Table of contents(15 chapters)
The article in this special issue of Studies in Law, Politics, and Society emerge from work done as part of a 2002 National Endowment for the Humanities Summer seminar for College and University Teachers, held at Amherst College. In addition to the work represented in this issue, other participants in the seminar were Ava Chamberlin, John Pittman, Robert Gordon, and Alisa Rosenthal.
The accounts of moral reform that nineteenth-century convicts offered the officials in charge were frequently characterized by such uniformity that it caused Dickens to mistrust their sincerity and to brand them scornfully as “pattern penitence.” Unlike Dickens, however, prison officials were more willing to credit the questionable authenticity of “patterned” repentance. The paper argues that rather than an effect of personal gullibility, reformers’ attitudes can be seen as an outcome of specific interpretative strategies which, in turn, constituted a response to several institutional challenges facing the nineteenth-century Penitentiary.
“FOREMOST AMONG THE PREROGATIVES OF SOVEREIGNTY”: THE POWER TO PUNISH AND THE DEATH OF COMITY IN AMERICAN CRIMINAL LAW
This essay explores a radical shift in how the relationship between the power to punish and sovereignty has been conceived in modern American law; specifically focusing on the quiet death of comity as an operative principle in the exercise of criminal jurisdiction. While this essay attends to certain legal issues arising from historical intersections of federal, state and Indian sovereignty in the field of criminal law, this essay is not an attempt to directly evaluate the history of federal policies applied to Indian tribes or tribal lands. Nor is this essay in any strict sense a legal history of federal-tribal relations, or federal penal policy in relation to Indian tribes. Rather, I am concerned here with a series of liminal moments in the American legal tradition in which the power to punish came to be understood ever more one-sidedly, as an atomizing attribute of sovereignty rather than an identifying feature of community within a pluralistic legal framework.
The justification of punishment is an age-old debate which continues unresolved. In late twentieth century several attempts were made to reconcile the two opposing justifications: retributivism and consequentialism. But these attempts focused narrowly on merely one manifestation of punishment, i.e.: criminal punishment carried out by the state. To the extent that these mixed justifications are successful, they relate to only one (undoubtedly important) manifestation of punishment. But clearly punishment can occur in many different institutional contexts, and the institutions in each context vary dramatically in complexity and relevance. I recommend analyzing punishment in its manifold manifestations.
How can philosophers contribute to the resolution of the current prison crisis in the United States, and what sorts of philosophical work should activists make use of in their efforts to address that crisis? This paper examines two periods of prison reform in the 20th century, to indicate the problematic role that traditional theories of the moral justification of punishment have had in the history of reform effects have played. I argue that moral theories of punishment are not the best vehicle for addressing the prison crisis; the approaches suggested by critical social theory are more promising.
The current neo-liberal trend in the United States insists that citizens must be self-supporting and are free to choose how they will involve themselves in the labor market. However, with the hardening of poverty in the inner cities, it is difficult to maintain the idea that everyone can choose to work. The collision between neo-liberal ideologies and economic crisis is evidenced by contemporary prison labor. The incarceration boom and use of prison labor suggests that work and unemployment is a matter of character, thus helping to maintain the idealization of labor as a marker of rationality, disciplined free will, and hence citizenship.
Community policing has been around for at least two decades now and it is safe to say that it has become, in large part, more about managing disruptive subjects and virtuous citizens than preventing crime or disorder (Crank, 1994; DeLeon-Granados, 1999; Yngvesson, 1993). While the rhetoric of community may be succeeding where the policing policy is failing, the experience has certainly contributed to the growth of homologous efforts that include community prosecution and community correction. We see a criminal justice system pro-actively seeking to blur the boundaries between its institutions and the communities they work within and, all too often, without. In recent years, there has been a rapid growth in justice approaches that turn their attention toward the community. There are literally hundreds of examples of this trend, from offender-victim reconciliation projects in Vermont and Minneapolis to ‘beat probation’ in Madison, Wisconsin; from neighborhood-based prosecution centers in Portland, Oregon, and New York City, to community probation in Massachusetts. Of course, the most well-known version of community justice is community policing, but localized projects involving all components of the justice system have been widely promoted (Clear & Karp, 1998, p. 3).Like community policing and community prosecution, community correction programs generally focus on partnering with service providers and community groups in order to more finely calibrate their service delivery. For community corrections the recent focus has been on delivering re-entry programs and expanding the availability of intermediate sanctioning options. The sheriff (above) focuses on re-entry, to link jails and communities in two ways: extending the correctional continuum into power-poor communities and increasing political support for expanding the criminal justice system in more affluent communities. Even as fiscal stress translates into budget cuts in education, housing, drug treatment, and other services, the reach of the criminal justice system expands outside the fences as new community-based partnerships and inside the fences as an increasingly program-rich environment. These partnerships are, not surprisingly as we shall see, dominated by criminal justice professionals and dependent on coercive control techniques. Further, their budgets are growing with funds in previous eras earmarked for providing many of the same services in a social welfare, rather, than social control, service delivery context. While these budgetary trends map a macro political trend from an old democratic New Deal toward a new republican new deal network of patronage relationships (see Lyons, forthcoming 2004), this paper examines the micro politics of community corrections developing within an increasingly punitive American political-culture.
Social problems researchers have documented the role of science in identifying, typifying and shaping policy responses with respect to a variety of new social problems. Researchers have given less attention, however, to the role of science in ongoing debates over problems that are well established and contentious. This paper examines the influence of mainstream scientific knowledge concerning the deterrent effects of the death penalty on a death penalty debate in the Massachusetts House of Representatives. Mainstream scientific opposition to the deterrence hypothesis is found to influence the claims-making strategies of death-penalty proponents, leading them to draw heavily on common sense, to scale-back and qualify their claims concerning deterrence, and to reframe the debate in terms of just retribution. These effects are attributed to the cultural rules that structure debate in a legislative decision-making body.
A “sentence,” according to the Oxford English Dictionary, is a pronouncement of opinion, a pithy statement, an authoritative decision, or an idea expressed in a grammatically complete, self-contained utterance. Notice that these definitions all emphasize thought rather than action. Of course, sentences – such as “Let there be light,” “Keep off the grass,” “You shall be hanged by the neck until dead,” and “Notice that these definitions all emphasize thought rather than action” – may command or recommend an act. Some philosophers even maintain that “certain classes of utterances, in certain situations…bring about, rather than refer to, a new state of fact” (Hollander, 1996, p. 178). J. L. Austin, whose book How to Do Things with Words established the field of speech-act theory, argues that “performative” statements can have the effect of actions (1962).1 And yet the words in a sentence – whether it is an ordinary linguistic unit or the judgment in a criminal case – are still distinguishable from the deed they describe. The differences between pronouncing and executing sentences even led Justice Antonin Scalia to assert, in Wilson v. Seiter, that restrictions against “cruel and unusual punishment” should apply only to pain “formally meted out as punishment by the statute or the sentencing judge,” or meant to be cruel and unusual by the inflicting officer (1991, p. 2325). He is assuming, of course, a legal system that “guarantees – or is supposed to – a relatively faithful adherence to the word of the judge in the deeds carried out against the prisoner” (Cover, 1992, p. 225).2 As Scalia’s remarks demonstrate, however, the distinction between a sentence’s pronouncement, on the one hand, and its execution, on the other, raises disturbing questions about intention, interpretation, agency, and responsibility.
This article seeks to recover and uncover the non-utilitarian excess (jouissance) in crime and punishment since Kant. Jouissance is sharply contrasted with Nietzsche’s account of ressentiment. The latter is analyzed as the predominant sensation of our penal system which until today structures the subjects and institutions of punishment from within. Jouissance, on the other hand, is obscured in philosophies of punishment that attempt to account for the will to punish but ultimately fail to cover over the excess that constitutes penal theories and practices. Whether it is visible in Kant’s punitive fervor, in the exploration of perversion in de Sade and E. A. Poe, in theories of deterrence and prevention or punitive convictions in our contemporary legal culture, Freud’s discovery of a realm beyond the pleasures principle remains crucial for the understanding of the motives for crime and punishment. The essay concludes with a discussion of Nietzsche and his exploration of the ramifications of recognizing the role of new affects in crime and punishment.
Can the crisis of women’s victimization in prison be represented in ways that challenge this harm without its self-perpetuation? As a documentary scholar and maker, this was my overriding concern for an activist video project about women and prison. Certainly, documentary and prison tell us much about each other in their shared capacity to weaken some and strengthen others, by way of technologies of vision and distance, while buttressing hegemonic power. Our project was to minimize the possibility of documentary as prison by taking responsibility for the victim documentary itself as a system of power and pain, objectification and punishment.
Small Claims Court Television Shows offer spectators an opportunity to re-envision their relationship to legal and civic judgment. Through presenting racial and regional judges, these shows re-imagine legal judgment as a necessary and inclusive component of everyday citizenship. Reflecting Reality TV, Tabloid TV Talk Shows, and the History of African-American representation on television, shows like Judge Mathis and Judge Judy demonstrate the contradictions inherent in racial representations on television. By showing the ways in which television performance reflects the performative aspect of legal discourse already operating upon us, the judges use stupidity as a way to pedagogically energize a lower class, disenfranchised viewership into newly rehearsing their roles as active citizens.