CRJS 4476
Senior 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
whole technology of representation”
- un-arbitrary punishment, a concordance
between the crime committed, and the
punishment affixed (including pain)
- address the passions that underlie the
crime
- temporal modulation
- general deterrence (‘everyone must
see punishment not only as natural, but
in his own interest…”) - and the
‘system of public works’
• the linking of the idea of punishment, with the
reality of punishment, and the detachment of
the criminal from society
• each punishment should be a lesson, a fable “the dramatization of evil”, the “confirmation of the
good” - a morality play
• the invention of a whole new range of punishments,
in addition to imprisonment
• the modern prison:
- Rasphuis of Amsterdam (1596)
- maison de force at Ghent (c. 1749)
- Philadelphia model (c. 1770) - do not publicize
the penalty, the prison as a system for altering
minds - the total institution, an ‘observatory’
where prisoners could be studied, and the
knowledge used to manage, to control them
• legitimate authority and the ‘total power to
punish’, and the need for secrecy - as the preeminent model