Madness and Civilization II

In One Flew Over the Cuckoo’s Nest, inmates of a mental institution struggle for their dignity against controlling Authority. It was an iconic film of the 70s, with Jack Nicholson in one of his indelible roles.

A generation later, “cuckoo’s nests” are harder and harder to find. Wave of wave of closings of state mental hospitals have left more and more mentally ill people on the streets. Not surprisingly, many of them end up in prison — upwards of 350,000, NPR recently reported.

This is a calamity for all concerned: the mentally themselves, other inmates who encounter them, the staff who try to work with them, and on and on.

If Michel Foucault were still with us, he might be writing Madness and Civilization II.

Beyond Foucault's "Detestable Solution"

When will there by something new under the sun in the theoretical underpinnings of criminal sentencing?

Michel Foucault wrote Discipline and Punish 35 years ago. The book probes the emergence of the modern prison at the turn of the eighteenth and nineteenth centuries. Foucault links this emergence with the exercise of a new type of class domination that also extended outside prison walls, to institutions such as factories.

Prisons themselves were not new; they had existed for centuries. But around 1800 in the West, Foucault argues, they became mechanisms of a new form of class power. Detention colonized the field of correctional options and became the "penalty par excellence." In doing so, it "banished into oblivion all the other punishments that the eighteenth-century reformers had imagined."

Rereading Foucault's account of this, I was struck by his use of the rhetoric of banishment to describe the ascendancy of the prison as a way for society to respond to social conflict. No one ever imagined how ascendant the prison would become in the United States. Indeed, one suspects that even Foucault himself would be surprised by how common going to prison has become among people at the bottom of the social ladder. He died in 1984, before the American prison boom had really taken off.

Even when prison emerged two centuries ago as the dominant correctional paradigm, it seemed to do so almost by intellectual default. "It seemed to have no alternative," Foucault wrote in the mid-1970s, "as if carried along by the very movement of history."

Why do we continue to rely so heavily on prison as a response to crime? Foucault called it dangerous and useless; today, in America, one would have to add expensive. Yet we have lacked the vision to create a system to replace it Instead, prison remains, as Foucault said, "the detestable solution," which we have been unwilling or unable to give up.

I'm hoping that the Christian gospel can open our eyes to alternatives to the prison paradigm. After all, Jesus Christ boldly promised to make all things new. And unliked Foucault, Jesus did more than merely write about the powers that be. He confronted them, even when it meant a criminal's death.

Prison's Place in the Punitive Panoply

How did imprisonment go from being seen as a key component of society's solution to social conflict, at the turn of the nineteenth century, to a practice that perpetuates and exacerbates that conflict?

In Discipline and Punish, Foucault puts it this way: "We are aware of all the inconveniences of prison, and that it is dangerous when it is not useless. And yet we cannot 'see' how to replace it. It is the detestable solution, which one seems unable to do without."

Why do we keep using it, when it is "dangerous when not useless "?

Well, as Foucault notes, two centuries ago, imprisonment was conceived not merely as the deprivation of liberty, but also as an occasion for the transformation of the offender. One can still observe this in the names of many corrections departments around the country; the institutional goal of correction is right there in name of the agency itself. (Nevada, with its Department of Prisons, is one notable exception.) The idea was to rehabilitate, not simply to incarcerate.

What is left of that idea now, a generation after the widely cited meta-analysis by Martinson and others asserted that "nothing works" in correctional programming? A "what works" literature struggles to find a proper hearing, amid all the budget cuts relentlessly eating away at rehabilitative programming. It's hard not to be a warehouse, if you don't have money to do much more than feed, house, and clothe (in jumpsuits) the inmates.

Inmate Count at the Bastille, July 14, 1789

The Bastille had once been a notorious prison holding Voltaire and other political detainees. But by July 14, 1789 - now celebrated as Bastille Day and often considered a transformative event in the French Revolution - its inmate count had slipped to a grand total of seven: 5 criminals and 2 "madmen."

Interesting how, then as now, in Louis XVI's France and in modern American correctional facilities, mental illness becomes intermingled with the incarceration of criminal offenders. This was no surprise to Michel Foucault, whose books Discipline and Punish and Madness and Civilization could be considered companion pieces.

So why was the taking of this rather forlorn prison called the Bastille such a catalyst for grand historical change? The middle class shopkeepers and artisans ("sans-culottes") who took the Bastille were not there for a jail break. They were seeking arms and ammunition to protect themselves against the possibility that the king would use force to disband the nascent National Assembly.

When the sans-culottes arrived at the Bastille, its commander ordered his troops to fire on them. 98 people were killed in this barrage, but the enraged crowed broke through, captured the prison, decapitated the commander who fired on them, and distributed arms to the citizens of Paris. Momentous decrees by the National Assembly soon followed, seeking to give form to the ideals of "liberty, equality, and fraternity."

Power Dynamics: Foucault and the NLBM

In his chapter on torture in Discipline and Punish, Michel Foucault writes of the body as enmeshed in a societal "system of subjugation." He seeks to describe the "micro-physics of power," his term for complicated, dynamic power relations that are always in tension, never fixed. There is indubitably a dominant class, in his view, but its power is "excercised rather than possessed."

Reading this, I couldn't help but think of my recent visit to the Negro Leagues Baseball Museum in Kansas City. The NLBM tells the story of how the dominant white society systematically kept African Americans off of white professional teams for roughly half a century. The exclusion ran from the mid-1890s (around the time of the Supreme Court's infamous "separate but equal" decision in Plessy v. Ferguson) until 1947 and beyond. Many teams did not add black players until well into the 1950s (around the time the Supreme Court overruled Plessy in Brown v. Board of Education).

The most fascinating exhibit at the museum for me was a video documenting how the black/white power relations differed between the American League and the National League. Following Jackie Robinson's debut with the Brooklyn Dodgers, National League owners were much quicker to integrate black players into their teams. American League owners, particularly those of the Yankees and the Red Sox, were much slower. Amazingly, the Red Sox did not even field a black player until 1959, and the Yankees were not much better.

The result of the American League's foot-dragging was an undeniable talent differential between the leagues that continued into the 1970s. Watching video of Willie Ways, Henry Aaron, Frank Robinson, Lou Brock and others transforming the style of play in the NL, I suddenly realized that the National League's dominance in the All-Star Game for over a decade was completely understandable. Growing up a Twins fan in the 70s, the American League's futility in those games had always been inexpliable to me. Now I realize that it had something to do with Foucauldian power dynamics.

Foucault, the AFSC, and the Prison Paradigm

Michael Foucault and the American Friends Service Committee (AFSC) are admittedly an unlikely duo.

Foucault was a radical French intellectual whose work was animated by a drive to expose what he saw as the underlying connection between knowledge and power. He died of AIDS in 1984, around the time his work was coming into vogue in American academic circles.

The AFSC is an earnest, faith-based organization committed to progressive social action and deep-seated principles of justice. Rooted in the Quaker tradition but also committed to interfaith cooperation, it received the Nobel Peace Prize in 1947 for its role in aiding displaced people in war-torn Europe.

Foucault’s Discipline and Punish: The Birth of the Prison (French, 1975; English, 1978) and a recent AFDC-supported book, Beyond Prisons (2006, by authors Laura Magnani and Harmon L. Wray), are separated by a generation in time and come from very different perspectives. Foucault, using a method he called “the archeology of knowledge,” examines the emergence of the modern prison two hundred years ago, as it grew to replace a penal system focused on torture. The AFSC, motivated by religious faith, seeks to point the way to a new paradigm beyond prisons, emphasizing the healing of relationships and community building.

As different as these perspectives are, the two books pose similar questions about the power dynamics present in a society that relies heavily on incarceration. “Regard punishment as a political tactic,” Foucault cautioned. The AFSC is more blunt: “Prisons serve the power structure.”

As the New Year begins, I will be reading Discipline and Punish and Beyond Prisons side by side. One irony I’ve noted already: The modern prison, with its excessive reliance on solitary confinement, has reverted back to the torture model of punishment it was supposed to replace.

Measuring the Unjust Pain

Act I, 1978: Analyzing the Birth of the Modern Prison

In 1978, Michael Ignatieff, a 31-year-old Canadian college professor, published his first book, A Just Measure of Pain. Like Michel Foucault’s Discipline and Punish (Surveiller et Punir), whose first American edition appeared the same year, it examined the origins of the modern prison during the Industrial Revolution. Both Ignatieff and Foucault described the turn away from punishments aimed at the body to those measured in units of time under supervision. Today, with over two million Americans in jail or prison and millions more on probation or parole, these books remain important reading for possible clues to the nature of our current Leviathan in embryo.

At least within the academic world, it was Foucault’s work that came to have the wider impact. The versatile Ignatieff moved to Britain the same year A Just Measure of Pain was published and established a second career as a public intellectual and media presence. Meanwhile, Foucault’s work, probing deeply into the dynamics of knowledge and power, became of great interest to academics in numerous disciplines. Though he is not as notorious as his fellow Frenchman Jacques Derrida, the two are sometimes lumped together among the postmodern “prophets of extremity” (Allan Megill). Indeed, the term foucauldian has become a word in its own right for the would-be unmasking of power relationships.

In Discipline and Punish, Foucault recounts how by the early nineteenth century, punishment as a public spectacle was in decline. Instead of publicly torturing an offender’s body, often accompanied by outright execution, a new understanding was emerging, focusing not on the sheer physical intensity of punishment, but on the certainty of it. On this view, justice in the sense of eye-for-an-eye violence is seen as actually counterproductive because it only incites more violence. As empathy for victims expands, executioners seem like criminals, judges like murderers, and tortured criminals “object[s] of pity or admiration.” (Discipline and Punish, Vintage Books edition, 1979, p. 9).

In place of torture, the theorists of the modern prison conceived of a response to crime in which offenders would be deprived of liberty for a set period of time and subject to close supervision. Every hour of the day would be closely regulated, as prisoners were reformed in factory-like settings into compliant, productive members of society. Foucault cites examples of the extremely detailed timetables the penitentiaries were to follow, seeking to reform prisoners and instill respect for institutional order.

Around the time Foucault was writing Discipline and Punish, the United States Supreme Court articulated the underlying rationale of incarceraton this way: Offenders are sent to prison not for punishment (physical pain), but as punishment (defined as the deprivation of liberty). The chioce of preposition here is crucial, and it reflects the way in which the modern prison grew up along with modern democratic conceptions of political freedom.

Act II, 2002-03: The Dubious Case for War In Iraq

What happens when an insecure American president wearing ideological blinders tries to export democracy to a Middle Eastern dictatorship by waging preemptive war? Given the debacle that Iraq so quickly became, it is hard to believe that the invasion of Iraq attracted a certain amount of support among opinion makers in 2002-03. Tom Friedman, for example, used his New York Times column to promote what he called “my war” — the personal pronoun sought to distinguish his case for invasion from the Bush administration’s. Instead of dubious WMD shenanigans, Friedman spoke of installing democracy in Iraq as a first step toward instilling it throughout the Middle East. Coming from the lauded author of From Beirut to Jerusalem, these words carried considerable weight.

Michael Ignatieff was essentially in Friedman’s camp. Though Ignatieff lacked the bully pulpit of the New York Times editorial page, he had come closer, since we last saw him in Act I, to direct political involvement. Leaving London in 2000, he moved back across the Atlantic in 2000 to direct the Carr Center for Human Rights Policy at Harvard University. From that perch, in the run-up to the invasion of Iraq, he sought to make a case for war in Iraq as a humanitarian and human rights mission.

Igantieff would come to at least partially recant of these apologetics, once the scale of the Iraq debacle became plain. The abuses at the Abu Ghraib prison had become widely known by the spring of 2004, and by then there was, to use the title of Charles Ferguson’s fine documentary, “no end in sight.” In 2006, after leaving Harvard to become deputy leader of Canada’s Liberal Party, Ignatieff tried to distance himself from his earlier views on Iraq, saying they reflected the theoretical enthusiasms of the academy, not the cold-eyed prudence of practical politics. As Katha Pollit suggested in The Nation, this is not a satisfactory explanation. Paul Wellstone may have been the only U.S. Senator to vote against it, but there was no shortage of professors against the war. Michael Ignatieff was not among them.

Act III: The Obama Administration Picks up the Pieces

On April 16, 2009, the Obama administration released memos detailing the brutal interrogation methods used by the CIA under President Bush, while also assuring the agents involved that they would not be prosecuted. The materials made public included legal memos from within the Bush administration trying to redefine torture to provide legal cover for actions of shocking brutality. The techniques will never be used again, President Obama said, but neither would he pin the blame on rank and file agents who acted in good faith.

The released memos contained long excerpts from the CIA’s interrogation manual, describing how each coercive method was to be used.

● Waterboarding (simulated drowning): Strapping a prisoner to a gurney at a 10- to 15-degree angle, covering the mouth with a cloth, pouring water over the cloth from 6 to 18 inches away, for no more than 40 seconds at a time

● Sleep deprivation for up to 180 hours

● Shoving against a wall “30 times consecutively”

The precision of these details is weirdly reminiscent of the prison timetable from the early nineteenth century described by Foucault. Only this time, the precision is used to inflict physical pain, not to set the prisoner on an institutionalized path to rehabilitation.
Ostensibly, under Bush, the purpose of the pain was to force detainees to provide information. But is there any scientific literature showing that tactics of this sort produce useable evidence? It may work on television to slam people against walls, as a means to extract information, or in movie to place prisoners in a dark, cramped box filled with insects (another CIA tactic). But if someone will say anything to make the pain stop, why should they be believed?

Roughly two centuries after the birth of the modern prison, America regressed in its “war on terror” to tactics that sound more like something from two thousand years ago. The limitation of shoving against a wall to 30 consecutive times recalls the “40 stripes” established in Jewish law (Deuteronomy 25:3) centuries before the birth of Christ. This was the limit on the number of lashes for someone being whipped. By the time of the apostle Paul, the number had been cut to 39 stripes, so that the punishment did not exceed 40 inadvertently or through excessive zeal.

In banning waterboarding and other brutal tactics, the Obama administration is doing much more than cutting back from 40 stripes to 39. Mr. Obama has reversed key Bush interrogation policies, not just scaled back on them. The scales of justice have not yet stopped balancing, however, after the unjust measure of pain our country inflicted in Iraq and on detainees around the world.