Miguel Beistegui | Beyond the Punitive Society?  Questions and Distinctions.

By Miguel Beistegui

On 6 March 2018, in a speech in Agen, President Macron declared wanting to bring to an end the “tout-carcéral” which characterises the French penal system.  Would this mean the end of the punitive society?

Rereading Foucault’s 1972-73 lectures at the Collège de France, as well as other related texts by him, for today’s discussion, I kept asking myself: what could it mean to abolish the punitive society?  And in light of this question, I was immediately struck by the distinctions that Foucault invites us to make:

First, we need to distinguish between the question of punishment, which has always existed (and in The Punitive Society Foucault distinguishes further between historically different tactics of punishment: 1. exile, banishment, expulsion, confiscation of goods and properties; 2. compensation, debt, financial obligation; 3. Marking bodies, wounding, amputating, torturing; 4. incarcerating), and the very specific phenomenon of “the punitive society,” by which Foucault means a society of which punishment, a rationality and varied practice of punishment, is a central mechanism.

Second, we need to distinguish between punishment and condemnation, which can, but need not coincide.  Condemnation requires a legal procedure; but in the precise context of the punitive society, and for historical reasons one would need to clarify, punishment requires an intimate and as complete knowledge as possible of “the dangerous individual,” of their habits, motives, instincts, tendencies, patterns of behaviour, etc.  Now dangerous individuals are constantly being punished, for example through differentiated access to health care, or insurance, or credit, and through an increasingly elaborate system of credit scoring.  Yet this danger is not criminal, or at least not always (the dangerous individual need not be an “enemy” of society).  The danger is not even actual.  It is merely potential.  Increasingly, the future is what determines the present, what’s possible and impossible.  Not the crime, but the dangerous profile is what matters.  Today’s punitive society requires the notion of risk and risk management – of accidents and responsibility without cause, as well as systems of insurance (Foucault mentions this aspect of the question in his 1978 article on “The Concept of the ‘Dangerous Individual’ in 19th Century Psychiatry”).  Truth is no longer an event, but a statistical reality, chance.

A further distinction needs to be added to the one I’ve just referred to.  More specifically, the distinction between punishment and condemnation should be translated into, or further developed in relation to, a distinction Foucault introduces briefly and in passing in the sixth and final lecture of the 1981 Louvain lectures, Wrong-Doing, Truth-Telling: The Function of Avowal in Justice: “penalty,” criminal anthropologists claimed at the turn of the 20th century, does not have to be a punishment, but rather a mechanism for the defence of society (p. 223).  It is concerned less with the juridical notion of responsibility and freedom, and more with establishing and countering the degree of “dangerousness” of certain categories of individuals.  It is intimately bound up with the idea of risk, and the possibility of assessing it scientifically.  A different kind of truth is at work here, one that establishes (often biased) profiles related to “risk factors.”  Today’s punitive society is a risk-assessing, statistical society, and one that privileges micro-disciplines and adjustments over molar ones.  Bodies and minds are targeted, educated, redressed, normalised, but as a result of a statistical score.  This is the reason why, in addition to truth as “ordeal” in the Middle Ages, truth as “investigation” (based on avowal and proof) in the classical age, and truth as “exam” in the age of discipline, and which corresponds with the emergence of the human sciences, we need to recognise the growing and central role played by a different kind of truth in the punitive society, one that is far more abstract, for generated by statistical norms, and at the same time more granular, and producing constant micro-adjustments.  Increasingly, the algorithmic model is replacing the human and social sciences in establishing the norm.

This, in turn, means that we need to raise the question of the prison within this expanded, risk-driven rationality of punishment, which is also a rationality of reward.  How does the prison system continue to operate, and even exist, in this context and normative society?  This is the point at which we would need to note the significant differences that exist between certain nations, such as the United States, defined by mass incarceration and long-term sentences, and other, more liberal (and mostly Scandinavian) societies, which privilege short sentences and open prisons.  How do we explain the fact that, despite the indisputable evidence regarding the fact that incarceration does not work (it does not normalise, but marginalises), and, as Foucault notes in the 1972-73 lecture course, was recognised as a failure from the start, in the early 19th century, most western nations remain so attached to it?  One can point to a lack of imagination and a form of laziness.  More convincingly, one can point to the collusion of neoliberal capitalism and the rationality of punishment: the privatisation of prisons is a lucrative business, which affects also the treatment of migrants in the US.  Finally, one can point to mass incarceration as the perpetuation and extension of the systemic racism – of slavery, colonialism, and anti-migration attitudes – that characterises the history of the US and various European countries.

In conclusion, I’d say that there is evidence that we have already moved beyond the punitive society as focused on the tactic of enfermement, and towards a society of more efficient control and surveillance.  At the same time, we can’t ignore the differences between neoliberal and/or systemically racist societies, which continue to incarcerate, and incarcerate more, despite the evidence of failure of such methods; and more liberal, social-democratic societies, which incarcerate less, and are increasingly turning to short sentences and open prisons as forms of rehabilitation.