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Old 09-10-2002, 01:20 AM
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Default A Complexity of the Social Contract

A Complexity of the Social Contract
A discussion of selected literature which
considers punishment within the history and
philosophy of social control

Michael G. Santos

Professor George Cole
Department of Political Science
University of Connecticut

Independent Study Paper
Political Science 397
September 15, 1995

When groups of people live together in the same locality and under the same government or sovereign power, they observe a body of rules or laws to regulate their conduct and to keep the community functioning. Those who violate the established rules of the community are subject to some type of sanction, discipline or punishment.

On the surface, this appears to be a straight forward social contract: live by the rules and avoid community problems; break the rules and expect some type of punishment. Upon closer examination, however, we find the contract not so simple. In fact, many of the social theorists and historians who have tried to explain legal sanctions, their social role, and their cultural significance differ on their interpretations of the meaning of punishment. Yet they all suggest that there is more to social policy than is commonly understood.

Three scholarly books, Wayward Puritans1Punishment and Social Structure2, and Discipline and Punish: The Birth of the Prisons3, tell us about social control in different settings. Although each text offers a different theory as to the purposes of punishment, they all are similar in their rather provocative assertions that legal reprimands are not what they appear to be. The authors of these books tell us that judicial systems of punishment have veiled agendas that escape the attention of the casual observer. In Punishment and Modern Society: A Study in Social Theory4, provides a critique of these perspectives and further develops the arguments that they offer.

Garland tells us that modern methods of punishment--prisons in particular--have become a way of life for the Western world. Whatever the reasons for their initial design, prisons and other strategies of punishment have expanded and persisted. And during the course of their evolution, most human beings have come to accept these cultural artifacts as the only acceptable response to crime. Thus, a system of punishment has become an integral part of Western civilization, and many citizens believe we could have no society at all without prisons.

Western civilization has made incredible technological advances over the past two hundred years but has made little progress at all in regard to its responses to crime. We have changed only the details--like lengths of sentence or the amount of fines that offenders must pay--but Garland reminds us that few people are questioning whether there might be a more effective manner of responding to crime.

Leaders of society have not sought out alternative methods of managing the public order. They religiously cling to the same techniques of punishment that have been used for nearly two centuries, yet citizens do not feel any safer today than they did in times past. For example, Foucault provides us with some of the newspaper headlines from the mid-nineteenth century that mirror many of the headlines of today: "Detention Causes Recidivism"; "Prisons Do Not Diminish the Crime Rate"; "The Number of Crimes is Not Decreasing. "5 Instead of exploring whether other responses to crime might be more effective, however, Western leaders have continued and expanded the existing program, with the approval of their followers.

The technological advances realized by Western civilization have required a different approach to problems. If an airplane did not fly, the response of the company that built it has not been to replicate the design. Instead, engineers tried something new. But while our prisons continue to churn out criminals, and while citizens continue to feel threatened by lawbreakers, Western society--particularly the United States--continues to build more prisons, to replicate the same strategy of punishment.

If prisons are supposed to reduce crime, and help citizens feel safer, then their failure has to be admitted. But Foucault asks us to probe more deeply and to wonder what is served by the failure of the prison.6 When we do that, he suggests that we will find that the prison is not a failure at all, but rather that it has hidden functions in which it is extraordinarily successful. And it is this capacity for satisfying obscure but important objectives which explains why penal systems continue to expand.

Three Approaches to the Study of Punishment
Garland's thought-provoking book does not stop by asking in what ways the social environment shapes the penal system, but goes on to question the ways that prisons and the penal system contribute to the shaping of the social environment. One of the ways he does this is by introducing us to the work of several social theorists. Exile Durkheim, Karl Marx, and Michel Foucault are the three theorists whom Garland features most prominently in his book.

Durkheim argues that citizens have a need to bond together, and crime gives them an opportunity to do so. He reminds us of journalists who regularly feature stories with tales of crime, the more gruesome the better. The reason for this is that the public has a fascination with crime. Durkheim tells us that crime tends to unite law-abiding citizens, drawing people together in common postures of anger and indignation. It gives them someone to talk about, someone to hate. So, according to Durkheim, crime is functional for society, as it provides the masses with a common interest. Crime generates solidarity, according to Durkheim.

While Karl Marx did not write extensively about crime and punishment, Marxist concepts have inspired studies of punishment which focus on a broad theory of social structure and historical change. Garland tells us that Marxist students of punishment-Rusche and Kirchheimer among them--have worked out for themselves the place of punishment within Marx's broader social theory. Marxist studies focus on the role punishment plays in a class-based society.

Michel Foucault's work, according to Garland, is now a central reference point in the sociology of punishment. Unlike Durkheim and Marx, who highlight the moral foundations of punishment or discuss its role in social context, Foucault's work focuses on the prison and systems of punishment themselves. He seeks to understand how methods of punishment provide the ruling powers with knowledge and then power over the masses. Every facet of the criminal justice system, according to Foucault, has a connection to other areas of governance; he strives to uncover and then to understand those hidden links.

Durkheimian and Marxist studies are similar in that they both look at social groups first in order to understand punishment. For example, Durkheim studies how people live together in groups, and searches for common levels of thinking--which he calls the collective conscience. Marxist theorists focus on the economy and who controls it, then determine how systems of punishment are used as a tool by the ruling elite's. Foucault, on the other hand, begins his inquiry from the other end: he studies the prison system and methods of punishment first, and from those studies he determines how the techniques of punishment--the power-knowledge mechanisms-relate to broader strategies of domination, supervision, and control.

For Garland each of the above mentioned theories has merit, and he suggests that we should learn from each of them when seeking to understand the essential nature of punishment. If we embrace only one, frequently we exclude the possible benefits of another. He suggests that we take a global-theoretical approach when seeking to understand the cause of punishment. In other words, Garland asks us to look closely at all theories and to draw from each of them as we seek to understand the very complex mission of punishment. And we can develop a better understanding of the theories that stem from the thoughts of Durkheim, Marx, and Foucault by examining the three scholarly books I mention above.

Durkheim's Theory of Punishment
In Erickson's Wayward Puritans

Erikson's study, Wayward Puritans, provides us with a historical affirmation of Durkheim's claims about punishment and social solidarity. Erikson begins by equipping us with a foundation of Durkheimian theory, namely, that "crime is really a natural kind of social activity, an integral part of all healthy societies."7 He tells us that individuals who break laws are violating a code that most everyone else in society holds in high regard. When a culprit is detected, law-abiding citizens come together and express their outrage, and in the process they strengthen their ties to each other and grow closer than they were before the offense happened. So deviance connects the majority of the citizens, showing them that they hold beliefs in commons and those beliefs become a focus for group feeling.

Erikson tells us that deviance itself refers to conduct which the people of a group consider so dangerous or embarrassing or irritating that they bring special sanctions to bear against those persons who exhibit it. But he also points out that whether or not a person will be considered deviant has a lot to do with his social class, his past record, his ability to communicate remorse, and many similar concerns which might influence the mood of the community.

The community creates its own controlling machine in order to protect itself against the harmful effects of deviation, and it determines which deviant individuals will experience the wrath of the machine. The machine works to keep the majority of the citizens' behavior in line with the principles of good conduct which the community itself determines. Erikson refers to this as maintaining boundaries. People in communities maintain boundaries in the sense that the citizens will tolerate behavior that fits in a certain domain of activity, and they will regard any conduct that deviates from the domain as inappropriate or immoral.

In order to maintain the community boundaries, leaders create the machine, which manifests itself in criminal trials, excommunication hearings, court martials, or even psychiatric case conferences. The boundaries continuously shift as the people in the community find ways to position themselves in their evolving world. Behavior that is criminal in one generation may be perfectly acceptable in the next, and vice versa. The people who live on the fringes of the group are the people who redefine the community boundaries, while those chosen to represent the group's morality fight to keep the boundaries--and the citizens--in line.

Erikson and Durkheim talk about Commitment ceremonies, n which are designed to move a citizen into the deviant ranks. One form of this almost irreversible ceremony is the criminal trial, another is the prison. Once a citizen is labeled a deviant, that stigma usually will remain with him forever. Deviance in one community, however, may not be deviant in another. All communities have their own boundaries, and those boundaries depend on the values of each individual community.

Deviance in a Puritan Setting
Erikson explores these Durkheimian concepts through a historical study of early Puritan settlements in Massachusetts. He uncovers the ways in which criminal law and penal measures were used to establish the boundaries of social order and to contribute to the group's sense of identity.

The early Puritans were rigid in their ways. They believed that they alone were capable of interpreting the word of God and had no intention of listening to anyone who challenged their beliefs. Since they were such a closed-minded religious group, tenaciously holding on to their precepts, and since they were recent arrivals in a strange land, it is not surprising that they bonded together closely. Garland observes, incidentally, that Erikson, in choosing the Puritan Settlers' community, chose an ideal case for confirming Durkheim's views rather than questioning or refuting them.

In any event, Erikson investigated three different Crime waves" that occurred in the Puritan community during the first sixty years of the colony's settlement. He says that a crime wave, in this instance, refers to a rash of publicity, a moment of excitement and alarm, and a feeling that something needs to be done. Dramatic measures were taken in each instance.

The first of the so-called crime waves was the Antinomian controversy of 1636, which resulted in the banishment of Anne Hutchinson; the second was the Quaker persecutions of the late 1650s, which resulted in severe sanctions being imposed on those Quakers who did not live according to the mores of the Puritan leaders; and the third was the witchcraft hysteria of 1692, which resulted in numerous cases of capital punishment. Each of those events challenged the establishment of the Puritan community, brought the citizens together--at least for a period of time--then stretched broadly the boundaries of acceptable behavior which defined that society.

Erikson's study clearly confirms Durkheim's argument. It reveals how the citizens of the Puritan community, many of whom were at one time supporters of Anne Hutchinson, distanced themselves from her once the established rulers targeted her for prosecution. It shows how the group was willing to take even the severe measure of hanging Quakers, simply because they spoke differently, they wore their hair longer, and they refused to recognize the Puritan's religious doctrines. And perhaps most persuasively of all, Erikson's study describes how members of the Puritan community willingly participated in a hysteric frenzy when some young girls in that community started labeling others as witches; that emotional period resulted in the enthusiastic hangings of numerous people, many of whom held prominent positions in the community before they were accused.

Those whose behavior stretched the boundaries of the Puritan community were promptly condemned. Leaders of the community used the boundary-maintaining machine of trials and punishment to unite the majority of citizens and to reaffirm their beliefs that they alone were God's chosen people. Working together, they eliminated anyone whose behavior deviated from what the Puritans considered appropriate.

Durkheim explains that the processes of punishment promotes social solidarity; it also may leave the citizens in the community longing to see more of it inflicted. In support of this view, Erikson pointed out that every citizen became a spy of his neighbor, standing ready to accuse anyone--even family members--of behavior which deviated from the norm in even the slightest degree. The citizens so enjoyed watching a deviant get punished that they were constantly on patrol for other offenders.

Garland suggests a modification of Durkheim's theory, however. He says that rather than promoting social solidarity, it might be more accurate to say that punishment reinforces the relationships that already exist. He says this because the punishments inflicted by the Puritans did not help the Antinomians, the Quakers, or the accused witches espouse the inflexible and impassioned beliefs of that group; though the punishments did strengthen the bonds of those in the community who were not accused.

Now that we have a general understanding of Durkheim's theory of punishment and how it was applied to a particular group of settlers of America, let us examine the institution of punishment from a Marxist perspective.

Marxist Theory as Expressed
Through Rusche and Rirchheimer's
Punishment and Social Structure

Marxist theory is based on the presumption that society has a definite structure and organization. Politics and economics, which often have different interests, are the central forces which determine the social practices of the people. But economics--or the mode of production--is the key determinant of any society's social organization. In other words, according to Marxism, every aspect of social life is determined by the way economic activity is organized and controlled. Thus, the economy is the locus of power and control, and those groups which control the economy impose their power on all other areas of social life, including law, politics, morality, philosophy, religion, and so on.

Marxists frequently use the clever architectural metaphor of base and superstructure to describe the structural organization of society. The economy represents the base of society, and everything else is superstructure. Karl Marx, who used this metaphor himself, proposes that the superstructure of political and ideological relations is built on the crucial economic foundation, the base of society. Although the superstructural forms play a part in shaping social life, they are ultimately dependent on society's essential economic base. Some interdependency exists between the two, but the economy holds everything together.

For Marx, there are two classes in society--the dominant and the subordinate. The dominant class comprises those who control the economy, while those who labor constitute the subordinate class. Since the dominant class derives its wealth from the exploitation of the subordinate class, an ongoing class struggle exists between the two in all social ideologies other than communism. And it is these struggles of class forces which influence social change and shape society's institutions.

Rusche and Kirchheimer narrate the history of penal methods used between the Middle Ages and the middle years of the 2Oth century. Throughout this period we read of the close relationship between the roles of penal institutions and the economic requirements of the dominant class. The authors investigate this connection by asking two fundamental research questions: "Why are certain methods of punishment adopted or rejected in a given social situation?; n and "To what extent is the development of penal methods determined by the basic social relations?"8

Rusche and Kirchheimer point out that punishment cannot be understood from its ends alone, because punishment itself does not exist; only concrete systems of punishment and specific criminal practices exist. Those systems of punishment are part of the superstructure that I mention above, and they are dependent on the economy at any given time. For example, enslavement as a form of punishment persists only when a slave economy exists; prison labor as a form of punishment lasts only as long as the manufacturing and industrial powers have a need for the labor. When the system of production changes, its corresponding punishment changes too. But as long as there is a slave economy, and there are not enough slaves to satisfy the demand, the dominant class will turn to penal slavery. Similarly, when the dominant class has a need for labor, it will turn to prisoners. Yet when the needs of the economy shift, and prisoners no longer contribute to furthering the interests of the dominant class, Rusche and Kirchheimer show that the state will return to the old methods of capital and corporal punishment.

So the institution of punishment, according to Rusche and Kirchheimer, has very little to do with the offenses that an individual commits, but a great deal to do with how it can be used in the class struggle. It may be perceived as an institution that benefits society as a whole, but its real function is to support the interests of the economically dominant class. And the arguments presented in Rusche and Rirchheimer's book focus almost exclusively on how the labor market influences the methods of punishment and the ways that penal sanctions are used.

The labor market plays an influential role in all economies, and, as I wrote earlier, Marxist theorists assert that the economy drives everything else. So the labor market fixes the value of a human being, or at least it fixes the value of those doomed to the subordinate classes. When labor is plentiful, human life is cheap. And as a consequence, penal policy is brutal, as it tended to be in the late Middle Ages when torture and death were common penalties. On the other hand, when there is a need for labor, as there was during the Mercantilist period, or when populations diminished due to the plague, the state used its prisoners to contribute to the economy. Some examples of how governments used prisoners include forced labor, galley slavery, and as indentured workers in their developing colonies. Rusche and Kirchheimer argue that economic interests always have been the leading determinant of penological innovations.

Garland reflects that Rusche and Kirchheimer were not the only theorists to use a Marxist approach in the study of punishment. He points out that although Rusche and Kirchheimer stressed the interconnections between penal institutions and the economic requirements of modes of production, other Marxist theorists--like Pashukanis, Hay, and Ignatieff--instead have stressed the role of punishment in political and ideological class struggles and in the maintenance of state power or ruling-class hegemony. All of the Marxist theories of punishment, though, describe how the ruling class uses its social institutions to maintain its social and economic dominance over the subordinate classes in society. In Marxism, everything and everyone plays a part in the class struggle.

Now let us examine the work of Michel Foucault, the last of the social theorists whom I will discuss in this paper.

Michel Foucault's
Discipline and Punish: The Birth of the Prison

In Discipline and Punish, Foucault shows us the useful and functional nature of modern punishment, which, Foucault contends, has little to do with reducing crime and recidivism. For him, punishment is a system of power and regulation, and that system is used to render the people of a nation docile and obedient. In this book, Foucault looks at how penal institutions are structured, how they exercise control, and the techniques they employ in order to acquire information about the individuals they hold.

Unlike Durkheimian or Marxist theorists, Foucault does not spend time analyzing society and the roles that groups of people play in it. Rather than concerning itself with the emotional reactions of groups, or whether a class struggle exists, Discipline and Punish discuses the government and the obscure but potent ways it uses methods of punishment to develop power over the people. Foucault wastes no time discussing how groups strengthen their community ties, nor does he concern himself with the overall structure of society.

He begins by providing us with a dramatically violent description of capital punishment in the middle of the 18th century, then shows how that brutal method of punishment gave way to the seemingly milder but methodical techniques of punishment associated with the prison. This change in punishment--from torture to the penitentiary--represented the beginning of the criminal justice system and a change in the goals that punishment sought to achieve.

With the new penitentiary system, the object was not to stir up the masses with ruthless displays of force, but to learn more about the offender, to understand his background and his reasons for the commission of crime. The social sciences emerged from this change in penal technology, as new experts--psychologists, social workers, criminologists--began to play a central role in the arena of justice. Power was no longer based on physical force, but on detailed knowledge of the offender, on intervention techniques, and on corrections.

But Foucault does not imply that this strategy evolved from a growing sense of compassion for the people. On the contrary, changes in penal technology were based on power and political tactics. He suggests that we should study punishment with a view to its covert aims, not just its overt efforts.

All systems of production, of domination, and of socialization depend upon the subjugation of human bodies. But since human beings generally are recalcitrant, such systems require that bodies be mastered and subjected to training in order to render them useful. Brutality is one way of controlling the body from the outside, but Foucault suggests that governmental institutions in the West have devised techniques to master and control those bodies from the inside, producing citizens who habitually do what is required of them, and thereby limits the need for external force. Foucault calls this the micro-physics of power theory.

In the micro-physics of power theory, the controlling force reaches to the very core of the individual, penetrating the body and inserting itself into the soul. It governs the people's actions and attitudes, their conversations, their abilities to learn, and their everyday lives. The government's power operates through the individuals rather than against them.

In order to successfully control the masses, the government requires a degree of understanding of the population's reactions, attitudes, and possibilities for change. Authorities need to know about the people's way of life. The micro-physics of power theory, therefore, requires a substantial amount of information, which Foucault calls knowledge. Knowledge of the people gives the government information that it needs in order to develop the most efficient techniques of control. The more the government knows about the people, the better prepared it will be to manipulate them. The relationship is like a circle of control: knowledge gives power, and power enables the government to acquire more knowledge about the people, which in turn gives it more power.

Prisons, then, hoped to reconstruct the prisoner, to gain access to the offender's soul through his body. They sought to seize the body of the inmate, to exercise it, to train it, to organize its movement in order to transform the prisoner's soul. For Foucault, discipline was an art of mastering the human body-its actions and movements--in order to forge a useful subject. Once authorities discovered the techniques to shape human behavior, they developed institutional machines to accomplish their goals.

The perfect machine to gain control of aberrant individual lives was the Panopticon prison, which Bentham, an 18th century philosopher and prison reformer, designed in order to allow officials the opportunity to observe prisoners at all times without the prisoners even knowing that they were being watched. Those who operated the prisons kept meticulous records on individuals. And those notes gave them knowledge, which later could be exploited as power. But even though the prison authorities had the knowledge and the power, they still ran institutions that created the conditions for recidivism. As Garland points out, offenders are so stigmatized, demoralized, and de-skilled in prison that after release they tend to re-offend, to be re-convicted and transformed into career criminals.

Foucault reminds us that although prisons organize a criminal milieu, render prisoners' families destitute, produce recidivists, and fail to reduce crime, they persist because they carry out precise functions. He tells us that the creation of crime is useful in a strategy of political domination because it works to separate crime from politics, to divide the working classes against themselves, to enhance the fear of prison, and to guarantee the authority and powers of the police. Foucault suggests that prisons turn the delinquent class into a political advantage for those who lead a society.

Victims of crime are most frequently from the lower classes, and strikes against property or authority are individualized and usually relatively minor; this ensures that crime is not too much of a political liability. The authorities can therefore tolerate a certain amount of crime. The prison system creates a well defined criminal class, and, it ensures that habitual criminals are known to authorities who can therefore manage them more easily.

By maintaining a controllable criminal class, politicians are able to justify strong police and supervision forces which can also be used for wider political purposes. Also, because the lower classes are the most frequent victims of crime, they tend to call upon the law for protection and avoid breaking the law themselves. And finally, since the people know that a prison term brings a stigma that remains with an individual for life, they tend to avoid taking risks with the law and ostracize those who do.

So Foucault suggests that the prison does not control the criminal so much as it controls the working class by creating the criminal, which is the unspoken rationale for its persistence. Clearly, no politician will discuss this policy with constituents, but Foucault insists that it does in fact amount to a deliberate strategy. He implies, then, that the prison is retained because of its failures, and not in spite of them.

The work of Erikson, Rusche and Kirchheimer, and Foucault help us to see some of the alternative ways the institution of punishment influences society besides crime control. Garland provides a thorough critique of each of the above mentioned social theorists, and mentions several others whom I did not have space to review in this paper. Although prisons may not do much to stop the flow of crime, Garland cautions us from considering the institution a complete failure. In fact, he says it is quite successful when one measures its ability to keep offenders confined in a punitive setting for the period of time of a court order and to inflict mental suffering in ways that satisfy the public. When measured in such terms, then the only failures are escapes and the coddling of prisoners.

Punishment is, on the face of things, an apparatus for dealing with criminals. But it is also an expression of state power, a statement of collective morality, a vehicle for emotional expression, an economically conditioned social policy, an embodiment of current sensibilities, and a set of symbols which display a cultural ethos and help create a social identity. In order to understand punishment, then, Garland urges us to learn from the work of many historians and social theorists, and to develop a rounded understanding, one that is built from the partial views developed by more narrowly focused studies. At the same time, he asks us to keep an open mind, and to seek out alternative responses to crime that might prove more effective than the techniques of modern punishment.

Finally, it is important for citizens to recognize that no method of punishment has ever achieved high rates of reform or of crime control, and no method ever will. Only what Garland calls the "mainstream process of socialization," such as internalized morality, education, and a sense of duty and responsibility are able to promote proper conduct on a consistent and regular basis.

Erikson, Kai. Wayward Puritans. New York: John Wiley, 1966.

Foucault, Michel. Discipline and Punish: The Birth of the Prison. New York: Pantheon, 1977.

Garland, David. Punishment and Modern Society: A Study in Social Theory. Chicago: The University of Chicago Press, 1990.

Rusche, George and Otto Kirchheimer. Punishment and Social Structure. New York: Russell and Russell, 1968.

2Rusche and Kirchheimer
5Foucault, p. 265.
6Foucault, p. 272.
7Erikson, p. 3.
8Rusche and Kirchheimer, p. 3.
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