Discipline Punish: The Birth Of The Prison

Foucault argues that this theory of "gentle" punishment represented the first step away from the excessive force of the sovereign, and towards more generalized and controlled means of punishment. But he suggests that the shift towards prison that followed was the result of a new "technology" and ontology for the body being developed in the 18th century, the "technology" of discipline, and the ontology of "man as machine."

Discipline Punish: The Birth of the Prison

The emergence of prison as the form of punishment for every crime grew out of the development of discipline in the 18th and 19th centuries, according to Foucault. He looks at the development of highly refined forms of discipline, of discipline concerned with the smallest and most precise aspects of a person's body. Discipline, he suggests, developed a new economy and politics for bodies. Modern institutions required that bodies must be individuated according to their tasks, as well as for training, observation, and control. Therefore, he argues, discipline created a whole new form of individuality for bodies, which enabled them to perform their duty within the new forms of economic, political, and military organizations emerging in the modern age and continuing to today.

The title refers to the rise of the modern prison system as a replacement for older forms of penal justice. Foucault describes this system as designed not only to punish crime but also to discipline offenders by changing their behavior.

The principle of the Panopticon can be applied not only to prisons butalso to any system of disciplinary power (a factory, a hospital, aschool). And, in fact, although Bentham himself was never able tobuild it, its principle has come to pervade aspects of modern society.It is the instrument through which modern discipline has been able toreplace pre-modern sovereignty (kings, judges) as the fundamentalpower relation.

Foucault's analysis of these two modes of punishment, public execution and torture as against the timetable of a prison, is of a very special sort that does not belong to one or another academic discipline. He has a fundamental concern for the principles of thought that underlie the creation and operation of social institutions, principles that he has traced out on the most abstract epistemological level (in such a difficult and not altogether rewarding book as "The Birth of the Clinic"), and with a penetrating sensitivity to broad cultural values (as in "Madness and Civilization"). He is often interested in origins, the first appearance of the mental hospital or the medical clinic, but he is not really a historian. There is more of the anthropologist about him, a greater attention to the fit of institutions in a society than to the dynamics of change. Further, a philosophical radicalism permeates his writings, an intense dissatisfaction with bourgeois culture and institutions, all of which means that "Discipline and Punish" is bound to be innovative and controversial.

In the instance of the prison, this case orientation encouraged the expansion of knowledge in such disciplines as criminology, psychology and eventually psychiatry. Concomitantly, it legitimized incarceration in the name of treatment. Since the institution could cure, it was proper to confine. Foucault is correct in noting that the birth of the prison is at one with the use of the rehabilitative ethic and the appearance of the dossier. Punishment moved from "the infinite segmentation of the body of the regicide" to "an investigation that would be extended without limit to a meticulous and ever more analytical observation... a file that was never closed."

"Discipline and Punish" is clearly a tour de force that makes it impossible to think of prisons as distinct from the rest of society, as an aberration in form. But however significant this accomplishment, there remains problems of method and policy that are deeply disturbing. Foucault subtitles his book, "The Birth of the Prison." Yet, aside from a few remarks that aggregations of populations and capital were the relevant historical forces, his analysis is entirely static. It is not simply that an elevated concern for the spirit of a culture prevents Foucault from descending to locate the actors who actually promoted the prison system. Rather, his approach compels him to overgeneralize to the point where the prison at all times and places becomes a constant and unvarying form of discipline-which is simply not true.

Through an ethnographic study conducted over a period of ten months in a prison in the Paris region and based in particular on observation of 21 disciplinary committees (which dealt with 81 prisoners in total, from hearings to deliberations), this article aims to analyze and question the content and the meaning of disciplinary punishment. What outcomes do we have in mind when we punish inmates who are already in prison? Is it solely to punish and/or prevent misbehaviour? In any act of punishment, what part reflects a straightforward concern to maintain order and what part stems from moral action grounded in the desire to transform inmates in the more or less long term? To answer these questions, I will first present i) the political and moral issues in relation to a policy of humanizing living conditions in prison through the major reforms that have structured the disciplinary punishment. I will then examine ii) the tensions at work today in administering discipline through the discrepancies that exist between the moral order of offences and the pragmatic use of punishments. I will finally analyse iii) how the disciplinary committee is in fact a space of negotiation in which the values and emotions of the members of the disciplinary board combine with the assessment of the seriousness of the offence in its context and the personality of the undisciplined inmate. From all these elements, I show how respect for the humanity of prisoners can paradoxically go hand-in-hand with new forms of domination and symbolic violence through infantilization, accountability and moral rectification.

In Part 1 of this article, it was noted that the Imperial authorities were anxious to see the introduction of the so-called "separate system" into the prisons of colonial Natal. On 31 August 1875 Lord Carnarvon, Secretary of State for the Colonies, complained that the system of prison discipline in Natal was "at variance in almost every particular" with the principles set out in the Digest.5 He painted a bleak picture of an excessively overcrowded penal system, of cells without lighting, where groups of prisoners were forced to huddle together during the long hours of darkness. He could only wonder at the "extent of depravity" which must prevail under such conditions.6He severely reprimanded the Natal authorities as follows:

Clearly the Lieutenant-Governor had to act. In May 1877 he compiled an important Minute in which he analysed the lack of accommodation at the Pietermaritzburg Gaol and the implications of this for prison discipline.10 He pointed out that the prison population of the Pietermaritzburg Gaol had risen from a daily average of fifty-seven in 1872 to 106 in 1875. Occasionally over 130 prisoners were confined in the gaol at one time. Between 1869 and 1877 the number of cells available for prisoners in the Pietermaritzburg Gaol had only increased from seventeen to twenty-eight.11 The Lieutenant-Governor noted that if each prisoner was given 500 cubic feet of space - well below what had been laid down in the Digest - the prison could accommodate eighty prisoners. However, the daily average prison population was 106. He thus drew the following conclusion:

As a result of the overcrowding the system of prison discipline was gravely defective. Individual separation of prisoners was completely impossible, and the only classification carried out was that between male and female, and black and white. At night "prisoners of European descent" were kept separate from "prisoners of African and Indian nationalities".13 Other than that, untried prisoners were held alongside convicted prisoners, juveniles were held with adults, felons with misdemeanants, and long sentenced prisoners with short sentenced prisoners. The Lieutenant-Governor thus recommended "the erection of a strong double storied building containing eighty or one hundred cells" so that prisoners could be separately confined at night and a proper system of classification introduced.14

Military prisoners convicted of breaches of discipline only, who shall, so far as may be practicable, having regard to the prior accommodation and the circumstances of the case, be kept separate and distinct from prisoners convicted of offences of an immoral dishonest, shameful, or criminal character.35

1 See, in general, S Peté "The politics of imprisonment in the aftermath of South Africa's first democratic election" (1998) 1 South African J of Criminal Justice 51-83; [ Links ] S Peté "The good the bad and the warehoused - The politics of imprisonment during the run-up to South Africa's second democratic election" (2000) 13(1) South African J of Criminal Justice 1-56; [ Links ] and S Peté "Between the devil and the deep blue sea - The spectre of crime and prison overcrowding in post-apartheid South Africa" (2006) 27(3) Obiter 429-453. [ Links ] 2 See S Peté "Holding up a mirror to apartheid South Africa - Public discourse on the issue of overcrowding in South African prisons 1980 to 1984 - Part 1 " (2014) 35(3) Obiter 485-505; [ Links ] and S Peté "Holding up a mirror to apartheid South Africa - Public discourse on the issue of overcrowding in South African prisons 1980 to 1984 - Part 2" (2015) 36(1) Obiter 17-40. [ Links ] 3 In Discipline and Punish - The Birth of the Prison (London, 1979) at 264 Michel Foucault points out that the birth of the modern prison around the beginning of the nineteenth century in France was almost immediately denounced as a failure. He puts his finger on the cyclical and repetitive nature of critiques leveled at imprisonment as a form of punishment, stating that "the critique of the prison and its methods [which] appeared very early on ... was embodied in a number of formulations which - figures apart - are today repeated almost unchanged" (at 265). Foucault goes on to point out that the same "solutions" to the continuously repeated "problems" have been recycled over and over again for the past 150 years. He puts it as follows: "For a century and a half the prison has always been offered as its own remedy: the reactivation of the penitentiary techniques as the only means of overcoming their perpetual failure; the realisation of the corrective project as the only method of overcoming the impossibility of implementing it ... Word for word, from one century to the other, the same fundamental propositions are repeated. They reappear in each new, hard-won, finally accepted formulation of a reform that has hitherto always been lacking. The same sentences or almost the same could have been borrowed from other 'fruitful' periods of reform ..." (at 268 and 270). 4 Muntingh begins his argument by pointing out that there is almost no evidence that prisons have been able to reduce crime to any significant extent anywhere in the world. Why then do almost all societies choose to retain this form of punishment? Muntingh's answer is that, despite their apparent "failure", prisons provide various types of value to those in power. It is beyond the scope of this article to set out Muntingh's complex argument in full, but the following extract provides some idea of the type of "value" he has in mind: "[W]ho stands to benefit from prisons - and the answer is simple: politicians and the private sector ... Prisons have symbolic value; they communicate the message that government is tough on crime and is willing and capable of legally depriving citizens of their liberty because they have committed a crime and offended society. Prisons symbolise the state's power over its citizens. More importantly, they communicate the willingness of the state to use its coercive power" (see L Muntingh "Punishment and deterrence -Don't expect prisons to reduce crime" (Dec 2008) 26 SA Crime Quarterly at 5). 5 NAB (KwaZulu-Natal Pietermaritzburg Archives Repository) Government House Natal 66/ Despatch 124: Carnarvon to Bulwer, 31 Aug 1875: par 3. 6 Idem at par 7. 7 Idem at par 9. 8 Idem at par 11. 9 NAB GHN (Government House Natal) 73/Despatch 324: Carnarvon to Bulwer, 8 Nov 1876. 10 NAB COL (Colonial Office London) 179/ 126: Bulwer to Hicks Beach, 9 Jan 1878: Enclosure No 1 - Minute of Lieutenant Governor, 31 May 1877. 11 Most of these extra cells were made available by the departure of the lunatics from the gaol in the early part of 1875. A "temporary lunatic asylum" had been set up in the Pietermaritzburg Gaol in 1866 and it was only in 1875 that a separate lunatic asylum was established. See NAB CSO (Colonial Secretary's Office, Natal) 261/Letters 2257: Letter from the Colonial Secretary, Natal to the Colonial Engineer's Office, Natal, 27 Nov 1866 and NAB COL 179/ 126: Bulwer to Hicks Beach, 9 Jan 1878: par 4. 12 NAB COL 179/126: Bulwer to Hicks Beach, 9 Jan 1878: Enclosure Number 1 - Minute of Lieutenant-Governor, 31 May 1877. 13 Ibid. 14 Ibid. 15 NAB COL 179/126: Bulwer to Hicks Beach, 9 Jan 1878: Enclosure No 5 - Notes by Colonial Engineer, 1 Jul 1877. 16 For a more detailed discussion of this point, see S Peté "Falling on stony ground: Importing the penal practices of Europe into the prisons of Colonial Natal - Part 2" (2007) 13(2) Fundamina at 123-124. 17 NAB COL 179/126: Bulwer to Hicks Beach, 9 Jan 1878: Enclosure No 10 - Lieutenant-Governor to Colonial Secretary, 12 Sep 1877. 18 NAB COL 179/126: Bulwer to Hicks Beach, 9 Jan 1878: Enclosure No 9 - Report of Committee, 4 Sep 1877. 19 NAB COL 179/126: Bulwer to Hicks Beach, 9 Jan 1878: Enclosure No 4 - Opening Address of Lieutenant-Governor, 7 Jun 1877. 20 Idem at par 12. 21 NAB GHN 83/Despatch 56: Hicks Beach to Bulwer, 30 May 1878 at par 3. 22 Idem at par 4. 23 NAB COL 179/135: Natal No 828, 17 Jan 1880; and NAB GHN 4/Letter from Hicks Beach to Bulwer, 24 Jan 1880. 24 NAB COL 179/130: Bulwer to Hicks Beach, 31 Jul 1879. 25 NAB COL 179/130: Bulwer to Hicks Beach, 30 Jul 1879. 26 Ibid. 27 NAB GHN 93/Despatch 68: Hicks Beach to Wolseley, 27 Sep 1879. 28 NAB Natal Blue Book 1880 at p JJ45. 29 NAB CSO (Colonial Secretary's Office, Natal) 777/4202: Meeting of Durban Gaol Board, 20 Oct 1880. 30 NAB Natal Blue Book 1880 at p JJ45. 31 NAB CSO 778/Letters 4359: Enclosure - Letter from the Superintendent Pietermaritzburg Gaol to the Resident Magistrate Pietermaritzburg, 10 Nov 1880. 32 NAB CSO 778/Letters 4359: Enclosure - Undated minute of the District Surgeon Pietermaritzburg. 33 NAB CSO 778/4359: Colonial Secretary to Resident Magistrate Pietermaritzburg, 10 Nov 1880. 34 NAB CSO 778/4359: Resident Magistrate Pietermaritzburg to Colonial Secretary, 17 Nov 1880. 35 Regulation 1e of the Rules and Regulations for the Gaols of Natal - Approved by the Governor in Council on 5 May 1882. 36 NAB GHN 380/G. No 80 of 1882: Minute of Colonial Secretary, 29 March 1882. See also NAB GHN 380/G. No 80 of 1882: Enclosure - Circular from Kimberley to Bulwer, 23 Jan 1882. 37 NAB CSO 1119/Letters 504: Enclosure - Letter from the Colonel on Staff Commanding Troops Natal District to Acting Colonial Secretary, 2 Feb 1887. 38 NAB CSO 1119/Letters 504: Minute of the Superintendent Durban Gaol, 4 Feb 1887 in response to the Regional Magistrate, Durban. 39 NAB Natal Blue Book 1882 at p FF109. 40 NAB Natal Blue Book 1882 at p FF91. 41 NAB CSO 897/Letters 858: Enclosure - Report of the District Surgeon Pietermaritzburg, 14 Apr 1883, in which he sets out the resolution of the Gaol Board, Pietermaritzburg. 42 Ibid. 43 NAB CSO 1066/Letters 684: Enclosure - Report of the Superintendent Durban Gaol to District Surgeon Durban, 13 Feb 1886. 44 NAB CSO 1066/Letters 684: Enclosure - Report of District Surgeon Durban, 15 Feb 1886. 45 NAB CSO 1066/Letters 684: Minute of the Clerk of the Executive Council, 22 Feb 1886. 46 NAB GHN 140/Despatch 27: Stanhope to Havelock, 4 Oct 1886: Statement by Clerk of Works. 47 NAB COL 179/ 164: Havelock to Granville, 17 Aug 1886. 48 NAB GHN 140/Despatch 27: Stanhope to Havelock, 4 Oct 1886. 49 NAB COL 179/ 165: Havelock to Stanhope, 6 Dec 1886. 50 NAB GHN 141/Despatch 1: Holland to Havelock, 17 Jan 1887. 51 NAB Natal Blue Book 1888 at p J4-5. 52 NAB Natal Blue Book 1889 at p J6-7. 53 GN 306 GG of 23 Apr 1889 (Natal). 54 NAB COL 179/168: 28 Jun 1889. 55 NAB Natal Blue Book 1890-91 at p JJ12-13. 56 NAB CSO 1345/Letters 4668: Enclosure - Report in Natal Witness, 11 Oct 1892. 57 NAB CSO 1382/Letters 5780: Minute of the Superintendent Durban Gaol to the Regional Magistrate, Durban, 13 Dec 1893. 58 NAB Natal Blue Book 1896 vol 2 Departmental Reports at p F44; and NAB Natal Blue Book 1897 vol 2 Departmental Reports at p F55. 59 NAB Natal Blue Book 1897 vol 2 Departmental Reports at p F25. 60 NAB Natal Blue Book 1898 vol 2 Departmental Reports at p F59. 61 NAB Natal Blue Book 1899 vol 2 Departmental Reports at p F11. 62 NAB Natal Blue Book 1900 vol 2 Departmental Reports at p F13. 63 NAB Natal Blue Book 1902 vol 2 Departmental Reports: Report of Chief Commissioner of Police at p 5. 64 NAB Natal Blue Book 1903 vol 2 Departmental Reports: Report of Chief Commissioner of Police at p 9. 65 Ibid. 66 GN 344 GG of 5 Jun 1906 (Natal): Report of the Prison Reform Commission. 67 Idem at par 67. 68 NAB CSO 2847/Undated Précis of Evidence of the Prison Reform Commission, Natal by B Haslewood, Secretary of the Prison Reform Commission at p 2. 69 The proposal that recourse be had to sentences of corporal punishment in place of imprisonment is interesting from the perspective of the role that whipping, as a form of "racial punishment", played in the history of the colony. See S Peté & A Devenish "Flogging, fear and food: Punishment and race in Colonial Natal" (Mar 2005) 31(1) J of Southern African Studies at 3-21; and S Peté "Punishment and race: The emergence of racially defined punishment in Colonial Natal" (1986) 1(2) Natal University Law and Society R at 99-114. The proposal is also interesting due to the fact that a similar proposal was to be made decades later at the height of the apartheid period in the 1980s in a desperate effort to find solutions to the problem of chronic overcrowding. See Peté (n 2) passim. 70 Note that the problem of overcrowding was only one of many issues addressed by the Prison Reform Commission. Another interesting proposal put forward by the Commission, which is not directly relevant to this article, was the proposal to build a separate "industrial prison" for the treatment and rehabilitation of white prisoners. In the Commission's own - shockingly racist - words: "[P]ride of race alone ought to rouse us from our indifference and lethargy ... Several reasons may be suggested for limiting the proposed innovation to Europeans; of a higher average intelligence, and possessing a higher moral basis, with a better knowledge of the claims of society, and of the advantages of being reconciled thereto, they offer a more promising field for reform than would be presented by individuals of other races." See GN 344 GG of 5 Jun 1906 (Natal): Report of the Prison Reform Commission at pa