By Bernard E. Harcourt
We live in a punitive society—to borrow a term coined by Michel Foucault in his 1973 lectures at the Collège de France, La Société punitive.[1]
With over two million men, women, and children, predominantly of color, caged in prisons and jails as we speak, another half million immigrants imprisoned in detention facilities each year, overcrowded prisons, and the pervasive use of solitary confinement; with massive imposition of fees and fines levied on the poor that amount in hundreds of municipalities to more than half of their revenues; with the federal execution of seven men in less than six months, all this during a time of mounting white supremacism and xenophobia, and pandemic conditions—this is, without question, a dark time of punitiveness in the United States.[2]
And tragically, this is not new. It traces back decades or centuries to the legacy of slavery in this country and its eventual metamorphosis, through the key device of the criminal law, into practices of convict leasing and plantation prisons intended to maintain a racialized caste society.[3]
The right question today, then, is not whether we live in a punitive society, it is instead what type of punitive society we live in and even more importantly, how we can get beyond it.
Paradigms of Punitiveness
Faced with similar questions in the wake of May ’68 and its brutal repression in France, Foucault delivered a prescient set of lectures in 1973 on the punitive society—prescient insofar as they predated but prefigured the rise of racialized mass incarceration in this country.
Foucault proposed a classification of punitive societies. He spoke about trying to “classify societies … according to the fate … they reserve for those of the living whom they wish to be rid of, according to the way in which they bring those who seek to evade power under its control, to how they react to those who in one way or another overstep, break, or get around the laws.”[4] And Foucault identified four punitive models:
- Societies that exclude: that banish, that exile like the ancient Greeks, or that, as under Medieval law, burn down the home of the banished individual.
- Societies that organize a redemption or impose a compensation: these societies demand reparation or impose a cost on the offender. By contrast to exclusion, these societies draw the offender in, they force obligations on them.
- Societies that mark, that scar, that impose signs on the body—leaving a trace on the body, through corporal punishment, flogging, or simply marking the body. A scar, an amputation, or worse, a decapitation. These were common in the West from around the eleventh to the eighteenth centuries.
- Societies that confine, that imprison, that detain, that cage.
Foucault described the different logics that sustain punitive societies, exploring the paradigms of exclusion, redemption, marking, and confinement. In his “Course Summary,” written after the lectures, Foucault proposed this hypothesis: “banishment societies (Greek society), redemption societies (Germanic societies), marking societies (Western societies at the end of the Middle Ages), and societies that confine, our own?”[5]
Paradigms vs. Practices
Now you might quickly jump to the conclusion that our society, which uses, for instance, the death penalty or massive systems of fees and fines, fits neatly within one of those logics. Fees and fines, for example, would seem to fit within the logics of compensation. They remind us, naturally, of the wergeld and fredum in Germanic law, the blood money and composition, as well as the extraction of wealth as a form of repression, as for instance after the Nu-pieds rebellions in Normandy in 1639—all of which Foucault had studied extensively the year before in his 1972 lectures on Penal Theories and Institutions.[6]
But Foucault warns us against too simple an analysis. Specific practices, like fees and fines (the taking of property) or the death penalty, must be distinguished from the overarching logic of the punitive society. These concrete practices actually occur in all four of the paradigms of punishment. Within each one, the same practice might serve a different function. So, Foucault writes, “the fine does not exist as a penalty in the same way in different systems. It is a procedure whose tactical role is entirely different according to the punitive regimes within which it figures.”[7] With regard to capital punishment, for instance, certain forms of execution in antiquity fulfilled the objective of exile, whereas, in the Germanic law of compensation, they served as repayment of debt.
There are, then, different models of punitiveness, and within each, there are different practices of punishment (the death penalty, fees and fines) that operate in different ways.
Beyond the Punitive Society
This insight may be key to understanding how to get beyond our punitive society. We often propose different penal practices as a way to overcome injustice. We interrogate, for instance, whether we might not redeem civil penalties or fines as an alternative to mass incarceration—to caging humans. We do that so often. In the 1990s, we embraced “broken windows policing” as an alternative to mass incarceration: just focus on the minor disorder and police quality-of-life offenses, and that will eliminate major crime. We soon learned what a travesty that was and how it only added to people’s records and their misery.[8]
Today, some propose using forfeiture, or civil fines, or criminal fees as a more humane practice than mass incarceration. But it makes no sense to do that—to redeem a penal practice like fines and fees—because those practices will not escape the larger punitive framework in which they function. And today, that framework is clearly a caste society that uses penal practices (whether incarceration, the death penalty, or fines and fees) to turn persons of color into second-class citizens, to maintain racial hierarchy.
No, we need to focus instead on the larger punitive paradigm. We need to imagine, or rather, more importantly, we need to construct a world beyond punishment, beyond the punitive society. We need, together, to build a world beyond logics of exclusion, redemption, marking, or confinement.
We need to imagine a society without punishment. That is the world that many of us are reaching for. It is the world that Reginald Dwayne Betts was struggling to reimagine in his discussion at the Liman Public Interest Colloquium on October 1, 2020.[9] There, Betts spoke powerfully about the need to not simply replicate carceral logics, or allow ourselves too easily off the hook, but to press hard on the question: how can we imagine a world without punishment?
A World Without Punishment
Whenever I try to imagine a world without punishment, whenever I search beyond the punitive society, I always return to a passage in Nietzsche’s writings—I think I have cited it at least five times in my writings over the past decades.[10] I cannot escape that passage. It is a passage that resonates and plays in my head like a song stuck on replay. It is this short passage from section 10 of the second essay of On the Genealogy of Morals (one of the greatest texts on punishment, incidentally), where Nietzsche writes:
As its power increases, a community ceases to take the individual’s transgressions so seriously… It is not unthinkable that a society might attain such a consciousness of power that it could allow itself the noblest luxury possible to it—letting those who harm it go unpunished. “What are my parasites to me?” it might say. “May they live and prosper: I am strong enough for that!”[11]
I have always admired that bold idea, that we could simply do without punishment, that we, as a society, might someday be strong enough to prosper without punishment.
A New Prism
Right now, I am rethinking this passage of Nietzsche through a new lens, a new prism. Because, the truth is, for most victims of crime in the United States today—and this is true beyond our borders—there rarely is any punishment. Most crimes are not reported. They are not even investigated, let alone prosecuted, when they are. For the most part, they remain unresolved. This is especially true of the most violent of crimes, sexual assault. For the most part, victims of crime find other ways to overcome the tragic experience of crime. And we are not even talking about all the crimes that are not defined as such—like the water contamination in Flint, Michigan, or the massive frauds associated with the mortgage-backed securities in 2008.
For the vast majority of harm, of crime, of forms of coercion and fraud that surround us today, there is no punishment. We simply don’t punish. We scapegoat, yes, we do that well. We find one or two people—or two million—and punish them hard, brutally. We make them the martyrs. We put them in cages for 26 years or more, and place them in solitary confinement for over decades.[12]
But for the most part, for all the other offending, we don’t even blink an eye. We let it go.
And so I wonder whether, perhaps, we do live in a society that is now, right now, strong enough to live and prosper without punishment. The truth is, we do just that. We go on. We are strong and resilient in that way—practically all of the time.
Victims of crime find strength within themselves to overcome the harm they have experienced. They reach deep down, into their selves, they reach out to their loved ones, families, friends, and communities, and with or without them, they find the strength to survive or more than that, to recover, to prosper, despite the harm.
I wonder if that is the path forward. To realize our strength and how resilient we are in absorbing harm—accompanied, as we must, with investing everything we have, everything we can, and all of our resources into public education, social welfare, mental health support, and human services in order to help create a just society with less harm and less violence.
Maybe we are a society that is strong enough. Perhaps that is how we could, or will someday, achieve a just society without punishment.
Notes
[1] Michel Foucault, La Société punitive. Cours au Collège de France (1972–1973), ed. Bernard E. Harcourt (Paris: Gallimard/Seuil, 2013); Michel Foucault, The Punitive Society: Lectures at the Collège de France 1972–73, trans. Graham Burchell, ed. Bernard E. Harcourt (New York: Palgrave Macmillan, 2015).
[2] Anna VanCleave, Brian Highsmith, Judith Resnik, Jeff Selbin, and Lisa Foster, eds., Money and Punishment, Circa 2020 (New Haven: The Arthur Liman Center for Public Interest Law at Yale Law School, 2020); Walter Johnson, “Ferguson’s Fortune 500 Company,” The Atlantic, April 26, 2015, https://www.theatlantic.com/politics/archive/2015/04/fergusons-fortune-500-company/390492/; Walter Johnson, The Broken Heart of America: St. Louis and the Violent History of the United States (New York: Basic Books, 2020); Mike Maciag, “Addicted to Fines: A Special Report,” August 21, 2019, https://www.governing.com/topics/finance/fine-fee-revenues-special-report.html. See, generally, Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Cambridge: Harvard University Press, 2011), 196-202; .
[3] See Isabel Wilkerson, Caste: The Origins of Our Discontents (New York: Random House, 2020); Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010).
[4] Foucault, The Punitive Society, 2.
[5] Foucault, The Punitive Society, 248-249.
[6] Michel Foucault, Théories et institutions pénales. Cours au Collège de France. 1971–1972, ed. Bernard E. Harcourt (Paris: Gallimard/Le Seuil, 2015), 114-140, esp. 124 n.32 and 144 n.21; Foucault, Penal Theories and Institutions: Lectures at the Collège de France 1971–72, trans. Graham Burchell, ed. Bernard E. Harcourt (New York: Palgrave Macmillan, 2019).
[7] Foucault, The Punitive Society, 10.
[8] Alexandra Natapoff, Punishment without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal (New York: Basic Books, 2018); Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (Princeton: Princeton University Press, 2019).
[9] Reginald Dwayne Betts is a brilliant poet, artist, and lawyer. You can read about him here: https://www.dwaynebetts.com/bio
[10] Most recently, in my last book, Critique & Praxis: A Critical Philosophy of Illusions, Values, and Action (New York: Columbia University Press, 2020), 261.
[11] Friedrich Nietzsche, On the Genealogy of Morals, trans. Walter Kaufmann and R.J. Hollingdale (New York: Vintage, 1989), 72.
[12] I am thinking here of Ian Manuel, who was sentenced to life imprisonment without parole in Florida at the age of 13 and served 26 years in prison, 20 of them in solitary confinement. See Bryan Stevenson, Just Mercy, Chapter 8.
