When reading Maclean’s, an article occasionally brings to mind different things I’ve read previously. Sometimes, it will conform with what I’ve encountered in a way that strengthens what I’ve come to understand about a topic. At other times, it will go against this understanding, either making me question this knowledge or sort of distrust aspects of the new article. Within the May 2021 issue, I came across an article that did a bit of both, and the why will hopefully make itself apparent before long. The article in question was highly critical of the Canadian prison system,1 describing an institution that’s racist, unnecessarily cruel, expensive, and ineffective. And the author described similar complaints stemming from the 1930s, suggesting that little progress has been made over a long period.i
The author presents a dysfunctional institution in bad need of reform, citing data showing that, when compared to white offenders, Black and Indigenous offenders are more likely to be incarcerated, are more likely to be subjected to harsher discipline––including being subjected to force or placed into solitary confinement––and are less often granted parole. He presents more evidence that prisons do not reduce crime, that they’re costly (and old and at times all but uninhabitable), that inmates are underfed on unhealthy food, and that released inmates frequently reoffend, most on parole violations or non-violent offences––suggesting that the system effectively keeps offenders within the system. And all this is occurring while the inmates lack basic supports that could arguably better work to rehabilitate them, including mental health supports, educational programs, and vocational training. In the face of this, decision makers have been pushing for reform that the author shows to be too little to make a substantial difference, regressive changes, or simply empty promises. Presumably, the intent behind this style of reporting is to draw attention to systemic problems to better inform a public who can exert pressure on officials so that justice is meted out fairly and consistently. This suggests that the author believes the intent behind criminal justice is to effectively perform the way it’s commonly portrayed. An independent judiciary should be granting due process to all the accused, treating everyone as equals and respecting their rights at any point they find themselves within the system, attempting to rehabilitate offenders with the twin goals of allowing them to better function in polite society and preventing future crimes in the process. This argument assumes that the system isn’t functioning in the way it’s intended because officials and workers act against these ideals, and that improving oversight and expecting better of these individuals will set us closer to these ideals. But what if the expressed function is different than the actual function of the criminal justice system?
An alternate proposal of the true function of the prison system can be found in Michel Foucault’s Discipline and Punish.2 In it, he takes a historical analysis of the movement to reform criminal justice during the Enlightenment that eventually brings us to a modern penitentiary. Foucault shows that common points of criticism of prisons began long before the examples cited above, in fact at a time coinciding with the acceptance of incarceration as a widespread penalty in the early 1800s.ii In addition to this, reform movements cropped up in the mid-1800s, with the principles of reform repeating point-for-point around a century later, and the institution continues to resist change across more than 200 years. To truly understand why this is, Foucault proposes reframing the problem, instead of asking why prisons continually “fail” in their goals, asking what is served by the system’s “failure.” Is there a use of the things that are continually being criticized, such as the maintenance of delinquency, the encouragement of recidivism, or the transformation of the occasional offender into a habitual delinquent? To begin to answer this, it’s instructive to look back at punitive justice as it existed before the modern criminal justice system and the changes that eventually brought us to the modern system.
In the 17th and 18th centuries, punishment of criminals largely consisted of violent public tortures and executions. This was not performed in order to redress balance from crimes, and it was not done at the service of the direct victims of crime, but in order to ceremonially demonstrate the power the sovereign possessed over the populace––along with the huge imbalance of power between the two––largely in an attempt to control citizens through terror. It appeared reasonably effective when everyone obediently played their respective parts in the ceremonies, but these public displays also inflamed the passions of the commoners, especially when they felt the punishment was particularly unfair and they effectively intervened in the executions, attacking the agents of the state and saving the criminals. In this way, the lower classes increasingly discovered the measure of power they possessed over the will of the sovereign, leading to more and more instances of effective rebellion in the years leading up to the French Revolution.
Reformers during this period pushed largely for a limiting of the power of the sovereign in matters of justice, not in order to be fair to the populace but to be more effective in their control. By eliminating the traditional ceremony that allowed for this clash between the will of the sovereign against the will of the people, the power and solidarity of the lower classes that increasingly came out of the ceremony lost this mechanism for expressing itself. The plan became to codify punishments and rigidly implement them, still publicly but with great restraint. The intent was to better embed punishment within the social fabric in order to create a strong association in the minds of citizens between crime and punishment, effectively training them into submission, but also to change the view of punishment from the power of certain privileged individuals over others to a natural reaction of all in relation to the individual.
By the end of the 18th century, as capitalism begins to take hold as the dominant economic system and the bourgeoisie dominates politically in the Western world, there was a separation of different types of illegalities and how they were punished. This came at a time that different lower class political movements relied on existing illegalities, different forms of peasant and worker disobedience against a state apparatus increasingly favouring landowners and employers. Legislators began openly expressing their intention to target lower classes with their laws, justifying it by blaming the lower classes as being the drivers of crime. Property crimes, typically committed by the lower classes, became more rigidly enforced and more heavily punished, while crimes commonly committed by landowners and employers, including fraud and tax evasion, were judged through special legal institutions and provided attenuated penalties, including accommodations and reduced fines. An increase in policing accompanied these changes, though property crimes were largely the focus of their surveillance and enforcement. An explicit, coded and formally egalitarian juridical framework masked the development of disciplinary mechanisms, which were systems of micro-power that are essentially non-egalitarian and asymmetrical. And the disciplinary mechanisms themselves exist within the power to punish, which became autonomous from the legal system that judges and sentences in order to be effective in proposed rehabilitative goals––also becoming somewhat arbitrary in how this punishment was enacted in the process. By rehabilitation, however, it should be noted that reformers had in mind something other than what I suspect is commonly now understood by the term: the creation of an obedient subject. And this is accomplished through techniques of coercion and constraint.
The prison system became hugely effective in rendering segments of the population less politically and economically dangerous while simultaneously making them more useful to those in power. By pulling offenders into the system, it created an environment of delinquents that was easier to supervise and broken off from the general population. Punishment––typically involving physical punishment, deprivations, and humiliations––became employed for even the smallest infractions along with rewards and privileges for good behaviour to train inmates to become obedient and docile. This isn’t in the service of the elimination of crime, but to distinguish crimes, distribute them, and use them. Localized crimes of limited power that were economically negligible became tolerated, as were those that could be used for the benefit of the dominant groups.iii And the environment effectively maintains itself. Prison brings offenders in contact with one another, facilitates supervision of individuals upon release, and elements of non-rehabilitation––including unemployment, prohibitions on residence, and probation requirements––serve to keep delinquents within the system.
Should Foucault’s analysis be given any credence, it leads to a number of implications. For one, the context of racism within the criminal justice system changes if we view it through the lens of prison as an instrument to divide and control groups of people. This is in line with the history of dominant groups oppressing Indigenous peoples in Canada, so it makes sense to me that such a tactic should be maintained in an institution resistant to change, where continual push for ineffective reform can make us all feel better that we’re “doing something about it.” And if we want to actually make meaningful changes to what many consider such a failure of a system, it would do us good to look at things from this perspective to better find solutions. Within his book, Foucault mentions two main paths to change. The first is to reduce the utility or increase the inconvenience of accommodated delinquency as a specific illegality that can be locked up and supervised.iv The second path involves the disciplinary networks that grew in wider society at the same time as the penal apparatus, in the realms of medicine, psychology, education, public assistance, and social work. All of these have increasingly been involved in assessment, supervision, and the training of populations, and the more that important, traditionally judicial powers are transferred to them, the less useful prison becomes in this role––which sounds to me eerily close to some more recent discussions around defunding the police.
From here, Foucault suggests that the real political issue around prison lies not in whether prison is to be corrective or not; not on who is to exercise power within this system; not on whether we should have prisons or something else in their place. Rather, the issues we should be discussing more urgently are the steep rise in disciplinary mechanisms at play in the control of the population and the wide-ranging powers which they bring with them.
i. Mumia Abu-Jamal provides similar criticisms about the U.S. system during the ’80s and ’90s in Live from Death Row,3 showing a continuity of these common problems stretching across borders.
ii. The points of criticism from the early- to mid-1800s should sound familiar: Prisons do not diminish the crime rate; detention causes recidivism, further caused through restrictions placed on offenders after release; the system continuously produces delinquents through improper education, isolation, useless work, the arbitrary imposing of punitive measures, and by imposing violent constraints on its inmates; it creates criminal connections between inmates; and it indirectly harms the families and communities of the incarcerated.
iii. Beneficial illegalities include those that the dominant groups can directly profit from, such as tolerated and supervised prostitution in France in the 1800s, the illegal sale of alcohol in prohibition countries, or the drug trade in contemporary times. Delinquents are also tolerated when they can be used for surveillance of the lower classes, frequently as informers, though they have been used at various times as agents to infiltrate and break up political parties and organizations seen as dangerous to the dominant groups. There have also been instances in history of criminals being recruited as thugs against strikers and rioters, or as reserve labour or a parallel force to the police at the disposal of the state, as was the case in France in the mid-1800s.
iv. He gives two examples of this. The first is that this system can be shown to be at least somewhat ineffective in the face of growth of great national or international illegalities directly linked to political or economic apparatuses––including financial illegalities and arms or drug smuggling––which can be used as justification for changing to a system that can better address these threats. The second is that the economic levy on sexual pleasure is carried out more efficiently through the proliferation of and access to pornographic materials and contraceptives, which reduces the usefulness of the archaic hierarchy of prostitution.
- Ling, Justin. “Houses of Hate.” Maclean’s, May 2021, pp.78-85.
- Foucault, Michel. Discipline and Punish: The Birth of the Prison. Vintage, 1979.
- Abu-Jamal, Mumia. Live from Death Row. Harper Perennial, 2002.