(4). pp. 451-453. 

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“In The culture of control (2001), David Garland likewise argues that the present ‘crime control complex’ is drastically different than anything we have seen before:

Recent developments in crime control and criminal justice are so puzzling because they appear to involve a sudden and startling reversal of the settled historical pattern […] The modernizing processes that, until recently, seemed so well established in this realm […] now look as if they have been thrown into reverse. 

Twentieth-century ‘penal modernism’ is described by Garland as the combination of underlying specialist institutions such as the police, the courts and prisons, juxtaposed with a modernist superstructure organized around the unifying ethos of ‘correctionalism’ (which includes generally, rehabilitation, individualized treatment, indeterminate or flexible sentences and criminological research). This superstructure, he argues, was supported by systematic arrangements such as probation, parole, juvenile courts, treatment programmes and so on, and more broadly by social welfare agencies themselves. The resulting organizational mix is said to have created a hybrid ‘penal welfare’ structure, which combined the liberal legalism of due process and proportionate punishment with a correctional commitment to rehabilitation, welfare and specialist (criminological) expertise. This nexus mobilized what he calls the ‘welfare sanction’, and a breadth of consensus was reached about the ends that criminal justice was to pursue and the means required to do so. A common ‘credo’ and consensus emerged that crime control must be a specialist, professional task of law enforcement, oriented to the post hoc pursuit and processing of individual offenders. Here ‘rehabilitation’ was not just one element among others, but the ‘organizing principle, the intellectual framework and value system that bound together the whole structure and made sense of it for practitioners’.

By contrast, this unified arrangement has supposedly now been transformed into a ‘late modern’ pre-occupation with economic freedoms and social control – the precise opposite concerns. Garland posits that ‘In the course of a few years, the orthodoxies of rehabilitative faith collapsed in virtually all of the developed countries’. And he continues: ‘Late modernity and the new politics to which it gave rise changed how organizations thought about crime and punishment, justice and control, just as it changed the terrain on which these organizations operated’. This new terrain is said to have ushered in control and containment. New strategies include:

the reintroduction of chain gangs, ‘three-strikes’ and mandatory minimum sentencing laws;‘truth in sentencing’ and parole release restrictions; ‘no frills’ prison laws and ‘austere prisons’; retribution in juveniles court and the imprisonment of children; the revival of chain gangs and corporal punishments; boot camps and supermax prisons; the multiplication of capital offences and executions; community notification laws and pedophile registers; zero tolerance policies and Anti-Social Behaviour Orders.

Crime he suggests, has taken on an entirely new significance as an indicator of inadequate controls, rather than an indicator of need, whose solution lies in the development of more controls. Garland’s vision of a catastrophic rupture in ‘penal modernity’ presses him into overplaying the coherence and consistency of that ‘era’, and into underestimating the inconsistency of current developments, which as we will see, are not all about control.

Barry Vaughan’s 2000 account, on the other hand, suggests that ‘modern punishment’ was less coherent than accounts like those of Garland and Hallsworth make it seem. For Vaughan, punishment was ‘always’ about both reform and punishment. Arguing that citizenship can serve as an important indicator of punishment, he shows how the development of distinct components of citizenship (egalitarianism, social trust, mutual dependency and so on) correlate to significant changes in punishment. Beginning with the birth of the prison and the conditions that surrounded it, Vaughan argues that modern punishment can be defined by the enumeration of normalization,
correction and/or segregation. The category of the criminal was, he argues, one of incomplete citizenship where punishment was partly an attempt to encourage
offenders to regulate themselves and change their behavior: ‘it is against those who have fallen below the standards which are expected of all citizens but is also used to mould them into citizens’. But at the same time, it served as a deterrent and retributive mechanism. Modern punishment for Vaughan was both a punitive deterrent as well as a device for character-transformation. Penal authorities, he argues, could never establish regimes which would be exclusively reformatory – the symbolic role of punishment implied that suffering had to be seen to be imposed so they could not be seen as being too ‘indulgent’. All modern punishment thus involved elements of both punitiveness and reform: 

reform and deterrence were always linked and […] to portray punishment as composed of one or the other fails to do justice to the complexity of penal practice.

In contrast to this duality of more modern punishment, however, Vaughan suggests that not only has there been a recent increase in the incarcerative side of punishment, but that the nature of punishment is becoming more exacting. It is no longer being used in a ‘modern’ way to reintegrate, reform and to discipline ‘conditional’ citizens, but instead to simply disable or exclude those who are thought to be ‘non-citizens’. Since the 1970s, he argues, citizenship has been undergoing a significant transformation, which relates to the failure of the ‘nation-state’ to secure participation within society, and the correlative development of supra-national citizenship. As states become more integrated through political institutions above the level of the nation-state: ‘Traditional ideas of citizenship are challenged by such developments and currently punishment is being deployed to shore up citizenship through the exclusion of marginalized members and immigrants’. This for Vaughan runs completely counter
to the reform/punishment character of ‘modern’ punishment:

Punishment is now being used not upon those who are thought to be conditional citizens with a view to reintegration but against those who are thought to be non-citizens to disable or exclude them. Punishment in the modern era has always been ambivalent but it is losing whatever sense of inclusiveness it has as the exclusiveness of citizenship becomes more evident.

There seems then a clear tendency to interpret criminal justice and penality as having undergone a ‘catastrophic’ transformation. As the argument goes, things are now and will be in the future completely different from the previous era, organized as it was around scientific reform and correction. While these accounts vary greatly in detail, and in what they propose causes this rupture, they are alike in that they now see the governance of crime as control oriented, exclusionary and incacerative. However a number of critics have suggested that this over-exaggerates the degree of change and the consistency of
emerging patterns.

MOVING BEYOND CATASTROPHE
Pat O’Malley has described penal policy as exhibiting ‘volatile and contradictory’ characteristics, recognizing that both correctional and punitive currents are at work. Rose has suggested that risk ‘sorts’ populations into low- and high-risk streams that are subjected respectively to inclusive and exclusionary practices. … Loader and Sparks have argued that neither the past nor the present exhibits the consistency attributed it by catastrophic criminologies: 

Aside from setting up some rather unhelpful binary oppositions […], such histories of the present run the risk of doing violence to the past, of underplaying its tensions and conflicts, of inadvertently re/producing one-dimensional –implicitly rose-tinted – accounts of both the history of the politics of penal modernism, and the reasons for its (apparent) demise.

For example it is questionable whether even during the heyday of the ‘welfare sanction’ things were as organized and coherent as some accounts suggest. Other writers have questioned the extent to which rehabilitation – and welfare governance itself – dominated mid-century practices as often as proposed.

For example, even at welfare’s ‘height’, the fine remained the most frequently used penal sanction. And in prisons, correctional programmes always were and still are backed up by very real and immediate punitive and carceral sanctions for non-compliance or misbehavior, just as some criminal sanctions remained primarily retributive. Modern liberal penality, even where in large part reformative and corrective, always included some element of deterrence and retribution. As Vaughan remarks,

It is a failing of those influenced by Norbert Elias and Michel Foucault that they believe that the excessive brutality which seemed to characterize earlier punishments had no place in the prison system and were gradually eradicated from modern forms of punishment.

Rather the explicit brutality in prisons throughout the ‘modern’ era was consistent, not occasional, and regimes of solitary confinement, physical and
psychological punishments for transgression of rules and intense humiliation and degradation, have always been elements of modern penal regimes. In other words, not only does the identification of change in catastrophic accounts seem too extreme – ignoring strong correctional and inclusive counter-currents today, and strong repressive currents in the era of the welfare sanction – but the modernist and liberal criminal justice in which we are still embedded has a characteristically ‘braided’ nature where correctional and repressive streams (regional differences aside) are always present and always strong.

Part of the ‘secret’ to this is provided by David Garland’s earlier account 
of the emergence of the ‘welfare sanction’, and more recently by Barry Vaughan.
Emerging in part from criticisms in the 1800s that the Victorian penal system was less a remedy for social misbehavior and more a cause of it, the welfare sanction concerned itself with normative regulation, supervision and administrative segregation, as well as punishment. In this account, the welfare sanction emerged as a compromise between ‘modernist’ social expertise based upon the scientific reform of offenders, and classical liberal concerns that offenders would no longer be held responsible for wrongdoing. The classical liberal orthodoxy of individualism, legalism and social laissez-faire was thus rewritten to include non-legal (human) knowledges and disciplines:

These knowledges and the techniques they proposed, though highly diverse and contradictory inter se, nonetheless were united by a general programme of intervention based not on a legal philosophy but upon a positive knowledge of (human) objects and the techniques which would transform them.

The durability of this penal-welfare compromise lay precisely in the fact that it
combined so successfully punitive and reform impulses, liberal legalism and modernist scientific knowledge and expertise.

As Barry Vaughan more recently points out, all modern punishment always entails elements of both punitiveness and reform. Where Garland goes
on to break punishment down into two types (correction and segregation), implying that one is either the subject of reform practices or a recipient of exclusionary deterrence, Vaughan aptly highlights the ‘ambivalence of punishment’. Part of this is his suggestion that the ‘modernization’ of punishment and the prison system did not eradicate violence, but merely transposed it, transforming overt violence into psychological and emotional humiliation, which is no less punitive. As such, the normative and disciplinary practices of the ‘modernized’ penal system were embedded as much in punishment as in correction and reform, and penality was a reflection of this recipe. While Vaughan chalks up the persistence of punitiveness to being a legitimating device for reinforcing the notion that offenders were not complete citizens, alternatively we might say that the persistence of punishment alongside more scientific and expert-driven interventions is due to the continued braiding of modernist and liberal rationalities. In this way, the doctrines of punishment, responsibility, deterrence and so on, are melded to those of correction, reform and the application of ‘human’ knowledges and sciences.

Following this broader genealogy it seems clear that the arrival of a neo-liberal political rationality has led to an assault on the modernist elements of the equation, and a revalorization of liberal individualism and responsibility. Yet, as this article suggests, it would be a mistake to imagine that this represents a complete watershed. As others have argued it is not at all the case that ‘modern’ welfare institutions have disappeared, or even been significantly dismantled. Rather – as with unemployment – the old rehabilitative apparatuses have been the site of new techniques and new practices. For example, it seems true, as King has argued, that developments such as ‘workfare’ are coercive and ‘illiberal’, but it is also the case that these practices continue to braid together such repressive elements with more reintegrative efforts at retraining and reform. In this process, reformative techniques have been subject to much innovation, bringing them in line with a new focus on individual responsibility, setting up new relations of expertise that downplay ‘dependency’, and so on – but ‘expert’ intervention with a view to changing subjects has not disappeared.

…something similar has occurred in the domain of punishment and corrections. Certainly the modernist theme of reform and correction has been under assault. But following the onslaught of ‘nothing works’ in the 1970s, a counter-tide of ‘what works’ has been flowing. Even should we agree that programs and reform initiatives such as abolitionism, decriminalization and deinstitutionalism have had little impact upon government thinking and policy, other programs have had more sustained and in some cases increasingly relevant play in criminal justice and penality. In these cases, correctional and reformative tendencies have been revalorized and revitalized. Rather than the period since about the 1980s having witnessed the demise of a correctional ethos, the following examples will demonstrate how we have been witness to their re-invention.”

–  Steven Hutchinson, “Countering catastrophic criminology: Reform, punishment and the modern liberal compromise.” PUNISHMENT & SOCIETY 8(4). pp. 445-450.

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