2015-2016 Lecture Series

[00:00:00] SPEAKER 1:
So it gives me unusual pleasure this afternoon to be with you And to welcome you all to Berkeley’s campus this afternoon for the Tanner Lectures on Human Values. The distinguished lecture series is presented annually at each of nine universities, including, of course, UC Berkeley. The others are Cambridge and Oxford, and in the US, Harvard, Michigan, Princeton, Stanford, Yale, and Utah.

The series was founded in 1978 by the American scholar, industrialist, and philanthropist, Albert, Obert Clark Tanner, who was also a member of the faculty of philosophy at the University of Utah, and he he was an honorary fellow as well of the British Academy. Tanner’s goal in establishing the lectures through the Tanner Philanthropies was to promote a search for a better understanding of human behavior and of human values. He hoped that the lectures would advance scholarly and scientific learning in the area of human values and contribute to the intellectual and moral, moral life of humankind.

Human values is defined, uh, uh, in this series, uh, both here and across the other campuses as broadly as possible, and the lecturers are in fact chosen from a very wide array of disciplines. The lectureships are international. Uh, they transcend, uh, distinctions of any particular kind, uh, and, uh, and they invoke, uh, uh, the kind of objectives, I think, of the founder, uh, Obert Tanner, uh, by reaching out, uh, not only across different, uh, segments of the university, but beyond the university to the largest issues of our time.

The lectures from all nine universities are published in an annual volume. In addition, Oxford University Press publishes a series of books based on the Berkeley Tanner Lectures. The eighth volume of the series was published in twenty thirteen, and the ninth volume went to press this year.

Two further volumes are currently in preparation. So the Tanner Lecturer, of course, is chosen for her or his uncommon achievement and outstanding abilities in the field of human values. Uh, at Berkeley, the Tanner Lecturer is appointed through a faculty committee.

Uh, and I wanna congratulate my colleagues, Professors Martin Jay, Hannah Ginsborg, Jay Wallace, Christopher Kutz, Kinch Hoekstra, Niko Kolodny, and Kevis Goodman for their brilliant choice of this year’s lecturer, Didier Fassin.

[00:02:32] CHANCELLOR DIRKS:
I’d like to call on my distinguished caller, uh, colleague, Professor Martin Jay, Vice Chair of the Tanner Lectures Committee. I’m actually the chair, but, uh, I delegate my authority uh, in every instance to Marty. Uh, I’d like to ask him to come and introduce Didier, uh, and the commentators, and he will also moderate the discussion that follows.

So Marty, uh, please come forward.

[00:02:57] MARTIN JAY:
Thanks.

(applause)

Thanks very much, uh, Chancellor Dirks. Before, uh, I begin, I, uh, want to, uh, make a presentation. Uh, the chancellor mentioned, uh, that we produce, if we’re, we’re lucky, uh, books from the, uh, from the lectures.

And this year we have not one, but two, and we’re delighted to, uh, present them to the chancellor. The first from several years ago is The Trolley Problem Mysteries, Frances Kamm’s lectures with Judith Jarvis Thomson, Thomas Hurka, and Shelly Kagan. The second, uh, is Eric Santner’s The Weight of All Flesh with Bonnie Honig, Peter Gordon, and Hent de Vries.

Now, these books are also edited by Berkeley faculty. Normally, it’s a fairly perfunctory task. I did it once many years ago.

It went very smoothly. These were, uh, challenges, and so I want to, um-

(laughter)

Uh, uh, it’s a kind of midwife, uh, situation.

(laughter)

You basically- And here, these were basically, uh, cesarean births. Um-

So let me, uh, I don’t know if Eric, uh, Rakowski is here. Is Eric here? Uh, Eric from the, Eric Rakowski from the law school did the book, uh, that, uh, Frances Kamm and her colleagues produced.

And, uh, Eric Santner’s book was edited by Kevis, uh, Goodman. So I’d like to give both of them a serious round of applause.

(applause)

And then- Thank you. Uh, it gives you an opportunity, those of you who have been to the lectures, uh, to revisit them and to see really what the substance of the issues are. I mean, it’s a terrific opportunity to see, uh, how really smart people, uh, talk about interesting ideas.

(applause)

The Jewish Kabbalah tells us that at any one time, there are 36 humble, righteous persons on the earth, the so-called, uh, Lamed Vav, uh, Tzadikim Nistarim. 36 just men whose identities are not known, not even to themselves. Scattered throughout the diaspora, they do not know each other and never claim that they are one of the holy 36, for to do so would violate the virtue of humility, uh, anava, uh, which is one of their defining traits.

On occasion, they emerge from their self-imposed concealment to perform great deeds, often thwarting the persecution of their people, and then they return to their lives of quiet anonymity. It is, so the legend goes, for the sake of these 36 righteous people that God preserves the world, even if the rest of humanity has regressed to the level of unspeakable barbarity. Now, I’m not going to try to convince you that our Tanner lecturer this year, that, uh, Didier Fassin, is himself literally a Tzadik, one of the 60, uh, 36 hidden just men of our day, whose identity is not even known to himself.

For even if I did claim that he was, he would deny it, and I would have no right to contradict him.

(laughter)

But there is another wrinkle, another wrinkle to the legend, which may nonetheless allow us to invoke it this afternoon. Since nobody really knows who the tzaddikim are, not even themselves, every Jew, everyone, is enjoined to act as if he or she might be one of them. That is, everyone is obliged to lead a holy and humble life, and to work with as much energy as he or she can muster to alleviate the misery of our fellow human beings.

Now, of course, the vast majority of us, Jews and Gentiles alike, fail to reach this lofty standard, but there are some people, some who come a little bit closer than others. They understand that there is an implicit corollary to the charge of those who are invited each year to deliver the Tanner lectures at Berkeley. The charge, and this is from the, uh, original, uh, uh, idea of the lectures, to advance and reflect upon the scholarly and scientific learning related to human values.

That is, they understand that reflection must lead to action, that theory is only as good as the practice it produces, that ethics is not a formal exercise in clever logic chopping, but an imperative to change the world and to change it for the better. Didier Fassin began his career in Paris as a physician, practicing internal medicine and teaching public health. And he did so before realizing that healing on a more profound level required addressing social and cultural questions as well.

Pursuing then a master’s degree at the Sorbonne and a doctorate at the École des Hautes Études en Sciences Sociales in sociology and anthropology respectively, he became professor at the University of Paris Nord and director of studies at the École des Hautes Études. At the CNRS, the Centre National de la Recherche Scientifique, he created and directed, uh, IRIS, or Iris, I guess in English, the Interdisciplinary Research Institute in Social Sciences, before assuming position, a position which he now holds at the School of Social Sciences of the Institute for Advanced Study in Princeton. Uh, and he’s been the James D. Wolfensohn Professor there since 2009.

At the crossroads of three disciplines, Didier Fassin has conducted numerous studies in the field of medical anthropology, focusing on issues of power and inequality on some four continents. His fieldwork has extended to Tunisia, Senegal, Congo, Ecuador, Venezuela, the Middle East, and of course, his native France. To mention only one especially vexed issue in particular, he’s done valuable research on the politics and experience of AIDS in South Africa, situating it in the context of the terrible and alas enduring legacy of apartheid.

In addition, he’s probed the often ambiguous implications of humanitarian responses to crises around the world, often explicit in the fateful entanglement of aid with military intervention, but even evident lexically in the replacement in our vocabularies, seemingly innocent replacement of terms like injustice with suffering or violence with trauma and resistance with resilience. Fassin’s interest in humanitarianism, as befitting a possible Tzadik, has itself not been merely scholarly, as shown by his service for several years as vice president of the international organization Médecins Sans Frontières, Doctors Without Borders, which brings medical aid to areas of the globe where it is most needed, and often, of course, in very dangerous circumstances, as the recent bombing of one of its hospitals in Afghanistan sadly shows. Most recently, he’s explored the treatment of immigrants, refugees, and minorities in France, and conducted a more general ethnography of repressive state mechanisms, including the judicial and incarceration systems.

Didier Fassin’s, uh, voluminous published work, and when I looked last week, it was something like 38 pages of bibliography. Maybe it’s up to 40 now since I looked. It would take us all three days of the Tanner Lectures simply to recite them, and so let me, uh, mention only some of his most recent books available in English.

When Bodies Remember: Experiences and Politics of AIDS in Africa, in South Africa, which came out in 2007. The Empire of Trauma: An Inquiry into the Condition of Victimhood, which came out in 2009. Humanitarian Reasons: A Moral History of the Present, 2011.

And Enforcing Order: An Anthropology of Urban Policing, 2013. And at the Heart of the State: The Moral World of Institutions, 2015. And I gather forthcoming is a volume on Prison Worlds and Ethnography of the Carceral Condition.

Now, his recent interest in the challenges confronting states that seek to apply penalties wisely, fairly, and effectively to enforce their laws and maintain order, uh, his recent interest has motivated the lectures he will present this week at Berkeley. The general title is The Will to Punish, with today’s first lecture on what is punishment, and tomorrow’s on why punish and whom. As is our standard practice, the first lecture will be followed by a response by one of our commentators, uh, in this, uh, case, Bruce Western, who I’ll have the pleasure to introduce, uh, before he speaks.

And tomorrow’s by, uh, our other two commentators, Rebecca McLennan and David Carland, uh, Garland, who will be introduced by, uh, Chris Kutz. Our main speaker will have a chance to respond on each day with only, alas, a few minutes, if that, for audience questions before we have to adjourn. But on Thursday, and this is a good reason to come back for the third day, after another round of commentators’ thoughts and Didier Fassin’s responses, we will have, we promise it, ample time for discussion from the floor.

Well, there may after all be other tzadikim in the audience. Now, if so, they will, I’m sure, reveal themselves by keeping their comments to the point and their questions tightly focused. Well, we’ll see how that works.

But this is getting ahead of ourselves. So without further ado, it’s my enormous pleasure to turn the floor over to this year’s Berkeley Lecturer, Didier Fassin.

(applause)

[00:12:17] DIDIER FASSIN:
Well, to thank you for, uh, your words, uh, would be to acknowledge what you said and, uh, to contradict the principle of humility, uh, that you evoked about the Sadiki, so I won’t. Delivering the Tanner Lectures on Human Values is an immense honor, and succeeding the impressive list of distinguished scholars and intellectuals who have j– previously given them is a great privilege. Anthropologists and sociologists are certainly not the most represented on that list, but I will use my disciplines in an interdisciplinary and sometimes undisciplined manner for what I hope will foster a fertile conversation with philosophers and theorists who are more habitual, uh, presenters of these lectures.

In light of the history of the University of California, Berkeley, and of the social and political engagement of its students and professors for important causes in the past, I cannot think of a better place to speak about punishment in contemporary societies and examine the current will to punish. On a personal note, I should add that this campus is also dear to me for hav-having been the first one where my work was, uh, recognized in the United States and where I have maintained long-lasting friendships. I’m especially grateful to Professor Nicholas Dirks and Martin Jay, and

(cough)

to, uh, the, uh, members of, uh, the Tanner Committee for having invited me, to Ellen Gobler for having organized my visit, and to Professor David Garland, Rebecca McLennan, and Bruce Western for having accepted to comment on my lectures, which is, after all, only a fair return considering how much I’ve learned from their work. Their, uh, remarks and criticisms are all the more welcome since what I will discuss is the result of an entirely new inquiry. I will today try to answer the question, what is punishment?

Leaving for tomorrow the interrogation, why punish and whom? But let me offer as a prologue, prologue, uh, a tale of two societies. In his 1926 essay, Primitive Crime and Its Punishment, often considered, uh, to be foundational, uh, a foundational text of legal anthropology, Bronislaw Malinowski recounts an episode that occurred during his fieldwork in the Trobriand Islands and profoundly influenced his views on law and order in savage societies as he named, he names it.

Quote, “One day, an outbreak of wailing and a great commotion told me that the death had occurred somewhere in the neighborhood. I was inform-informed that Kimai, a young lad of my acquaintance of sixteen or so, had fallen from a coconut palm and killed himself.” ” End quote.

Upon his arrival at the village where the mourning and burial took place, the anthropologist noted several pecu-peculiar facts, such as an unusual hostility among the participants, but did not pay attention to them, as he was more interested in the unfolding of the ceremony. Quote, “Only much later was I able to discover the real meaning of these events.” The boy had committed suicide.

The truth was that he had broken the rules of exogamy, the partner in his crime being his cousin, the daughter of his mother’s sister, unquote. Indeed, as is the case in totemic societies, having sexual relations, and even worse, marrying with someone of one’s own clan was deemed by Trobrianders the most serious infringement of their moral system. Yet, Malinowski insists, whereas, quote, uh, “This is, uh, the ideal of native law and therefore a crucial norm of social life.

When it comes to the application to real life, things take a different complexion.” Unquote. As his long-term presence in the field allowed him to observe, in practice, although the breach of the, of the taboo of endogamy was not uncommon, it was reproved but tolerated.

“Public opinion is lenient, though decidedly hypocritical,” writes the ethnographer. In fact, such situations were the objects of disapproving comments or even magic rites or spells, but never of social sanctions, as long as they remained private affairs managed with discretion. Only when they turned to– into public scandals did they generate a reaction, which generally consisted in the suicide of one of the of the culprits.

After having ineffectively threatened his rival with sorcery, the discarded lover went out on the village place and hurled ab-abuse at him, accusing him of incest. For the unfortunate youth, the only possible remedy for such a public shaming was to take his own life. The next morning, he put, he put on his f-festive attire and ornamentation, climbed on a coconut palm, and addressed the community.

After having bid farewell to the members of his clan and moaned aloud in a customary manner, he jumped from the tree and killed himself. The youth’s death then called for vengeance, and the rejected lover was wounded during a fight. The resulting tensions between the two clans thus explained the animosity perceived during the funeral.

However, for the anthropologists, the most significant element of the incident was not the suicide, but rather the rarity of such acts compared with the banality of endogamic love affairs. Most of the time, what his informants described as the most horrific deed they could imagine did not receive any particular retribution when it actually occurred. Gossips were the rule, condemnation the exception.

Rituals invoking supernatural forces sufficed to undo the evil of the incest. According to Malinowski, this treatment contradicted the common belief of his time that traditional societies were governed by strict norms which people slavishly obeyed for fear of grave sanctions. Conversely, they invented and transmitted ways to circumvent the apparently rigid law.

From the anthropologist functionalist perspective, rumors and magic serve to preserve its social order while enforcing its moral code. In the end, even the rare event of the punishment belonged to a moral scenography very remote from the re– the usual images of repressive norms and barbarous chastisements. It was a self-inflicted sentence that could be regarded as expiation or protest rather than retribution.

Almost a hundred years later, on the other side of the world, Jennifer Gonnerman, a writer and journalist, reconstitutes in an influential 2014 New Yorker article titled Before the Law, the biography of a young man, an African American man, named Kalief Browder, who spent more than a thousand days in the dreadful jail of Rikers Island without having found– been found guilty of any crime. Four years earlier, at the age of sixteen, as he was walking back home in the Bronx with a friend, the two adolescents were suddenly surrounded by s-several police cars, stopped and searched, and finally handcuffed and taken into the precinct. They learned that they were accused of stealing the backpack of a Mexican immigrant, who changed several times the detail of his story, as was learned later.

Although they denied having committed any crime, they were locked in, uh, uh, in a holding cell. The next day, they were taken in– they were taken to the county criminal court and charged with robbery, grand larceny, and assault. While his friend was released and left free before the trial, Browder, who was on probation for a previous offense, remained in custody with a three thousand dollar bail.

His mother, who was raising seven children, five of whom, including him, had been adopted, could not afford paying such a sum. He was therefore transferred to Ri-Rikers Island, where he became one of the six hundred minors incarcerated in an overcrowded jail where conditions are notoriously seriously grim, according to the author. During the following three years, he was brought to the courtroom dozens of times, but it, but his case could never be heard because of technical problems, unpreparedness of the file, or unavailability of one of the protagonists of this justice system.

“These guys are just playing with my case,” he later commented. Although the Ready Rule of the State of New York stipulates that if a felony case is not brought to trial within six months after arraignment, charges should be dismissed, the repeated adjournments rendered this rule inapplicable. On several occasions, the prosecutor offered Browder a guilty plea in exchange for a minor charge, and the court-appointed lawyer encouraged him to accept it, but he did not.

Toward the end of his stay in jail, the judge e-even told him she would immediately release him if he pleaded guilty. Were he to refuse, he would instead remain incarcerated until his trial. As had been the case each time he was proposed such a deal, he rejected it and claimed his innocence.

This attitude was rather exceptional. The year before in the Bronx, only 165 felony cases went to trial, whereas almost 4,000 ended up as guilty pleas. In the meanwhile, the condition of life in prison were becoming harsher.

One night, the guards lined up a group of inmates to find out who were– had been involved in a fight and beat them up after– one after the other. Then, as several were badly hurt, they told the youth that, uh, they, uh, when if they went to the clinic and explained the reasons of their condition, they would be sent to solitary confinement in retaliation. They all returned in silence to their cell.

Solitary confinement was a common penalty. More than one-fourth of the minors were restricted to such punitive cells on any given day. This is what happened to Broder after a scuffle with the prisoner.

In total, he served two-thirds of his time in solitary confinement. But punishment could take less official forms. Once he had words with an officer who the next morning, as he was taking, taking him a handcuffed to the shower, he knocked him down, smashed his face to on the floor, and punched him viciously.

Another time, he was assaulted, pummeled, and kicked by a group of inmates in the presence of guards who intervened half-heartedly. These were not mer-mere allegations, and video footages of the two incidents were later released, revealing the violence of the beatings. As time went by, not surprisingly, Browder became more withdrawn and depressed.

He tried various times to commit suicide, especially after being told about adjournments of his case. Finally, a few days after he turned twenty, on his thirty-first hearing, the judge told him that they had to drop the charge as the accuser had returned to his country and could no longer be found. The young man was freed, went back home, resumed his studies, took a computer course, and vainly looked for a job.

Celebrities became interested in his case after reading his story and tried to help him. However, his mental health deteriorated. He isolated himself in his bedroom, left increasingly uncomfortable, felt increasingly uncomfortable in the presence of people and began to think that he was under surveillance.

“I feel like I was robbed of my happiness,” he once said to Gonneman. On the 6th of June, 2015, he hanged himself. He was twenty-two.

So why juxtapose, uh, these two cases apparently so dissimilar, despite the fact that they both tragically end up with the suicide of a young man? One being ethnographic and somewhat exotic, the other one biographic and sadly familiar. Beyond their obvious distance in time, space, and culture, they both– they are both stories of crime and punishment that I argue question our common understanding of what punishing means in its relation to crime.

Habitual assumptions about punishment are first, that it is a retribution or the infliction of a pain on an offender or someone supposed to have committed a wrongdoing for a legal or moral offense. And second, that the punishment to be war-warrantable has to be, uh, legitimate on a legal or moral basis and adequate in relation and proportion with the crime. Indeed, over the past three centuries, both definition and justification have been discussed, circumscribed, and specified by moral philosophers and legal theorists from Cesare Beccaria to John Rawls, from Bentham and Kant to Nigel Walker.

and James Q. Wilson. This orientation led to focus on a particular domain, the legal system and its moral presuppositions, and adopt a distinct normative approach, whether utilitarian, retributivist, or both. But when considered in light of these common sense assumptions and theoretical discussions, it is clear that the stories told by Malinowski and Gorneman do not fit well the usually accepted understanding of punishment.

They simultaneously broaden and shift them. They are partially in excess and partially outside this framework. In the case of Kimai, there is a crime, but no punishment, at least in its generally agreed sense.

Indeed, the violation of the exogamic law is acknowledged, but according to the anthropologist’s account and analysis, the initial and most common reaction of the group is simply to ignore it, limiting the response to gossips. Then it may consist in tactics aiming at circumventing the sanction by resorting to supernatural forces, such through rituals supposed to repair the offense, or spells intended to avenge the offended. Finally, if the previous ways of dealing with the incident have failed because the case has become public, the resolution of the crisis is obtained, at least provisionally, via the suicide of the offender, which resembles more an atonement than a retribution, since it is chosen rather than imposed.

As long as there is no major disruption of social life, indulgence combined with possible delegation of sanctions to magical powers is the rule, as has also been described in various other ethnographic accounts. Suicide remains the exception. One could possibly object, however, that from the native native’s perspective, it corresponds to a local form of death penalty.

But Malinowski makes it clear that, quote, “Suicide is certainly not a means of administering justice and results from a feel- a feeling of guilt combined with a will to protest against the intolerable insult uttered at, against the offender,” end quote. In other words, the idea that a crime, and perhaps even the worst, the worst one in this, in this case, calls for a punishment cannot be regarded as a general and universal truth. This assertion that I’m making signifies more than, than the banal relativist affirmation that punishment takes different forms in different societies.

It is a statement on what we consider to be self-evident about the necessary moral link between crime and punishment, that a crime should be punished. In the case of Browder, conversely, there is a punishment, but no crime, at least at it appe- at it appears in the end. Of course, one could argue that there was a reasonable suspicion of an offense based on the allegation of the accuser.

However, this suspicion was the jus- the justification to move the case to the courts, but not to decide to send the young defendant to jail. His imprisonment was n-was not the direct consequence of the alleged crime since his friend’s, his friend was left free.

It had two justifications. First, a previous offense existed for which he was on probation, and second, the judge set a bail fixing an amount substantially above the financial capacity of a poor household. Incarceration was thus the result of the conjunction of legal mechanisms and economic constraints, the latter being the determining factor.

Moreover, even if it had initially been the reason for moving the case to the courts, the suspicion of crime probably faded with time as the accuser had appe– had disappeared and could not be reached. While it is a common practice to propose guilty pleas in exchange for minor sentences, the pressures exercised by the judge at the penultimate hearing in order to obtain the admission of the offense suggest that it was a way to legitimize a posteriori the three years spent in jail, and symmetrically, the insistent refusal of this supposedly advantageous deal by the young man, even when it would have meant his immediate liberation, attests to his sincerity. Yet one could also dispute the fact that imprisonment is retribution.

The young man would have simply been remanded, Remanded, been remanded in custody, uh, to make sure that he would not endanger society and would appear at his, at his trial, although there was little evidence, uh, of the contrary, uh, of these alleged risks. But the infamous conditions of Rikers Island, documented by various official reports and journalistic accounts, especially regarding the adolescents’ ward, leave little doubt upon the judge’s awareness that her decision would imply the infliction of a pain. The amount of suffering endured is, in this respect, considerable when related to the suspected offense.

Three years of such harsh treatment for having supposedly stolen a backpack. Indeed, imprisonment is only one aspect of the punishment. It is, in fact, within the facility itself, where the internal rules produce additional sanctions that both definition and justification of punishment are most obviously put to the test.

Retributive practices, either, uh, administrative, solitary confinement, or informal beating up, indefinitely expand the punitive logic through mistreatment, illegal acts, arbitrary decisions, and collective penalties. A last objection should be discarded. One might view the case as a mere judicial error, which would amount to considering, to considering it as individually faulty rather than sociologically relevant.

However, no mistake was committed. And the procedure leading to the incarceration of someone deemed innocent until proven guilty is common practice within the jus-justice system. In sum, on the one hand, it is not the crime or the suspicion thereof that is punished, but ultimately the social disadvantage, since the chance of being incarcerated comes down to the possibility of paying bail.

And on the other hand, even supposing the, uh, that the offense is established, the punishment is tremendously in excess of the crime, both quantitatively for the time spent in jail and qualitatively for the conditions of the stay. The young man’s suicide is the ultimate protest against the injustice that such a severe punishment could be inflicted for a crime that was never committed. The parallel between the two cases, which I take as a heuristic rather than systematic comparison, therefore invites us to formulate a few provisional conclusions.

First, crime does not inevitably require punishment. Alternate responses exist even for the worst offenses, including disregarding them. Second, punishment does not necessarily result from a crime.

It can proceed from other logics, socioeconomic, for instance. Third, a major crime can lead to a minor penalty and a minor offense to a major punishment. Such discrepancy refutes the principle of adequacy and consequently questions the legitimacy of this retribution.

Fourth, the actual punishment of an alleged crime may substantially exceed its apparent delimitation. The official sanction allows for much more re-redoubtable and invisible ones, especially within the present system. In other words, the relationship between crime and punishment is less straightforward and more indeterminate than what common sense and normative theory suggests.

But it is also indicative of deeper political and moral trends within societies. Trobriand Islanders seem to be flexible in the application of rules and lenient in the sanction of their violations, preferring gossips to verdict, rituals to retributions, and at, as last resort, suicide to penalty. They privilege accommodation over punishment as a mode of regulation of crime and deviance.

By contrast, in the United States, one forces the innocent to plead guilty, penalizes the poor more than the wealthy, and condones arbitrariness and violence within the carceral apar-apparatus. Crime and deviance are governed through punishment at whichever cost in terms of inequity in the implementation of the law and unfairness in the distribution of sanctions. If, as David Garland has it, punishment must be thought as a social institution, then the way in which it is actually defined, justified, and applied becomes a social analyzer of the political and moral realms in the societies we study or live in.

In these lectures, I will therefore try to answer three broad questions: What is punishment? Why punished? And who is punished?

In other words, I will address three points: the definition, justification, and distribution, distribution of punishment. But I will limit my, uh, the, my, uh, understanding of punishment to its public expression within institutions that are charged of its execution, and consequently excluding punishment inflicted in private space, such as the family, or in institutions whose prime function is not punitive, such as the school or the workpla- place. I will do it by resorting to an anthropological approach, broadly understood.

By this expression, uh, anthropological approach, I simply mean a way of apprehending the social world, with a propensity for astonishment. That is a cultivated aptitude to consider any fact or situation not as the effect of a necessity, but as the product of a certain social configuration which, had it been different, would have generated a distinct reality. Such an epistemological principle leads to examine further what are the implications of the fact that this is how reality is shaped, and not otherwise, both in the everyday life of people and in the fabric of society at large.

This approach relies in particular, although not exclusively, on two methods: genealogy, which facilitates astonishment, and ethnography, which explores its implications. The genealogy method, by using historical as well as ethnological cases, questions the self-evidence of the present state of the world. The existence of other responses to the violation of social rules, be they moral or legal, in societies distant in time or space, calls for an exploitation of the path that led to what we tend to take for granted.

Although it proceeds from the same interrogation as what Michel Foucault calls critique in his famous text, What is Enlightenment? The analytical depth that I will propose is more indebted to Nietzsche. The ethnographic method, which consists in a long-term presence in a given social world, enables familiarity and mutual trust with its members.

In the past ten years, I’ve c-conducted a series of ethnographic studies on law enforcement and the prison system in France. I spent fifteen months observing the activity of police patrols, especially that of the anti-crime squads in disadvantaged neighborhoods. The most important urban disorders of the last quarter of the century in the country coincid- coincidentally took place during that period.

I later did a four-year fieldwork in a correctional facility where I was given full access to wards and cells, probation hearings, and disciplinary boards, and where I could meet freely with guards and inmates, wardens and chaplains, magistrates and social workers, sometimes following the penal career of offenders from their immediate immediate appearance trial to their incarceration, and finally, their liberation. In an effort to link the microsocial and the macrosocial, I have attempted to relate the local scenes I have observed with the transformation of contemporary French society. This hybrid and somewhat unorthodox approach combining genealogy and ethnography will, I hope, lead to a productive conversation with moral philosophy and legal theory, as well as a fertile discussion with the other disciplines of the social science convened, uh, at this– for these lectures, in particular history, sociology, and demography.

But beyond the academic exchange, the choice of the topic for these lectures and of the way to approach it is an invitation to a more engaged reflection on the unprecedented punitive moment of contemporary society, its troubling meaning, and de-deleterious consequences. So what is punishment? For the past fifty years, most writing on punishment have referred to the definition provided by H.L.A. Hart in his presidential address before the British Aristotelian Society in 1959.

Insisting on the importance of distinguishing what punishment is from what justifies it, the legal scholar proposes, quote, “the standard or” central case for punishment in terms of five elements.” “Punishment,” he writes, “must involve pain or other consequences normally considered unpleasant.” It must be for an offense against legal rules.

It must be of an actual or supposed offender for this offense. It must be intentionally administered by human beings other than the offender. And finally, it must be imposed and administered by an authority constituted by a legal system against which the offense is committed.”

Unquote. This definition serves to most authors until today as the cornerstone for their reflection. This five-criteria definition offers, from the perspective of criminal justice, a sort of pure description of what punishment should be in contemporary society with the dual legitimacy that it conveys, moral legitimacy, since it concerns an offense and applies to the offender, and legal legitimacy, since a legal rule has been infringed and a legal authority, uh, decides and executes the sanction.

Although it is not meant to be used as a justification, this definition nevertheless contained the principle of its legitimization, including that of its core modality, the infliction of pain or a softer equivalent. Being the sanction of an offender and being delivered by legal means, punishment can only appear to be just deserts, and so it is in most legal and philosophical writings. This is why Hart himself, who write, writes in the context of intense parliamentary debate on capital punishment in the nineteen fifties in Britain, warns his audience against what he calls a definitional stop, stop, which, quote, “would prevent us from” investigating the very thing which modern skepticism would most calls into question, namely the rational and moral status of our preference for a system of punishment under which measures painful to individuals are to be taken against them when they have committed an offense.”

So the crucial question, quote, “Why do we prefer this to other forms of social hygiene whi- which we might employ instead to prevent anti, uh, social behavior? Unquote. This question must therefore not be dismissed with a definition.

That’s what he says. The risk of adopting the standard case while ignoring its many exceptions is thus to debar a critique of punishment. So let us consider the following incident which occurred during my fieldwork with law enforcement patrols, uh, a few months before the 2005 riots in France.

One late afternoon, the resident of a housing project calls the police to inform them on the presence of a noisy quad bike in the n– in the park nearby. A crew is quickly dispatched on the site, and on their arrival, the three officers attempt to intercept the vehicle. Trying to escape, the young driver falls off his bike without hurting himself, and the officers rush to catch him.

As they are bringing him under control, several youth who were lingering in the park come to the defense of the friend, of their friend, surrounding the agents in, uh, what would be described as a menacing way. The three men decide to retreat without having arrested the culprit and called the precinct for reinforcements. A few minutes later, half a dozen police vehi-vehicles, including unmarked ones with, uh, anti-crime squads, arrive at the scene with lights flashing and sirens wailing, wailing.

Close to twenty officers storm into the park and start chasing the teen-teenagers who ha– who are hanging around. On this spring evening, families are still enjoying the long daylight with children playing near their parents. As they try to catch the youth at random, officers run into some of these peaceful bystanders, stirring up, stirring up protests.

A woman who loudly interposes herself to protect her son is apprehended. A nine-year-old boy who has talked back to an officer is threatened with a Flash-Ball next to his face. Convinced that they know who was the leader of the rebellious group, the police hustle into the staircase of the three-story building where he lives.

They break the door of his apartment, where they overtur-overturn the furniture. Aggressively searching for the young man, they bump into his parents and knock, knock over his sister as she comes out of her bedroom. They finally find the alleged offender and brutally handcuff him, only to discover that he is blind, which makes him the very unlikely perpetrator of an assault.

They release him and leave the scene. In the meanwhile, a dozen residents, mostly youth, have been taken in and questioned. Four of them, as well as the mother who has tried to defend her son, are kept in custody under the charge of resisting the police, while the other ones are freed and left outside in the, uh, outside the precinct in the middle of the night with almost three miles to walk back home.

Hospitalized, the handicapped man’s sister is diagnosed with a broken harm, broken arm and neck lesion. The scene I just described is not uncommon in disadvantaged neighborhoods in France. I have witnessed or heard of several similar incidents, more or less grave.

The national media report on the more, on the most dramatic ones, especially when they lead to urban unrest. Prima facie, one could be tempted to describe it as a mere retaliation and dismiss it as a punishment. Philosophers such as Robert Nozick have insisted on the difference between revenge and retribution, generally to discredit the former, and with it the supposed barbarians who resort to such practices, while valuing the latter, and with it those who defend it on the presumed side of civilization.

It is somewhat reassuring that to think that they avenge while we punish. However, as Leo Zaibert, among others, argues, the distinction is essentially a matter of assessment, either subjective, done by the re- agents involved in the scene, or objective, done by an external observer of it. So on the s- on the subjective side, the officers will never depict their action as revenge, even in private conversations.

For them, it is a legitimate punishment. Moreover, to justify this sort of intervention, they even use moral arguments, which are mostly of two kinds. First, they regard the residents of disadvantaged neighborhoods as hostile, a representation which justifies their own hostility in return.

“They don’t like us, we don’t like them either,” the head of the anti-crime squad once told me. Besides, they systematically associate them with crime and ad- and admit that they have a hard time distinguishing thugs from honest people, in the words of the chief of the police. Consequently, they divide inhabitants of the housing project in two categories, o-offenders and accomplices.

Viewing this population as composed of probable enemies and possible criminals, officers feel entitled to punish it with little discernment. Second element of justification, they deem the justice system ineffective and the magistrate too lenient. We arrest criminals and indict them.

The next day, the judge or the prosecutor frees them. This is a litany that, uh, is common among rank and file agents. Although statistics demonstrate that the penalty, the penal institution is increasingly severe, this belief justifies various forms of immediate retribution from bullying to beating up.

Even if the arrested suspect is later freed, he will have had a hard time, they think, and some justice will have been administered in the street or at the precinct. On the objective side now, the officer’s evaluation of such operations is confirmed by the analysis that the social scientists can make when contemplating the wider picture. For law enforcement organizations, and more broad– broadly public authorities, these brutal interventions form an evi– inevitable part of their normal practice.

From the police academy, where training consolidate their pre– pre-existing prejudices, to disciplinary bodies where impunity for misbehavior remains the rule, the institution contribute– contributes to the reproduction of their deviant be– practices, such as extrajudicial punishment and legit– and legitimization of their justifications. Speaking of the anti-crime squads and their frequent be- violent behavior, a commissioner told me that they are a necessary evil, and a high official confirmed that they are, quote, “the darlings of their superiors because they bring in arrests.” In fact, public discourse can even ignite the aggressiveness of police forces via the pillorying of certain groups, while public policies may encourage it by providing them legal tools and ensuring them of being supported in case of misconduct.

A former French minister of the interior, who was later elected president, is remembered for saying about the Project Youth that he would get rid of his, of this scum, and for imposing unreachable quota of arrest to his services in the name of the so-called performance culture. In this context, the police are quasi-officially empowered to punish certain populations. If one accepts then, on both subjective and objective arguments, that the raid on the low-income neighborhood is a punishment, what sort of retribution does it involve?

Since the culprit, whose only offense, it should be reminded, is the noise pollution of his quad bike, was not caught. It takes two forms: collective and random. The first one consists in punishing the whole group to which the alleged culprit belongs.

Concretely, it means the residents, more specifically the teenagers, who are present in the public space. They are yelled at, knocked over, insulted, searched. The second one, the collect– the random, entails punishing those within the group who can make plausible suspects and are at hand.

They are arrested, taken into custody, and potentially indicted. A crucial element in this process is the fabrication of the offense of resisting the police, with which those who have been particularly mistreated will be charged, their injuries being presented to the judge as the consequences of bringing them under control. All officers are well aware of this legal tactic that adds to the punishment in the street, another one in court.

And their superiors told me that they were conscious that an agent who produces a lot of such offenses has to be closely watched. Yet, the Ministry of the Interior incites the police to use this procedure and remunerates their lawyers, insisting that the supposed victims should request financial compensation for– from their alleged, uh, ag-aggressor. As a result, this offense of resisting the police has dramatically increased over the past two decades.

Such practice, practices are definitely not specific to law enforcement, and in fact not, uh, either to France. Collective punishment is a common form of retribution with a wide range of examples from reprisal killings conducted by armed forces to class penalties in the school system. Random punishment is frequent as well as, as well in multiple contexts, although its more arbitrary character limits its extension in institutions and settings where seemingly democratic principles are maintained.

Whatever the indignation they may raise among those who endure such unfair treatment, not only both collective and random sanctions are presented as punishment rather than revenge, but they are also justified by, by those who practice them as being legitimate and even sometimes legal, from the shooting of French villagers by Germans in the 1940s to the bombing of Palestinian neighborhoods by Israelis in the 2000s, in both cases to punish resistant fighters, fighters’ acts randomly in the first case and collectively in the second one. So returning to the case study, it has become increasingly recognized in recent years that policing is a form of punishment informally inflicted upon low-income classes and racial, ethnic, or religious minorities in various parts of the world. The killing of citizens by law enforcement agents, more than one thousand each year in the United States, approximately five hundred in the sole city of Rio de Janeiro, but only one in England and none in Japan, is the– one is only the most tragic and visible part of this street-level justice.

But more significant, albeit less spectacular, harassment, humiliation, insult, racist slur, identity check, body search, police custody represent the extrajudicial treatment commonly experienced by this population, one that remains largely ignored. The literature on punishment mostly focus on the formal pe- penal system, the law, court decision, and correctional facilities, overlooking this ordinary and unofficial retribution. Yet in the United States, there are twen-twenty times more people killed by the police than executed as a result of a death sentence.

And in New York City, there are, there have been as many as seven hundred thousand stops in a year, nine out of ten of those concern, of those concern being innocent. This normalization of policing as a method of retribution definitely calls for a revision of received ideas about punishment. In the opening lines of a classic article on punishment, Antony Flew wonders whether there exists a sharp line drawn at which we must stop using the word.

Yes. “When does punishment of the, of the innocent or illegal punishment cease to be punishment at all?” The question is legitimate.

My take on it is that there is no simple, and perhaps not even good answer to it. But it is precisely in this indecision and i-in the disputes regarding the very definition of punishment that something is to be learned about society. There is more intellectual benefit in considering that what is– that what punishment is may always be at stake rather than proposing a definitive definition.

With this principle in mind, we can now return to Hart’s five criteria. Regarding the second and third one, ones, the offense and the offender, we have seen that the former may be simply fabricated, and the latter may be falsely accused. One can even argue that a large proportion of the imprisoned population falsifies these two criteria.

If one takes seriously the assertion according to which a person accused of a crime is innocent until proven guilty, all those who have not been judged and sentenced and yet are put, uh, put to jail are de facto punished, although not for an offense or as offenders, but because they are deemed to be a danger for society or to present a flight risk before trial, or in the United States, uh, merely because they cannot pay bail. Of the twelve million people admitted each year in the jails of this country, sixty-two percent are not convicted, and seventy-five percent have been accused of non-violent offenses. And the most crucial factor in determining whether someone is to be imprisoned is financial.

But the two most extreme forms of dissociation between punishment and the notions of offense and offender are probably the denial of retrial of innocent persons wrongly convicted and the institution of indefinite detention without trial. In the first inst-instance, the reopening of cases after the finding of new evidence establishing the innocence of individuals incarcerated or even facing execution has sometimes been rejected by Unit-United States courts on legal, uh, arguments. In the second instance, individuals are maintained in prison for an unlimited time without being judged.

Such is the case for undocumented migrants and asylum seekers, Afghans in Australia or Haitians in Florida, as well as for political prisoners, also called enemy combatants in Israel or the United States. Exempting the second and third criteria. As the fourth element of the definition, which supposes that punishment is administered by those either, uh, those other than the defend– the offenders, thus excluding suicide, counterexample can also be found.

One can think of self-inflicted injury as a possible form of retribution inflicted on oneself, although it is more often an expression of protest against the institution. In France, which has the highest suicide rate in prison among European country– countries, it is established that this rate is considerably augmented among inmates incarcerated for offenses of murder or rape, which are known to generate not only stigma, but also guilt. Against the fifth characteristic of the definition stipulating that punishment is imposed by an authority constituted by a legal system, one can think of vigil-vigilantism, a practice at the margins of the legal system that has grown considerably in Latin America and Southern Africa, as well as in the, in the United States and elsewhere.

It involves private citizens who engage voluntarily in the control, in the control of crime and arrogate for themselves a retributive right against alleged offenders. Still, as we review Hart’s classic definition, one criterion seems to resist critical inquiry. It is the first on the list, the infliction of pain.

Here the question, what is punishment, should be complemented by another: whence does it come? That punishment be associated with pain as the way to sanction the injury caused by the offender remains largely unquestioned, to the point that it is generally part of the very definition of the word. To punish is to inflict suffering on an offender for the offense committed.

As Émile Durkheim writes, quote, “It is claimed that we do not make the guilty person suffer for the sake of suffering.” It is nevertheless true that we deem, we deem it fair that he should suffer.”” Unquote. In the second essay of The Genealogy of Morals, Nietzsche was probably the first author to dispute this self-evidence of punishment as infliction of pain.

Quote, “Whence did this primeval, deeply rooted, perhaps by now ineradicable idea draw its, its power, this idea of an equivalence between injury and pain?” He asks. And his ans- his answer cannot fail to surprise.

Quote, “In the contractual relationship between the creditor and debtor, which is as old as the idea of legal subjects.” Unquote. The linguistic link is for him particularly clear in German as, quote, “The major moral concept Schuld, guilt, has its origin in the very material concept Schulden, debts.”

Unquote. According to the philosopher, uh, quote again, “to inspire trust in his promise to repay, the debtor make a contract with a creditor and pledged that he would, uh, that if he should fail to repay, he would substitute something else he possessed, something he had control over. For example, his body, his wife, his freedom, and even his life.”

And above all, the creditor could inflict every kind of indignity and torture upon the body of the debtor, for example, cut from him as much as seemed commensurate with the size of the debt. These contractual relations– end quotes. This contractual relationship is peculiar.

The compensation of a wrongdoing is the pain inflicted on the culprit. This interpretation is the Nietzsche’s interpretation is certainly questionable, but as a philologist trained in the study of Greek and Roman texts, he may have known the etymology of the word punishment, and there is much to learn from it. The terms punish and punishment come from Old French punir and punissement, which have their origin in medieval Latin punire, and further back in, further back in time, classical Latin poena, itself derived from Greek poine.

In his study of Indo, Indo-European languages, Émile Benveniste discusses the latter term, uh, poine, under the entry on gift and exchange, explaining that the notion refers to, quote, “The repayment intended to re– to compensate a murder, the expiation of the spilled blood, and represents a debt that one must pay to repay a crime,” unquote, to repair a crime. The same meaning is found in classical Latin poena, which means, quote, “Ransom to redeem a murder, hence compensation, reparation, vengeance, punishment, chastisement.” End quote.

It is in late Latin that the association with torment and suffering appears, which will provide the words peine in French and pain in English. Punishment, poine and poena in, in ancient Greece and Rome, is thus associated with the ideas of debt and indemnification, of expiation and reparation, in a semantic network relating, related to the logic of exchange. Only later does it include the notion of justice, and still later that of pain in relation with Christian soteriology and materiology, which values suffering as the ultimate way to redeem one’s sin, one’s sins.

Interestingly, a somewhat parallel evolution can be identified for the word retribution. During the Middle Ages, it meant, uh, repayment from Old French rétribution, which comes from Latin retribuere. This verb being composed of the prefix re in return, tribuere literally to divide among tribes, and means to give in exchange to restitute.

While repayment was initially neutral, either reward or reprisal, depending on whether the initial deed was good or evil. Uh, it becomes morally oriented in the sixteenth century, but conspi-conspicuously taking opposite directions in French and in English. Positive in the, in the first case, the French, and negative in the second one.

In French, Under the influence of Calvin, retribution is the fair salary rewarding the merit. In English, as the day of retribution is increasingly linked to the wrath of God, of God, and the agony of the inferno, the word is the sanction of wrongdoings. So in a nutshell, comparative linguistics suggests a remarkable evolution.

The initial sense of punishment and retribution had to do with reparation, repayment, restitution of a debt. It did not have an explicitly moral connotation, but belonged to the semantic field of exchange. The progressive transformation of the meaning of both words corresponds to a process of moralization, so to speak, as the themes of redeeming pain and just deserts gain in, uh, prominence.

It reveals the increasing role of religion in the interpretation of human actions, and in particular, crime. Punishment was, uh, part of a moral economy of the debt. It has become an element in the moral economy of suffering.

Ethnology and history can also shed some light on this variation in space and time of the meaning of punishment. Thus, among the Tlingit Indians of southeastern Alaska in the early 1930s, in the matter of crime and punishment, it was the clan rather than the individual which counted. Indeed, theoretically, crime against an individual did not exist.

Since each clan was hierarchically structured, uh, the imputation of crime to the clan meant that if a man of low rank killed a man of high rank in another clan, the murderer often went free while one of his most im-more important kinsmen suffered death in his stead. And if the murdered man happened to be of low rank and of poor reputation, a payment of goods could satisfied, satisfy the injured clan. The complex set of set of rules used to sanction the various crimes thus contributed to the performance and reproduction of the social order.

Various other ethnological accounts have established similar facts in other societies in which crimes were treated within the logic of the circulation of persons and goods between clans and groups r-rather than within the logic of individual responsibility. In parallel, historians have studied the relationship between claustrum and carcer in medieval and modern times. That is, between confinement in monasteries and confinement in prisons, a link long ignored, but worthy of consideration when one realizes that, for instance, in, uh, the nineteen– the 1860s, half the French correctional facilities devoted to, uh, uh, lengthy sentences were former abbeys or convents.

In the Middle Ages, confinement in regular communities, more or less chosen, sometimes even, uh, the outcome of social sanction, implied sublime suffering, and the Abbot of Cluny described the nuns as, quote, “Secluded in the salutary, salutary cloister and, so to speak, buried in this vivifying sepulcher, as they expect in exchange of their imprisonment, eternal liberation, and in the stead of their tomb, the blessed resurrection,” unquote. By the spiritual pr– but the spiritual prison could turn into a material one. Among nuns, offenses led to specific retribution, including solitary confinement, mortification, flogging, and fasting to redeem faults and incorrect conducts.

A form of carceral mod, uh, carceral model associating, mitigating exclusion and suffering was thus invented. Uh, but the growing place granted to pain and its religious meaning was not circumscribed to monasteries, but extended to the entire society, meaning, uh, uh, to, to the, uh, uh, to, to the, to the entire society through images, narratives, and teachings. In the second le- series of lectures at the Collège de France dedicated to the genealogy of penal theories and institutions, Foucault shows how criminal law in the Middle Ages, uh, has long maintained the legacy of Germanic law before progressively adopting the principles of Roman law.

This is a significant shift. Under Germanic law, the settlement of disputes, even when it involved a murder, implied compensation rather than revenge, and economic arrangement rather than a physical chastisement. With the rise of the king’s authority, Roman law served as an instrument of power, while with the growing influence of the church, the practice of compensation was replaced by discourse of atone-atonement.

Yet even under this new logic, the prime role of the penal system was fiscal, in Foucault’s word, words, uh, with an economic function of appropriation that was ideologically linked to Christianity. Although the moral meaning of punishment changed with the theology of fault, penance, and redemption, writes Foucault, the general processes of circulation of wealth and goods persisted. This focus on the political economy of the penal system suggests that Foucault was more a Marxist than he would have admitted himself.

By contrast, but not in contradiction, I endeavor to apprehend the moral economy of punishment by inscribing it in a much longer temporality. What I’m sug– What I’m suggesting by depicting the shift from a moral economy of the debt to a moral economy of suffering is that in the, in the very understanding of the notion of punishment, pain has increasingly been legitimized for its value as such.

Christianity has been a crucial, uh, has been crucial in this process by putting it at the center of the experience of punishment, both for its physical imprint, torment, and its moral influence, expiation. The theme of atonement with the repression– the representation of the Christ– of Christ’s agony on the cross to redeem humanity’s original sin was essential to this exaltation of suffering, as were the stories and images of the saints and martyrs. Conversely, Islamic law has kept the trace of the earlier logic of exchange in case that involved offenses to Muslims, but not to God, murder in particular.

There are two options. Qisas corresponds to a retaliation of the type of an eye for an eye. Diya provides the opportunity for the victims or their heirs to ask instead for a compensation, often designated as blood money.

The Quran indicates that preference should be given to remittance and even encourages forgiveness when the accused is, uh, poor, uh, is too poor to repay. But returning to, uh, finally to the, uh, uh, Christian world, what is often described as the humanization of punishment in the Age of Enlightenment can thus be regarded as an idealized attempt to substitute the moral for the physical, education for torture, but still using justification that keeps, that keep the trace of the religious doctrine. Nowhere is it clearer than in the United States with the invention of the penitentiary, this very word being very indicative, at the beginning of the nineteenth century.

And the impassioned disputes between the promoters of the Auburn congregate system and the defenders of the Pennsylvania separate model should not overshadow their common project to replace the imprint of the whip on the body by the influence of the isolation on the soul, and physical pain by moral suffering, as analyzed by David J. Rothman. The project impressed their European visitors, starting with Alexis de Tocqueville and Gustave Auguste de Beaumont. Even if the reality of these prisons was certainly much grimmer from the perspective o- of inmates, and as Rebecca McLennan has shown, during the whole nineteenth century, the crisis of imprisonment, as he writes, was almost constant.

Thus, from a moral economy perspective, whereas Paul Ricœur rightly notes that the modern idiom of reform of the criminal has replaced the religious language of expiation of the sins. One could symmetrically affirm that the modern ideology of punishment keeps the trace of this religious legacy. More broadly, in the same way as political theology, according to Claude Lefort, explores the secularized translations of theological concepts into modern politics.

I suggest to think in terms of penal theology so as to uncover the secularized translations of theological concepts into modern penology. Considering for last time Alf’s definition, we have thus, we have thus far seen that punishment can sanction an offense or not, affect an offender or not, be administered by those other than the offender or not, and be imposed by an authority constituted by a legal system or not. This diversity of cases, the contradictions they c– offer, and finally, the fact that retribution is not what is generally assumed to be, make it difficult to answer unequivocally, univocally the question: what is punishment?

Yet the awareness of this heterogeneity and the recognition of the quandary resulting from it are an indispensable preliminary, uh, to any critical reflection on punishment. In the end, what remains of the definition is the infliction of pain, which, as the genealogical inquiry reveals, has not always been essential to punishment. So how to justify this imposition of suffering in response to a wrong?

In other words, why punish? This will be the question I will address tomorrow. Thank you.

(applause)

[01:17:44] MARTIN JAY:
Many thanks, Didier, for getting us off to such a stimulating start. We, we normally have a break, but, uh, we’re running a little bit late, so I think what we’re gonna do is, uh, I’ll introduce Bruce, he will give his talk, Didier will respond, and we’ll be able to, I think, uh, do justice, as it were, to this extraordinarily, uh, rich, uh, initial talk. Lest there be any unease over my over-the-top introduction of Peter Edelman as possibly one of the tzadikim celebrated in Jewish law, or fear that our other speakers may feel intimidated by the suggestion of an invidious comparison, let me remind you that there are 36 just men in the world.

And perhaps, and this will, I think, be, uh, i-i-in Rebecca’s interest, perhaps even more just women. So we have lots of leeway. And in fact, our first commentator this evening, Bruce Western, might also well, well lay claim to anyone’s shortlist for that honor.

Born in Australia, Western received his BA from the University of Queensland in 1987 and his doctorate in sociology from the University of California in Los Angeles in 1993. He taught at Princeton for some fourteen years before coming to Harvard in 2007, where he’s now Professor of Sociology and the Daniel and Florence Guggenheim Professor of Criminal Justice Policy. He’s also director of the Malcolm Wiener Center for Social Policy and faculty chair of the program in Criminal Justice Policy and Management at Harvard’s Kennedy School of Government.

Western served as vice chair of the National Academy of Sciences Committee on the causes and consequences of high incarceration rates, uh, in the United States, and he’s the principal investigator, uh, on the Harvard Executive Session on Community Corrections and the Boston Reentry Study. His main scholarly interest has been in social stratification and inequality, uh, in political sociology and statistical methods. His original research was in the sociology of labor, leading to the publication in 1997 of his first book, Between Class and Market: Postwar Unionization in the Capitalist Democracies.

Looking comparatively at the erosion of labor unions in the Western world, and particularly in the United States, he argued that it was restricted, resisted, I’m sorry, only in countries with strong working-class political parties, centralized collective bargaining, and union-run unemployment insurance.

(cough)

He then turned his attention to the issue of mass incarceration in America. His second book, published in 2006, Punishment and Inequality in America, won both the Michael J. Hindelang Book Award from the American Society of Criminology and the Albert J. Reiss Jr. Distinguished Scholarship Award from the American Sociological Association.

Uh, Bruce Western was among the very first to sound the tocsin about the exponential increase of the incarceration of African Americans, uh, especially African American men in our society, uh, in particular those with lower levels of formal education. A problem which now, uh, ten, 12 years later, is finally widely acknowledged, uh, but alas, still a long way from being solved. In that effort, Western has chaired a task force of the American Academy of Arts and Sciences dealing with, uh, this, uh, crisis.

And most recently, he’s been preparing a manuscript based on the experience of a hundred and twenty-four men and women who have left prison and returned to neighborhoods in the Boston area. Now, punishment, as we know, comes in many different forms, but imprisonment is the one to which we now routinely resort in our society. There can be few scholars who’ve considered its costs as trenchantly as Bruce Western.

I know I speak for everyone in this room when I say I eagerly look forward to the thoughts that he’s going to give us, his responses to Didier Fassin’s first Tanner Lecture this afternoon. Bruce Western.

(applause)

[01:21:48] BRUCE WESTERN:
Well, good evening everyone, and, uh, thank you very much to the Chancellor and to the Tanner Lecture Committee and to Marty. Uh, it’s a very great pleasure to be invited to respond to Didier Fassin’s, uh, Tanner Lectures on the will to punish. And throughout his distinguished career, uh, Didier has pioneered an anthropology and sociology that examines the institutionalization of moral projects of which our instruments of punishment and criminal justice are, are preeminent examples.

Uh, The Will to Punish examines critically an idealized conception, uh, of punishment that’s both normative and legitimizing, uh, for our criminal justice agencies. And in this idealized conception, uh, represented by H.L.A. Hart’s classic definition, uh, punishment is dispensed by authorities against an offender in response to wrongdoing. And punishment in this account, uh, may be retributive, but it’s cool and proportionate.

Um, and so strong is this idea that the links between crime and punishment, victim and offender, incarceration and justice, uh, have become natural categories, uh, through which the work of our police, our courts, and prisons have come to be interpreted and justified. Now, what’s immediately striking to me, uh, in this conventional conception of punishment, uh, is that, uh, this idea of punishment is conceived, uh, completely without reference, uh, to social inequality. And so against this theory, uh, Didier develops an alternative account.

Punishment is not the righteous response of authorities to crime and criminals. It’s the infliction of pain administered sometimes bureaucratically, uh, sometimes to assort- assert order, uh, through a show of force, uh, and typically against the least powerful segments, uh, of society. And much of the, much of the power of this analysis resides in its breadth of reference, denaturalizing the connection between crime and punishment, uh, as much through the anthropology of faraway cultures as through contemporary urban ethnography.

And this sweeping perspective reveals both France and the United States to have arrived at modes of governance in which, uh, the coercive power of police and prisons is widely used to establish, uh, to maintain established race and class hierarchies. So I come to these lectures, uh, as an empirical sociologist, uh, studying incarceration in America. And I have one foot in a policy school, uh, that seeks to improve the world, uh, through policy reform.

And so from my perspective, Fassin’s analysis is revealing and at times, uh, utterly breathtaking, uh, in its scope. In my comments, uh, I’d like to probe three areas, uh, that are opened up, uh, by Didier’s lecture. Uh, and in, in my mind, these three areas remain somewhat unresolved.

So I want to begin by addressing the question of violence, uh, that often sets the machinery of punishment in motion. Second, uh, I want to talk about poverty, uh, and how it becomes the ground on which the proce- uh, process of punishment plays out. And finally, I want to discuss the normative dimension, uh, the values that might point beyond critique to reform.

So violence first. Now, a central task of the will to punish involves challenging the natural connection between, uh, crime and punishment. Didier writes that, uh, “Crime does not inevitably require punishment.

Punishment does not necessarily result from crime.” Elsewhere, he says that, “The link between crime and punishment presents, uh, numerous exceptions,” and he rejects the necessary moral link, uh, between crime and punishment. Now, in America, the project of punishment has taken the form, uh, of mass incarceration in David Garland’s formulation.

Uh, criminal justice in the era of mass incarceration has, uh, become pervasive in the daily life of America’s poor. After four ye– uh, four decades of growing prison populations that began in the early 1970s, the US incarceration rate is now five times higher than its historic average and exceeds, uh, incarceration in Western European countries by a factor of five or ten. Um, as Didier observed, the rise in US incarceration produced, uh, extraordinary rates of penal confinement, particularly among Black men, uh, with low levels of schooling.

In work with Becky Pettit, uh, I estimate that among recent cohorts of African American men, uh, who dropped out of school, about 70 percent will go to prison at some point in their lives. So pervasive imprisonment represents a significant expansion of state violence in very poor, largely urban communities of color. But the scale of state violence escalated where community violence was also extreme.

Uh, the emergence of mass incarceration in the nineteen, uh, in the, uh, beginning in the early 1970s followed not just a period of social and political unrest in the 1960s, serious crime, uh, also grew substantially. So from the early 1960s to the early nineteen eighties, the national homicide rate, uh, more than doubled. Um, uh, the murder rate for African American, uh, men was six to ten times higher, uh, than for whites.

Uh, by, uh, by the early 1980s, the homicide rate was around ten per hundred thousand nationally. Uh, but among African American men under age, uh, thirty-five, uh, the murder rate was about a hundred and fifty per hundred thousand. So it’s true that the scale of punishment doesn’t track the crime rate in lockstep, and it’s true that we can find, uh, egregious instances of wrongful congi– uh, wrongful conviction, uh, and bias in the administration of criminal justice.

But it’s equally true that the distribution of violence across the population is closely correlated, uh, with the distribution of punishment, at least in the contemporary U– uh, United States. And so I think we have to think about the significance of that relationship.

Um, in a recent interview study, I approached the question of the relationship between violence and punishment in another way, asking released prisoners about their involvement in violence, uh, over a lifetime. And the interviews revolved the lifelong salience of serious violence for men and women who went to state prison. In childhood, former prisoners were frequently victims of and witnesses to violence.

Uh, sometimes they were injured in accidents, but we also heard, uh, many reports of assaults and stabbings and shootings. Uh, and half the sample, uh, were victims of family violence. Three-quarters had witnessed serious injury, and forty percent of the people that we interviewed had witnessed a violent death in childhood.

So as the Boston prisoners described their lives, it became clear that violence often accompanied an array of other social problems, uh, such as drug addiction, untreated mental illness, housing insecurity, enduring unemployment. And in the absence of, uh, social policy assistance, perhaps through a housing program or a, a, a drug treatment program or, uh, uh, employment support, say, the process of criminalization, the official process of criminalization came to fill, uh, this vacuum. And state violence through the process of punishment that Didier described, state violence, uh, came to be the response to community violence, but not just to community violence, but to many of the related problems that were closely linked, uh, to poverty.

And I think, uh, uh, Didier acknowledges as much, but from my perspective, uh, violence is present too, uh, under these very, uh, harsh, uh, social conditions. So the question for me of the relationship of violence to punishment is fundamental in part because violence remains um, a m- a, a major social problem, uh, in the spaces where criminal justice authorities are, are operating. Now, Didier is right, the punishment is not reducible to crime, uh, but neither is it unrelated to crime.

Uh, violence is, uh, a variety of social action that is ripe with the possibility of criminalization. Um, it um— and why is this so? Be— it’s because it emerges in contexts of social policy failure, and it emerges in contexts of poverty.

And it’s this, uh, contextual character of violence, I think, that’s entirely consistent, uh, uh, with Didier’s observation, uh, that punishment can often operate collectively. Okay. Uh, next up is poverty.

Uh, throughout The Will to Punish, uh, we’re reminded of the powerlessness and the socioeconomic disadvantage, uh, of those who are punished. Uh, Fassin, uh, provides a sustained analysis of the relationship between, uh, punishment and social structures of in-inequality, and this is his discussion of who is punished, which, uh, will be elaborated in, in the third lecture. Uh, but the i-i-issue has already been foreshadowed today, uh, when he writes that, “Policing is a form of punishment, uh, informally inflicted upon the lower classes.”

Uh, in this discussion of the distribution of punishment, uh, between the poor, uh, and the rich, uh, this distribution is very much driven by, uh, political choice. And there’s a complex theory of punishment, uh, at work here in, uh, in Didier’s lectures. Uh, in part, the criminogenic conditions, uh, of poverty, uh, uh, are operating.

Uh, but much of the focus is on official processes of criminalization and biased policing and prosecution, which, all of which together, uh, lead to the over-representation, uh, of the poor and the disadvantaged in the criminal courts, uh, and prisons. I think the criminalization of poverty, uh, requires more elaboration. There’s an older radical, uh, criminology that, uh, pointed to the threat to social order posed by the unemployed and by youth and, uh, racial and ethnic minorities.

Uh, and from the perspective of this old radical criminology, uh, punishment helped contained a social threat that pressed not just on public safety, but more broadly on norms of conformity and order. And we see echoes of, uh, this social threat sort of perspective, uh, in Fassin’s ethnographic accounts of urban policing, which observes that there’s often a very adversarial relationship, uh, between police and the citizens with whom they interact. But social threats might be met in a variety of different ways.

The punitive response is only one, and I would argue it’s grounded in a set of cultural conditions. Uh, I’d like to argue that large, large-scale projects, uh, of punishment depend significantly on the dehumanization of the poor and the powerless. Uh, harsh punishment requires a profound suspension of human compassion.

Uh, w- um, uh, we see evidence for, for such things in, uh, psychological studies of implicit bias, for example, uh, where ape-like images, uh, are associated with, uh, African American men, uh, in, uh, samples of police. Or African American children, uh, are often perceived to be much, uh, much older, uh, than they really are. Uh, the language of super predators, of jungles and savages are also drawing from this same well of dehumanization.

Uh, and, and this isn’t an, a new observation by any means, but I do think it has a research implication, and I think it creates a, a challenge for us, uh, as researchers. And I think it means that in our depictions of poverty, uh, we have to reassert the human reality, uh, of poor people who come into conflict with the law. And in part, I think this involves understanding, uh, what is often, uh, the long histories of victimization, uh, and exposure to trauma, uh, which in context of severe poverty, uh, can not only become more likely, but go untreated.

Uh, the harsh conditions of poverty in which penal severity grows often, uh, accompany social policy failure, I think. But in addition to studying the physical and mental vulnerability of those entangled, uh, in the institutions of punishment, this effort of humanization that we have to take on as researchers, uh, uh, necessarily has to have a positive side, I think, because it’s from this positive side of the rendering the humanity of poor people who come into conflict in the laws. It’s this positive side, uh, that provides impetus to the impulses of leniency and mercy.

And here I think the re- researchers can usefully examine the loving relationships, the spontaneity and creativity, uh, that, uh, lie at the heart of human agency. Um, in our Boston interviews, uh, we saw the, uh, the rich texture of social life, uh, in the shadow of penal institutions. Uh, after incarceration, uh, former prisoners faced acute housing insecurity.

And in Boston, uh, the gap was mostly filled by family. Uh, and it was mostly older women. Uh, mothers, uh, aunts, grandmothers played a huge role in housing their, uh, uh, the adult men in their lives.

And these loving ba- uh, loving bonds of family support, uh, seemed to us to be fundamental to being home, uh, even for those who had been incarcerated many times in the past. Family life brought the, uh, stability of mealtimes and small conversations and recollections of a, a shared history. Now, I, I don’t wanna sort of over, over, over-idealize, uh, the loving potential of these family relations.

Oftentimes, they could be very conflictual and very complicated. Uh, but the key point remains, I think, that those who live in punitive social spaces and neither reducible to violence and other crime, but nor are they defined only by the suffering, uh, induced by over-policing and incarceration. Okay, my last point, values.

Model cri- m- modern criminal justice, uh, authorities, uh, tout the values of offender accountability, uh, and public safety. And we can think of these, uh, values as modern remnants of the Christian ethics that value pain for its own sake, uh, that Didier described. Uh, and yet also concede the possibility of penance and redemption.

Um, Didier’s alternative conception of punishment also comes with a variety of normative commitments. In calling out police for their racism, it’s anti-racist. By identifying the injustice of punishing the poor, it’s egalitarian.

Objections to the bureaucratization of pretrial detention or the arbitrariness of prison discipline and its brutality, uh, there’s an insistence on the protections of legal procedure. And in pointing to the perverse pleasure of punishment, there is perhaps a suggestion of penal abolitionism. But I wonder if the goal of critique is to, to bring about change.

Uh, I wonder if in the area of justice above all, uh, that our no—our own normative commitments be made explicit and be studied for their implications, uh, for alternative policies, uh, and politics. So what would these alternative values look like if we were to try and explicate, uh, an alternative value basis? Um, and we tried to do this in the National Academy of Science report on the causes and consequences of, uh, high incarceration rates.

Uh, and i- in the NAS report,

(gasp)

uh, uh, the, uh, uh, the report committee elaborated four values that we argued should, uh, inform, uh, penal pol- uh, penal policy. From the jurisprudence of sentencing, uh, the report argued that, uh, punishment must be proportionate and what Norval Morris called, uh, parsimonious, and by this Morris meant that punishment should always be, uh, at a minimum, imposing the least possible, uh, pain to attain its public policy purpose. Uh, and these values spoke directly to sentencing policy and were well established if, if not followed in law.

Two other values we proposed are, uh, uh, I th- I think are even more limiting, uh, but still remain firmly within an ethical system, uh, of suffering. Uh, our th- a third value that we discussed was, uh, the idea of citizenship, and this was intended to assert the human dignity of those who were punished.

And for the NAS report, this meant that conditions of penal confinement, uh, should be humane, and to this end, uh, penal authorities had to be open to public oversight and public, uh, accountability, uh, for abuse, uh, and neglect. And finally, uh, we argued for the value of social justice in which public institutions should operate, uh, to broadly expand the rights and opportunities and resources for all members, uh, of society without unduly burdening any one group. And, uh, this was, uh, our way of addressing, uh, the collective injustice of racial disparity, uh, and, uh, the class gradient, uh, in incarceration in the United States.

The, uh, the key philosophical move, uh, I think, uh, is in the dilution, uh, of a highly individualistic ethical system. And, and citizenship and social justice in particular, uh, limit penal severity by emphasizing our common status, uh, as citizens, uh, with a common humanity, uh, And I wonder if in our modern context, uh, mercy and leniency will ultimately spring from these, uh, kinds of values that esteem, uh, the collective, uh, rather than the individual. So in closing, uh, I want to say, uh, that Didier Fassin has begun a, a wide-ranging discussion that focuses on the essential fact of punishment, which is the authoritative infliction of human suffering, whose operation appears deeply threatening to the aspirations of the democratic society.

Yet severe social problems abound in such societies, and violence is one of those social problems. And this is the context in which modern punishment, at least the American variety, has flourished. And in asking what is punishment, I think analysis must necessarily probe the real conditions of violence, and the human frailty that arises in contexts of poverty.

In this world fraught with moral complexity and ambiguity, a new kind of normative discussion is needed. And I think, uh, we’re pointed to an idea of violence that really lies significantly, uh, outside of the, uh, the crime and violence that’s, uh, imagined by, uh, the classical conception, uh, cl- Uh, classical conception of punishment.

And this new kind of normative discussion, uh, that I’m trying to encourage, uh, tries to go beyond critique, uh, to reassert the bonds of social solidarity in the face of, uh, extreme injustice and inequality. And I thank, uh, Didier for his, uh, provocation, uh, in advancing this agenda. Thank you very much.

(applause and cheering)

[01:45:06] MARTIN JAY:
Thank you very much, Bruce. That was, uh, very lucid and sharp, and I think opens up many questions that I hope we’ll address in the next two days. Didier, we have about fifteen or so minutes, if you want to take those, uh, to respond or take some of them, and we can open the floor if there’s any time.

[01:45:25] DIDIER FASSIN:
So for once, I will try to be short. Uh, but in fact, there’s much to say. So first of all, uh, thank you for this very, uh, generous and at the same time helpful, uh, commentary.

Uh, I, uh, appreciate that you, uh, you underline, uh, the, uh, You emphasize the, uh, broader project, which is for me, uh, about critique of punishment, which is, which is this, which is not to, uh, Uh, uh, um, which is not to say we don’t need punishment or we should not do punishment in this way, but to have a critical reflection on what we take for granted about punishment. And doing this in two ways that are complementary for me, and that’s how I understand critique, um, from m-m-my, uh, the perspective of my discipline and what I called earlier this, uh, anthropological approach is on the one hand, and that’s what it, uh, genealogy help us doing, uh, to question what we take for granted, and that’s what you call denaturalization of, uh, uh, things that, that seems so self-evident for all of us. And as a second step, using ethnography in particular, that could be other disciplines, but in particular ethnography in in my case, to see what are the implications of the fact that we take for granted certain things, and that we have a certain configuration of the world that we think as the only, uh, possible one.

Uh, and, and of course, uh, I have, uh, addressed the, uh, uh, classical definition by Hart, uh, trying to do justice to the fact that, uh, he was used for the standard definition, uh, with the five criteria, but that himself was very cautious to, uh, underline the, what he called the substandard and, and to, uh, to, uh, call our attention on the fact that we should not take the definitional stop as a way not to, uh, criticize, uh, uh, punishment. So on the three, uh, points that you made, which are, I think, very relevant. So on the first one, on the parallel distribution of violence and of punishment,

(coughs)

I would say four things. So the first one is that it is indeed very important to not only focus, and of course, I have done so because I work on punishment, but I will at least mention that tomorrow. Not only focus on the penal system when we think of the link between violence and punishment, but to think of, of society as a whole.

The legislator, the police, uh, the jud- jud- judges cannot be taken responsible for the whole of what the penal system is and our ideology of punishment is, or our practice of punishment is. One has to go and look

(cough)

at what happens in society, uh, in, in a, in a broader, uh, sense, and we can talk about structural inequality, we can talk about, uh, the banalization of violence, the, uh, circulation of weapons, and these kind of things, which all, uh, contribute to the description, the vivid description that you gave. Uh, and we can think of recent books, uh, uh, um, by, uh, Alice Goffman or by Ta-Nehisi Coates, for example, in, in very different styles, but telling about this, uh, th-this everyday life, uh, of African American communities. So the first thing is not, uh, elude by focusing on the penal system, not elude, uh, society in a, in a larger sense.

Second, as you know, uh, very well for because you’ve, uh, established it in, uh, in, in your studies, but others have done, uh, uh, also, um, this is a vicious circle because you have violence, you, uh, add repression, as you said, uh, the, um, uh, dropped out of school, uh, young, uh, African men between, between, I think in, in your, in your study between, uh, up, up to 35 years old. Uh, uh, uh, more than two-thirds of them, uh, will spend some time in prison. So this is disruption of the family, this is rep-social reproduction and, and so violence produces, uh, the state repression, which produces more violence and, and this is a circle.

So the vicious circle has to be taken as, as such. The third point is that when we think of crime, uh, especially in French, because in French, crime is, is much more serious, uh, than crime in English. Um, but when we sp-think of, of crime, we, we think about the usually the most extreme thing, the murder, we think of homicide and, and, and of course, that’s, that’s what is very, uh, uh, that is very important for social, uh, uh, life.

But most of the people who are put to jail, as you know much better than I do, uh, in the United States, uh, don’t go for, uh, homicide. Uh, they go for many other things, in particular, uh, drug violation. In the case of France, one person out of ten goes to prison because of, uh, traffic violation, and more than one out of ten goes to prison for drug laws violation.

Uh, and when I say drug law violation, as I will, uh, ex-explain tomorrow, it’s, uh, mostly, uh, use and possession of cannabis, mostly.

(coughs)

Uh, or res-reselling, but, but, uh, small quantities. Uh,

(coughs)

so the, the questioning, uh, of course, uh, of, uh, uh, incarceration has to be also differentiated a-according to, uh, who is going– who is put to prison. And the, the, the fourth element is that, uh, the link between the distribution of violence and distribution of punishment, uh, is probably as, as probably to be taken, uh, very carefully, uh, both in time and space. For example, in France, there is an increase in, uh, incarceration starting in the late ’70s, while there’s, uh, a decline in, uh, the most serious crimes, in particular homicide, uh, uh, and robberies and, uh, at the same time.

So what happens is that there is criminalization of new, uh, offenses, and the more severity on older or on, on, on other, uh, crimes.

(cough)

Uh, so it’s not always that the state responds, uh, by, uh, uh, being more repressive to a more violent society. There, there can be a disconnection between, between the two. Uh, what you say on, uh, your second point on criminalization of poverty also, I think it’s, it’s extremely relevant, and, and insisting on the moral dimension, uh, of, uh, these worlds.

Of course, because I speak of punishment, I– and the examples I give, I gave today and I will give tomorrow, are on the, uh, tough side, I would say, uh, of, of, uh, law enforcement and, and, uh, justice and, and prison system. But, uh, in my work, uh, on, uh, the police, I have tried, uh, to precisely differentiate, uh, among the police officers in a way that is maybe not so different from what you, uh, what you said, using two criteria, uh, two more, uh, for, for the m- on the moral dimension. One which I call, uh, ethical, and the other one which I call deontological.

So the ethical, uh, is, uh, this sort of moral community that is created. And either you– the mor– this moral community is inclusive, so you don’t think that a priori, uh, the African American, uh, in the United States or, uh, the young Arab in France is someone, uh, that, that is not like you, that is not like your children. Uh, or you think that, uh, a priori there’s no reason to make a difference.

And this eth– this, uh, ethical, uh, uh, this, this, uh, the, the way, uh, these moral communities are built, uh, in the everyday, you, you, you see, you hear it in the everyday language, but you see it in the everyday practice of the police, uh, is something that, uh, I think, uh, gives this ethical, uh, dimension. And the, uh, the– what I call deontological, to differentiate it, has to do with the commitment to the profession and its and its code, its moral code.

Uh, and very often, of course, the two go together, so someone who is more ethical, uh, uh, with the– in terms of moral community is also more deontological or– in terms of, uh, the, uh, uh, the, um, uh, the, the, his moral commitment to his profession. But you can have a dissociation between the two. You can have someone who is, uh, very res-very rigid on the, on the principle of his job, although he, uh, he, he doesn’t like, uh, Black people, for example.

And, and he can be very racist, but at the same time, uh, may have different, um, so, so, yes, it is very important to y- con-consider the moral dimension and not to, uh, generalize on a whole profession. And, and the work I’ve done on, on prison, the, the, the book that’s coming, uh, that’s forthcoming on, on, on, uh, prison, uh, shows precisely how the fact that, uh, I, I try to contrast the guards with the officers, so the correctional officers with the police officers, uh, having done a study of both. And the fact that in particular, uh, and I think that the crucial element, the fact that the correctional officers in, in the French system, that would be unfortunately different in the US system, I think, from what I, I know of it.

Uh, but in, in the French system, the fact that they live together, they, they spend their days together, they, they get to know each other, they, so they, uh, the, the, the kind of, uh, a priori difference that you see in the street between the police and, and the, and the kids and the youth, uh, is very different within the the present, uh, the present system. So yes, we have to take into account every time, uh, what, uh, how these small dimensions are taken. And f- and finally, the, your third point on, on values.

Uh, first of all, you, you’re right in saying that there’s a moral, uh, uh, implicit or sometimes explicit in my, in what I’m, uh, what I, uh, explain. I don’t think I, I would define myself an abolitionist or penal abolitionist or whatever. I, you see, uh, that’s not my point.

But, but of course, there’s… I’m, uh, for, uh, social justice against social injustice, for example, or, uh, you know, uh, uh, I’m not too keen on cruelty, for example, in, uh… So this kind of thing.

And, and, and these are moral statements, of course, uh, uh, or, or that are u-underlying my, uh… But in fact, this is for me important. When, when I wrote on moral anthropology using on purpose this expression, moral anthropology, which, uh, uh, uh, anthropologists were not necessarily, uh, excited about using because that seemed as if we were moralizing, uh, uh, an-anthropology, which, uh, was absolutely not my point.

Uh, my point was to say, just like we have medical anthropology, and we don’t, we don’t treat people, we have political anthropology, and we don’t tell them for whom to vote. Uh, we have moral anthropology, and we, uh, study values, and, and we don’t say what are the best values. Um, uh, but, but precisely the, the, the, the first point, uh, uh, the, the, or a very important point for me is that one has to be reflexive and self-critical about the kind of moral, uh, values.

Not, not to think that there would be a moment when we could get rid of them, but there’s, uh, trying to take into account what do they imply? What does it imply that I have, uh, this, uh, uh, uh, presupposition that, uh, uh, first of all, trying to explicit them so that, uh, they do not seem to be, uh, in, in, uh, in the background, but, but, but also trying to see the consequences. And the values that you, uh, you, you discussed, um, I, I think are very important.

Uh, for me, one of those, uh, that, uh, I think is, uh, or for which there’s a tension, uh, and I will briefly discuss it tomorrow, is what I would differentiate as the tension between the re-responsibility as something that is individualized, individualized, as opposed to or in tension with accountability as something that would have to do with society. So, uh, a liberal in the sense of the liberal thinking, uh, liberal move goes toward, uh, the, the individual being responsible of his acts. And this is a very strong, uh, uh, argument for punishment.

And of course, you know, if someone kills someone else, uh, there’s a r-a question of responsibility, except if he’s, uh, if he has mental health problems, uh, serious ones. Uh, but at the same time, uh, we’ve seen how in recent decades, uh, in different contexts, I think in the United States, but obviously in France, which I know better, there has been, uh, uh, um, a, a disappearance of the sense of a collective accountability about what, uh, uh, crime is in society. And I think this tension can be extremely productive if we think that, yes, there is an individual responsibility, how to say no, uh, but also there’s a, a, uh, a collective accountability, and it’s too easy to leave it at the level of, of the individual.

And of course, this is what justice, what the judges have to do. They cannot, you know, uh, change society, uh, uh, in, in, uh, during, uh, a court case. But first of all, they may take into account this, and again, the question for me is not should not be just on the shoulders of the legislator, uh, the police, the magistrate, or even the wardens of the prisons or the guards, but it, it should be taken, uh, as a full, uh, um, acknowledgement by, uh, by society as a whole.

So thank you very much for it.

(applause)

[02:00:55] MARTIN JAY:
Thank you very much, Didier, and thank you, Bruce. I’m afraid we have, in fact, reached the end of this afternoon’s session. But please, please come back tomorrow, same time, uh, and Didier will give his second lecture, and, uh, we will hear, uh, David Garland and Rebecca McLennan. Thanks again.

(applause and cheering)

[00:00:00] CHRISTOPHER KUTZ:
So it is, uh, I’m, uh, Christopher Kutz, a professor in the law school in the Jurisprudence and Social Policy program, and it’s my great honor today to be host of this lovely event, second day, the Tanner Lectures featuring Professor Didier Fassin of the Institute of Advanced Study at Princeton. I cannot and will not repeat the marvelous introduction by my colleague Martin Jay from yesterday, who’s left us with a mystery, which of, which one of us is among the truly righteous. Uh, I’m sure we were all wondering that last night.

Um, but rather than repeat his introduction, uh, I will, uh, let… refer you for an introduction to, uh, Professor Fassin to the notes in the, uh, Tanner, uh, Tanner booklet. In the interest of saving time for the substance of today’s session, let me just tell you about the format for today. Professor Fassin will deliver the second part of his lecture now, uh, which, uh, should take about fifteen minutes.

After that, we’ll have a very short break, and then I will invite Professor Rebecca McLennan to deliver her comments, uh, following in the really terrifically productive, uh, footsteps left by Professor Bruce Western yesterday. After that, I’ll invite Professor David Garland to deliver his remarks. If all goes well, there’ll be time for a response by Professor Fassin, and then questions from you, our very patient audience.

With that, let me turn this over to, uh, Professor Fassin for day two of the Tanner Lectures.

(applause)

[00:01:27] DIDIER FASSIN:
Thank you very much. It’s a great honor and, uh, privilege to have, uh, been invited to deliver, uh, the Tanner Lectures and giving them at the University of California, Berkeley, as I said yesterday, has both a political and personal resonance for me. I’m deeply grateful to my hosts, uh, Professor Christopher Kutz and Martin Jay, and, uh, Tanner Committee, and, uh, to my commentators, uh, Professor David Garland, Rebecca McLellan, and, uh, Bruce Western, whose works have been an invalua-invaluable source of information and inspiration for me.

Yesterday, I have questioned the common sense as well as normative theory understanding of punishment, ending my presentation with what has become its sole core constituent, the infliction of pain, arguing that such had not always and everywhere, uh, been, uh, the way of correcting and compensating a wrong or an offense. I’ve described this evolution as a shift from a moral economy of debt to a moral economy of suffering. And I will now turn from what is punishment, the question of yesterday, to why punish and a little later, who is punished.

So why punish? Punish. In a cornerstone of contemporary, uh, thinking on punishment, uh, if the cornerstone of the contemporary thinking on punishment is the principle of the separation between definition and justification, the former being supposedly value neutral, while the latter involves moral choices, the impassable centrality of pain, which of course does not have to be physical, but can be psychological or better said, moral, in the definition calls for a justification.

How can the infliction of pain be justified as the repayment of a wrongdoing? The seriousness of the punishment because of the suffering it generates, the responsibility of the punisher for imposing such suffering, and the distance between the sanction and the act punished, a suffering in a reparation for a theft, a drug possession, or a traffic, uh, violation, for instance, definitely render indispensable to provide an answer to the question, why punish? This interrogation is, however, more ambiguous than it seems.

It can be heard in a prescriptive sense, Why should we punish? And in a descriptive way, why do people actually punish? The word why implies pure justification in the former case, and both justification and explanation in the latter, in the latter one.

Logically, most legal and philosophical writings adopt the first ideal meaning, while most social science research explores the second actual one. Although the line is not always so clearly drawn between the ideal and the actual, the normative and the analytical. Within the first paradigm, the classic justification for punishment relies on two main positions, utilitarianism and retributivism, with some variations and combinations.

The arguments on both sides are well known. The utilitarian thesis, as a subset of the consequentialist ethics, holds that for an action to be right, it has to increase happiness in the world, and therefore that punishment is not– is, is only justified when it produces a more positive balance of happiness over unhappiness than any alternative measure. An early formulation is provided, of course, by Jeremy Bentham.

Quote, “The first, most extensive,” and most desirable objective is to prevent, as far as it is possible and worthwhile, all sorts of offense– offenses whatsoever, and to do so at as cheap, uh, a rate as possible.” For Bentham, quote, “All punishment is mischief. All punishment in itself is bad.

On the principle of utility, it ought to be allowed only insofar as it promises to exclude some greater evil. Therefore, punishment ought not to be inflicted where it is groundless, where it is– where it must be ineffective, where it is unprofitable or too expensive, where it is needless. Unquote.

In legal theory and criminology, the utilitarian justification of punishment has been measured through the reduction of crime. The three main ways in which it can be achieved are incapacitation, deterrence, and rehabilitation. First, incapacitation is an obvious consequence for, of the removal from society, whether it is through imprisonment, deportation, or execution.

In the first case, which has logically received most attention, imprisonment, the effect is of course limited to the time spent in prison. In order to increase it, one has to resort to harsher penal legislation. This has been the strategy developed notably in the United States over the past decades with the institution of mandatory sentencing, even for misdemeanor, and more generally, with the lengthening of, of the sentences delivered, including a lifetime for nonviolent crimes in some cases.

But it comes down to a tautology in terms of reasoning and an impasse in terms of policy when definitive or quasi-definitive exclusion tends to be the only viable solution. Second, deterrence is the object of much discussion due to the difficulty to measure the specific effect of the threats of sanctions on crime reduction, as has been observed in North America. And here there’s a lot of controversy,

(clears throat)

but, uh, my point would be that first, contrary to the expectation of the broken window theory, more numerous officers in the streets doing more aggressive policing seems to have had marginal and inconsistent effects on crime decline in the United States, while similar benefits were obtained with opposite policies in Canada. And second, contrary to, uh, the expectations of the promoters of tough on crime, uh, programs, the massive increase in incarceration rates appears to have had a minimal impact on crime control, with diminishing returns over the years and even no impact at all on violent crime in the United States. Again, with a comparably favorable evolution in Canada during the same period, when conversely, the imprisoned population decreased.

And finally, rehabilitation is perhaps the dimension of punishment that has been the least studied as it is, as its practice has been considerably discredited in the nineteen seventies and subsequently, uh, neglected by policymakers, especially again in the United States. In the end, the most effective dimension of punishment seems, uh,

(cough)

to be also the most self-evident as well as the most problematic. Incapacitation, but only inasmuch as one would be ready to accept extreme policies, removing offenders from societies– society for a very long time span at whatever cost in terms of justice, social contract, contract, and, uh, public spending. The retributivist theory as part of, uh, the deontological ethics seems much easier to defend since it does not rely on any external assessment of its social effectiveness, but rather on the internal evaluation of its moral coherence.

Indeed, it asserts that for justice to be done, those who have committed wrongdoings deserve to suffer. Punishment should be justified on this sole ground. The classic argument is developed by Immanuel Kant, quote, “Juridical punishment can never be administered merely as means for promoting another good, either with regard to the criminal himself or to s- civil society, but must in all cases be imposed only on the individual on whom, uh, it is inflicted, uh, uh, uh, wh-when the– this individual has committed a crime.

End quote. This principle derives from the categorical imperative that humans should never be treated as means but as ends, and therefore that one cannot punish for the greater good of society, but only because the person has been found guilty. As for the way to implement concretely this principle, equality must guide the mode and measure of punishment.

Consequently, the right of retaliation implies, uh, quote, “that whoever has committed murder must die.” This radical expression of retributivism has been developed in various directions, punishment being justified either to compensate the benefits unduly obtained from the wrongdoing or to correct the harms done to the victim of this wrongdoing. In these cases, it is the consequences of the act that have to be repaid.

Calling for a purer version grounded of, uh, on the sanction of the act for itself, Jean Hampton affirms that the only acceptable raison d’être of retributivism is righting a wrong, as she says. The latter, uh, being, uh, defined as the infringement of a moral standard, what she, uh, described as an affront to the victim’s value or dignity. Such an approach, especially when illustrated as she does with horrific, uh, examples of sadistic racism under the Jim Crow laws, enabl- ennobles the retributivist cause.

Yet it seems to apply only to a limited part of the cases actually taken to court and punished by s- prison sentences in countries like France or the United States. Drug law violations or motor vehicle offenses, which have spectacularly increased in recent decades, cannot easily be described as an affront to any victim’s value or dignity. Although they are conceptually opposed and even apparently incompatible, utilitarianism and retributivism are often combined in practice.

Thus, people who are in favor of harsher punishment for criminals often justify their position both in terms of incapacitation and deterrence, and in terms of just deserts and even vengeance. Most generally– more generally, these various approaches, whether utilitarian, retributivist, or pluralist, have two important features in common. First, they do not only analyze justifications of punishment, they also justify punishment.

Second, they do not reflect, uh, how punishment is or can be explained in the real world. They analyze how it should be justified in an ideal realm. These two features, justification rather than mere analysis of justification and defense of an ideal order rather than representation of the world as it is, may seem self-evident since philosophy as well as law are, for the most part, normative disciplines.

It is therefore expected that they would describe how things ought to be rather than how they are. However, the difference between the two is not always clearly stated or understood, and theoretical justification tends to be taken for granted as actual explanations. One of the most lucid, uh, observations in this respect is again, again, referenced to yesterday, Nietzsche’s unequivocal statement, quote, “Today it is impossible to say for certain why people are really punished,” end quote.

Not that the ultimate cause would be hidden, but on the contrary, because too many reasons may be found in diverse situations or even i-in a given one, and Nietzsche cites more than a dozen of plausible reasons that have little to do with utilitarianism or retributivism. His long list is not so much contradictory with the classical dualism that I’ve described, as it is situated in a different theoretical rea– strat- stratum, not in the pure realm of thought and rule, but in the impure region of crime and punishment, the world of Dostoevsky rather than that of Bentham or Kant, so to speak. This is the same sort of ordeal to which theoretical reasoning is submitted when it is confronted with empirical research.

I will take three brief ethnographic examples illustrating punishment in the street, in court, and in prison. First scene. Three adolescents are talking and laughing loudly in a small square near the hostel of the Youth Protection Service where they stay.

Like the other minors residing in the three-floor house, they have been placed in this institution by a juvenile judge, either because they have committed a misdemeanor or because they are considered to be at risk. The three teenagers are of African origin. Two police officers on patrols stop, stop by and ask for their papers.

Such a check is banal but illegal, since there is no indication of a crime being or having been, uh, committed, and since it is established that such stop is often based on mere racial profiling. The adolescents present their travel pass, which is normally deemed sufficient since it has their name and a photograph. Not satisfied, the agen-

the agents demand their identification card. The adolescent explained that they live in the hostel some 20 yards away and proposed the officers to accompany them to get their documents. The police ruthlessly refused and said they will take them to the precinct for further verification.

This is an obvious abuse of authority since the travel pass should have sufficed, and the visit to the hostels would have been the adequate alternative if there are doubts. Panicked at the idea of being arrested, one of the teenagers es-escapes, runs to his lodging, takes the requested card, and swiftly returns to prove his good faith. Yet the reception is not what he expects.

The officers scold him harshly using racist slurs while slapping him. Alerted by the shouting, one of the social workers of the service gets out only to hear one officer threaten the boy, “I’m going to kneecap you,” and yell at him, “You’re a failure at, in your family. You’re a failure at school, you little faggot.

(breathing)

Not without difficulty, the, uh, social worker interpose herself, interposes herself, and finally brings this adolescent back to the hostel. Second scene. A thin man in his mid-thirties, looking lost in the impressively vast space of the regional courthouse, stands in the defendant box.

(sighing)

Haggard after twenty-four hours spent in custody, he faces charges for driving without a license and an insurance.

(sighing)

Four months earlier, he had a minor car incident, uh, accident, crashed into a signpost and drove off. As his registration plate had fallen down, it was easy for the police to identify the vehicle, which officially belonged to his wife. He was summoned, did not go to the precinct, and after some time two officers came to his apartment to arrest him.

At the trial, the judge notes that with irritation that it’s not the first time he has, uh, been dealing with the justice system. Indeed, he has received nineteen ci-citations, uh, in the past fifteen years, mostly for similar offenses. He has been sentenced to prison four times, generally between two and four months.

Born in a traveler’s family, his father being a mechanic, he dropped out of school, had a series of temporary jobs, and finally stabilized his professional situation for some time as a delivery driver. Under the usual pressure of this sort of activity and with the multiplication of radars, uh, on the, uh, roads in that period, he was caught several times for excessive speed, received points, and lost his license. He nevertheless continued working and was, was arrested several times while driving.

The first time he was incarcerated, he lost his job. From then on, his life became increasingly precarious. After his last stay in prison, he remained unemployed for several months, but was eventually hired in a warehouse.

When he was a-arrested after the car accident, he was on the verge of signing a permanent contract with this company. The trial only lasts thirty-five minutes and concludes with a verdict of six months in prison and payment of damages. The defendant is handcuffed and taken to the local jail.

In the conver– in my conversation with her afterwards, the judge, disheartened, comments, quote, “We don’t know what to do with these cases. We’re helpless. We know he’ll do it again, but we still have to apply the punishment.

“With these previous convictions, what else could we do?” When I meet the man in prison three days later, he’s bitter. Sure, driving with, uh, without a license is illegal, but you can’t call that a serious crime.

It’s not right that you end up together with burglars and rapists just for that. I’ve been inside four times, and I’ve been offered a lot of stuff. I’ve even been straight up to join robberies.

There are Islamists here, too, that try to recruit us. He’s persuaded that the sanction has been severe because he’s a Roma. After a brief pause, he adds, “I’m really pissed, because I was putting my life back together again.

I had a job. I had my kids.” His wife, uh, is indeed going to give birth while he will be, uh, still incarcerated.

His eldest son is having behavior, behavioral problems in school.

(sigh)

Six months later, I’m surprised to see him, uh, still there since he should have been out due to automatic sentence reductions. I’m told that he was released at the end of his time, but was arrested and sentenced to ten-month imprisonment for domestic violence only three weeks later. Third scene.

An inmate is brought into the cramped room adjacent to the solitary confinement unit where disciplinary board hearings, uh, take place.

(sigh)

One of the deputy, uh, one of the wardens, a corre-correctional officers- officer and a volunteer of civil society are facing him. The warden who presides the session formulates the charge. The man is accused of racist insult against a Black guard as he was leaving the yard several weeks before.

Normally, in such case, the complaint of the officer is detailed, and the report of an investigation conducted by a superior is appended. This time, the only evidence is a statement of the correctional officer, whose name is not even revealed to the prisoner. There is no witness, no specifics, no inquiry.

Knowing neither who his, his accuser is, nor what the circumstances are, the inmate, an unpolished man, seems disconcerted. “Don’t even know who the guy is,” he mutters. Perhaps by excess of confidence, he has not requested a lawyer and keeps repeating that he does not remember anything of the episode about which the warden is incapable of providing any information.

A trainee correction lieutenant who, uh, attends the hearing later comments to me that in the facility where he has been working as a guard for ten years, they would never have taken a decision on such a vague accusation. When, uh, after the deliberation of the jury, the prisoner is brought back in the room– into the room, he’s told that he’s sentenced to seven days of solitary confinement. In an irrepressible act of rage, he punches and breaks the wooden podium behind which he stands.

Three guards who were waiting outside rush into the room, pin him against the wall, and handcuff him. While he loudly protests against the unfairness of the decision, they take him to his punitive cell. The civil society volunteer who sits on the board tells me in an aside that if the man were to appeal, he would definitely win the case.

But the inmate is certainly not even aware of this possibility. Not only will he spend the seven days in solitary confinement, but the incident will also affect the granting of sentence reduction, block his possibility of temporary absence, and delay the prospect of being released to– on parole. Multiple punishments for the same acts are indeed the rule in prison.

A deputy warden with whom I speak later, makes clear that even when they do not believe in the veracity of the guard’s version, especially when the accusers are known to their– uh, for their aggressive behavior, they cannot afford to appear to disown them. She says, “He who says that we decide on the sole basis of facts and inmates’ profile does not tell the truth.” Commenting on, uh, sentences to solitary confinement delivered for minor faults in a context of recent tensions within the prison, she adds that punishing prisoners, even when it is obvious that they have been harried and responded to provocation by an officer, serves to satisfy and appease the personnel.

Quote, “It avoids the guards taking revenge on the prisoners.” These three cases illustrate the diversity and intricacy of the reasons why police officers, criminal judges, and prison wardens punish. Of course, each of them is specific and not representative of punishment in law enforcement, judicial, and correctional institutions, respectively.

But through them, I want to show the difficulty of answering, uh, the question, why do people punish when one is confronted with such actual situations? In the first scene, the two law enforcement agents expressed their diffused resentment against the working class youth belonging to ethnic and racial minorities. The bastards, as they habitually call them, with the connotation of illegitimacy of birth associated to the word.

But the combination of hostility and racism that is common among the police working in such an environment takes a moral resonance in this case. Being under the supervision of the judicial institution, the adolescents have already had dealings with the su-justice system, either as delinquents or as victims, or more often than not, as both. Although the agents pretend to ignore that the boys live in the hostels, they evidently know that, uh, where they come from and imagine what may have been their story.

Why, uh, uh, which justifies the way that we’ll treat them, hence, uh, the refusal to consider their travel pass and threat to take them to the precinct. Hence, the humiliating and hurtful insults about the teenager’s supposed failure in his family and at school. Hence, the slaps across the face and the menace to cripple him.

For the officer, it is legitimate to punish the adolescents because of what he thinks they are. In the end, the psychological harassment and physical violence is an abuse of authority through which the agents do not only manifest their discretionary power, but also perform a social order in which the youth are learning their position as racial and moral inferiors. In the second scene, the judge warily indicates that she was embarrassed by the case, but felt that she had no, she had to issue a prison sentence for lack of alternative.

In fact, she was not constrained by the law, uh, in her decision as she su-as she suggests, since mandatory sentencing did not apply in the present situa– to the present situation. So from a utilitarian perspective, it is difficult to argue that the offender will be incapacitated since his removal from society is only for a few months, or that he will be deterred since having l-uh, uh, lo– Having him lose his job can only make his reentry more at risk of recidivism, or even that you will re-be rehabilitated since prison sentences of less than six months are excluded from programs of social reinsertion. From a retributivist viewpoint, the magistrate does not seem persuaded that she– that he should be incarcerated, and the disenchanted tone of the private conversation contrasts with the public reprimands about his reckless recklessness.

More than anything else, incarceration seems to be the result of a judicial routine. As one of her colleagues later told me, when the legislator imposed minimal sentence time for repeat offenders in 2007 under a right-wing government, judges initially protested in the name of the individualization of sentences and the liberty of their profession. But they progressively got used to the new norm.

Facts proved her right. When five years later, a newly appointed progressive Minister of Justice published a memorandum asking magistrates to interpret the law with discernment, mentioning traffic violation as an example, they did not abandon the inflexible practices they seemed to have, to have adopted reluctantly shortly before. And in fact, the prison population continued to increase steadily in the following years.

In the third, third scene, the game seems to be over even before it starts. The deputy… The, the warden knows that despite the absence of evidence in the case on which, uh, the disciplinary board will have to decide, the fact that it is an accusation of verbal abuse against a guard renders a sanction necessary.

He anticipates that officers and inmates will scrutinize the judgment. An adjournment of the case for lack of established proof and investigation report, or worse, a clement verdict would be regarded on both sides as an implicit condemnation of the personnel. The prisoners would regard it as a victory, and the news would soon be se– disseminated through the entire facility.

The guards would interpret it as an absence of support from their institution, and their unions would probably express their anger. The sanction of solitary confinement is a tactic of peacekeeping in which showing fairness is secondary to maintaining order. No one is fooled.

The wardens are realistic about it. The prisoners view it as more– one more injustice of the system. Even the guards seem to be aware of it, as they tell me in private that it was no surprise to them that this colleague would have been insulted and as- or assaulted considering the bully he was, but this would not prevent them from protesting had he provoked, uh, the, uh, had, had the provoked inmate not been punished.

One could, of course, interpret the reasoning of the warden as utilitarian, but the an- the anticipated consequences here are not the reduction of offenses among prisoners, but the prevention of potential disorder at the cost of justice. So in the reconstitution of the possible answers to the question, why do people punish? I have in each of the three cases moved from the justifications provided by the agents resulting from a, a to the explanations resulting from a distance analysis.

Or better said, the work of interpretation has consisted in integrating the local justifications into broader explanations. This analytic distinction between justification and explanation is important, although not often made explicit. The police’s claim that they enforce the law can be read as their eagerness to impose a social and racial order in the name of morality.

The judge’s affirmation that she merely applies the legislation can be construed as the manifestation of an expanding culture of severity in criminal courts. The disciplinary board’s trial offering a semblance of justice within the prison can be viewed as a politics of pacification at the cost of unfair practices. In other words, the sense of entitlement of the officers who abused the adolescent of African origin, the routine of the sanctioning of the magistrate who sent the Roma driver without license to prison, and the pretense of lawfulness of the deputy– of the warden who sentences the unruly inmate to solitary confinement produces punishments inscribed within a range of possible actions which characterizes a given historical, political, and social context.

Until now, both justification and explanation of punishment have been presented in a rational frame through the alternative between utilita-utilitarianism and retribu-retributivism or, uh, the various logics of social order, bureaucratic routine, and institutional peacekeeping. But the interpretation must go further. Punishment constitutes an emotional reaction, affirms Durkheim.

Trying to understand why it is always in excess, why shame doubles suffering, why disgrace supplements exclusion, why cruelty surfaces in the inflic-infliction of pain, he suggests that these unnecessary sanctions, quote, “are a form of additional tribulation that serves no purpose, or one whose sole reason is the need to repay evil for evil– with evil.” Before him, Nietzsche has even been more explicit, speaking of, quote, “a recompense in the form of a kind of pleasure.” For him, punishing was not simply repaying evil with evil, but producing a gratuitous evil for the mere satisfaction, satisfaction of doing so.

In the act of punishing, something resists rational analysis, or better said, resists being analyzed as rational. A repressed drive to make suffer, which society tends to delegate to certain institutions and professions. Prisons and correctional officers occupy an extreme position in this process because they deal with a captive, already condemned population, and they do so out of the sight of society.

On June twenty-third, two thousand twelve, in a Miami prison, Darren Rainey, a fifty-year-old inmate suffering from schizophrenia and sentenced for cocaine possession, was punished for having defecated in his cell and refused to clean it. The sanction, called the shower treatment by the guards of the mental health unit, was commonly used with recalcitrant prisoners. The man was locked under a scalding shower, and although he was screaming for help, he was left shut up in for more than one hour until he died.

According to witnesses, his whole body was so burned that his skin had, uh, shriveled from it. Initially, the police classified the death, and the correctional institution took no sanction. It is only after a local newspaper publicized the case, revealing on the basis of various testimony, testimonies from former personnel that guards, quote, “Taunted, tormented, abused, beat, and tortured chronically mentally ill inmates on a regular basis,” end quote, in order to provoke a response justifying punishment, that an investigation was finally conducted.

Yet this was not the first time similar incidents ending with the death of inmates after they had been mistreated were reported in this prison. In one case, three senior corrections department, uh, investigators were sent to inquire. They described a systemic situation of abuse and corruption, but they were sidelined and dismissed by their superiors.

In two thousand and fourteen, finally, the warden of the facility was discharged, and the two, and two of the officers on duty on the day of the incident resigned. However, no criminal charge was filed by the justice system, and almost three years after Rainey- Rainey’s, uh, death, the medical examiner concluded that it was accidental. The prisoner had slipped on the floor of the shower.

This tragic case is not isolated. In the United States, numerous complaints of abuse perpetrated against prisoners have been reported, and statistical studies conducted in correctional facilities have established the banality of physical, psychological, and sexual violence. Even when death occurs and evidence of mistreatment is provided, no administrative sanction is taken, nor is any criminal charge filed.

Cruelty, cruelty seems a normalized way of dealing with the prison population as if inmates were indefinitely punishable and is a– and as if guards were permitted unrestricted discretion. Difficult to imagine in European democracies, the situation encountered in, in the United States prisons represents a limit case that, however, illuminates the emotional dimension and potential excess, which under ordinary circumstances are simultaneously present and repressed in punishment.

The pleasure of punishing suggests that the question why punish is probably inseparable from another, How does one punish? Indeed, the examination of the way in which pain is inflicted opens new avenues for the understanding of punishment that are rarely explored. We are far from both the Benthamian idea of punishment being justified on the condition that it benefits to a society and the Kantian principle of equal measure between the crime and its sanction, and we are reminded that rational justifications do not suffice to explain punishment.

But punishment, especially in its harshest form, is not even evenly allocated across society. So the question, who is punished? The distribution of punishment depends on the determination of what is considered an offense and how it is sanctioned.

In other words, to ask who is punished is to ask simultaneously what is punished. Indeed, crime is differentiated across society in terms of the sort of violation committed, as well as the characteristics of the commission. Although both are f-financial, financial crimes, bank robbery and tax evasion definitely correspond to different social worlds.

The use of the same illegal drugs follows distinct practices in the middle class or upper class and in housing projects, which are not exposed to the same sanctions. Consequently, the way in which the law is written and enforced determines which crime and public are punished. These variations have led Durkheim to reverse the common sense relationship between crime and pu-punishment.

For him, a crime is, quote, “any act which, regardless of degree, provokes against the perpetrator the characteristic reaction known as punishment,” end quote. And developing his argument, he famously continues, “We must not say that an act offends the common, common consciousness because it is criminal, but it is criminal because it offends the common consciousness. We do not condemn it because it is a crime, but it is a crime because we condemn it.

Thus, the acts we call crime depend on social convention and the choices regarding who should be punished, uh, uh, and, uh, uh, and, and are indicative of moral hierarchies. Remarkably, however, these hierarchies do not reflect the seriousness of the consequences of the acts committed. Whereas murder is generally deemed the greatest crime in modern society, comments Durkheim, an economic crisis or a company bankruptcy may have much more– much worse consequences for many, uh, but those responsible for it are rarely held accountable.

One could certainly prolong his reasoning, and I argue that the moral hierarchy reveals a social hierarchy, which explains why bankers and managers are more easily exonerated than ordinary citizens. What is punished and who is punished remains open questions. To ans-answer them, a case, a case in point which has also been the most studied is that of the United States.

It is both exceptional for the extreme severity of its punitive system and the profound disparities in distribution, and exemplary in that it reveals its general mechanisms of differentiation in the allocation of punishment. With more than seven hundred per one hundred thousand of the national population, the country has the highest incarceration rate in the world, far above Russia and China, thus apparently refuting Montesquieu’s statement: “Severity in penalties suit a despotic re-government whose principle is terror better than monarchies and republics which have honor and virtue for their spring. In these states, a good legislator will insist less on punishing crimes than on preventing them.

It would be easy to prove that in all or nearly all states of Europe, penalties have decreased in proportion as one has approached or departed from liberty, unquote. Had he lived in the present time, the author of The Spirit of the Laws might have revised this analysis to take into account not only the severity in the penalties, but also its distribution across society, so as to describe the paradoxical case of democracies for which liberty and equality are in such tension that the deprivation of the former becomes the most effective marker of the failure of the latter. Indeed, in no other domain, uh, than, than that of punishment are the two cardinal values of democracy working so much together to combine their negative effects.

The more severe, the more unfair. There is probably no democratic country in which this correlation has not been evidenced. As shown by Bruce Western, Black men in the United States have incarceration rates eight times higher than white men, this ratio being much higher for, than for other criteria like unemployment or wealth.

Among high school dropouts between 20 and 40, uh, years old, one Black man out of three is in the correctional facility on any given day, and Blacks are five times more often in prison than whites, while the latter benefit almost twice as much from the welfare system than the former. That punishment, uh, would not be equally allocated among the members of gi– of a given society is anything by, but unexpected. The fact is commonly observed in very different context.

Among the, the Zande of Northern Democratic Republic of Congo, for instance, punishment depending on both who was offended and who was the offender. Offenses against the chief were more severely sect-sanctioned than similar offenses among the rest, uh, uh, of the group, and retribution was harsher on low-ranked indi-individuals than on members of the ruling clan. While, uh, quote, “A commoner was liable to punishment for every offense against another commoner or an office holder, it was unlikely for him to dare to establish guilt on the part of even, uh, the most powerless of the ruling clan.”

Similarly, among Moroccans under the Saadi dynasty, the status of the person who had committed the crime decisively influenced the sentence. The difference in treatment was legitimized by a hadith, which implied that high-rank individuals should be forgiven because, quote, “For them, reprobation is more painful than physical chastisement.” End quote.

Many ethnological and historical examples would thereby prove true the morale of La Fontaine’s fable, the, the animal sick– sick of the plague, in which the misdemeanor of the ass is punished by the death of the culprit, while the lion and other powerful, uh, animals are exonerated of their egregious crimes. So the moral goes, according as you’re feeble or have might, high courts condemn you to be black or white. Nowhere is this moral literally more true than in the United States.

However, it is in another country where socioeconomic and ethnoracial inequality in punishment has long been ignored that I want to explore this phenomenon further: France. In the past sixty years, the number of inmates increased from twenty thousand to sixty-eight thousand. I know the figures are very small for, uh, a US audience.

Co-corresponding to a multiplication of the incarceration rate, rate this time, by two and a half despite, and this is important, despite the significant decline, uh, in crime rate dur, uh, before and during that period, particularly for the most serious, uh, ones, homicide and robberies. This dramatic evolution took place in a context of growing anxiety fueled by the far right, the right, and ultimately the left regarding immigration and insecurity, culminating with the expansion of the correctional population by fifty-two percent between two thousand and two and two thousand and twelve under successive conservative governments. These long trend, lo-long-term trends did not affect all, uh, categories in the same way.

The working class and the jobless represent three-fourths of the carceral population, and the risk of being imprisoned is sixteen times higher for men who dropped out of school before the age of six- of sixteen than for those who studied beyond twenty years old. In the facility where I conducted my research, half the men were unemployed, half of them declared no profession, four out of five had not finished high school or had a vocational degree, while only one percent belonged to management. Although little known and debated, these socioeconomic economic data about the distribution of punishment do exist.

Such is not the case for ethnoracial disparities, for which the production of statistics is forbidden in France, a legal obstacle that contributes to the the denial of the problem. Despite this prohibition, at the end of my four-year ethnographic study in a short-stay prison, I conducted a survey among its nine hundred inmates and found out that ethnic and racial minorities represented seventy-seven percent of, uh, the prisoners, including thirty-five percent Blacks, thirty-two percent Arab men, and five percent Roma people. In order to check whether these figures did not result from a specific recruitment, I compared the local and national prison populations using two proxies, namely the proportion of working class and unemployed, and the proportion of non-nationals differentiated by their origin.

The demographics are almost similar. It seemed therefore likely that the facility I had studied was not an outlier. The combination of socioeconomic and ethnoracial, uh, definition within the population, the prison population, suggests that f-

the French correctional institution resembles that of the United States more than, uh, one could have imagined, with the major difference, of course, that the total incarceration rate is seven times lower in France than in the United States. In fact, the general mechanism that can explain such disparities in the distribution of sentences are not so different in both countries. They involve the entire production of the penal chain from the construction of public problems and their translation into legislation to the work of the police and the decision of the judges.

At each stage, it is easy to see how the same populations are targeted despite the apparent universalism of the law and the neutrality of its enforcement. The case of drug law violations is particularly telling, as it is in the United States, of course. In France, since the passing of the nineteen seventy legislation criminalizing drug abuse, the number of arrests has increased by a factor of sixty.

But whereas the law had been initially conceived to fight the heroin epidemic, which was then causing numerous death, it now concerns mostly marijuana, which has been legalized in various parts of the world and including not very far from here. And while it originally targeted traffickers, it ends up focusing on consumers. While drug dealers only represent zero point twenty-five percent of inmates, cannabis, cannabis use accounts for three point five percent of all incarceration, and possession or resale of small quantity of this substance for fourteen percent.

Moreover, youth arrests and convictions for drug law violations affect almost exclusively disadvantaged minorities from housing projects. Yet epidemiological studies indicate that the proportion of marijuana users is not higher among them than in the rest of the population. The disparities in the prison population are due to differences not in illegal practices, but in the way they are punished, that is, in the work of both the police and the judges.

Significantly, during the two thousands, convictions for the use of marijuana increased by two hundred and fifty-five percent in ten years, while convictions for infringement of on legislation on business decreased by twenty-nine percent. The political priority regarding what sh, uh, should be punished was determined by the choice of who was to be punished. As Foucault famously observed, quote, “The prison, and no doubt punishment in general, is not intended to eliminate offenses, but rather to distinguish them, to distribute them, to use them,” unquote.

The prisoners are not taken in by this function of punishment. Indeed, one afternoon during the month of Ramadan, as I was conversing with three inmates who were preparing dinner for the breaking of the fast, one of them gazing through the tightly barred window of his cell, showed me his companion in the yard below and told me with a smile, “Let’s face it. Look out there in the yard.

It’s all Blacks and Arabs.” After a pause, he resumed, “Us in here, we feel the injustice of justice. I was dealing pot.

I’m not saying it’s not wrong, but it’s only marijuana. I never hurt anybody. I never stolen from anyone.

I never sh- even shoplifted. I pay my tax and my fines. So when I see Sarkozy profiting from the riches of a senile old woman or Cahuzac and the millions he owes in taxes, and they are free, there you feel the injustice.”

End quote. He was, in fact, referring, as you may know, to the former conservative French president who was accused of having received clandestine donation from billionaire Liliane Bettencourt and to the former socialist minister of budget who had to resign following the revelation of his secret bank accounts in Switzerland and Singapore, and recently he was also cited in the Panama Papers. His comments lucidly pointed to the unequal distribution of the prison population resulting from the selective retribution of crime by the justice system.

The poor and the rich do not commit the same violation of the law. The former are involved in drugs or theft, while the latter embezzle funds or evade taxes, but society punishes petty crime much more harshly than financial crime. One could not have illustrated better than the young inmate the sociological assertion that I mentioned earlier, according to which we do not condemn an act because it is criminal, but it is criminal because we condemn it.

However, he was going further than the sociologists in his analysis. By comparing his fate with that of the mighty, he emphasized the consequences of the relativist definition of crime in terms of disparities in the allocation of punishment. In his own way, he was adding Marx to Durkheim.

The interpretation of these disparities should, however, not be limited to the penal chain. It must include the analysis of the social structure. Targeted legislation, discriminatory policing, and biased judicial practices do not suffice to explain the spectacular discrepancies in prison population across social class and color lines.

Such discrepancies involve the entire society and reflect the– its unequal structures– structure as had been– has been argued by Loïc Wacquant. In France, the rapid expansion of in prison population from the nineteen-eighties on is concomitant with a steep increase in economic inequality, which occurs, as demonstrated by Thomas Piketty, after three decades of economic growth, quasi-full employment, and improvement of living conditions known as the Trente Glorieuses. The parallel evolution of the two phenomena now is par-particularly dramatic from two thousand two to two two thousand twelve, a decade during which conservative governments simultaneously debilitated the welfare state and strengthened the penal state.

The correctional population augmented by more than one half, as I mentioned before, as a consequence of an increase of the number of incarceration and of the duration of the prison sentences. While the ratio between the superior and inferior deciles of the income distribution grew from six point two to seven point two as a result, in particular, of a rise in earnings one hundred and fifteen times faster at the top than at the bottom. Although one cannot mechanistically link the trends in the evolution of social inequality and of the prison population, it remains that in times of deepening of economic discrepancies, the penal inst-instrument does not only serve to control crime and criminals, it also disciplines and polices the disadvantaged.

But the political economy of punishment does not say it all. Punishment is also a question of values and affects. One has therefore to examine also its moral economy.

From the 18th century on, the modernity of punishment had been the addition of a reformative project to the retributive function. To punish was to inflict pain, but it was also supposed to lead to the criminal to amend. Educate and redeem as much as discipline and punish.

However, the description of prison in the United States as well as in France in the 19th century suggests that, in fact, the balance between retribution and reformation was never achieved elsewhere than in the mind of the inventors and promoters of the modern prison. The illusion was nevertheless somehow maintained until the 1970s when the reformative project got discredited and the retributive function definitely gained ground, ending the period of, uh, penal welfarism, as David Garland names it. Of the contemporary moral economy, I will retain three elements that I think are crucial for the understanding of the unequal distribution of retribution, um, across society, the recognition of the victim, the individualization of responsibility, and the emphasis on suffering in punishment.

Firstly, the emergence of the figure of the victim is a recent phenomenon. Yet because it has become so prominent and legitimate through the representations of battered children, bullied adolescents, abused women, people affected by disasters or conflicts. One tends to forget that until a few decades ago, these categories did not even exist.

The acknowledgment of victims has contributed to vilifying the perpetrator and in the end, justifying not only the severity of punishment, but also its function of retribution rather than deterrence or rehabilitation. But this moral order is also a social order. Not all victims are equally treated.

When a man is beaten or even killed by a police officer in the street or by a correctional officer in prison, the institution endeavors to depict him as a criminal and to prevent him from being regarded as a victim, which explains in large part why it is difficult to have fair investigation in such cases. This representational struggle is indeed essential in the process of qualification or disqualification as victims of individuals who are subjected to violence. Secondly, that the responsibility for one-one’s act be the justification for one’s punishment seems to be so self-evident that it is almost never questioned.

Yet, in many societies studied by ethnologists in particular, individual responsibility was not at stake in the way, uh, a, a wrong was repaired. By contrast, the logic of the modern justice system relies entirely on the demonstration of this responsibility. In the case of crime, not only does it construct guilt and legitimize punishment, but it also exonerates society from its accountability.

The uni– uh, the univocal relationship between the wrongdoing and the wrongdoer desocializes crime. The idea that social conditions may have played a role disappears. As a French prime minister famously stated, quote, “Everyone is responsible for his or her acts.”

As long as we will accept sociological excuses and not address individual responsibility, we will not be able to solve these issues. The assimilation of sociological ana-analysis to excuses has been a constant, constant theme of political discourse in the past two decades in France. The paradox is, however, that while considering the individual solely accountable, the criminal justice system actually penalizes not only the culprit, but also his entourage.

His spouse and children in particular are subjected to a vicarious punishment that contributes to the precarity and instability of the family. While denying the social production of crime, the state thus participates in its social reproduction. Finally, the nagging question of the infliction of pain o- to the offender and the satisfaction it procures remains.

Once more, this necessity and the effect attached to it do not appear to have always existed everywhere, as ethnographic studies have shown. Ethnologic studies have shown. Paradoxically, in the apparently neutral contemporary judiciary system, the resentment of the legislator, the police and the magistrates, but also the– of the public and the media often surfaces.

One particular manifestation of it is the current success of public shaming in the United States, both in its traditional form of exposing culprits carrying signs proclaiming their crime or through social media. Similarly, the multiplication of television programs and channels dedicated to the social world of repression, whether the police, justice of prison or prison, reveals the attraction exercised on the public by the exhibition of arrests of sex offenders, scenes of violence in maximum security facilities, and various forms of humiliation in reality shows. Contrary to what Foucault had imagined, far from having fa-faded away, both cruel practices and their pornographic display remain lively in the contemporary spectacle of punishments.

Certainly less extreme than the public torments of the past, but no less a source of ambiguous emotions. In this context, the recent call f- uh, in the United States for a return to corporal punishment is hardly a surprise, and a recent proposal by a criminologist to let offenders choose between prison and flogging sentences is more than a mere provocation or return of the repressed, since of course it was the typical retribution of black slaves. It is an ironic reminder that punishment has not lost its, its dual historical feature, avatar of the physical marking of bodies, and memory of its unequal distribution across social classes and racial groups.

Conclusion. To an observer belonging to a different society, certain of our practices would certainly would, would, would, would, would appear to be similar in nature to anthropophagy, which we deemed so alien to our notion of civilization. I’m thinking of our customs regarding justice and prison.

Thus writes Claude Lévi-Strauss, as you probably, uh, guessed, in a famous passage of Tristes Tropiques. If such an observer, he continues, were to consider the solution consisting in dealing with dangerous individuals by, quote, “expelling them out of the social body and keeping them temporarily or definitively i-isolated from the rest of humanity in establishments especially intended for this purpose, most of those we call primitive would regard such a custom with profound horror. Unquote.

This text was published in 1955 at a time when the French prison population was at its lowest level. Certainly, Lévi-Strauss’ critique of the humaneness of our justice system might have been even more severe had he been writing six decades later, when the number of inmates is multiplied by three in France and is more than a hundred times higher in the United States. And to shake our moral assurant- assurance, he would perhaps, Claude Lévi-Strauss would perhaps have imagined his fictitious observer wondering which is the cruelest treatment one can apply against one’s enemies.

Their videotaped beheading, usually deemed the ultimate form of barbarity, or their secret indefinite detention, their torture by beatings, waterboarding, sexual abuse, sleep deprivation, forced feeding, exposure to loud music and extreme temperatures. He might even have justified his parallel by the fact that the former practice is showcased as a parody, a parody of the latter, since the victims wear the same orange jumpsuit. Yet Lévi-Strauss was not a provocateur, nor was he a postmodern relativist.

He was an heir of the Enlightenment and affirmed that he would have preferred to live in the nineteenth century. This is why he thought anthropology could teach his contemporaries lessons by questioning their prejudices against others and their self-evident truth about themselves. Challenging our certainties regarding punishment, or as Clifford Geertz has it, keeping the world of the, the world off balance, pulling out rugs, upsetting tea tables, setting, setting off firecrackers, is what I have tried to do in these lectures, resorting to an anthropological approach, using our capacity to be surprised.

Such an endeavor is certainly timely. Western nations have arrived, I believe, to a profound crisis of their model of punishment. In Europe, after several decades of constant increase, the prison population has recently started to decline, France being an exception to this evolution.

In the United States, the mass incarceration project has suddenly appeared untenable in a rare bipartisan fit of awareness that still remains to be concretized. But the reversal of the trend I have analyzed is late, modest in its intensity, and partial in its extension. The time may therefore have come for our contemporaries to finally realize that at least in most Western democracies, they are going through the least violent period of their history, and yet the most punitive.

Thank you.

(applause and cheering)

[01:06:08] CHRISTOPHER KUTZ:
Thank you very much. We’re now going to take a very short break, just a two or three minutes, a chance to, uh, use the restrooms or stretch your legs, and then we’ll be back with, uh, Professor McLennan. It’s my great honor, uh, now to introduce my colleague from the History Department, Professor Rebecca McLennan, who is also, I’m even more pleased to say, an affiliated faculty member of the Jurisprudence and Social Policy Program at the Law School here at Berkeley.

And I should say, uh, without meaning to suggest that we invite just anyone as an outside commentator, that we do impose an especially high bar for members of the Berkeley community to show that we don’t simply favor our own in th- for this important event. And I just, for the audience, I just, I, I want you to know what a dream team of, uh, criminal law and punishment theory and punishment history we have for these Tanner events. This is really one of the most extraordinary collections of people I think we’ve ever been privileged to assemble here.

Um, it’s also, I, uh, Rebecca just told me before this that this is the, uh, first all Rugby Nation Tanner panel as well. Another important distinction. So you’re lucky.

Okay. Um, Professor McLennan arrived at Berkeley in 2003, having previously been on the history and social sciences faculty at Harvard University. She received her undergraduate degree from the University of Otago in New Zealand, of which she’s a native.

Um, and, uh, right, it also, it does occur to me that we’ve set a Tanner record for the number of antipodeans at this year’s lecture as well. Professor Western as well. She proceeded to a doctorate at Columbia University, where she began the work on the history of the American penal state that has brought her such great acclaim.

Her best-known work in this area is 2008’s The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, seventeen seventy-six to nineteen forty-one, published by Cambridge, which essentially won every single prize it could win, including the AHA’s Littleton-Griswold Prize for the best book in U.S. legal history. It has become the authoritative history of prison and of prison labor in the U.S. Professor McLennan’s special achievement has been to link particular debates and popular political agitation over prison labor and other forms of penal servitude to the larger context of understanding the specific American meanings of freedom and unfreedom. The book really is remarkable at the level of archival research and synthetic argument in explaining the emergence of the U.S. version of the penal state.

With her fellow Berkeley historian, David Henkin, Professor McLennan is now making a pitch to bring her historical skills to the shaping of college students’ minds with what looks to be a really transformative series of textbooks in American history, entitled Becoming America: A History for the 21st Century, published, uh, in 2014 by McGraw-Hill, and which is apparently, believe it or not, the very first, uh, American history textbook to be written entirely in the 21st century. Um, it’s also, uh, Professor McLennan just told me, um, a book that, uh, although it is the first textbook to feature a gay kiss as a photo, has been adopted in North Texas school districts. Um, which is just a wonderful achievement.

Um, she’s currently at work on a larger project concerning the way in which Americans use legal categories and their understandings of nature, food sources, land, and the environment. I give you Professor McLennan. Thank you.

(applause)

[01:09:20] REBECCA MCLENNAN:
Uh, well, thank you very much, uh, uh, Chris Kutz for that overly generous introduction. Uh, I’d also like to say a quick word of thanks to, uh, Professor Martin Jay, uh, and his committee, the Tanner Committee, for, um, their tremendous, uh, f- uh, foresight, um, in, uh, uh, asking, uh, uh, Didier, uh, Fassin to be the speaker, uh, for this year’s Tanner Lecture at Berkeley.

Uh, also Ellen Gobler, thank you very much. You miraculously wrangled, uh, the four of us to appear in the same place at the same time for three consecutive afternoons. It’s quite remarkable.

Um, And finally, Didier, uh, Fassin and my fellow panelists, David Garland and, uh, Bruce Western, it is an honor to share this podium with three such distinguished scholars. Uh, it goes without saying that I’ve learned a great deal from each one of you over the years, uh, and not to mention the past 24 hours. I expect that to continue.

Now, Didier’s lectures on the will to punish are as ambitiously huge as they are hugely ambitious. They are brimming with ins-insightful analyses and controversial claims, and yes, firecrackers. The written version took me seven days to read, and this was not because the lectures are overly dense or difficult or written in French.

They’re none of the above, thank goodness. It’s because even at the micro level of individual sentences, Didier’s ideas are so numerous and so thought-provoking that they force me to stop reading, put the paper down, and reflect critically on some of the things I have t- most taken for granted in my own scholarship over the years. Well, it’s partly because the content of the lectures is so rich and varied that I want first to offer a reading that condenses the s- uh, structure of Didier’s argument and distills what I take to be his most exigent, analytical, and methodological insights.

In the second half of my response, I’ll pose three of the big questions that Didier lec- Didier’s lectures, taken as a whole, raised for me. And there are more than three, but I’m going to have to confine myself to those today. Today’s lecture takes up the questions of why punish and who is punished.

Here, Didier expands upon his discussion of the inadequacies of utilitarian and retributive or Kantian philosophers of pu- philosophies of punishment, which, as he said yesterday, inform common sense and legal understandings of what punishment is and should be. Didier scrutinizes these two schools of philosophy with a social scientist’s eye, arguing for their limitations, both as normative or ideal theories, as theories about the grounds on which we should or ought to punish, and as explanatory or descriptive analyses of why we do in fact punish. Now, the we in Didier’s formulation, I take it, is supposed to denote society, which remains a rather abstract ent-entity in his lectures, or perhaps, uh, society’s dominant classes.

It’s a little unclear, and I would suggest that being crystalline about the identity of the we would be very helpful here. Among other things, it bears directly on the distribution question of not only who is punished, but to whom and by whom the dirty work of punishment is delegated. As Didier notes in the first half of today’s lecture, the mutual critiques of the utilitarian and Kantian philosophies of punishment and various attempts to combine the two are well known, at least among students of punishment.

Didier recounts the basic grounds of disagreement, but then steps out of the philosopher’s forum and, with the tools and sensibility of a historically minded social scientist, launches three respectful but potentially devastating, uh, critiques of both theories. First, he argues that despite their apparent differences, they both commit the cardinal sin of taking for granted something they ought to explain. That is, they take for granted a determinative linkage between crime and its punishment, by which punishment, understood as the infliction of pain of some sort, whether or not paired with, with rehabilitative programs, is the only conceivable response to criminal wrongdoing.

As we learned in yesterday’s lecture, the assumption that painful punishment follows and should follow crime was not historically and still is not universally the case. Didier Fassin marshals a dazzling array of ethnographic, etymological, and statistical evidence to establish that today’s, sorry, that today, plenty of people are being punished for crimes that are neither endangering society’s overall happiness nor morally affronting anyone’s dignity. The crimes for which a majority of people are incarcerated in France and a significant minority in the US have no victim at all.

Conversely, there are plenty of people whose actions constitute an attack on societal happiness or on an individual’s dignity, and who are not charged with crime, or if they are charged and convicted, punished so mildly as to call into question whether they’re really being punished at all. Last week, the most recent case, we had a sentence of the Appalachian coal baron, Donald Blankenship, uh, where he was sentenced to one year in prison for safety violations that led to the deaths of 29 coal miners. This ex-exemplifies the tenuous, socially contingent, non-equivalent link between wrongdoing and punishment.

And of course, if that sentence has served, it will not be in one of the really rough, tough, maximum prison, uh, uh, maximum, uh, security prisons. Didier’s second critique is that the two philosophies of punishment, quote, “fail to represent actual punishment” and the justifications that actual people offer for punishing others. Both theories fail to take in and represent the world as it is.

Didier’s supporting examples here are drawn from the gritty Dostoevskian world of the housing project, the streets, the traffic court, and the prison. He convincingly establishes that the people inflicting punishment, the police patrol, the lower court judge, the prison’s deputy warden and his guards, do not operate according to the philosopher’s logic. Neither the goal of maximizing the happiness of society nor righting a wrong in the Kantian sense in any obvious way motivates their actions, whether consciously or otherwise.

Instead, Didier argues there are other, more properly social logics or forms of reasoning at work in these settings. In the case of the police brutali-brutalization of the young Black hostel residents, it was the motivation to enforce a hierarchy, hierarchical, racialized social order paired with the pedagogical imperative to teach them Their inferior place. Maintaining morale and thereby keeping the peace among prison guards was operative at the prison disciplinary hearing.

And in the case of the judge who sentences the unnamed Roma man to six months in prison for a traffic offense, uh, the, the, the, the logic was following the law, however mistaken she was in her understanding of recent changes in that law. Utilitarian and Kantian philosophers of punishment simply ignore these other motivating logics and thereby misrepresent the punished and the punishers alike. We might pause here to object that actually Kant and Bentham and most of their philosopher heirs do not presume to, quote, represent, unquote, real acts of punishment in their theories at all.

The point of moral philosophy is to articulate and justify an ideal towards which the unified we, there goes that troubling pronoun again, should strive. But even if one were to grant this, one might ask, what good is an ideal theory if it doesn’t take into account human beings as they are, as they have been made, and have made themselves within the larger historically contingent force fields of politics, economics, morality, and yes, life itself. Didier’s third, perhaps most intriguing critique, is that utilitarian and Kantian accounts fail to consider the non-logical and the arational forces that motivate and help shape the distribution and severity of real punishment in real life.

Historically contingent logics, teaching people their place and so forth, combined with what Didier, drawing on Nietzsche, calls, quote, “A repressed drive to make suffer,” a desire to punish and to punish painfully.” Didier does not fully theorize or specify or historicize this drive to make suffer. Although he notes that the social controls to which that drive may or may not be subjected, uh, uh, are historically contingent, it is unclear whether he considers the drive itself, Uh, um, the dri– excuse me, the drive itself, uh, to be innate or variable or fixed or culturally produced or something else again.

What is it and whence does it come? Whatever the case, Didier makes the crucial observation that in the contemporary United States and France, quote, “Society delegates this repressed drive to make suffer to police, correctional officers, and others.” Now, this delegation and its consequences, I think, is worth-worthy of deeper, more systematic analysis, and I’ll reflect more on this and the people who do carry out the dirty work of making suffer, uh, uh, uh, in my comments, uh, tomorrow.

I won’t have time to do that today. Didier closes the section of his lecture on why people do actually punish with a particularly gruesome example drawn from the United States, that of Darren Rainey, the schizophrenic drug offender who died after prison guards locked him in a boiling hot shower in a Florida prison. This event serves as a kind of synecdoche for American punishment more generally.

Although much the same drive to make suffer is at work in France and other Western democracies, Didier, I think, correctly sees the US as the most extreme example of what we might call the delegated sadism that became so commonplace in the prisons, jails, and station houses of many liberal democracies after the 1970s, um, including New Zealand and uh, Australia and, uh, Britain for that, for that matter. Here, I think it would be helpful to ask not only why punishment took and multiplied harsh forms throughout the liberal democratic world, something that Didier turns to in the second half of his lecture, but also why the US is by far and away the most extreme in this regard. Why are brutal punishments, uh, that are, quote, “hardly imaginable in Europe,” unquote, today relatively routine in the United States?

Why are American social controls over delegated sadism apparently so much weaker? Why is the drive to make suffer so much less repressed than in other liberal democracies, let alone, uh, proper social democracies? In the second half of his lecture, Didier argues persuasively that in order to understand the punitive turn of the last forty years, it’s necessary to consider who is punished.

In seeking to understand the uneven distribution of punishment, he offers us an analysis of both the political economy of mass incarceration and what he calls, building on his Nietzschean insight about the repressed drive to make suffer, its moral economy. Didier outlines the demographics of the contemporary scene, pointing to the fact that punishment is unequally distributed in both France and the US. The similarities of the d-demographics are indeed striking.

Three-quarters of French prisoners, as we’ve heard, are working class or jobless, and while the state is barred from keeping ethno-racial records, it’s an extraordinary fact by American standards, Didier estimates, estimates that seventy-seven percent are ethnic and racial minorities. The US is similar, though somewhat surprisingly, ethnic and racial minorities make up on at least one count just sixty-eight percent, uh, rather than seventy-seven percent of the state and federal prison population. Most conspicuously, low-income, uneducated Black men have been overwhelmingly disproportionately caught up in the carceral machine, as Didier, um, has detailed.

Although he doesn’t provide income or employment breakdowns for the US, our country is possibly worse than France on this front. The median income from imprisoned men in the year prior to incarceration was nineteen thousand one hundred and eighty-five dollars, well under the national median of forty-one thousand two hundred and fifty dollars. For incarcerated women, it was even lower, about fourteen thousand dollars in the year before incarceration, and an astounding seventy-two percent of incarcerated women earned less than twenty-two thousand dollars in the year prior to their incarceration.

Here I’d like to draw our attention to two of the most exigent questions that Didier’s lectures, uh, raised for me, areas in which we might usefully push the analysis a little deeper. The first question concerns the gendered, the gendered dimension, as you might have guessed judging from the examples I just used, of the punitive, uh, carceral system. The statistics show that America is again the extreme outlier.

In the US, nine point three percent of prisoners are women. By contrast, women make up just three point two percent of the French prison population. The US’s a hundred and eighteen thousand incarcerated women account for almost one-third of incarcerated women worldwide.

A full one third of the world’s imprisoned women are held in American prisons. Moreover, between nineteen eighty and two thousand and ten, women’s incarceration rates actually rose much faster, fifty percent faster than men’s. And although the statistics are inconsistent on this, reputable studies estimate that between four percent and

(coughs)

ten percent of imprisoned women enter prison pregnant. On at least one estimate, dating from twenty thirteen, ten thousand babies are currently born in American prisons each year. The large majority are immediately taken away from their mothers, and their mothers’ milk and placed in foster homes or state agencies.

If we project that figure of ten thousand, uh, back even to, uh, just the year two thousand, that’s one hundred sixty thousand babies in the last sixteen years. Both the explosion in female incarceration rates and the number of babies born behind bars and put in foster care are surely an important dimension of both the political and moral economies of the new regime. And judging by what Bruce Western told us yesterday, uh, about release from prison and the study he did in Boston, and the positive correlation between, uh, a, a newly released prisoner who returns to his or her mother’s household and then also manages to stay out of prison, gender seems likely to be a much bigger part of the story.

Now, the second area where I’d like to push the analysis further is Didier’s treatment and conceptualization of penal history, particularly in relation to the United States. In short, Didier sees a kind of linearity across two hundred and fifty years that I think obscures more than it illuminates, and unnecessarily limits the explanatory power of this very kind of, um, useful method of hur-heuristic comparison, uh, which is something he, he talked about yesterday. Didier’s basic narrative is that Enlightenment thinkers, while consciously substituting moral and educational forms of punishment for bloody chastisements, and also unconsciously secularizing Christian ideas about the supposed redent- redemptive value of pain, uh, um, uh, uh, and, um, uh, and, and how this, uh, kind of secularization of Christianity involved appropriating the monastic cell as a redemptive technology, I think is quite broadly, uh, persuasive.

Drawing on David Rothman, Didier tells us that the first two cellular prisons proper in the United States, Auburn Prison in upstate New York and Eastern Penitentiary in Philadelphia, exemplified this new thinking and the new technology, despite their organizational differences. They became, with the help of publicists such as Alexis de Tocqueville, who incidentally came here to study prisons originally, not democracy. Um, with the, with the help of him and other publicists, uh, these prisons, or at least the Pennsylvania system, became the model for European penal reform.

Didier continues that although the experience of incarceration was admittedly different, bloodier, more punitive, scarcely rehabilitative in practice, the, uh, within the prisons themselves… Sorry, the Enlightenment-inspired ideology of penal welfarism reigned through the late 19th century and on into the 20th century. So this sort of di-disconnect, he acknowledges, between, uh, a much rougher history of the prison and, um, official policy.

In the 1970s, as the story goes, the illusion that punishment, and rehabilitation could be combined effectively shattered. Penal policy now became increasingly harsh and inequitably maldistributed. The prison population uh underwent, quote, “An unprecedented explosion,” unquote, in which poor African Americans were ex-

Uh, excessively targeted by the new harsh regime. There are four points here. Methodologically, I think there’s a strange paradox in the lectures.

Um, for the historical present, Didier demonstrates the utility of breaking ideal theory’s hold on what punishment is and should be, and focuses, among other things, on how punishment works in practice, de-idealizing punishment, denaturalizing, in the words of Bruce Western, the crime-punishment dyad, allows him to see the much broader logics and the political and affective economies in which pun-punishment actually transpires today, in today’s system. But when it comes to the historical past, at least the two centuries prior to the 1970s, his analysis reverts to the narrowly ideational dimensions of punishment for the most part. Here he offers a fairly traditional intellectual history, a kind of history of ideas and theories about punishment.

He briefly acknowledges that things on the ground and places like Auburn Prison w– diverged from the ideology of penal welfarism, but he doesn’t really make anything of that difference. Now, obviously, there’s a limit to how much can be covered in a single or even, uh, two lectures, but this methodological inconsistency might be fruitfully addressed in the larger project by scrutinizing the historical past of punishment using Didier’s expansive concept, uh, uh, of the term punishment a-as actual painful punishment of actual people, whether it occurs on the street in poor and minority neighborhoods, the prison, the courthouse, the town square, we would be in a better position to answer some of Didier’s most important questions. To what extent did the political and moral economies of punishment change over time?

Who was punished back then, and what analytical relationship might they bear, if any, to those who are punished today? Now, if one’s going to transpose Didier’s method to the more distant past, that is, to track actual punishment of actual people, one would need, in the US case, to recover the history of the infliction of pain within the single most important disciplinary institution of eighteenth and nineteenth century America, the slave plantation. Operating as a semi-sovereign entity, the space in which courts originally took a hands-off approach, much as they have tended to in relation to the prison, at least until the Warren Court.

The plantation falls outside the private-public spatialization, which of course is a historical construct itself and is being fabricated precisely in the 19th century, that Didier used in the first lecture to limit the scope of his own analysis only to, uh, punishment that happens in, in, pu-in public spaces. Uh, though of course it’s somewhat problematic. It’s not clear that a prison is a fully public space.

It is and it is, I think, in that liminal space. We’d also need to include the highways and byways on which slave patrols exercised a delegated and brutal summary justice over the bodies and souls of enslaved Black people. Moving forward in time, we’d need to take into account the town squares where the lynch mobs of the not-so-distant Jim Crow era staged elaborate festivals of blood on and around the bodies of ex-slaves and their descendants with a punitive brutality rivaling even the storied dismemberment and execution of the failed eighteenth-century regicide, Damiens.

Applying Didier’s method of heuristic comparison to the present and past, that other country, can only further illuminate the questions of who is punished today, why, and with such severity. In such a temporally oriented heuristic comparison, as opposed to a kind of more spatially or nationally oriented heuristic comparison, uh, I would add to the slave plantation and its heirs the nineteenth-century American prison. These prisons did develop in certain critical respects on quite a different trajectory, both subjectively and objectively, to the French and British, uh, uh, equivalents.

Recall that waterboarding and other shock tactics were invented, distributed, informally standardized, and yes, delegated u-using, uh, Didier’s language, uh, in nineteenth century American prisons. From the earliest years of the Grand Republican expel-experiment of cellular incarceration, excessive punishment flourished in both, uh, the nation’s northern factory prisons and then later in its southern convict lease camps. Such treatment, including the whipping of prisoners regardless of race, was even at one point legislated, found on s-state statutes, uh, uh, books, not just practiced de facto in Northern mostly white prisons.

In light of this temporal comparison, we would probably have to revise our assessment of today’s harsh, inequitably distributed regime as, uh, in the words of Didier, unprecedented. We might even have to revise the well-accepted view to which I myself have subscribed in the past, that the explosion in the rates of imprisonment was imp– un– in the rates of imprisonment was unprecedented. That is the explosion after, uh, the nine– mid-1970s.

Um, far deadlier forms of carceral and non-carceral, uh, uh, punishment, especially of Black people, exploded after the defeat of America’s Second Revolution. That is Reconstruction, the era of Reconstruction. And it’s Didier’s tremendously insightful reconceptualiz- reconceptualization of what punishment is that makes it possible to theorize the linkages between the deep and recent pasts.

The final line of inquiry that I think could be f-fruitfully pushed further, and perhaps wider as well, is the hi-historical and or genealogical role of Christianity, and the study of what Didier called in yesterday’s lecture, I believe, with echoes of Carl Schmitt, penal theology, the project of penal theology. I found myself wanting a more vigorous, vigorous account of the secularization of Christian doctrine and monastic technologies of the self, and their survival and apparent dominance in today’s punitive world. As a broad claim about Christianity as a crucial source of our supposedly secular system of punishment, I find it broadly persuasive.

But Christian theology and practice, particularly in the early modern period and more so, uh, in the, uh, uh, in the recent period, was far from uniform. Particularly in the United States, there was and is considerable variation and profound disagreement among Christian theologians on these matters. A couple of brief examples will suffice to demonstrate the possible significance of this variation for this exciting project of penal theology, the, the, the, the, uh, secularization of Christian ideas, uh, uh, about pain and punishment.

First, in the early days of the U.S. Republic, many Calvinist and Congregationalist theologians and parishioners rejected the groundbreaking early penitentiary projects advocated by folks like Benjamin Rush and others on the grounds that to substitute the physical segregation of convicted offenders in a p-place designed to induce spiritual transformation, in other words, the penitentiary, was to diverge from Scripture’s prescriptions for punishment. Most particularly, they argued, the newfangled penitentiary transgressed Paul’s admonition to rebuke sinners before the community. By undertaking to carry out a spiritual transformation of the inman inmate, moreover, the penitentiary was, said these theologians, a blasphemy against God and man.

Incarceration, a blasphemy against God and man, uh, at least as it was theorized and, uh, promoted for the better part of a century and a half. Second, second example, the social gospel movement of the late nineteenth and early twentieth century explicitly rejected pain, And interestingly, the master-servant dialectic is having any place in punishment, or the classroom, or the workplace, or even in the family. And this particular strain of theology turned out to be tremendously influential in American penological circles during the Progressive Era.

Finally, we can point to many examples of the ways in which other strains of theology that either diverge from or flat out contradict some of the most, uh, uh, uh, um, important tenets of Christianity, um, that– Let me start that sentence again. Again, it is completely botched. Um, we’re– We can point out, uh, examples, uh, of, um, s- different strains of theology that, uh, flat out contradict, um, uh, the strain of Christian, s– uh, uh, theology to which, uh, Didier has pointed, that is that, uh, pain is redemptive, uh, and this is the, you know, the, the, the, the, the, um, the principle that is taken up by, uh, sort of the Enlightenment, albeit unconsciously, and kind of integrated into secular, uh, uh, punishment.

Now, take the awful effects of harsh punishment, not only on the individual sufferer, but as, uh, Didier has pointed out, on their families, their communities, their babies, their preceding generations. The current system demonstrably terms— turns one of the foundational Jewish and Christian principles, uh, that is that of individual moral culpability on its head. “Fathers shall not be put to death because of their children, nor shall children be put to death because of their fathers.

Each one shall be, shall be put to death for his own sin.” That’s Deuteronomy 24:16. This, of course, is the same principle that the liberal law secularized as the culpable rights-bearing, uh, subject in the course of the early modern era.

Now, Didier’s penal theology and the larger project of which it is a part, I think is tremendously important, innovative, and, and promising. It’s also, I think, deeply complicated, and it’s a tragically timely, uh, project as well. Thank you very much.

(applause and laughter)

[01:37:25] CHRISTOPHER KUTZ:
Thank you very much for those wonderful remarks. It’s now my pleasure to introduce Professor David Garland of New York University’s Law School and the Department of Sociology. Professor Garland is universally regarded as one of the most important and influential scholars of the history of punishment at work today.

Professor Garland also has the status of a quasi-local, having taught at Berkeley twice, in 1985 and 1988, and his intellectual presence is very felt, uh, strongly felt in the Jurisprudence and Social Policy program today, where I think your books are on constant rotation in teaching and research. Professor Garland has tau- taught for nearly two decades at Edinburgh University, from which he also received his law degree and his PhD in socio-legal studies before arriving at NYU in 1997. His best-known and most influential work lies in three ambitious books that examine fundamental sociological questions while displaying enormous historical range and sophisticated methodology.

These books are Punishment and Welfare: The History of Penal Strategies, published by Heinemann in 1985, Punishment and Modern Society: A Study in Social Theory, co-published,

(laughter)

I didn’t know you could do that, um, by Oxford and the University of Chicago in 1990, and The Culture of Control: Crime and Social Order in Contemporary Society, published by Chicago in 2001. In these books, Professor Garland conclusively demonstrates the processes through which criminal justice policies and institutions reoriented themselves in the late nineteenth and twentieth century by adopting the logics, practices, and expertise of the modern welfare state. And, um, further demonstrates the way in which those practices have been reoriented since the 1970s away from a previous regime of penal welfarism and towards a contemporary culture of control.

I’ll add, as you can tell, that Professor Garland is an especially influential phrase maker. Penal welfarism and culture of control have become central terms in the professional literature, and his coinage of the term mass imprisonment has had obviously even broader valence. These studies exemplify the best of the Durkheimian Weberian tradition of sociology as social theory, precisely by resisting the professional, and I think now we would say neoliberal reduction of issues of crime and punishment to matters of causes of crime and policy response characteristic of modern criminology.

Indeed, I think Emile Durkheim himself would have been proud to have written these books, which have also essentially won every available prize, including from the International Order of Criminology and the American Sociological Association. Professor Garland’s newest project concerns the history of the welfare state, and he has just published in English a foretaste– in England, a foretaste of that work entitled The Welfare State: A Very Short Introduction with Oxford.

[01:39:56] DAVID GARLAND:
Thank you.

(applause)

Chris, thank you very much indeed for that lovely introduction. I really appreciate it. Um, thank you to the Tanner Lecture Committee for inviting me back to Berkeley, um, and to the audience for being here, um, two days in and towards the end of the afternoon.

Um, and thank you particularly to Didier Fassin for, really for engaging, um, with an intellectual and moral seriousness, uh, issues which could not be more timely or more appropriate, um, in this nation and in this state. Um, so Bruce Western responded to last night’s lecture, um, and Rebecca to this evening’s lecture. I, without the explicit permission of the committee and organizers, I’m going to direct my remarks to, um, an argument, an analysis that Didier has been developing through both of these lectures.

Um, so those of you who weren’t here last night, I’ll kind of bring you along and get you up to date with things if I need to. Um, but e- essentially this is, I think, Didier’s, uh, most original contribution.

Um, and I’m gonna focus on this and argue with it, um, as I continue. Um, and I’d like to say as well that, that tomorrow, uh, should you be here, that the, the seminar format lends itself to much more in the way of public, um, audience participation, contribution, discussion. So, um, I’m aware the time is late, and I won’t be leaving much time for, uh, much of that this evening.

So the analysis that I’m referring to is, I think, less about the will to punish than about the unlawful or illegitimate use of violence and repression and penal power by state officials, by police, by prison staff, by judges. Um, I’m sure had he been in this country, it would have been by prosecutors also. The focus is on what I would describe as the multiple zones of illegality, where punishments are routinely administered by state officials, but to an extent and in situations that exceed what the law explicitly permits.

Didier uses ethnographic research, studying police and prison staff up close over time within their own social worlds. He uses that research to restore the margins of extrajudicial penal power to our central understanding of what punishment is. And using these ethnographic findings, which he supplements, uh, quite brilliantly by a genealogy of the concepts of punishment and pain, he in effect deconstructs the conventional jurisprudential definition, the H.L.A. Hart definition of what punishment is.

Didier deploys this analytical strategy, restoring the margins to the center, showing how law’s repressive power is extended by its unlawful use, deconstructing the lawyer’s definition. He uses this to develop a critique of the state’s use of force, and a critique of the practices of signification that define as criminal those who are being unlawfully punished, while providing immunity to crimes that are committed by officials under the cover of criminal justice. And all of this is, of course, absolutely topical and timely here in the USA, even though Didier’s fieldwork began 10 years ago, and even though most of it was conducted in France.

Because this argument, this theme, goes directly to the fundamental issues raised by the police killing of suspects and civilians, Michael Brown in Ferguson, Eric Garner on Staten Island, Tamir Rice in Ohio, Walter Scott in South Carolina. The list goes on. And it goes directly to the growing effort to challenge the de facto immunity from prosecution that such killings routinely enjoy.

So this, this is important work, and it’s work I think that will find, um, a powerful resonance here on the Berkeley campus. First of all, uh, and I see Malcolm Feeley sitting there this evening, those of us who know Malcolm Feeley’s landmark work, The Process Is the Punishment, will recognize some of the practices that Didier is describing, particularly the, the remand in custody as a leverage for extorting guilty pleas.

And those of us, uh, who, like me, cherish the intellectual legacy of Philip Selznick, who for a long time was a sociologist and a JSP, uh, professor on this campus, will recognize, I think, in the background of DDA’s work, the normative project that Philip Selznick pursued throughout his life, namely how to extend the values of legality beyond the courts to ensure that power, wherever it’s exercised, is subjected to the governance of rules. And in the struggle to impose legality, the first step is always to render visible and render problematic these powers that are routinely exercised, but without restraint, without accountability, without review. And this is, I think, an important part of what DDA’s project entails.

So having stipulated, uh, that DDA’s analytical and normative claims are important, let me offer a series of critical objections to the way he develops them. And let me try and state these objections as sharply and precisely as possible to, to provoke and to enable an argumentative exchange that we can have probably not tonight, but hopefully tomorrow evening. So, Didier develops his critique of the standard jurisprudential account of punishment, and he develops this critique in a rather lawyerly manner by citing a series of cases, in this instance, ethnographic cases, and by offering closely argued interpretations of them.

He offers interpretations of events that he or other anthropologists have witnessed as ethnographers, and also of journalistic case reports, the New Yorker story about the youth remanded in custody for three years, or the Miami Herald story mentioned this evening about the prison inmate who died in the scalding hot shower. My own reading of these cases would actually interpret them rather differently. And that alternative reading, which I’m going to mention to you, present to you just now, will have, as I’m going to show, implications for the larger claims that Didier makes in the course of the lectures.

So different interpretations, let me begin with the best known of these cases, the one reported by Bronislaw Malinowski, um, from the Trobriand Islands. So this is the case history you will recall, uh, of the young Trobriand Islander who’s having a sexual relationship with his cousin, and who, having been denounced by his cousin’s former lover, kills himself in a ceremonial suicide, throwing himself from a tree. Now, Didier interprets the youth’s incestuous affair as a crime, but as a crime without a punishment, because as he says, uh, and as Malinowski says, “The youth’s violation of the incest taboo was in fact known and tolerated prior to the outburst of the girl’s discarded lover.”

“It was a crime,” Didier says, “but a class of crime that was not punished.” ” And he proceeds from that to, as it were, take apart one of the dimensions of the Hartian definition. But let me

(coughs)

question that interpretation that D.D. offers. I think the norm in question was actually a more subtle

(coughs)

situational one than he suggests. It was a norm specifying a conditional crime that was conditionally punished. Instead of an absolute prohibition, the rule is conditional.

Incestuous affairs will be tolerated so long as they’re discreet, but must be punished if they come to public attention. And this kind of norm is by no means exotic. Indeed, it should be quite familiar to us since it was the rule governing the service of gays and lesbians in the US military between 1993 and 2011, the infamous rule of don’t ask, don’t tell.

So the Trobriand case, I suggest, is not, as the DDA insists, a crime without a punishment. It is instead a prohibition directed to public, but not to private conduct. The young Trobriand man was publicly shown by his cousin’s jilted lover to be offending against the incest prohibition.

The publicity completed, as it were, the crime. Punishment would follow. So he forestalled, he forestalled his punishment by committing suicide.

There was indeed a crime, and there would indeed have been a punishment. First disagreement. Second disagreement, I want also to offer a different interpretation of the American case that Didier uses to support his claim that there can be what he calls a punishment without a crime.

Now, this is the very well-known case described in a New Yorker article of Kalief Browder, the young man who was detained in a Rikers Island jail for more than a thousand days, awaiting trial for stealing a backpack, a trial which never came because the charges were dropped. He was, as you’ll recall, released only to take his own life shortly thereafter. Now Didier calls this, quote, “a punishment without a crime,” and he uses it, like the Malinowski vignette, again to deconstruct the jurisprudential concepts that define legal punishment.

It, it removes or deconstructs another one of the dimensions of the Hartian account of what punishment must be. But again, I beg to differ. I share, of course, DDA’s outrage at the facts of the case and the dysfunctional and unjust system that produced it.

But was this really a punishment without a crime, as DDA puts it? There was, we know, an alleged crime, a Mexican immigrant reported having been assaulted and robbed of his backpack, which contained seven hundred dollars, a digital camera, credit cards, debit cards, an iPad, an iPod, and so on. And the grand jury affirmed an indictment against Kalief Browder, charging him not with stealing a backpack, but with robbery and assault.

That these criminal charges were eventually dropped when the victim went back to Mexico and could no longer appear as a witness, does not, of course, mean that no crime actually occurred. And is it true that Kalief Browder, and indeed all of the other remand prisoners who were there in jail awaiting trial, Is it true that they were being punished, as Didier puts it? Well, common sense says yes, obviously.

But the law, however, says no, they were merely being detained, and that there’s an important difference. Didier sums up his argument by saying, quote, “If we take seriously innocent until proven guilty, then everyone detained awaiting trial is being punished while innocent.” But I don’t think you can have it both ways.

He can’t put the legal fiction, innocent until proven guilty, together with the common sense notion that detention awaiting trial is punishment. Why not? Because innocent until proven guilty is not an empirical description, it is instead a legal safeguard.

The great majority of people who are indicted for crimes are in fact perpetrators of criminal acts. To imagine that the jails are full of factually innocent people is to mistake the rare exception for the general rule. This, it seems to me, and, and here I’m going to generalize across this evening and, uh, yesterday’s lecture.

This, it seems to me, is a recurring theme, and I would say a recurring weakness in Didier’s argument. Because in these lectures, everyone who is on the receiving end of unlawful state punishment, of police violence, of penal excess, turns out to be a harmless, innocent victim. The youth detained in Rikers, the driver whose license is suspended, the boy who’s harra- the boys who are harassed and insulted by the French police, the blind boy mentioned last night who’s seized by the police in a neighborhood raid, the marijuana user, the traffic law violators, all of them.

There is, it seems to me, more than a trace of romanticism here, and I think as Bruce Western was suggesting last evening, a reluctance to address the question, the underlying question, of criminal violence that is intertwined with penal violence. It is, I think, an easy matter, an important matter, but an easy one to criticize the punishment of the innocent. But in the USA today, a much more important challenge is to criticize the over-punishment of the guilty, including the majority of inmates in state prisons who have been convicted of violent crimes.

Fifty-two percent of inmates on any one day in a state prison, in the state prison system, are there for violent offenses. One of the important and distinctive background features of American society, I’m not telling you anything you don’t know, a characteristic that helps explain the public tolerance of police misconduct and the public tolerance of penal excess, is the very high rates of homicide and armed robbery and violent crime which continue to distinguish this nation today, and which continue to be heavily concentrated in the poorest minority neighborhoods. So even now, after 20 years of declining homicide levels, homicide remains the leading cause of death for Black males aged 15 to 34 years old.

That background fact about American violence shapes interactions between police and subs- and subjects, and I think it should shape our analysis of these interactions. I’m going to talk now about representational struggles, which is a, a, a, an important theme in Didier’s lectures. One of the important themes he highlights is what he calls the representational struggles that are involved in characterizing an act as authorized as punishment or as an unlawful act of state violence.

And that’s, that’s of course why the Hartian definition is so crucial to his engagement and his deconstructive critique. I want to suggest that Didier’s analytical strategy, the strategy of deconstructing the legal definition of punishment and putting the nature of punishment constantly into question, I think that that strategy actually obstructs our ability to engage in the representational struggles, and to define specific acts of state officials as being unlawful abuses of power. And I’ll try and say why.

This distinction between lawful punishment and lawless state violence is, I believe, crucial to the project of extending legality and taming state power. And it’s this distinction that H.L.A. Hart’s famous definition of punishment is intended to highlight and to render crisp and clear. That’s what it’s for.

Now, DDA instead uses instances of extra-legal punishment, police abuses, prison in– prison officer abuses, and so on, to bring this legal definition into question, to show that the punishments that are meted out in the social worlds he studies do not conform to the dictates of the law. But I wouldn’t use the evidence of penal excess to deconstruct the legal definition of punishment, quite the reverse. I would use the definition of proper legal punishment to bring the state’s lawless conduct into question.

I’d suggest that the widespread existence of state practices that ignore law’s restraints and impose unlawful punishments are not a reason to doubt the conventional definition of legal punishment, it’s a reason to apply it, and to apply it vigorously and insist on it in the representation, in the representational struggles and the political struggles that now surround the issue. When Didier characterizes these unlawful uses of state violence as instance-instances of authorized punishment, He uses two forms of evidence. He uses what he calls local justifications, that’s to say the subjective meanings attributed by those most closely involved.

So the police officers who retaliate against the hostile population of offenders and accomplices, or bastards as they see them. Or the prison officers who sentence inmates to solitary confinement on the basis of trumped-up charges that nobody believes, because they believe the the inmates deserve it. Local justifications, subjective meanings.

The second kind of evidence are the broader explanations. That’s to say, the culture of the police precinct in which these abuses proceed, or the culture of the prison institution where these acts are routinely tolerated and justified and excused. These are the two subjective meanings and the, the, the cultural setting thereof.

But I think there’s also a third source of meaning, a third force, as it were, in the representational struggles that surround these acts and their contested meanings. That third force is the law, and the sections of the state apparatus and the political classes that insist on applying the law, and applying its strict definition of punishment, and applying its principles of legality. So let me end these remarks and also illustrate this point by recalling the disturbing history of popular lynchings in the southern states, and not only the southern states, of the USA.

For generations, as everyone here knows, local mobs in southern counties would seize hold of individuals, mostly poor, Black, disconnected individuals with no, as it were, social capital and social support. They’d seize these individuals who had allegedly committed some crime or some outrage, and they’d proceed to put them to death in an act of popular justice. These mob killings were, of course, at odds with the legal definition of punishment, the state definition of punishment, but the mob’s leaders believed that they were imposing a deserved punishment and that they were authorized to do so.

And indeed, local law officers, local sheriffs, and prosecutors and coroners, and the chambers of commerce, and the editors of the local newspapers, they agreed with them, ratifying these actions and refusing to prosecute the ringleaders. Coroners would, would discover that the person had died at the hands of persons unknown. So there were subjective meanings, what the mob and its leaders thought it was doing, and there were local justifications, what the community and its popular justice and its law officers assumed.

And they defined the mob’s actions, and they authorized these punishments. And precisely because the state government and the federal government did nothing, these definitions prevailed. But of course, over time, that form of punishment and the penal excesses of the lynch mob were subjected to external criticism and external challenge, and a representational struggle ensued.

With the support of the NAACP, the American Communist Party, and eventually the federal government, these local punishments were redefined as crimes, as murders, and the perpetrators were seriously threatened with criminal consequences and prosecution. The long struggle to impose the restraints of legality on the power of local mobs and to measure their behavior against the conventional definition of what legal punishment must be, that struggle eventually succeeded. In June 1998, much more recently, in a town, I’m not making this up, called Garland, Texas, a man called James Boyd– James Byrd Jr., a forty-nine-year-old African American, was seized by three self-declared white supremacists, white men with shaved heads and swastika tattoos.

One had on his arm a tattoo depicting a Black man hanging from a tree. These men tied James Byrd to their pickup truck and dragged him for three miles through the town and beyond until his bones were broken, and his head was detached from his body. The white supremacists, these three men, in other words, attempted to stage a lynching to impose a punishment.

But all three of them were arrested by the local police. They were prosecuted by the local DA, and they were sentenced to death for first-degree murder by a local jury. In other words, the popular punishments of Southern communities were redefined definitively as being heinous crimes.

So, a lynching, a police killing, an unlawful confinement, the abuses of Abu Ghraib, these become de facto authorized punishments when law officers and state authorities collude. They become crimes, de facto and de jure crimes, when such collusion is ended. And the struggle to move from the unlawful use of force to the legally regulated punishment depends on maintaining a sharp distinction between them.

Which is why, in the end, I would stick to the standard definition of punishment provided by Herbert Lionel, Lionel Adolphus Hart, H.L.A. Hart, and I would define the lawless phenomena that Didier so eloquently describes as lying outside and beyond it. Thank you.

(applause and cheering)

[02:03:11] CHRISTOPHER KUTZ:
Wonderfully done. Um, uh, Didier, would you like to offer some brief remarks, uh, in response? Another possibility would be to save that time for, for tomorrow.

[02:03:22] DIDIER FASSIN:
Aren’t we supposed to finish at, uh-

[02:03:23] CHRISTOPHER KUTZ:
In 10 minutes.

[02:03:24] DIDIER FASSIN:
Oh, in 10 minutes?

[02:03:25] CHRISTOPHER KUTZ:
Yes. Well, we could… Yeah, you could take questions as well.

[02:03:28] AUDIENCE MEMBER:
But- 10 minutes.

(laughter)

[02:03:32] DIDIER FASSIN:
Okay.

(laughter)

Well, of course, the, uh,

(clears throat)

the asymmetry of, uh, our, uh, conversation is that, uh, uh, my partners in crime, uh, have, uh, if I may call them that way, uh, had my paper, uh, a month ago.

(laughter)

And I’m discovering them,

(laughter)

uh, uh, for, in, in their case, just now.

(laughter)

So that makes an asymmetrical situation and puts me in the situation of improvisation, uh. Uh, so, uh, I will simply say two words and think, uh, over, uh, the very, uh, interesting, uh, comments and, and, and criticism and, and remarks that have been, um, that have been made. Uh, so I, I will suggest two, two things, uh, and try–

I will try to, uh, uh, deepen the, uh, my arguments or, or sharpen them, uh, uh, for, for tomorrow. Um, For the, uh, historical critique, um, I, um, I, I plead guilty. Um, uh, and, you know, when you’re not an historian, if you don’t, uh, have something about history, you’re criticized because you didn’t, uh, speak about history and you don’t, You didn’t take into account the, uh, the long, uh, uh, the, the past and, and the recurrence or other differences.

Uh, and if you do, you don’t do it well. Uh, and, and I agree that’s the case. Um, uh, I, in fact, my, um, uh, first of all, as you said, the,

(coughs)

uh, the, the, um, the, uh, the, s- the size of the, of the lectures, uh,

(clears throat)

did, did not offer, uh, I, I think the, the possibility to develop, and that was not the, the central point, the historical, uh, aspect. Uh, and, uh, and besides, uh,

(clears throat)

uh, I, I think I’m not the most, um, uh, the most competent to do so. Uh, but I take, uh, I take your, uh… It’s, it’s not a way to elude, uh, your criticism and on the contrary, I, uh, I take them, uh, quite seriously.

The, the only thing is that, uh, Martin said yesterday that I could not change my text considering the, uh, the criticism that had been done, which is ab-absolutely fair, uh, for the publication. Uh, so, uh, so I will leave it the way it is. Um, but, uh, but, but your, your points about the, uh, the, uh, um, the, the, the, the differentiation that you, uh, that, that you made in, uh, what I called and, in fact, in fact I, uh, that’s half a paragraph that really an opening on the idea of a penaltyology, uh, uh, I think would need a real serious, uh, work, uh, and which, which I’ve not, uh, undertaken, uh, obviously.

Um, and, uh, and I, and I, I’m sure that, uh, you know, if, if it is of some interest, uh, it, uh, it, it would be, uh, uh, quite interesting to have, uh, historians and legal, uh, scholars, uh, working on that more seriously than I, I would be able to, to do. So, so, I, I really, uh, take your point and, and in particular, I, I think, um, that’s, uh, one of the important elements that you’re bringing in, in the conversation, which I must say I, I had not thought because, you know, I could have said it in, in two sentences and i- if I had thought about it. But, but it’s very important.

In the same way as I try to expand, uh, the, uh, the definition a- and the, uh, and the space, uh, the intellectual space of what we call punishment, uh, for the contemporary period, uh, it is absolutely necessary to do what, you know, mentioning, for example, the, uh, slave plantation, uh, system and, and, uh, and not, and not be focused as most, I think, historians, uh, o- of punishment i- of the 19th century, um, both in France and, uh, and, uh, a- and in the United States, uh, have done so, uh, so beautifully for some of them, uh, which is to study prisons basically. Uh, and so I think your idea o- of, uh, opening in the same way, uh, to other institutions, uh, slavery, uh, chattel slavery being, being one of them, uh, is, is of course, uh, quite, quite important. And, and in fact, some, uh, sociologists in particular have, have, uh, opened, uh, uh, this, uh, this discussion even if probably one would need to, to, uh, get into, um, a more, um, uh, more detailed, uh, analysis.

So, so I, I take it, um, maybe for the, for the gender element, I will go back to that, uh, uh, to-to-tomorrow, uh, uh, as you, as you said, uh, in the system where I worked, um, in which I worked, uh- which is the French one, uh, the great majority of, uh, of the, uh, of the inmates are men, young men. And so the gen– the, the, the gender issue, I think, is crucial, but not so much in terms of men, women, but in terms of, uh, the machist culture, uh, and, and the kind of relation, uh, that, that is, uh– And the kind of, uh, model, uh, that, uh, both guards and inmates have in terms of their, uh, their, uh, gender identity, uh, so it’s, it’s, it’s not– I mean, it’s complementary to, to what, to, to what you said, uh, because I, I didn’t work on, on women’s prisons and, and, uh, as I said, it’s a, a, you know, s- s-

Probably a somewhat different situation in, in Europe, uh, from what it is in the United States. But, but that’s an important point. Uh, to, uh, to, to David’s, uh, point, so th-

I mean, there’s, uh, very much, uh, to, to be, uh, to be discussed and, and I’m very grateful for this, uh, uh, fine, um,

(cough)

criticism. Uh, I would, um, I would say that I perfectly understand your point, uh, uh, which I would call, uh, I would would take more on the normative side than what I try to do. So saying, how can we change things?

So how– if we declare, if we keep the, the definition, uh, uh, it’s, it’s not a definitional stop in, in, in the negative sense that, uh, uh, that, uh, H.L.A. Hart, uh, was, uh, using, so in, in preventing us from thinking about, uh, the, uh, cri- to have a critic of punishment. Uh, it is on the contrary for, in, in your case, I think, uh, a def- a definitional opening in a sense that, that opens for action. And I, I, I agree with that, except that it, it is not the…

What, what I was trying to do, what I was trying to do is, uh, was more, I would say, analytical than normative. Um, and again, uh, I, I could briefly only mention it yesterday, uh, uh, orally, but as you, as you know, in the paper I develop, uh, I, I don’t want to, uh, not to do justice to Hart’s, uh, um, uh, definition because himself– he himself makes the critique that I’m, uh, I’m doing. So, so it’s not a critique of Hart, it’s a critique of, of a certain utilization of the standard definition as becoming the definition, uh, and forgetting what he says about the substandards, even though, uh, of course, uh, uh, he, um, by saying that it’s the standard definition, he has– I think he shares the same, uh, definitional opening and not definitional stop, uh, a-as, uh, David, uh, does.

But, but I think basically, uh, what I’m trying to do is, uh, uh, so not so much to criticize this definition, but to, uh, perhaps criticize maybe, uh, some of its uses, but, but simply to, to question the fact that punishment could be, in real life, limited to, to that. And as I said yesterday, probably more than yesterday, b-bit more than today, because yesterday there was an what is punishment. Uh, I– for me, as, uh, more generally, uh, more than the definition a-as a, as a sociologist and anthropologist, more than the definition, what, what interests me is, uh, the, uh, the state– what is at stake in, uh, in defining or redefining or, uh, or pushing the definition.

So what is at stake in society rather than, uh, uh, giving a, giving a definition. So, uh, so by, um, uh, by trying to reopen the question of, of punishment, uh, I’m trying to see, uh, situations that are not considered under the definition, the current definition, are not considered punishment, uh, and can be discussed, uh, you know, as I said yesterday, is it revenge? Is it, uh, is it punishment?

Uh, there, uh, there, there can be some, some arguments. But, but I think that when the s– when, uh, individuals representing the state and the state behind them, uh, uh, um, um, s-supporting them or comforting them or, or defending them, uh, are, uh, uh, developing certain tactics of punishment, as I, as I’ve said, uh, they, uh– I think we can s– we have, uh, we have a benefit in thinking of this situation as punishment and not simply as unlawful practices of, uh, that, that should not be, uh, called punishment. So, um, I understand your point.

I, I think it’s very much in line with the project that Hart had, and, and it’s a very respectable one. Uh, mine is a, is a different one. Um, uh, and, and just on the romanticism and, and the, and the innocence, of course, when, when I try to push the limit, uh, of, uh, of punishment, I take cases where, uh, where we’re at the limit of punishment.

So, uh, I’m not saying and, and, and of course, you know, it’s, that’s, that’s a different exercise. But in m- in, uh, in the 600 pages of the book on the prison, uh, there are, it, that’s just one aspect of life in prison. Uh, and there are many other aspects where, uh, people, uh, the guards or, or the wardens or, or the social workers are trying, or the parole officers are trying to, to do something else of the prison.

And precisely that would be something extremely important at some point, maybe tomorrow in our discussion to, uh, and, and, and you both, uh, went, uh, into that direction and, and yesterday, Bruce, the differentiation. We, you know, speaking about prison or speaking about, uh, a-about punishment in prison, for example, when the prison system are so different, uh, or the penal system for, for the, for the justice side, uh, I think, uh, we, you know, uh, even if we, if we think of the, of the police, uh, you, uh, uh, David, you mentioned, um, uh, uh, infamous or, or, uh, tragic cases, uh, that we all have in mind in the United States. The, the two kids I, I…

you know, when, when you say, “I will nick up you,” uh, uh, what’s the expression? I will, uh, uh, nick up you or something. Uh, he doesn’t do it, and he, and he, and he will not do it.

I mean, it’s just a threat. It’s just a, a, a, you know, a, a ver- being aggressive. He does not take his gun and, and shoot the, the, the, the young, the young man.

This does not happen in France, um, uh, or very rarely. That does happen, but very rarely. So, uh, so I think we, we, we need to, to, uh, to think of this differentiation, why, why the United States, as you suggested, both of you, uh, the three of you, uh, have this exc- uh, uh, exceptional in a sense, or at least extreme, not, maybe not exceptional, but extreme, uh, extreme position.

And probably, uh, you are in a, all, all three of you, uh, uh, for obvious reasons, you are in a, in a better position, uh, to, uh, to discuss that than, uh, than, than I am. But the, uh, I, I’m not, uh… So the, the case is, the, the case, most of them were, were, uh, the, the one in my ethnographies were not necessarily innocent.

I mean, the, uh, the blind guy, uh, of course he was innocent of what he was accused, and that, and that’s precisely the point, but, but he’s a drug dealer. He’s a local drug dealer, and I think it’s, it’s in the paper or at least in the, uh, may-maybe I didn’t say it already. Uh, but so he’s a drug dealer, but, but he was not the guy who was in the street, and he’s punished for being in the street.

But, but, but of course, he’s not an innocent person. Uh, the, uh, uh, uh, the, the, the man in the, in the, in the tribunal, uh, i-in the, in the court case, uh, was w-was driving, uh, without a license. Uh, he has a suspended license.

That’s 19, You know, I didn’t hide the fact that it’s the 19th time he, he has, he’s, uh, um, he’s going to a judge. Uh, and, uh, uh, and he has been three times in prison, and it’s not that he’s innocent. The question is really here, that’s really the question you were addressing, uh, uh, when you said, uh, “If we take innocent cases, that’s too easy.”

“We have to take people who are guilty and see if we” are not over-punishing them. This is exactly the c- the case in, in, for him. He’s not innocent.

He’s– he, he drove– he was driving without a license, and he, and he had an accident. He didn’t hurt anyone, but he had an accident. And, uh, and, and, but the question is, uh, and that’s the question I’m, I’m trying to pose, and and that, in fact, the question that the magistrate herself was posing is: Is it the right punishment?

I think by routine She says yes, I have no other option. But she’s, she expresses that she’s uns-

She’s unsatisfied with that. And, and my point is that, uh, twenty years ago, this person would not have gone to a French prison. He– They, they would not…

First of all, there was no radar, so there was, uh, there was no, uh… And there was no license with possibility of suspend- suspending, uh, the sign, the, the… So, uh, but, but the, but the, uh, uh- these, uh, kind of offenses fell under fine, uh, so, so

the, the con- the conviction, uh, wa- was- were fines. Now, at some point, uh, 10 years ago, uh, it became a crime that was, uh, under, uh, uh, that was, uh, uh, could be sentenced to, to prison. And, and this is, uh, this is how he, he got.

So, so it’s my point is not that they’re all innocent. In some cases they are, uh, but they, they’re, they are for what they, what they are punished, but, but they are not innocent in general. Uh, in other cases, they are, uh, not innocent, and the question is, uh, is it the right punishment that, that, that we should impose on them?

But we’ll have more time to discuss all that tomorrow, and thank you very much, all three of you.

(applause and cheering)

So, I’m afraid our show is at an end for now. Um, uh, uh, I’ll hope to see, uh, all of you and more tomorrow, uh, for the, uh, seminar discussion amongst the panelists and with, uh, ample opportunities for audience participation. Thank you very much.

(applause)

[00:00:00] CHRISTOPHER KUTZ:
Uh, welcome everybody. Um, I’m, uh, Christopher Kutz from the School of Law, Jurisprudence and Social Policy, and I am your, uh, uh, your, uh, cruise director again today, um, uh, with our, um, with our, uh, our lecturer Didier Fassin and our panelists Rebecca McLennan, David Garland, and Bruce Western. Today’s format, if you haven’t been here for a Thursday Tanner before, is different.

Uh, you are not going to hear a lecture. What you’re going to hear is, uh, a debate that will… or a debate or a discussion really, that will begin amongst the panelists, and then we’ll open up to you, to all of you, all of you who’ve been so patient, uh, to whom I promised yesterday, um, that you would get questions yesterday, get to ask questions yesterday. I broke that promise, but today I will keep it.

Um, uh, the way we’re gonna proceed is that, um, uh, uh, uh, uh, Bruce Western, um, at my far right, uh, um, will, uh, professor of sociology at Harvard, will first, uh, make some remarks, uh, probably in the fifteen-minute range. Um, and, uh, next, uh, Rebecca McLennan, my colleague in the Department of History, will make some remarks, um, uh, about the lectures as a whole. Also, again, probably in the fifteen-minute range.

David Garland, uh, professor, uh, at NYU in sociology and law, will then make some remarks, um, uh, as well. And then, um, uh, Didier Fassin will, uh, summarize and respond to all of those again, uh, in, um, um, a, uh, 15 to 20-minute time range. Um, and we’ll then open that up to more of a discussion amongst, uh, the four, and then move to a fully open discussion.

The best part, though, is the reception coming up at 6:00, uh, uh, at the end of our, at the end of our meeting at around, uh, um, 6:20. Um, not sure why 6:20, but 6:20. Um, we will have a reception.

Those doors will open to reveal a sumptuous buffet of food and drink, and, um, we’ll, uh, have a chance for some more informal conversation. So, uh, with, with all that, let’s, uh, hear from, uh, Bruce. The panelists, uh, have thought that actually it’d be nice today to stay at a table rather than lecture from the podium.

So I think that’s how they’re going to present.

[00:02:11] BRUCE WESTERN:
Yeah. Um, thanks so much, Chris. And, uh, um, before I begin my, uh, remarks, I’d, uh, just like to reiterate my, uh, thanks to the, the Tanner Lecture Committee, uh, uh, uh, to Ellen Gobler and, uh, who have just, uh, been such wonderful hosts, uh, over these, ah, last three days.

And I’ve just had a ball this week, ah, ah, spending time, ah, with my panelists, and I feel I’ve learned so much from, from Didier’s work, ah, and from Rebecca and David. Ah, so thanks to them too. Ah, so my, my remarks, ah, this, ah, afternoon are, are gonna be fairly informal.

And, ah, and I, I, I just want to make three points, and I’m, I may not go over my 15 minutes, but, um, yeah, I probably shouldn’t promise that. Um, ah,

(cough)

uh, and I, I wanna, I, I wanna begin by, uh, picking up a point in, uh, Didier’s lecture, uh, that we didn’t spend too much time, uh, discussing, but I think is, uh, is very, very important and, uh,

(cough)

it, it resonated with me And it’s a, a w- a way into, uh, a number of the other threads, uh, in our discussion over this week. And, uh, at different places, uh, in particularly, uh, I think in the first and, uh, uh, particularly in the second lecture, uh, Didier makes the observation, uh, that the empirical reality on the ground when he studies, uh, instances of interactions between authorities and citizens, uh, the empirical reality, uh, of that on the ground diverges very, very substantially, uh, from the idealized conceptions, uh, of legal theorists and, uh, and moral philosophers. And in-indeed, when, uh, you look at them, uh, the moral philosophers, uh, themselves, uh, uh, th-they often, uh, conjure up, uh, really quite fantastical, uh, sorts of arguments, uh, about the nature of, uh, a-a-about the nature of crime and the consequences, uh, that should follow, uh, shou-should follow from that.

And, uh, and, and, and these, uh, these theoretical, uh, uh, renderings, uh, uh, of crime, uh, uh, uh, um, are, uh, quite fantastical and, uh, uh, utterly mismatched, uh, to the reality and that And, and thus perhaps, uh, those, uh, uh, a-abstract ideas, uh, a- about, uh, uh, legal and moral philosophy, are, are mismatched as, uh, uh, as tools for, uh, normative, uh, normative analysis. And, um, and that resonated really strongly with me because in, in so much of the work, uh, I’ve been doing, uh, recently, Uh, crime is, uh, crime and, and violence in particular, I think, is a deeply, uh, contextual event.

And it happens, uh, it tends to happen in places, uh, that are very poor, that are very poorly, uh, organized by informal social controls. And so, uh, uh, local institutional bonds tend to be weak, family structures, uh, tend to be weak. Uh, these settings tend to be, uh, chaotic, uh, which exposes people, uh, to risks, uh, of victimization.

The roles of victim and offender are very, very fluid, and on any given day at any given moment, you could be a victim or an offender. These aren’t two, uh, two classes of people. Uh, the people that inhabit, uh, these, uh, chaotic spaces, uh, often bring to the table long histories of, uh, victimization and exposure, uh, exposure to trauma Uh, and, uh, they’re very, uh, poorly equipped to, uh, deal with, uh, such adverse, uh, sorts of contexts, which for me makes, uh, the whole issue of, uh, moral culpability fundamentally challenging.

And yet very little of this social reality appears, uh, i- in our moral philosophy. It’s not reflected at all in the Hartian, uh, definition of punishment wi-with which, uh, uh, Didier begins. And it makes me think, and I’m– I, I wonder if this is, uh, the point that, uh, I wonder if this point would, uh, resonate with, uh, Didier.

If, uh, if we’re to think norm-normatively about these social spaces, we need some fundamentally different conceptual tools, uh, because, uh, uh, philosophical abstraction, uh, for this class of social problems, uh, uh, uh, uh, is, uh, is just so mi-mismatched, uh, uh, to the reality. And one of the questions, uh, it, it raises, uh, for me is, uh, is whether or not our institutions of punishment can ever function, uh, in conformity, uh, with the ideals, uh, th-that we, uh, uh, that we aspire to for them. Uh, uh, can our prisons, uh, uh, in the American context, uh, be free of abuse and neglect?

Is that possible? And so these cases, uh, that David was pointing to in his remarks as limiting cases, uh, uh, extreme cases, I think it’s an open empirical question, uh, to, uh, the degree to which, uh, that’s true. And, um, you know, I, I, I think of my colleague, uh, uh, Vinny Schiraldi at the Program in Criminal Justice at, uh, at Harvard.

And, and, uh, Vinny ran, uh, uh, juvenile corrections in Washington, uh, D.C. for six years. And this was a very toxic, uh, system, and there were a lot of drugs in those juven- in that juvenile facility, and kids were being abused, and staff were having, uh, sex with the children, uh, I- in that facility. And, uh, and, uh, Vinny came in as a reforming commissioner, and he thought he was gonna clean that place up, and it had, it had been under a consent decree for twenty years.

And, uh, uh, and, uh, he thought all of these staff must be bad guys. They’re selling drugs to kids, they’re abusing them, and so on. Uh, but, uh, as, uh, the leader of that agency, he got to know them.

He, he went to church with them. He, uh, he socialized with them at barbecues, uh, on the weekend. Uh, and they weren’t monsters.

And so what do we take from that? Uh, these people were n- were not monsters. And, uh, I know the lesson he takes from that is that there is something about the carceral relationship.

It is so intensely suffused with, uh, relations of power. The possibility of abuse is absolutely ripe and present always. And, uh, uh, and, uh, you would have to be an exceptional person, uh, and you would need a, a correctional philis-

Uh, facility staffed with exceptional people, uh, to come into conformity, uh, with the ideal, uh, uh, posed by the, uh, the Hartian, uh, definition. And this, in a way, I think is an answer, uh, uh, to David’s, uh, concern, that we, we need the Hartian definition so we can call out misconduct when it happens. So the question I have, what if in the very structure of those institutions themselves, uh, there is the ever-present possibility, uh, of abuse and, uh, neglect, uh, and, uh, uh, extra-legal misconduct?

Uh, and I think, uh, and if that’s the case, uh, then we… maybe we need, uh, a different normative, uh, a different normative system, uh, uh, for, uh, uh, for regulation and institutional design. Um, uh, final point, uh, I’ll make, I’m not sure how I’m doing for time, but, uh, uh, final point I’ll, I’ll, I’ll make, uh, I wanna pick up, uh, uh, an issue that, uh, Rebecca raised. Um, but I’ll, I’ll get into it in a bit of a circuitous way.

I think an- an- Another striking feature for me of the reality of punishment as it is practiced, and, and here I guess I’m thinking specifically about incarceration, but it’s, it’s certainly true of other forms, uh, of modern punishment as well, uh, is that the negative consequences, the harms of punishment, uh, and never localized, uh, only to the offender.

Uh- we’re social beings. Uh, we’re– Our, uh, uh, our human life is socially organized. Wherein we’re enmeshed in, uh, networks of, uh, family relationships, community re– Uh, uh, relationships.

And, uh, and in and in this context, uh, incarceration is kind of a, a bizarre and, uh, unnatural intervention, uh, into human affairs. It’s profoundly de-socializing. It removes one, uh, uh, from all of these, uh, uh, all of these social connections in which, uh, uh, human beings, uh, live their lives.

Uh, this is very important as we think about, uh, the socioeconomic gradient in punishment, because it means, uh, that in those communities that have a high burden of punishment, uh, the community itself uh, broadly pays the cost, uh, of, uh, broadly ca- pays the cost of the punishment of the individual. And, um, and we see this, for example, in, uh, things like the, the million-dollar blocks that, uh, Eric Cadora has mapped looking at the spatial distribution of patterns of incarceration, and they’re overwhelmingly concentrated in very poor communities of color in, uh, in, in large urban areas, and that’s where the social costs of punishment are too. And so they extend, uh, the social costs, uh, of punishment, uh, extend beyond, uh, the individual offender.

And, um, and a key implication, uh, of this, again thinking about the American case, is the profoundly distorting effect, uh, that, uh, this high burden of punishment has, uh, on gender relations, uh, in, uh, in poor communities. And, uh, and it operates in, in multiplex ways. And, uh, uh, so not only are there, uh, uh, a shortage of, uh, uh, of men in free society in such communities, and the gender ratios are, are hopelessly lopsided, uh, the men that are there are very tenuously attached because, uh, they’re at risk of, uh, uh, reincarceration, uh, And there’s a lot of caring work, uh, that has to be done, uh, to accommodate this very, uh, very high level, uh, of punishment, and it falls on… it entirely falls on, uh, the women in those communities.

Uh, and it’s, uh, it’s it’s not romantic partners, which has been, uh, the focus of so much sociological research. Uh, it’s overwhelmingly on older women, uh, who are mothers and grandmothers, uh, and so on. And these are, uh, these are poor women, uh, who, uh, have, uh, by the time they’re in their 50s and 60s and they’re taking care of their, uh, a- adult sons, uh, have had, uh, very long lives, uh, of hardship, uh, already.

And I think as we think about the normative issue, right, somehow we have to, uh, have, uh, a sufficiently flexible, uh,

(cough)

and realistic, uh, normative discussion so we can entertain these harms as well that flow from, uh, uh, the process, uh, of punishment. And I think this is, uh, how we can begin to move, uh, towards, uh, a, a different kind of,

(cough)

uh, uh, a different kind of paradigm, uh, for responding, uh, to the problems, uh, uh, of, uh, violence, uh, uh, and other kinds of social,

(cough)

uh, conflict and trouble, uh, that are essentially flowing, uh, from conditions of deep and concentrated poverty.

[00:16:03] CHRISTOPHER KUTZ:
Thank you.

[00:16:04] REBECCA MCLENNAN:
Thanks. Should I take the microphone?

[00:16:06] CHRISTOPHER KUTZ:
Yeah.

[00:16:07] REBECCA MCLENNAN:
Okay, thank you. Okay. Um, my comments are going to be short, and I’m not going to use the word sweet, uh, in relationship to such a, uh, uh, a, a grim, if important, topic.

Um, it struck me last night that David Garland and I, uh, critiqued Didier’s lectures in starkly opposite terms. And, uh, it’s also now struck me that you have somewhat mediated those terms, uh, uh, Bruce. Um, I have argued that Didier does not push either his analysis, particularly that of penal theology and the denaturalization of the crime punishment dyad, or his methodology of heuristic comparison far enough.

David, on the other hand, argues that Didier has taken h– the analysis too far. In particular, that by de-deploying Hart’s exemption clauses, as it were, against Hart’s more well-known positivist definition of punishment, and by analytically liberating punishment from its overdetermined relationship with law, uh, we’ve deprived ourselves of the one instrument that can and has been wielded successfully against extrajudicial forms of violence, police and prison guard abuse, lynching was the kind of the, uh, the case he gave us, and so forth. More law is the answer on David Garland’s, uh, uh, uh, view, more legality.

I think that’s something that we should and could debate. Second, and I’ll unfold this in, uh, uh, presently, I want to return to the question of why the US is so in ex– so extreme when it comes to the harshness, whether de facto or de jure, of its policing and penal systems. Until now, our panel has mostly emphasized this extreme status of the US in terms of the excesses and the harshness of, uh, punishment here.

But we should also recall that the US treats serious, life-threatening wrongs of a certain sort perpetrated by people of a certain status much more leniently in comparison to how other liberal, and especially social democracies, treat them. A large proportion of Iceland’s top banking executives from the immediate pre-crash era are now serving multi-year sentences in a prison that is located one degree shy of the Arctic Circle, and that’s remote even by Icelandic standards. There’s something like 21 of them up there, and I have actually been to that, uh, area of Iceland, and, uh, there’s a, there is a harshness to it.

Uh, if as Didier argues, the severity or laxity of punishment is determined by the interplay of the repressed will to make suffer and a variety of externalized, sorry, external and internalized social controls, what accounts for the relative strength of those controls or relative weakness of the drive to make suffer when it comes to over-leveraged bankers, negligent Appalachian coal magnates, inside traders or even the affluent young man who drink drives and kills someone or someones? What does this say about the state of American moral economy, to use your language, and how does it articulate with our political economy of, and this is the first time a panelist has used this word, neoliberal economics? Chris Coots, I believe, used the word in the introduction yesterday.

I considered that a provo- provocation. In a similar connection, we might fruitfully push the analysis further regarding a section of Didier’s talk that we have not discussed, but which I think is really important. Didier briefly invokes in at least three passages in his lectures, theorists who connect cruel punishments and suffering on the one hand with despotism and authoritarianism on the other hand.

It’s an old distinction. It’s one of the American– It’s one that the American revolutionaries were very well aware of, and in fact, constructed their, uh, sort of penal project, uh, in, in contrast to.

Uh, he, he also suggests that the extreme quality of punishment in the US, quote, “refutes” Montesquieu’s formulation that, quote, “Severity in penalties suits despotic government, whose principle is terror, better than monarchies and republics, whose principle is, uh, honor.” Now, uh, I’m reading Didier here to say that republics can also be severe. Another way of reading this passage, possibly, it’s,

(clears throat)

uh, a little bit provocative, is that the US is, contrary to what Didier and most of us assume, despotic, at least in part. Of course, in a formal sense, and for most of the population, this is demonstrably wrong, both sub-subjectively and objectively. But as Pierre Bourdieu pres-presciently put it, uh, in the nineteen-eighties after a visit to California, In fact, I think, to Hastings Law School.

“In some neighborhoods and even whole cities, the dimension of government with which the citizenry has had the most experience, sometimes for over two generations running, is its forceful punitive arm.” “The state has involuted,” he writes, “except for its military and penal arms.” “Consequently, citizenship, once thought to be social, after T.H. Marshall’s work on citizenship, and not merely legal, not merely economic, has been weakened.”

Um, Now authoritarianism has been in the news quite a lot lately in connection with both American and French politics. And I think this authoritarianism and the kind of authoritarian culture is, uh, uh, one of the most interesting sub-themes of Didier’s paper. He didn’t dwell on the theme in yesterday’s lecture.

In fact, he, uh, I think you cu-cut it out in the delivery of your lecture. But there was a very interesting paragraph right at the end of the written version that the respondents read, and in this s-section, he pointed to a kind of proliferation of the cruelty, uh, of a culture of cruelty and humiliation, which with it, with its Latin roots means literally to humble. A kind of culture of cruelty and humiliation that he sees everywhere in American popular culture, cop shows, reality TV, prison dramas, and so forth.

And I think the connections between this, um, I would argue, not recent, but quite long-brewing authoritarian culture, if we go back to, uh, at least to, um, Ba-Barry Goldwater, um, the, uh, the early 1970s and the first Di-Dirty Harry, uh, film r-released in 1971 was a kind of urban vigilantism whereby acting, taking the law into one’s own hands, was lionized. And the whole, the, the, the seq- several sequels to that kind of backlash, uh, um, cinematic culture. Th-th-th-there are actually fairly deep roots, and we could go back further to the founding of the second Ku Klux Klan in the 1910s, um, the respec- so-called respectable Ku Klux Klan that four million people belonged to at one point to trace a kind of, uh, culture as well as the politics of authoritarianism that is, uh, not so new, uh, and therefore not specific to the post-1970s, um, period.

Um, I’d also like to pick up on, uh, the case that David Garland used, uh, as a kind of exemplary case, um, um, of, um, uh, of, uh, sort of, uh, cr- of cruelty, um, that he argued was brought to an end by, um, uh, le-by, uh, legal reform and by the extension of law and the sphere of legality, and this is the case of lynching that he talked about at some length. Now I’d like to suggest that lynching in the United States, which peaked in the 1890s, at which time an average of two to three people, mostly African Americans in the South, were being lynched every week, may have been extra-legal, as David argued, in the formal de jure sense, but it enjoyed, uh, de facto legal legitimacy. I think that law can be de facto.

In no practical sense was it illegal, either in fact or in the minds of the perpetrators. Indeed, not only did officers of the law not defend the pretrial jails out of which many of the victims were abducted, there were numerous instances where officers of the law willingly stood aside and even handed over the keys. And as Grace Elizabeth Hale shows us in Making Race– Sorry.

In her book, uh, Making Race In many instances of spectacular lynching, employers gave employees the day off, train conductors and newspapers spread the word, and train companies even scheduled extra services. Importantly, the mob neither saw itself as a mob or as engaging in illegal activity.

They considered their actions fully lawful and authorized not by positive law, law on the books, but by a higher, higher moral law. Congress repeatedly refused to enact anti-ly-lynching legislation from the very first time a congressman called for such a law in nineteen hundred through the failed Dyer Bill of nineteen eighteen and the Costigan-Wagner Bill, which also died in the nineteen-thirties. The first somewhat limited hate crime bill was passed only in nineteen sixty-nine, more than seventy years after racial lynching had peaked, more than thirty years after the practice had ceased to be commonplace.

In two thousand and five, the Senate officially apologized for not having acted sooner, uh, right as they were debating what would become the first comprehensive anti-lynching law, the Matthew Shepard Act of n– two thousand and six. Law, at least in its positivist and liberal sense, was too little, too late. So the question for me is, can we rely on positive legal reform alone to address America’s extreme version of extreme forms of judicial and extraju-judicial violence?

[00:26:11] BRUCE WESTERN:
Uh, so terrific, um-

[00:26:15] REBECCA MCLENNAN:
Sorry, David, I had to do it.

(laughter)

[00:26:17] DAVID GARLAND:
I’ll explain why you didn’t.

(laughter)

Um, so I’ll, I’ll begin by responding to Rebecca, and Bruce’s remarks, and then I want to say something that really just follows from discussions we had yesterday and builds on, uh, DDA’s. So, um, everything Rebecca just said, uh, I entirely agree with. Um, and indeed, I, I’m, I’m in print having set out, um, in detail.

Um, I didn’t suggest yesterday when I talked about, um, the history of popular lynchings that they were illegal events. What I was claiming was that they were events that were at odds with the state law and indeed the federal law in which they occurred. There was a situation not of illegality, but of legal pluralism.

In other words, there was such a thing as popular justice understood by locals, uh, maintained by local law officers, colluded in by local coroners and prosecutors and editors, which made what the mob did, if it was ratified by the crowd and by the local, um, officials, it made it lawful, even though that law was at odds with the state law, which was under-enforced and its writ didn’t run to the settings where these lynchings took place. Over time, not because law changed, but because legality, which is a different thing, um, was transformed, the state law, the federal law was made to apply in these settings. And the, the political and economic forces that brought about that application of state and federal law to these localities were typically, you know, uh, decisions by the local chamber of commerce that it was bad for business not to have, you know, to have publicity about lynchings occurring there.

The organization of the civil rights movement in the North with respect to the South, eventually intervention with the hu- of the civil rights, uh, department of the federal government in these contexts, all of these things changed. So everything that Rebecca said, I, I agree with, and I’m sorry I didn’t make it clearer in my presented mo- remarks yesterday that that was what I meant.

[00:28:08] REBECCA MCLENNAN:
I might have misinterpreted you.

(laughter)

[00:28:11] DAVID GARLAND:
Um, so we- we- we- we’re on the same page about that.

Uh, with regard to Bruce’s remarks, um, so first of all, I completely agree, uh, that it’s unlikely that, uh, prisons, custodial, carceral institutions, penal institutions of any kind will ever be brought into alignment with a legal ideal. Um, it’s unlikely that any human institution will. Um, that’s to say everything from universities to families to workplaces, uh, are always in, as it were, violation of the rules that they ought to be following.

That’s kind of the nature of group life and social life over time, uh, especially true of coercive institutions where people don’t want to be there. Um, the question is, to what extent do the institutions vary in that relationship to the law and the rules that bind them? Um, and my sense is, and I think this is something that Didi has been pointing out, but all of us ag-

agree with, that one senses that American institutions of, uh, confinement and, and incarceration are probably more lawless than is true in Canada, in Australia, in the UK, in Western Europe, even though these are all places in which there are constant routine scandals, uh, of the, the law breaking in these institutions. I think that our enormously varied, uh, penal institutions, federal maximum security, federal minimum security, state penitentiaries, local jails, they vary enormously regionally from city to city, state to state. Um, but on the average, if there can be such a thing, my sense is that they are, uh, less well less well-governed, less well-resourced, that there’s, there’s less, uh, inspection and accountability and involvement by either the courts or ombudsmen or inspectors.

And for that reason, there is, I think, more routine violence and illness in these contexts. So the question is not can it be done, the question is can we improve what is currently done and how, how might that happen? Um, so, so the-these were my responses to, to, to, to Bruce and Rebecca.

Um, what I wanted to do was to pick up on a theme that’s kind of emerged. However, however we describe, um, what punishment is, and, and and indeed much of what Didi’s, um, article was doing was describing how, uh, penal power flows through all sorts of social and economic logics and all sorts of situations that aren’t governed by law, but which we ought to recognize ethnographically and, and, and sociologically. Rea-really, I think it’s a preliminary to, um, problematize them as a political matter, thinking about how we might apply legality to them or we might, um, bring them to rule.

So

[00:30:49] BRUCE WESTERN:
pu-punishment, however it’s described, I think it’s uncontested that, um, with respect to the developed world, particularly the world of liberal democracies, in the USA, punishment is used more extensively and more intensively than anywhere else. And when I say that, I don’t simply mean, um, rates of incarceration, which is what, what we’ve become kind of fixated on in the public debate. The, the, the phrase mass incarceration sums up everything that people are concerned about much of the time.

But I think on every dimension, um, and I’d even, I’d even probably contest the U.S.-Icelandic kind of contrast on the treatment of white-collar criminals or, or financiers or bankers. But on every dimension, I think the USA is distinctively extreme and distinc-ex-distinctively extensive in its use of punishment. So not just having the death penalty and life without parole, where these are unconstitutional in most of the other countries I just mentioned, not just having rates of incarceration that are five to ten times as high.

Rates of supervision are about five times as high as the European average, and the form of supervision it takes is much more controlling, much more repressive, much less social. Um, the, the, the, the average length of sentences for any kind of crime that you can name typically are three to four times higher here than they are elsewhere. We measure our sentences in lifetimes and decades, not in months and years.

Um, if we also think about the collateral consequences, um, that attach to, uh, a felony conviction, um, the, the disqualifications, the disenfranchisements that the ineligibility for housing or welfare, or educational grants, or jobs, um, these are also much, much more extensive here than elsewhere. And the question is how to think about this, how to characterize it, how to, how to begin to, um, explain that variation, the, the, the, the, the, the, the, the, the US on the extreme end of a range on each of these dimensions. Now, in our discussions, um, we’ve had a number of ways of characterizing what punishment is.

Um, we’ve talked about punitiveness, about harsh justice. Yesterday, um, uh, Rebecca was actually being the phrase maker in this particular area. She talked of delegated sadism.

Um, we could, so we could talk about punishing the poor, uh, Loïc Wacquant’s phrasing. We could talk about reestablishing, um, a racial caste system, Michelle Alexander’s account. We could talk about despotism.

Um, And as Didier s– Didier Fassin said yesterday, uh, Nietzsche was right. I mean, basically, there are all these motivations, there are all these accounts and meanings that flow into and inform what punishm- what punishment is, why people punished, why the will to punish takes the form it does, and so on. But the question I want to ask is, um, how, how might we think about the, um, the character of punishment in order to understand America’s distinctive commitment to punishing so extensively and so intensively?

And here, what, what I would suggest is actually a different way of thinking about the penal system from the one that we’re typically using, and certainly not to think about it as punitive or harsh or emotive or… What I want to suggest is the characteristic that nearly all of the sentencing laws, which after all are what produce these punishments and these massive prison populations, all of the sentencing laws that have been passed after

(cough)

1975, in the last 35 years, in fact, up until really very recently, they have one thing in common, which is that they both limit the discretion of judges and parole boards and prison, uh, correctional officers, and indeed, by implication of, of governors, limit the, the capacity they have to be lenient in punishment, And they extend

(cough)

the control, the penal control that is imposed on individual offenders. That, that’s what all of these things do. That, that, that the single characteristic that combines everything I just mentioned before, with maybe the exception of the death penalty, which I take to be a very marginal and, and fading feature of the USA, which in a, in a certain way we should ignore if we want to think about the important features of the penal system.

What, what characterizes all of that is penal control extensively and intensively imposed. Now, why would that be? Why would it be the case that, that s-

uh, over a period of about forty years, fifty different states and the federal government all constantly moved in the same direction, to extend penal control repeatedly, extensively, and forever. Um, even bearing in mind that, that to explain any, you know, set of laws that, that emerge out of all these different

(clears throat)

contexts, local and state and federal level, at different moments in time with different coalitions behind them, with different arguments made, you have to think of multiple circumstances in which these things arise,

(clears throat)

and yet they’re all pressing the same lever, and the lever is extending penal control. Why would that be? And I think it would be because America isn’t just distinctive in its levels of punishment.

America is, and has been, I think, for a very long time, although we don’t have good data on this and we haven’t attended to it, uh, regularly, is distinctive in its, how you might say, failures of social control at the levels of families and schools and neighborhoods and workplaces, As exhibited in the higher levels of violence and social pathologies in this country as compared to elsewhere. And my sense is that the, um, the, the, the, the, the precipitating cause and the background anxiety and concern that the public and politicians are addressing, sometimes directly and with this in mind, sometimes obliquely, is this sense of an out-of-control population, and particularly a poor, particularly a black, particularly a male, young population. But there’s no reason to suppose that, that, that all of the violence or all of the crime is concentrated in that one minority group.

It’s not. It’s over-represented there, but it’s quite extensive. If you were to, if you were to remove, um, all gun crime, if you were to remove all African American crime, America would still be more violent than elsewhere in the, in the developed world.

And I’m not talking about compared to South America, I’m not talking about compared to Asia or Africa, but in the world that we normally situate ourselves in. And it seems to me that, that the, um, not only is, is that background social feature very important, became much more important in the 1960s and ’70s and into the ’80s when levels of violence grew greater, primarily because families and neighborhoods were even more prone to failure and dysfunction during that time, precisely because the market economy withdrew the availability of entry-level jobs for large sectors of the population who then had to find, uh, a, a way of living outside of the labor market and outside of any welfare state, because there is no provision for able-bodied working age men in this country. This is not part of the welfare state social, um, assistance.

So, um, there is this background deficit of social socialization and social organization and social integration. It’s especially exacerbated in areas of concentrated poverty. It became much more exacerbated after the post-industrial reorganization of the, of the, the labor market.

And the– part of the reason why that’s true, but also one of the limitations of governmental response to this problem is the nature of American government. American government is neither geared up for, capable of, or disposed to respond with social interventions or providing educational and employment protections or supporting families or any of the things that the Great Society and War on Poverty gestured at and in some kind of minimalist way failed to deliver. This is not the American state’s mode.

Instead, the American state can deliver cheaply and, uh, uh, immediately penal controls. So you can do that at the, the, the, the state level, especially if the federal government that’s flowing money into enabling that. Even then, even when we think about our penal controls and our police controls, they’re done on the cheap.

Because the, the… these are tax-stressed governments that are not capable o-o-of, as it were, providing large-scale, uh, s- investments even in the penal system. So we do extensive penal control on the cheap, and these days we’ve even started charging the inmates and their families for the privileges of being there. So I would want to think the American penal system, its punitive, harsh justice as being a form of penal control that is generated by underlying deficits in our social institutions and underlying incapacities within government.

And all of these are prompted not by some policy change or somebody but by the underlying structures of political economy and institutional life in this country. These, these, it seems to me, are the, the deep factors that are not easily subjected to policy interventions, even though at the margins, a great deal can be done to improve this area or that institution. Thank you.

[00:40:33] CHRISTOPHER KUTZ:
Okay, uh, Didier?

[00:40:36] DIDIER FASSIN:
Well, thank you. I will not, uh, renew, uh, uh, uh, my thanks, uh, to the, uh, Tanner Committee and the, uh, and the organizers since we, uh, delegated that to Bruce, uh, who did it, uh, at the beginning, uh, for all of us. Uh, I just want to say that the, the way, uh, I have thought, uh, uh, about the, the Tanner Lectures, uh, when I first worked on them, uh, about a year ago, uh, was in terms of an essay.

Uh, essay which I would take less in the literary sense, uh, than, um, in the, uh, the old, uh, meaning of the term, which comes from the, uh, Old French, uh, trial, attempt, uh, endeavor. In other words, um, exploration of uncertain territories, both in terms of, uh, theory that is questioning our common understanding of punishment in conversation with law and philosophy, as you understood, and in terms of methods, uh, associating, uh, eh, in an, as I called it, undisciplined way, uh, ethnography and genealogy and mobilizizing– mobilizing some ethnological and, uh, historical, um, accounts. Uh, and this is because I think that such, uh, lectures are a wonderful opportunities, uh, to, uh, take some intellectual, uh, risk, especially, uh, when, uh, uh, uh, we are submitted to, uh, the critical, uh, discussion of distinguished colle-colleagues, uh, as was the case, uh, in, uh, in this, uh, in this series.

Um, and in light of the, uh, insightful, uh, commentaries that I’ve, uh, received, uh, from Bruce, Rebecca, and David, um, I, uh, I would say that, uh, this essay has been for me very successful. Um, now, when, uh, one works on, uh, a given object, uh, from a social science perspective, uh, one has, uh, perhaps two main ways of apprehending, uh, that object. One is definitional, that is posing a definition and trying to find the best definition of the object, and then to determine whether empirical facts fit this definition.

And this is, for example, what Durkheim did, uh, in The Suicide, uh, where, uh, he gives the definition and then he says, “This we can– uh, that fits my definition, and this does not.” And, and so that, that, that is a way to, to proceed, uh, uh, uh, and, uh, in, in, in the approach.

And, and the, the other, I would call it comprehensive, uh, it’s, uh, based on, uh, an interpretation of the meaning of the object, uh, for social agents. Um, it is generally limited, uh, to the subjective, uh, dimension, so how, uh, people subjectively, uh, give meaning. I think we can extend it to an objective understanding.

Uh, and this is what uh, typically, uh, uh, Weber would, uh, would claim in, uh, uh, in his approach, for example, in the prost-Protestant et-ethics. Uh, in terms of this relationship between, uh, uh, what, what comes as a definition or as a norm rather, and what comes as a, a practice, uh, that is different from, from the norm, we can think also of another example, which is, um, uh, Claude Lévi-Strauss’, uh, elementary structures of kinship, uh, which define a worldwide, uh, interpretation of how kinship is, uh, organized. And then, uh, Bourdieu’s, Pierre Bourdieu’s critique of, of it, uh, saying, well, this is what is in the norms, but, but we have practices, so people do not marry, uh, as, uh, the rules, uh, uh, tell them to marry.

Uh, in– So even in, in traditional societies, as they, uh, can, can be called, uh, there, there’s a, a difference between, uh, uh… And sometimes it’s very substantial. So the majority of the, and, or sometimes an overwhelming majority of the, of the, uh, m-marriages are not, uh, do not correspond to, to, to, to the, to the rule.

So

(cough)

but, but that that does not disqualify, uh, the analysis of the norm on the one hand, and of course, uh, we, uh, also need to take into account the strategies, uh, uh, the actual strategies of… And so in terms of punishment

(cough)

uh, the first approach that I, uh, uh, described, the definitional approach as I, uh, called it, uh, is, uh, the, the one that Hart, uh, in particular, uh, uh, has, uh, used, and that’s the, in a way, the Durkheimian, uh, so to speak, a approach. And I think that more generally, uh, and quite logically, I would say, uh, most legal scholars and mo- and moral philosophers would use that, that approach. And, and I find it completely legitimate, uh, from their perspective.

And for example, they will explain to us how punishment can be, uh, uh, very different from revenge, for example. And you have five criteria that, uh, Nozick, uh, for example, gives to differentiate them. And, and this a-approach, which, uh, I find quite respectable, is that is what David was defending, uh, y-yesterday and, and, um, uh, uh, both as a, as a, as a theoretical statement, uh, saying that what I was describing was not punishment, but was more unlawful, uh, um, practices.

Um, and in terms of the, uh, political implications, uh, since he was, uh, uh, showing, uh, that, uh, if, if, if you have this reference, uh, uh, this normative reference, then you can use it to, uh, to, to, to contest and to, um, uh, and, and to de- to, to go from the illegitimate or the unlawful to the illegal and, and, and, and that’s, that’s, of course, uh, a, a powerful, uh, way of looking at things. Now, I took, uh, an orthogonal pos- uh, position,

(coughs)

and, or direction. Uh, so I, I chose not to decide in advance what is punishment, but rather to try to understand, uh, what it is for various societies or various groups wi-within these societies.

(coughs)

(breath)

(coughs)

Uh, and for example, to consider that certain forms of policing,

(breath)

uh, where, uh, could be assimilated or could be understood as punishment. Not because I would decide that it is, uh, that it is so, but because first of all, subjectively, the agents themselves, uh, the, uh, the police officers, uh, first of all, often the population, uh, themselves see them as punishment. But also because, uh, as was, uh, said in the example of the, of lynching, Uh, the state itself, although it would never say to the police, “You can punish these people,” uh, but gives all the facilitation so that it could be, uh, it could be made possible.

So it– there’s both, uh, a subjective and, uh, objective, uh, dimension. And of course, as

(coughs)

uh,

(coughs)

David, uh, reminded us, um, uh, a moment ago, uh, this is not the only form, uh, of, uh, of punishment. And, and we can think of the multiplication of, punishment, the suppression of welfare, uh, the disenfranchisement and the, the, uh, how, how these punishments are multiplied in society and not just what we, uh, we have our eyes focused on, which is, uh, uh, uh, incarceration. And of course, that’s a, a huge, uh, aspect of it.

And that, that gives us the opportunity to, uh, to realize that some of these, uh, punishments can be random, can be collective, can be vicarious. Uh, what you were saying about y- or, or Bruce was saying about, uh, how you, you punish, uh, uh, individuals, but, but then through them you punish the family, you’ve punished the community. Um, and, a-and, a-and, and I th-

And in fact, uh, Rebecca was, uh, yesterday, uh, making the powerful, uh, argument that it’s also how we should and probably have not very much, um, uh, uh, or not enough, uh, uh, done it i- for historical studies, uh, for, uh, the nineteenth century when, uh, everyone was, uh, so focused, uh, uh, on, on, on prisons. Um, So, uh, a- And, and I would say the same kind of, uh, uh, the same kind of reasoning, uh, goes with the, the question of the justification of why, why we punish.

And, and my discussion there was not so much about, uh, about the definition, but about the justification. And, and so this classical justification, utilitarianism and, and retributivism, uh, uh, that in a sense, uh, moral philosophers and legal theorists have spent so much time, so many articles, so many books to define, to discuss, uh, with these, as you said, fantastic example– uh, counter examples. You know, you know, it’s the, the equivalent of the trolley, but, uh, in a, in a multiplication of, uh, of, of imag- imagination.

Um, But uh, but this is to describe an ideal, uh, uh, an, an ideal of, of justification, uh, which, uh, in practice finds, uh, very s- important limits, uh, in terms of, uh, uh, the principle of efficacy if we look at the utilitarian argument. Uh, let’s think of how, uh, uh, uh, prison produce, uh, or contributes to produce redis-resi-recidivism, and many studies comparing different, uh, alternatives to prison and prison, uh, uh, sh-show that. Uh, and also, uh, the principle of equivalence when, uh, w-we see, and that was, uh, reminded a moment ago, uh, the, uh, the enormous, uh, uh, amount of punishment that is given for, uh, uh, sometimes relatively, uh, minor, um, uh, crimes.

Uh, but, but, uh, but we have probably to go a little further and, and see that, uh, not only, uh, there are, there are other reasons, uh, or that there are reasons that are different from justifications for punishing, and I gave a few examples yesterday of, uh, the, uh, uh, performing a social order or, uh, applying a judicial routine or, uh, satisfying, uh, one’s, uh, personnel or one’s population, one’s constituency. Um, but it’s also the fact that probably unwillingly in a sense, but these theories of justification contribute to the justification of punishment by, by, by, by giving these rational, uh, elements even though they don’t work most of the time and they don’t correspond to the reality most of the time. Uh, the, the, the problem is that, uh, a-and the rational argument are, are, are very, uh, powerful, but at the same time they don’t work.

And, and but they work in another, in another sense. They work in the sense of the, of justifi- justifying, uh, this justification. And, and that’s where I, uh, uh, I, I try to, uh, bring two core elements that have been, uh, brought again at this table, uh, this afternoon, uh.

Uh, that I think, uh, are, um, uh, of course, uh, uh, discussed at least for the, for the first one very much, uh, inequality, and the second is cruelty. But the f-first one is the question of inequality uh,

(coughs)

Uh, in the implementation of, uh, of punishment. And, and, and the fact that this– that would be, uh, I would say almost a, a mathematical, uh, law, uh, that in a country, the more severe you get, the more unequal or the more unfair you, you, you become. Uh, uh, because the severity will be always tougher on the–

Uh, on those who are disadvantaged. So I’m not saying that the most severe countries are necessarily the most unequal, although they’re very often, uh, uh, they’re linked. But, but when, when more severity, uh, in, in, in law, uh, and in sentencing, uh, is imposed, uh, the, the more it creates a gap, uh, or a, a, a, an inequality, uh, because those who are most struck are at the bottom of the, uh, uh, of, of, of the social scale, so to speak.

And the other core is the question of, uh, uh, of, uh, s-suffering and, and the, and the centrality of suffering. O-of course, I do not ignore that some, uh, some, uh, uh, offenses are punished by, uh, fines, for example. Uh, uh, and that there are, uh, ways of, uh, of, uh, of avo-avoiding the, the, the most, uh, the suffering.

But, but still, the centrality of of suffering and the, uh, ambiguity that society has, uh, that… Society is a big word, but, but that many people have, uh, uh, toward, uh, this, uh, importance of, uh, uh, of, of, of suffering. And-

And and, and I think that, um, one has to, to think, to, to, to realize how much prison is much more than what it is supposed to be when more, much more than what it says it is, much more than a deprivation of freedom. All the guards, uh, I worked with in, in the French prison, uh, and they were not, uh, uh, the, they were not as, uh, um, uh, terrible as, as the one, uh, in, in the United States. Uh, uh, but, but they, they were…

But still, there were so many deprivations. And all the guards were saying, uh, \”Well, the only thing that, uh, they, they don’t have here is freedom.\” And, and for me, there was a, a lack of understanding of what prison, uh, meant.

(clears throat)

And, uh, and, and when I was, uh, talking about the, uh, ambiguity of, uh, uh, our ambiguity towards suffering, I was referring,

(clears throat)

and that’s what you, uh, were mentioning too, this strange relationship that, or tension that there is between cruelty and pornography. The pornography, uh, uh, of showing, uh, the, uh, uh, the, and, and, and provoke– provoking, I suppose some excitement and, and, and we know that from Augustine, so it’s, it’s not new. Uh, but by showing on television, for example, uh, this, uh, violence in prison or, or this humiliation of the shaming of people being arrested in, in their homes and, and all this.

So, so, so there’s, there’s something that is, uh, really troubling i-in this, in the spectacle, uh, that is associated with this suffering. And, and, and as I said yesterday, shows that, uh, we are not completely done, uh, with the first scene, uh, that, uh, uh, Foucault was, uh, using, uh, in the opening of, uh, Discipline and Punish. Of course, we, uh, we don’t treat people in this way normally, uh, uh, but, but still.

And so, uh, what I, what I’ve tried to do is certainly not, uh, uh, to propose a, a theory of punishment, but rather a method to apprehend it, uh, not trying to offer a better definition or better justifications, but rather questioning these definition and justification, uh, what they do, what implications they have. And, uh, and,

(throat clearing)

and, uh, and, and I would, uh, in other words, I would say that it is both important to have a legal theory based on moral philosophical principles and concepts. Uh, but it is al-also crucial to have a critical method to question them, uh, their, uh, uh, premises and their, Uh, implications. Uh,

(throat clearing)

however, I would, uh, uh, I, I completely agree with the point that, uh, Bruce made yesterday and repeated, uh, in a diff– uh, the day before yesterday and, uh, formulated slightly differently today. Uh, that if we think of, for example, mass incarceration, uh, the penal system, uh, is not, uh, the only way to think about it, and we have to think of society in a much more, uh, in a much broader way, which I didn’t– I, I mentioned it in passing, uh, yesterday, but which I didn’t, uh, do seriously.

I didn’t engage that question, uh, in the, in the lectures because I was trying to think rather more specifically about the punitive moment, as I would call it, in which we, we are. A final and brief, uh, uh, thing is, uh, would be to try to think, and we’ve done that this morning, uh, in a, in another, uh, session, about, uh, the link between, um… or, or the– how we can, can we think, uh, the relationship between critical thinking and transformative, uh, action? So how can we, uh, how– the kind of, uh, uh, analysis that we produce, uh, all of us at this table, how can it, uh, contribute i-in a way, uh, to, uh,

(clears throat)

To the, uh, to some changes in something that probably all, uh, all of us in this, uh, room, uh, would like to, uh, to happen. Uh, first of all, I would like to, uh, precise, m-uh, to, to give, uh, uh, uh, an indication of how I see, uh, critical thinking or, or, or, or critique. Um, I’ve used, uh, the, the, uh, and a-after others, uh, I’ve used the, the, me- the metaphor or the allegory of the cave, of Plato’s cave, um, and the, what Michael Walzer, uh, in Company of Critics, uh, uh, discusses as, uh, tho-

The thinkers who are outside of the cave, uh, in the, uh, light of the sun and, and can, uh, understand and know what, uh, others, uh, in the cave cannot, uh, see or, or are, uh, have the illusion that they, uh, understand. And those who are inside the cave, uh, and, uh, Michael Walzer was, uh, uh, putting himself in the second category, who are working with people, uh, with all their contradiction and their, uh, difficulty. And I’ve, I’ve, uh, uh, tried to pursue that, uh, uh, that, uh, allegory by saying that the position I’ve tried to occupy is that at, at the threshold of the cave, that is, uh, ethnography is a way to spend a lot to spend time with people and, and, uh, and, uh, give just- do justice to their social intelligence, the way they understand the world and, and, uh, and help us to understand it.

But at the same time, uh, or, or maybe at a different moment, uh, one has to move outside of the cave and try to bring other theoretical, uh, or, or methodological elements that, uh, go, uh, beyond, uh, what, what is, uh, uh, what is accessible or what, what is sayable, uh, by people, uh, in the cave. And, and

(coughs)

this move, uh, from the threshold inside and outside, uh, I think is, uh, off- uh, opens a possibility to move from critical thinking to, uh, to transformative action. Uh, because the, the respect you show, uh, to the people inside, uh, the cave, so to speak, uh, but also, uh, uh, the, uh, the effort of understanding what they do and why they do it and how they interpret it, but also of learning their language.

And, uh, and, uh, and we gave examples, uh, uh, at different moments, uh, uh, in, in these, uh, uh, in the lectures and the comments, of what guards or what, uh, uh, what police officers or what, uh, uh, other, uh, agents, uh, uh, do and, uh, uh, and why they do it, uh, offers a possibility for a dialogue and, and, uh, a-and, and some, uh, at least, um, a better translation of our work into something that is, uh, hearable, uh, audible by, uh, by, uh, the different publics we, uh, we can deal with, whether they are prisoners or guards or, uh, the larger community or decision-makers or activists. Uh, and, uh, uh, Uh,

(cough)

and I would, um, I would simply, uh, end by saying that as social scientists, we, uh, at least that, that would be my, uh, my, my view about it. Uh, we must be, uh, modest and very modest about our capacity to change and m-maybe even sometimes our legitimacy to change because others are much more legitimate because they spend, uh, their time, their life, uh, in working on these changes, either because– e-either as activists or, uh, trade unionists or, uh, with policymakers. Uh, so we, we must be modest, but at the same time, we must be ambitious and tenacious, uh, in, uh, in this endeavor.

Thank you. Thank you.

(applause)

[01:04:25] BRUCE WESTERN:
I see on my schedule we’re actually allocated a five-minute, uh, bathroom break now. But, uh, but, but- Okay, we’re gonna start again yeah, which, which was-

Um, and actually- just some statement our panel has, uh, suggested that we move directly to audience discussion. Um, what we’re going to do, um, let me just say, um, by way of that, uh, two things. What we’re going to do with the audience discussion, one is, um, um, uh, to, to the extent possible, it would be great if you were- if if the questions are questions rather than statements, because we want to get a, a debate going and a discussion going.

So please, um, please offer questions, um, uh, if you would. And the second is that we’re going to collect them, um, uh, three at a time. Collect questions…

Well, actually, maybe we’ll do two at a time. We’ll collect them in pairs, um, given the, given the time we have. Um, and that will give the panelists more to chew over and more to discuss.

Um, so, um, if you would like to ask a question, um, we’re, we’re recorded, and so we’re going to ask you, uh, to speak into a microphone that Ellen Gobler will hand you. If you’d like to ask a question, please raise your hand, and Ellen will pass you the mic.

[01:05:34] AUDIENCE MEMBER:
I wanted a clarification before there was a mention of the number of women that went into prison. Um, I wanted to be sure that I heard it right. Are there more women than men in prison? That’s– so that what I heard wasn’t correct.

[01:05:51] BRUCE WESTERN:
There are, uh, there are more babies. Uh, there are a lot of women that… Or most of the women that go into prison are pregnant.

[01:06:03] REBECCA MCLENNAN:
Four to ten percent.

[01:06:05] BRUCE WESTERN:
Four to ten percent. And the last question is, quite a few of these women d-do deliver their babies. Uh, babies are born in, in, in prison.

[01:06:16] REBECCA MCLENNAN:
Yeah. Um, up, up to ten thousand a year is one estimate. Up, up, up to ten thousand babies a year on one estimate Was this, um—

[01:06:26] BRUCE WESTERN:
Mm-hmm. Noth— In the United States.

[01:06:28] REBECCA MCLENNAN:
In the United States, yeah.

[01:06:30] BRUCE WESTERN:
I would just add that many of those women are in shackles when they deliver.

[01:06:33] REBECCA MCLENNAN:
Um, this was, um, uh, uh, sourced from two different, um, sources. That’s high, I would, I would suggest. I think that the, but if it’s ten percent of a hundred and sixteen thousand women going into pr- uh, who were in prison, um, that’s conceivable, um, and so there was a, a study of this that was published actually not in any American newspaper, but in the Manchester Guardian in 2013, um, uh, where, uh, it was one of the two sources that the number comes from.

Um, yeah.

[01:07:12] AUDIENCE MEMBER:
Uh, I’ve got a question about, um, something that I think that it was, uh, David Garland said yesterday in response to, uh, Fassin. Um, I may not have unders-understood it correctly, but there was a question about, uh, whether, you know, if someone’s arrested and, uh, there’s detention in the, the course of due process, and that’s not necessarily con- to be construed as punishment. Um, but can’t, uh, detention be used as punishment deliberately or, or even by default or by accident?

And sometimes a, a judge, I, I hear, I’m not familiar with the court system that much, but, um, will say, uh, you know, “I’m releasing you based on time served,” so that sounds like punishment. Um, so, so I was, I was just wondering if, uh, you know, the laws are sometimes applied, uh, as Bassem pointed out and others point out, um, at the discretion of, of the officials. So sometimes both high and low officials will choose what, what to, uh, apply, and I just, um, I– it just seems like it’s kinda extra-legal, although it’s done by the institutions and the legal institutions.

[01:08:24] BRUCE WESTERN:
Why don’t we collect another question?

[01:08:34] AUDIENCE MEMBER:
I was interested in a little more discussion on the concentration of political and economic power and what appears to me to be the impunity of the corporate class and government

[01:08:50] CHRISTOPHER KUTZ:
As you like, panel, to a-address this.

[01:08:54] BRUCE WESTERN:
Um, so can I just respond about the, the, the point about people on bail? Um, so the, the, the point I was making, um, in response to DDA, um, was not– I didn’t want to contest the experience of people who are remanded awaiting trial, um, and who of course are there because, um, their families can’t post bail.

Um, and they s- they, they, they wait, um, unconscionably long periods of time to be brought to trial, and the instance that everyone knows of from The New Yorker where someone waited three years in a, in a New York prison, a New York jail, um, was the kinda most outstanding example of precisely that. I, I, I utterly, um, agree that this person’s experience was, uh, of being punished for, um, an alleged offense. The point I was making was a, a more subtle one, one, if I could say that.

That, that the Didier’s claim was that people who were, um, uh, innocent and not proven guilty were being punished. Um, and my point was that they’re innocent without, uh, until being proven guilty is a legal fiction that safeguards the, the stasis of individuals who haven’t yet been tried. But in fact, uh, common sense, empirical description, anyone who knows as, as Didier does, who ends up in prison, uh, it, it’s not the case that these people are innocent of any criminal act.

It’s the case that by and large, with a few exceptions who are indeed innocent, that they have committed some kind of crime of that kind. Uh, it’s just that until such time as that’s been proven in court, they have, uh, not been deprived of their legal rights and can’t be punished. So, um, on the one hand, he was using a legal fiction, innocent until proven guilty, but he was refusing on the other hand to use the legal description, being detained, not being punished, and I was saying that you can’t have it both ways.

That was my point. Did you want to add anything?

[01:10:55] DIDIER FASSIN:
Well, the, uh, the… Of course, the, uh, a, a judge n- uh, uses a legal means when he, uh, wh- When, when he puts someone on, on, on remand, uh, for a pretrial.

Um, w- what I, um… W- Well, I use it in the, in the example, uh, uh, in, in a U.S. example, but I’ve, uh, my, the… That’s not mine.

And, uh, those, uh, the, the, uh, the observation I’ve done in, uh, immediate appearance trial as they, as they are called in, in, in France. Uh, I would say when, uh, people are put, uh, uh, to jail, uh, before, uh, being, uh, uh, t-taken to court, uh, the… So we don’t have a system of bail in, in France.

So this element, this financial element does not play. But the socio-economic element plays very much in the appreciation of the, uh, the, the possibility of the person to, uh, to appear before a judge and not to commit, uh, an, an, a new offense, uh, in, in the, in the period before the trial. And so that’s for the, uh, the inequality of treatment.

But what I’m saying about punishment is that, uh, the, the judge in particular in the example that I gave, Rikers Island being, being what it is, uh, that the judge cannot not know that the consequences of the decision of putting the person, uh, in, in, in, in prison even if there are legal elements, uh, i-in, in this case, that’s, that’s undeniable. And in fact, in my own, uh, in the discussion of the case, I- I, I discussed that, what… saying that could be said not to be a punishment. My interpretation is that it is very difficult not to, uh, uh, n-not to take into account the fact that everyone knows how people will be treated when they go in, in such a, in such a place.

And, uh, and that’s also one reason why, why not everyone has the same risk of ending up, uh, in these, uh, in the, in, in these jails, depending on s– uh, the, uh, the, uh, social class and, and, and, uh, racial category they belong to.

[01:13:34] CHRISTOPHER KUTZ:
And now for the impunity of, uh, the corporate class.

[01:13:38] DIDIER FASSIN:
Uh. So we have the-

[01:13:42] REBECCA MCLENNAN:
Well, actually, uh, with Didier’s permission, I’d like to read three or four sentences from your paper that were, uh, um, you didn’t read fully, um, and that I was really fascinated by and followed up on, um Um, um, say many ethnological and historical examples would thereby prove true the moral of La Fontaine’s fable, “The Animals Sick of the Plague,” in which the misdemeanor of the ass is punished by the death of the culprit, while the lion and other powerful animals are exonerated of their egregious crimes. Uh, thus the fable goes, human courts acquit the strong and doom the weak as therefore wrong. Another version of the translation is even more faithful to the original and more relevant to our topic.

And I looked this up, and it’s from nineteen oh– uh, 1806, that particular translation. According as you’re feeble or have might, high courts condemn you to be black or white. So I think there’s actually a lot in, in that fable, but, uh, and I had not been aware of the f- the fable, and I was fascinated to discover that, uh, actually the lion is the judge in the court, and the wolf is the lawyer.

[01:14:51] BRUCE WESTERN:
Yeah.

(laughter)

[01:14:53] REBECCA MCLENNAN:
Um, and, um,

(cough)

that, uh, um, that there was some

[01:14:59] BRUCE WESTERN:
17th century. Yeah, 17th century is a very, very, uh, kind of s-subtle critique here, and, uh, I’m now gonna do something that’s very unfair and hand the microphone back to you.

(laughter)

If you could say a little bit about how this fable works in in the, in the overall analysis, because I think it speaks to this, this question.

(cough)

[01:15:16] REBECCA MCLENNAN:
Um, uh, um, at first it struck me as obliquely, but more so now that I think about it.

(cough)

[01:15:25] DIDIER FASSIN:
Well, and, and another, uh, case which I, uh, did not, uh, mention orally but is in the paper is that comes from a, uh, fro-from the news, in fact, and and a comment, uh, by a, a journalist of The New York Times, uh, about, uh, uh, the, uh, the penalties, uh, that, uh, bankers of the five major, uh, uh, banks had for the many offenses, uh, violation of financial law that, uh, um, were discovered after 2008. Uh, and the penalty w- The penalties were on the banks, but not on the individuals who were, uh, in, in, in, uh, in charge, uh, w- within the banks.

And, uh, as you know, some of them even got very official position, uh, in, in the Obama administration afterwards. And, uh, so, uh, s- So it’s, uh, uh, I mean, th-that’s w-where we see the, the, the, the lack of accountability of, uh, uh, of, for certain, um, uh, uh, crime and or certain offenses or certain violations of, of the law.

And, and it’s not simply, uh, that, that it would just happen to be like that, uh, in, in France when I described the decline of financial crime by twenty-nine percent, uh, in, uh, in the first decade of two th– of the 2000s, uh, when, uh, whereas, uh, uh, there was an increase by two hundred and fifty-five percent of, uh, drug law violations, condemnation for, um, uh, conviction for, uh, drug law violations and by four hundred percent for, uh, uh, um, uh, uh, driving without a license. Um, uh, Uh, uh, eh, that is not just it, it’s not just it, it happened like that or that there was less crime in, uh, less financial crime, is that the whole system through laws, uh, to, uh, protecting, uh, the, uh, um, e-employers and politicians, but also the system, the judicial system, uh, in France, we have, uh, two, uh, parallel, uh, systems, so for in criminal justice. So one is the regular, the traditional cri- uh, criminal system, where, uh, there’s an investigation that is, uh, conducted and, and, and there will be a, a trial six month, one year later.

Um, and the other one is the immediate appearance trial. And so, uh, within forty-eight hours, and usually within twenty, uh, four hours, uh, uh, the, the person goes to, um, to court. And, and the criteria f-to decide between, uh, the two, uh, uh, are very, very related to the type of crime that is committed by, uh, lower social socioeconomic, uh, uh, categories.

Uh, and, uh, a-and the, the, the crime corresponding to, uh, upper, uh, class and, and not-not-notably, uh, economic and financial crime, um, necessitate Much more investigation. And the prosecutor explained that, uh, the increased number in, um, in cases in an immediate appearance trial, uh, do not le-leave them the time to, uh, do the investigation. And so they go for the, for the easy cases, which are, uh, uh, wh-which correspond to drug law violation, vehicle, uh, uh, uh, law, uh, no, vehicle offenses, uh, or, uh, resisting the, the, the police, et cetera.

Uh, and, um, and, and the, the, uh, the, the two f- interesting figures here, one is that, uh, y- at the beginning of the 2000s, one half of the, uh, uh, of the trials were under immediate appearance trial and the other half traditional method. By the end of the decade, it was more than two-thirds, or even yeah, three-fourths, I think. Um, so there’s a, a considerable increase.

And the severity, uh, for equivalent crime, the severity of, of, of the immediate appe-appearance trial in terms of prison sentences is approximately twice as high if you go for immediate appearance trial a-as opposed to traditional method, which is due to the fact that you can prepare your case, y-you have a… you can have a lawyer instead of a court-appointed lawyer. Uh, some solution, some alternative solution to, to prison can be, can be found. Uh, and, and, and though you, thus you can avoid.

So, so the, i-it’s, um, I don’t want to seem, uh, conspiratorial, but, uh, but, but the, the, the whole, the whole, the whole system, and, and it’s not just the judges who are deciding in this way, that the judicial system that is organized in a certain way, that the legislation or the legislator that i- that is, uh… A- and, and you know, you see the police, uh, patrolling in the poor neighborhoods. You don’t see them patrolling around the banks, for example, you know? And, so the, the whole system is, is organized to, uh, to focus more on, on, on these, uh, on these neighborhoods.

And, and in France, th-these neighborhoods are not, uh, like the ones in, uh- uh, uh, in, uh, uh, in, in the United States where you– we don’t have the, the level of violence and, and, and, and crime, uh, that, that you would have in, uh, in many, um, uh, in, in, in cities, uh, inner cities in the, in the United States. And that goes back to the question that, uh, all of, all of us have, uh, uh, uh, posed, uh, is the singularity, if not the exceptionality, at least the singularity of, of the, uh, US, uh, case, uh, both in terms of what happens in, uh, in inner cities and, and how it is, uh, treated by, uh, by society, including the penal system.

[01:21:54] CHRISTOPHER KUTZ:
David, you had one answer. And well, well Bruce has two. So it’s… I mean, Bruce has one also. So Bruce first.

[01:21:59] BRUCE WESTERN:
Okay. Um, uh, just very quickly, um, and so, um, in, in the United States, I think there was, uh, uh, there’s an institutional piece to this where the, uh, uh, the regulatory effort, uh, uh, was significantly, uh, captured by, uh, the industry that was, um, uh, was meant to be, uh, was meant to be regulated. And, uh, uh, the SEC and, uh, uh, other financial re- uh, regulatory, uh, authorities were, you know, con-conceived of their roles oftentimes not as, uh, as, as, uh, watchdogs, uh, uh, but as, uh, facilitating, uh, facilitating the industry.

And, uh, and something that we’ve, uh, sort of intermittently talked about is, uh, the punishment process, uh, as being in part, uh, a cultural project. And, uh, uh, and, uh, the politics of punishment can run, uh, very hot. They’re emotionally, uh, charged.

And as, as part of this process, I think, uh, what we’ve seen with, uh, expanding, uh, penal severity, particularly in the United States, is a, a, a, a pretty profound, uh, dehumanization, uh, of, uh, uh, the poor which opens up the possibility, uh, uh, for very severe punishment that would be difficult to imagine, uh, in our own communities. And, uh, and I think, uh, th-this kind of cultural project, and this is very consistent, I think, uh, with where, uh, Didier was going at the end of his remarks. This kind of cultural project of, uh, of dehumanization, uh, in this, uh, in, in this setting in which there was a very cozy relationship, uh, between, uh, regulators and, uh, uh, and the financial leaders who are engaged in all of this misconduct.

Uh, uh, there was no possibility of that, uh, re- remotely, and, uh, uh, so, uh, the, the, the cultural conditions for a, uh, a harsh re- a harsh response, uh, w- were completely absent because of, uh, uh, the way institutional regulation, uh, was organized.

(sigh)

I want to add just one, one brief point. Um, so laws are a spider’s web, right? That the, the small flies get caught up in it, the big ones fly right through.

And right now, one sees it in the conservative movement, which is called Right on Crime, which has got a lot of publicity because suddenly conservatives, including the Koch brothers, are very keen to improve and reform and reduce mass incarceration. But the primary concern the Koch brothers are pursuing is to ensure that strict liability rules, that is to say, uh, the possibility of being convicted for an offense which oc- which occurs, uh, without you necessarily being proven to have intended it for it to occur. Um, the notion that that might be applied to, um, corporate criminals is terrifying for them because that’s the basis on which mostly corporate crime escapes punishment.

In contrast, all of our drug laws are designed precisely on a strict liability basis, which is to say the very enhanced punishments you have, not for possessing, but for possessing with intent to sell, for sale, you’re a trafficker, not a user, um, they’re strict liability rules. Basically, you sh- have a certain amount, you’re, you’re presumed without any question to be selling. So, so the notion that we would apply strict liability to the drug offenders on the streets but not to the financiers in the bank is the best example of the spider’s web.

[01:25:44] CHRISTOPHER KUTZ:
Um, wow, we’ve got a lot of hands.

(laughter)

Um, okay, uh.

(cough)

[01:25:55] DIDIER FASSIN:
Thank you. Uh, I would like just to clarify a couple, a couple of, uh, points. If, uh, the French system, the French legal punitive system is similar to other- is similar to other continental countries.

Summary judgments can only be applied in cases where sentences are much lower than in other cases. At least in other countries, there are safeguards. At least in Portugal, I know you can never have a summary judgment that, uh, which penalty goes over one year or uh, a few months.

I, I, I’m very surprised that France gets, uh, se- more severe punishments for summary judgment cases than others. Uh, and the other thing is I, I wonder how you would like to police or to, you know, to police banks with, uh, with cars and, uh, and people or with, uh, cybernetics.

You know, uh, cyber, uh, bank crimes and financial crimes, you don’t go with police cars looking at people in the, in the buildings. It’s, it has another approach. So the fact that social crimes or crimes on the street, street crimes, you, you see the, you know,

(cough)

uh, another type of vigilance than in financial cybercrimes. It’s, it’s because there was supposed to be a humorous remark. Yeah. They have different, uh, approach.

[01:27:32] CHRISTOPHER KUTZ:
And then, uh, yeah, right here.

[01:27:37] AUDIENCE MEMBER:
Uh, hello. Uh, I have a question that may be a little sc– uh, out of the scope of the lectures, but, uh, I’m, uh… And you don’t have to…

You don’t feel obliged to respond to me. But, uh, I’m curious about the general underlying social reasons why that could explain, uh, the astronomical incarceration rates and the severe punishments. And there are specifically three possible factors that I’d like you to comment on.

One of them is, uh, an obsession for safety at all costs. The second item is a propensity to use armed force to solve or eliminate problems, and the third trait would be a fearful and

(clears throat)

vastly armed population. And I’d like to know, uh, your opinion on these items.

[01:28:30] CHRISTOPHER KUTZ:
Okay. So who would like to take these on? There’s the singularity of

(clears throat)

France. I don’t know if that’s something you can comment on.

[01:28:42] DIDIER FASSIN:
Uh- Um, Yeah, uh, so this, uh, w-we’re talking about, uh, uh, uh, the most ordinary criminal, uh, um, uh, criminal system, uh, which is not, not homicide, for example. So it’s, it’s, uh, for, uh, uh, cases that can, uh, for, for which there cannot be more than, uh, five years of, uh, s-

The sentence had been, uh, uh… And, and in fact, this is, uh, this, the, the expansion of, uh, this immediate appearance trial with the, the, uh, uh, the, the doubling of the severity, uh, in terms of prison sentences, uh, has been responsible not so much for the, uh, longer duration of, uh, um, of sentences, but for the higher number of people who are sentenced, uh, because they, they are usually relatively, uh, minor crimes, uh, uh, petty crime, uh, and they correspond usually to between a few months and a few years, uh, rarely more than two years, uh, in these, in this situation. When it’s beyond that, uh, it would go to a, a higher court, Uh, for its, for, for way…

That’s the difference that we- That would be the difference between s-selling drugs and being a trafficker, for example. Um, uh, but, but, but one thing that I found very interesting, uh, studying the statistics, uh, we, we had, so I don’t know if it’s the, the same thing has been observed in, in, in the United States, but in France, in 2007, there was a law that, uh, um, uh, e-established, uh, a mandatory, uh, sentencing, uh, minimum sentencing, as exists in the Unit– as existed in the United States for a long time.

And, um, and the result of that when you compare the three years before 2007 and the three years following 2007, uh, you find, as you can imagine, uh, an, an increasing the duration of, uh, the, uh, increasing in the number of, uh, of, incarceration and increasing the duration of this. Uh, but the increase is higher for the minor crimes than the, uh, bigger crimes. So, so the, there’s an in-inversion of the proportionality of the increase.

Uh, uh, uh, uh, so th-those with the, uh, uh, lowest, uh, uh, sentences have increased more than those with the higher, uh, with the, uh, higher sentences. And, and this is, of course, exactly the opposite of what the law was supposed to, to, to do, which is to punish harsher the, the, the more, uh, important crimes or more. Um, but this is something that I’ve, uh, uh, uh, observed in, in many statistics that when, when you, uh, wh-when you increase the severity, it very often, uh, im- uh, applies more proportionally, at least, uh, more at the bottom of the cr- of crime than at the, at the top.

[01:32:18] CHRISTOPHER KUTZ:
And then perhaps somebody would like to speak about the culture of control and, uh,

(laughter)

[01:32:24] BRUCE WESTERN:
Not me. Um, well, on, on the, the question about the, the, the coexistence of a, of a, an obsession with public safety, a propensity to use military force and an armed population, the- these, these themes seem in contradiction. If you wanted public safety, you probably wouldn’t have an armed population, you probably wouldn’t have, um, propensity to use military force.

But I want to just talk about the first of these, the, the, the, the question of public safety. I, I think that that’s the kind of counterpoint of the corollary of what I was describing as lying behind many of the, um, the sentencing laws over the period of time we discussed. That, the, the, the effort to, um, control, um, to impose control and ensure control, and particularly, for example, when someone’s a repeat offender, um, and the second, uh, penalty they get for the second offense is a multiplier of the first, three or four times as much by the time you get to the third.

Um, these speak to control concerns rather than to proportionality of punishment concerns, and I do think the underlying concern is public safety. And constantly one hears, uh, you know, reformers or, or liberals say, “Well, look, other countries have crime too,” and other countries see crime going up, and they don’t, you know, massively increase their prison population,” and so on, which is, which is true and says important things about differences. But one of the points that, um…

And he just walks into the room, Frank Zimring, um, of Berkeley Law School. Um, one of the points he’s made is that America’s crime mix is very different from that of Canadians, Australians, Western Europeans, um, because the place of lethal violence in our crime rates is so much more prominent. Um, that’s true with homicides, and I think recent research sounds- suggests that even with armed robberies, which carry the threat of lethal violence, um, they, they form a much larger part of the crime problem even today after decades of decline in this country that, But questions of public safety, um, do seem pertinent questions, um, f- especially for people in the, the, the, the communities of, you know, concentrated poverty where most of this, uh, criminal violence is to be found.

So I don’t underestimate the importance of public safety as a consideration. Uh, whether it’s an obsession or not, whether there are– we should pay more attention to traffic crimes or to speeding than to people, um, carrying guns, I don’t know. But, but I don’t want to underestimate the importance of safety either.

Um, the kind of crimes that I’m referring to aren’t ones that you can insure yourself for and simply, you know, replace the stolen object. That these are damaging kind of crimes. This is, uh, “Crime Is Not the Problem” is the title of the book that I’m referring you to.

[01:35:02] CHRISTOPHER KUTZ:
Um, but it’s complicated because, uh, uh, the communities in which, uh, the problems of violence, uh, are most severe are also the most politically powerless. And so we’re left with a puzzle. How, uh,

[01:35:20] BRUCE WESTERN:
spillover—

[01:35:20] CHRISTOPHER KUTZ:
Yeah, how did, uh, uh, how did these social problems, uh, uh, precipitate a political process, uh, of, uh, that had such, uh, force, uh, force and effect? And, and, and again, I think part of it is spillover. Uh, uh, but, uh, part of it too is, uh,

[01:35:47] BRUCE WESTERN:
Uh, uh, this, uh, this cultural project in which, uh, the people in those places were, uh, uh, uh, v-v-very threatening and understood to be, um, uncontrollable and not fully part of the same, uh, human compact that, uh, the rest of us p-uh, participated, uh, in.

[01:36:11] CHRISTOPHER KUTZ:
Agreed. Yeah. A few questions.

[01:36:17] AUDIENCE MEMBER:
Maybe collect some.

[01:36:18] CHRISTOPHER KUTZ:
Um, at the, at the end here.

[01:36:21] BRUCE WESTERN:
Collect some? Yeah.

[01:36:22] AUDIENCE MEMBER:
Collect some.

[01:36:23] CHRISTOPHER KUTZ:
Oh no, sorry. The, the gentleman right in front of you.

[01:36:25] BRUCE WESTERN:
There you go. Should collect a bunch, right?

[01:36:27] CHRISTOPHER KUTZ:
Yeah, let’s do three this time.

[01:36:29] AUDIENCE MEMBER:
Yeah. I was wondering if anybody could touch on, um, the role of punishment as a deterrent, um, which I think I’ve started hearing some, some of your responses, um, but not addressed explicitly. Sure, sure. Um, and I, I…

[01:36:46] CHRISTOPHER KUTZ:
And then maybe right behind,

[01:36:49] DIDIER FASSIN:
um, Foucault came up a bit, but um, I’m not sure if maybe the- even maybe the central thesis of Discipline and Punish came up, which was an answer to the question, well, why incarceration? And it starts with obviously the brutal drawing and quartering of that regicide, and then we don’t do that anymore.

We don’t do the cruel punishments anymore. But I mean, Foucault’s whole point is, like, we tend to think it’s because we became more humane. But then his explanation for it is something different, which is, no, so we’re going to, um, The, the benefit of incarceration in the penitentiary, perhaps unintended by the people who designed it, was to keep the bodies of the convicted off of the street because it became an opportunity for, um, people to kind of question the powerful, to blame the powerful, To riot and things like that.

And I don’t feel like that came up, this idea of like, well, why do we punish with the penitentiary? Why do we punish with incarceration? It’s– Foucault’s point was it’s to bring, um, these dangerous people and events, dangerous not in themselves, but also because of what they will provoke in the crowds, and if they were allowed to be out there and be visible, um, dangerous to both, uh, the powerful and, and to those criminals.

[01:38:15] AUDIENCE MEMBER:
And then maybe that…

[01:38:16] CHRISTOPHER KUTZ:
There’s another person right behind there.

[01:38:18] AUDIENCE MEMBER:
Yeah. I have a quick question about the atrocity that happened in Norway a couple years ago. Um, the n+1 literary journal had a long extended essay on that about a year and a half ago.

Um, and at the end of it, I certainly could say that I had been exposed to a completely different paradigm, uh, based on what happened there legally, judicially, socially, and journalistically. Um, and I came to the conclusion at the end of that, that if that’s a real paradigm of how to do things better, then it’s completely incommensurable with anything that’s happening in this country. Mm-hmm.

And we’ve been talking about that for the last couple days here— Mm-hmm, the dreadful state of affairs, and my question really is, is, is that the case? Or are there aspects of that paradigm that actually could be, um, used, uh, in a system like the one we have?

(cough)

[01:39:18] DIDIER FASSIN:
(clears throat)

So, constituents. We’ve got deterrence,

(clears throat)

Norway does it better,

(clears throat)

and, uh, and Foucault.

(clears throat)

[01:39:27] BRUCE WESTERN:
So, uh, ve-very, very briefly, the– so, so most, most, um, deterrence is rather difficult to, um, study because you’re mostly trying to study acts that didn’t happen, um, because they were deterred. But the, the, the, the general view of criminologists, I believe, is although different kinds of offenses are, um, liable to be deterred to different degrees depending on the extent of, as it were, the reasoning and consideration that goes in before them, considering– depending on the, uh, the stake in the community the individual has. Most of the work that’s done in deterrence is the, the certainty of apprehension rather than the severity of punishment that follows from it.

So if you were to be concerned about enhancing deterrence, you’d probably increase policing rather than increase the severity of punishment. Um, as, as for what Foucault, um, uh, says and, and, and means and, and, uh, leads us to believe through Discipline and Punish, that would be a much longer conversation. Um, and I, I think it hasn’t come up directly, um, because we haven’t questioned the use of the prison in modern society as opposed to the use of monetary penalties, for example, as opposed to the use of, um, hanging, drawing, and quartering.

Um, it’s a very important question why it is that the USA, um, uses monetary penalties very much less proportionately than do other comparable nations. One might think that the USA, you know, is the nation where money, um, in somehow or other is, is is the the the currency that, um, circulates everywhere. It doesn’t circulate so extensively in the penal system, surprisingly enough.

Other countries, for example, Britain, um, including misdemeanors and, uh, s- more serious offenses you’d call felonies here, uses fines for the majority of, uh, these crimes and offenses. This is not the case here. Um, The Norwegian paradigm, uh, so it, the, the, the, there’s…

I, I think we should go for the Canadian paradigm first. Um, if, if we’re kinda re-reforming American criminal justice, to get to the Nordic model is a long way to go. Um, a-anyone who reads about the, the response of the criminal justice system, of the, the expert criminologists, and of the people of Norway to that mass murderer would be very struck by its difference from the USA, and wouldn’t, in the same way that when Bern-Bernie Sanders starts talking about Denmark having this kind of healthcare system, and Hillary says, “But we are not Denmark,” I mean, both of, both of them are onto something something important that that would be an ideal in a s- healthcare arrangement that would be very attractive, but the actual process of getting there seems very unlikely.

Um, I would say the same is true about the US penal system and Norway.

[01:42:07] DIDIER FASSIN:
Uh, yeah, on, uh, uh, uh, on, on de- on deterrence, uh, I gave some elements y-yesterday and, uh, uh, uh, but it’s basically, uh, what I read i-in, in, uh, in, in France it is, uh, we have few studies, uh, and, uh, those we have, uh, seem to show, uh, that, uh, uh, alternative to prison, uh, for, uh, uh, in particular for, um, uh, crimes, uh, uh, less than six months and between one year and two, and two years, uh, alternatives are, uh, give less, uh, substantially less recidivism. It’s less, but it’s not, uh, so it’s, uh, uh, the o-o-order of, uh, size is, uh, going down from sixty-five percent of, uh, uh, recidivism to, uh, forty-five percent at five years, for example. But, but, but as you know, and first of all, it’s very difficult, as David, uh, said to, to have very, uh, uh, very good studies, uh, of that, that where things are really comparable.

Um, and, uh, and, and there,

(clears throat)

there are also, in particular in the case of the United States, y-y– there’s many controversies around, about, about this. So, so it’s difficult to give a, a very… I, I gave an orientation yesterday, uh, but um,

(clears throat)

it’s, it’s arguable. Uh, for Foucault,

(clears throat)

I, I think that, uh, in, in, in Discipline and Punish, uh, I’m, I’m probably less convinced by, uh, although it, uh,

(clears throat)

there’s something to it, but uh, about the, uh, the control of bodies, uh, than I am by, uh, another aspect, uh, of, uh, of his, of his analysis which comes toward the end, uh, of, uh, of the book, which is about illegality, illegalities. Illegalis-illegalisme in French. And, and, uh, uh, and, and And, and I think what he, what he’s, what he says, although, although it’s not entirely, uh, clear, because starting, of course, with Damiens, uh, Damiens’s, uh, torture and, and death is very spectacular.

It’s, uh, you know, it’s, it’s very pornographic in, in a sense. And, and I think Foucault does it on purpose. Uh, uh, but it, it is really representing something that, that was disappearing

And that was never, uh, i-in huge, in huge numbers. Uh, so what, what, uh, prison allows is, uh, not so much, uh, the transformation of torture into something that would be more humane, uh, because this torture was disappearing very much, um, uh, and that has been shown by historians of, of European prisons. Um, but it’s the possibility to expand considerably the number, the quantity of people you can treat under this new system, which is, uh, incarceration.

Uh, uh, you cannot torture and kill so many people as you, as you, uh, as, as you put in prison. And it can– it, it, it also allows a graduation in the, in the, in the, uh, the penalty or the sentence. And, uh, but, but, but as Foucault says, and I, I, uh, quoted him, uh, yesterday, I think, it allows to, uh, to distribute, uh, illegalities and to decide which ones should be punished in which way, and behind that the, the, the social characteristics of, of the, of, of the population, the concerned population.

[01:46:06] REBECCA MCLENNAN:
Rebecca? Do we have time for this?

[01:46:07] CHRISTOPHER KUTZ:
We’ve got actually another 20 minutes.

[01:46:09] REBECCA MCLENNAN:
Okay. Um-

[01:46:09] DAVID GARLAND:
Rebecca doesn’t, yeah.

[01:46:11] REBECCA MCLENNAN:
Thank you. Now I’m in stereo.

[01:46:13] BRUCE WESTERN:
Stereo. Okay.

(laughter)

[01:46:15] REBECCA MCLENNAN:
Um, just a quick n-note on Foucault, who’s been very influential on my work originally, and then I ended up, uh, I’ve got… Yeah, let me just say our relationship has evolved and it’s been on the rocks from time to time. I think it’s back on, on, on, on, uh, uh, upright again.

But, um, I, I was very influenced by, um, c- certain readings I read quite late in my reading of Foucault, um, by Gilles Deleuze, um, and Nancy Fraser, um, who, um, uh, the latter of whom kind of mediated an, a very well-known argument between Habermas and F-Foucault over exactly how to read Foucault. And, uh, I’ve been persuaded that, uh, you know, you can have a strong or a weak reading of Foucault in terms of, uh, how strong you take his statements to be as to the actual processes of, um, subjectivation, the creation of, of, of subjectivity, and whether or not he’s actually saying that this is how power operated in, in the carceral, uh, uh, uh, s- Uh, s- sphere and how subjectivity was formed.

And I’m– I tend to lean more towards, uh, Deleuze’s emphasis on reading Foucault as, uh, a kind of almost like an intellectual history of fantasies of power, uh, rather than actual sort of ma- Uh, materializations of certainly efforts to materialize certain relations of power. Um, so, um, and, a- a-

And, a- a- And D- uh, Deleuze also points out that w- we in the Anglo-American academy tend to have this M- Uh, much stronger kind of reading that he thinks is misplaced.

So, um, th- that, that, that’s some-so-something to bear in mind. I think Foucault is still very important on the rather more modest reading. Um, and the other thing I wanted to say is that, um, and this has sort of been floating in the air, the question of how do you get, um, uh, how do you change a system that seems so en-entrenched and so beleaguered?

Um, and I, I’m an historian. I work on the nineteenth century, so I’m, you know… Um, the gentlemen on either side of me know a lot more about the, uh, contemporary system, uh, than I could ever hope to.

Um, but I do know that, um, in the, uh, 1870s and 1880s, uh, the American penal system, both South and North, went through a, a really radical period of transformation that essentially upended how, you know, the meaning of incarceration as it had been, uh, as it had operated for the previous fifty, sixty years, uh, through the abolition of, um, uh, prison labor for profit, right? So, um, state by state, uh, beginning with New York, but then also all the southern states, eventually Alabama, I think was the last in the 1920s, prohibited the hiring out of, uh, labor for private enterprise, uh, which in fact was a multimillion or by today’s standards, multibillion dollar a year, uh, uh, enterprise in this country by the mid-1880s. It’s, it’s not very well known actually that this was the case.

So I have studied in, uh, in some detail a period where there was absolutely dramatic and radical change beyond what anyone could imagine. You had penologists and wardens, uh, uh, uh, arguing against the change and saying this is anything else would be completely impractical. But through, uh, um, through the mobilization on the one hand of something we don’t have very much anymore, trade unions.

(coughs)

Uh, uh, but also concerned m-m-m, you know, the new rising middle class that, that, uh, that industrialization helped produce. Um, there were referenda in states and the, the, the, the, the, basically the foundation of the entire system was uprooted, overturned, abolished, and this, uh, gave birth to a, a movement, uh, to, you know, what do we fill this fiscal and ideological and administrative vacuum with? In other words, pr-progressive era, um, prison reform, which, um, uh, David Garland has, uh, wr-written extensively on, and I would recommend you– his book, Penal Welfarism, to you on that score.

So that is to say, as a historian, I know And I have seen at least through the, at least through the archive, periods of dramatic change where things you couldn’t even imagine, uh, uh, one year, uh, are actualized, you know, um, wi-within our lifetimes, within ten, ten, fifteen years. I’m not sure that we’re there yet, but I wouldn’t be– I would not, um, uh, I wouldn’t want to be overly pessimistic about the possibility of really radical change, though I, I agree that we haven’t seen that yet.

We have seen an opening. Yeah. And Mass Incarceration on Trial by Jonathan Simon is an excellent place to get some, you know, some hope from in this regard, I think.

[01:51:08] BRUCE WESTERN:
Um, uh, I was gonna say something about deterrence, but I won’t. I’ll, um, uh, I’ll, uh, just take, uh, Rebecca’s lead and, uh, uh, the question about Norway. And I, I, I think, uh…

I mean, I think about, uh, the political challenge too in terms of a, uh, uh, a paradigm shift and, and what would such an alternative paradigm, uh, look like. Uh, and, and, uh, uh, in a way, I think N- Norway is instructive and it, and i- is relevant because I, I see, uh, something of the beginnings of a, a different kind of, uh, public policy discussion about mental illness, uh, in, in the United States and, uh, and, and I see a, a receptiveness, uh, uh, uh, to a discussion about me-mental illness, uh, on the conservative, uh, side of politics, uh, uh, which I think, uh, uh, should be very encouraging, uh, for us. And and, uh, uh, so there are, uh, there are real, uh, there are real openings in the, uh, the current political environment.

And we, we touched upon this in a, uh, a separate session this morning. I think one of the most, uh, uh, important, uh, political developments, uh, in, uh, uh, progressive a-a-approaches to, uh, the problems of, of violence and related crime, but particularly in, uh, very, um, uh, very poor communities. Uh, one, one of the most, uh, important, uh, policy changes, uh, recently, uh, has been the passage of Obamacare, And, uh, and, uh, the particular importance of Medicaid expansion.

And, uh, and this is really opening up, uh, uh, the possibility of treatment, uh, for prime age, uh, single men. And there was never, uh, uh, a live discussion about the criminal justice implications of, uh, uh, of Medicaid expansion. Uh, and yet now, uh, we have the possibility of, uh, of medical, uh, coverage, uh, at least in the Medicaid, uh, in the Medicaid states.

It would have been universalistic if not for the politics of the Supreme Court that decided to split the baby and, uh, allow the states to, uh, opt out of Medicaid, uh, expansion. And I think this process of liberalization, uh, if it’s, if it’s going to happen, uh, cannot involve only a criminal justice discussion, which at the moment is only about how long are people serving. And if we get in– if, if, uh, we’re only involved in, in a discussion about how lo- how much time should someone who’s done an armed robbery do, uh, I think that’s a losing proposition, uh, for, uh, a new paradigm.

That’s an old paradigm discussion. Uh, a new paradigm, uh, discussion is, uh, how do we get, uh, mental health treatment, uh, uh, how do we get drug treatment, housing security, and employment for very, very poor people in communities in which informal social controls are very weak?

(throat clears)

[01:54:49] CHRISTOPHER KUTZ:
I think I might ask one question, uh, primarily I think to Rebecca and Didier, uh, something I’ve been wondering about a bit on the French versus American differences. So one of the distinctive features of American criminal punishment is the use of rape, of prison guard basically ordered rape or the housing of inmates so that they will be raped, um, as prison, as a sort of something at the margin, obviously illegal, but, uh, you know, uh, a fairly well institutionalized form of extrajudicial punishment. One question is whether this is a distinctively American phenomenon.

The second goes back to one of the themes that, um, came up, I think, primarily in both of your discussions about the, the the theology of punishment. Rape seems very counter-theological as a form of suffering. Uh, it seems like one that’s difficult to incorporate.

Now, one of the points of progress in American, uh, the American criminal justice system is now the federal government trying to control the use of rape as a sanc- as an informal sanction in prisons. But I’m, it’s, it’s a dimension of American punishment that I find very interesting in relation to issues of race and gender, obviously, and sexuality, um, but also to this idea of suffering.

[01:56:01] DIDIER FASSIN:
Mm.

[01:56:03] BRUCE WESTERN:
Okay. So the first thing I wanted to say is that it is an American problem. I don’t know if it is merely an American problem, and that’s what Didier will speak to.

Um, Uh, and, uh, although I think that it has been a problem for a long time, pretty much s-since, since the beginning of the cellular prison system of the 1820s and ’30s, uh, that it only started to be written about by Progressive Era pr-prison reformers, so, um, in the 1900s. And, um, there’ve been efforts on and off to try to, um, diminish or just eliminate, um, prison rape. But Am-American prisons have traditionally been extremely overcrowded and, uh, so th-th-th-there’s a kind of vicious cycle in that, um, uh, of, of prison building, um, and then the prisons fill up again, and it’s double celling, as they called it, um, um, back in the early 20th century.

Um, uh, two men to a cell or, or, or, or, or, or more than that. And sort of constantly building, uh, prisons, uh, beginning in the Progressive Era and then accelerating through the New Deal. Not a lot of people realize that the New Deal was, uh, al-also massively built out the penal arm of the state.

It wasn’t just a welfare and an economic, uh, kind of Keynesian, um, m-moment. It was also a mass– a really important moment for the, for the penal arm of the state. Um, uh, Henning Bech’s work, I think, is very, very interesting on this score.

He’s, um, um, studied prison rape quite extensively from a kind of psychoanalytic, um, perspective, among other things. Um, I’ll pass the mic to Didier.

[01:57:54] DIDIER FASSIN:
You were talking about rape by guards?

[01:57:56] CHRISTOPHER KUTZ:
No, rapes by inmates- No, but it’s used that the guards will often arrange, arrange the situation

[01:58:02] BRUCE WESTERN:
so that the inmates- It’s kind of a delegated, delegated- Delegated sadism punishment.

[01:58:05] DIDIER FASSIN:
Yeah. Yeah. So,

so I, I would certainly not think that is, uh, is specific to, uh, to the United States, and I, I think in, uh, uh, in some Latin American, uh, prisons, uh, or, uh, s- African prison you, you might find these kind of, uh, things. Uh, so to limit myself to what, what I know a little more, which is, uh the French prisons, um, of course, uh, there, uh, there are rapes.

Uh, uh, n-not by guards, as– I mean, there’s no stories that I’ve heard of or, or, uh, neither where I work nor, uh, in, in other, uh, places, uh, involving guards either directly as in, is the case in the United States or, uh, indirectly, uh, by delegation, as you said. Uh, and, uh, and I think rape, uh, as far as I, uh, uh, well, it was, as far as I know, uh, is, uh, not such a frequent, uh, phenomenon, uh, and is very much related to this, uh, gender dimension that I was evoking yesterday. So, uh, so those who are most often raped are people who are, uh, supposed to be, supposed by the other, other, uh, inmates to be rapists themselves.

So to, to be involved in, uh, uh, in sexual crimes and, and in particular when it, when it’s, uh, with, uh, minors. And, uh, and I, I see it as a, as a– Or I understand it as a way to diminish the masculinity of the person who has been, uh, uh, who has been commit, commit, committing this, uh, this crime.

Of course, in some cases, the, the, these, these are mere supposition that the person… I, I know a guy who suicide, uh, the case of a guy, uh, who committed suicide after having been, uh, uh, raped in such conditions and, uh, and, uh, and, and in fact, uh, it was proven later that he, he had not committed the sexual offense that he was supposed to. Uh, but I, I would say it’s a, it’s, it’s a…

From the statistics that I’ve read, uh, for the United States in, in some studies, uh, wh- wh- which are really amazing, uh, um, uh, th- this is a, a problem that, that is, uh, quite different, uh, in, in, in France. And, and that, uh, makes me think once more, and, and we’ve touched it at several moments in, in our, uh, discussion in the past three days, is how much what we, what we analyze, what we discuss, what we, what we theorize is at least in part r-related to where we study.

And, uh, and some of the, uh, some of what, uh, David or Bruce, uh, in particular, we’re, we’re, we’re saying, uh, uh, I, I think if I, if I were working, uh, in the United States, uh, I would certainly, uh, uh, have very similar, uh, analysis. And, and one has to think that, for example, the level of violence and poverty in, uh, housing projects in France is, is not… And, and the, and in spite of the, uh, diminishing welfare state that we, we observe in France, it’s still, uh, so much more developed than it is in, in, in the United States.

So, so both at the level of, uh, neighborhoods, what happens in neighborhoods and, and the everyday life of the, uh, of, of these minorities and, and in terms of, uh, the severity of sentencing and the situation of, uh, of prison, so the penal and, and prison system. The, the contrasts are so, uh, so important that sometimes you have the impression that you’re talking about a different world. Uh, and, uh, and, and, and of course, the theory cannot not be affected by, uh, by, uh, uh, the, the, this, uh, uh, these differences.

And, and, and that a- also, uh, uh, poses, poses the question of generalization, uh, l-like I, like I’ve tried to do, and, uh, and, uh, and I, I stand with my… what I said. But, but still, uh, we, we would need to, uh, permanently to, to, to refine, uh, in time, uh, and in space, uh, these, uh, these analyses.

And just a l-last thing is that, in terms of the reform that or changes that could, that could occur, uh, Uh, what I found very interesting, and for me that was very helpful when I wrote my book on, on, on prison, is that, uh, the, the, those were the most critical of the, of the, uh, uh, penal system were the wardens and the guards. Uh, and so I could very often u-use what they said rather than what I would have thought, uh, to, uh, to, to argue, uh, for, uh, the, um, the, uh, the problems caused by the, by this, uh, penal system. And for example, when the warden, uh, of the prison where I work, uh, tells me, uh, the first violence of prison is overcrowding, um, I mean, for, for me that’s very important that he would, that he would speak of violence and he would, he would mention o- over- overcrowding.

Uh, and the last, uh, the very last point about, about this reform is, uh, or being pessimistic or optimistic. Um, I, I still have a hard time to be, uh, to be optimistic, although I, I see the beginning of some changes in Europe, in some countries in Europe, and, and the United States. But, but I see the, uh, in most cases, even- including the United States, the modesty of the, of the changes.

And in other countries like France, uh, uh, and, and, and several others, uh, and, and the debate in the United States at the moment, uh, shows that too, the benefits, the electoral benefits of a politics of fear are, are very e- ve- very s-, uh, substantial. And, uh, and that, a-and, and this is something that used to be typically the far right, then it, then the right, uh, in France, uh, the right came to it.

And now it’s the, the, the socialist government who is using these politics of fear to impose, uh, uh, a state of emergency. You were, uh, uh, talking about the, uh, the case of Norway. Uh, Norway did, did not, uh, declare a state of emergency and, and, and, uh, ru- uh, lo-

Uh, exceptional, uh, uh, um, uh, measures. Uh, uh, and, uh, Britain didn’t do it after the, uh, bombing in London. Uh, Spain didn’t do it after, uh, the bombing in Madrid.

And France is, is, is doing it now. So, so the, the, the, the climate, uh, perhaps because I’m French, but, but the climate is not very, uh, uh, propitious to, uh, uh, to, to dramatic changes. But, but as you said this morning, um, uh, the… if there’s one thing that we should never do is, uh, uh, to, uh, predict what will be the future as social scientists.

So I won’t.

[02:05:53] CHRISTOPHER KUTZ:
So, um-

[02:05:54] DIDIER FASSIN:
I can’t make a comment.

[02:05:55] CHRISTOPHER KUTZ:
Well, I, I think actually we’re ready for our reception, which is a, a wonderful moment.

[02:06:00] DIDIER FASSIN:
So, um- Do I have a question at the back?

[02:06:01] CHRISTOPHER KUTZ:
Yes. Um, if there are, people can take more questions over the reception, but let’s, uh, uh, open the magic doors.

[02:06:07] DIDIER FASSIN:
Thank you very much.

(laughter)

(applause and cheering)