The 13th Amendment states:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.”
There are now more black men who are incarcerated than there were enslaved in 1850. The film, 13th, highlights the clause “except as a punishment for crime,” within the amendment and describes it as a loophole for allowing forms of slavery to continue in our modern day prison system.
13th tracks the shift within the US from slavery to segregation to mass incarceration. Both the film and Foucault point out that while systems of punishment have changed, it is not because we have become more humane. Many discussions in the film about these shifts are similar to Foucault’s arguments about the shift from public torture to discipline in prisons.
Foucault argues the major difference between torture and imprisonment is not so much the actual punishment itself but the aim of the punishment. While torture focused on harm to the body, the prison system focuses harming the soul. While torture seeks vengeance, the prison system supposedly works towards correcting the morality of the criminal. The goal of prisons is to isolate and confine in order to deprive criminals of their liberties and rights because they have not acted in accordance with the norms set by the society.
“And the sentence that condemns or acquits is not simply a judgement of guilt, a legal decision that lays down punishment; it bears within it an assessment of normality and a technical prescription for a possible normalization. Today the judge – magistrate or juror – certainly does more than ‘judge’” (Foucault, 20-21).
Here Foucault describes modern punishment as a way to assess character and repair one’s morality. As a society we are motivated to behave because we are driven by the fear of consequences and not by our own judgement. 13th uses the presidential campaigns of Nixon and Reagan as examples of this. Both of these presidents focused much of their campaigns and time in office around the war on drugs. Nixon’s presidency provided an outcry for law and order and associated drugs like marijuana and heroin with the black community, making it easier to criminalize that population.
“The citizen is presumed to have accepted once and for all with the laws of society, the very law by which he may be punished. Thus the criminal appears as a juridically paradoxical being. He has broken the pact, he is therefore the enemy of society as a whole, but he participates in the punishment that is practiced upon him. The least crime attacks the whole of society; and the whole of society including the criminal—is present in the least punishment. Penal punishment is therefore a generalized function, coextensive with the function of the social with each of its elements (Foucault 90).”
Here, Foucault explains how in our society we have an agreement that privileges the governing body with punishing power. This agreement makes the criminal a participant and opponent of the society. This agreement also offers another paradox, giving citizens the freedom to move within a dominated and watched society. These presidential campaigns alone show how powerful the promise of police enforcement is in our society. Even democrats, who had previously been more lenient on these issues began cracking down, starting with Clinton’s administration, who realized after many democratic losses, that this was a change that needed to be made within the party to get votes.
“The soul is the effect and instrument of a political anatomy; the soul is the prison of the body” (Foucault, 30).
Foucault points out that society makes the soul. The shift from the body to the soul also marks a shift from the individual to the social. While torture was more public, the society is still very involved in modern punishment as criminalization is directly connected to the norms set by society and so the soul becomes an “instrument of political anatomy.” In the prison system the soul is dominated both by society and the body.
“Apparently ‘failing’, does not miss its target; on the contrary, it reaches it, in so far as it gives rise to one particular form of illegality in the midst of others” (Foucault, 276)
As Foucault develops his critique of the modern prison system, he comes to a startling and unnerving point in his argument: because the prison system can in no way diminish the amount of crime, it’s purpose is to create a system of punishment and classification of crime within the lower class of society. Unlike common misconceptions that the prison system is helping all of society, it’s job is to dominate a specific group of people through its actions, circumstances, and even classification.
The prison system not only reacts to the criminals and their actions, but it creates delinquents by dominating them within the actual prison and through their circumstances outside of the prison (i.e. surveillance). Like discussed earlier, DuVernay’s recent movie, 13th, likens America’s prison system to slavery, a very clear and explicit form of domination.
“The prison also produces delinquents by imposing violent constraints on its inmates; it is supposed to apply the law, and to teach respect for it; but all its functioning operates in the form of an abuse of power” (Foucault, 266).
The prison is supposed to instill in the prisoner a respect for the law, but through the intense domination of the prisoner’s time, space, and actions, the prison’s abuse of power instills in the criminal a disdain for the authority of society.
“Police surveillance provides the prison with offenders, which the prison transforms into delinquents, the targets and auxiliaries of police supervision, which regularly send back a certain number of them to prison” (Foucault, 282)
Outside of the prison, society’s system of surveillance works to dominate the ex-criminal’s circumstance and actions. It is well known that many companies and businesses prefer not to hire criminals. Because criminals are forced to make a means some way, society has the power, and exerts that power, to choose how an ex-criminal can live outside of the prison. Society’s force back to the illegality coupled with our disciplinary system’s extensive use of surveillance makes it alarmingly easy to target the lower class and eventually associate criminality with the entire group.
“The introduction of the ‘biographical’ is important in the history of penalty. Because it establishes the ‘criminal’ as existing before the crime and even outside it” (Foucault, 252).
The last point that Foucault makes, the criminal disposition that all individuals of the marginalized class possess, brings to light the total lack of freedom of these individuals. The system has not only configured a way to force criminals in and back into the prison, but has also controlled how society in general views the lower class. So if the individual within the marginalized group were to free himself from the physical and situational domination of the prison system, he could never free himself of the negative power society has given to his name, a delinquent.
Just last week, The Supreme Court ruled in favor of an inmate, originally sent to death row, allowing him to have a new sentence hearing. What is so applicable about this story is, the reason this inmate was given such a harsh punishment to begin with was because his own lawyer argued that he was more likely to be dangerous in the future because he is black. Nowhere can an African American man such as this one escape the domination of society’s classification of him. His lawyer, hired to protect and defend him, established him, “the ‘criminal’ as existing before the crime and [more importantly] outside it.” Ironically, it’s as if he read Foucault’s conclusion right before the case.
As the film 13th and the aforementioned Supreme Court case indicate, the prison system shapes society, which, in turn, determines how the individual is characterized. In his discussion of delinquency as created by the prison system, Foucault states:
“It is not crime that alienates an individual from society, but… crime is itself due rather to the fact that one is in society as an alien, that one belongs to that ‘bastardized race’” (Foucault, 276).
Thus, an individual does not have the power to forge his own identity. The delinquent is dominated by the segment of society made up of people with authority – the judges, teachers, psychologists, and doctors. One does not decide to commit crimes on one’s own volition; rather, one is deemed a criminal by society. Foucault claims:
“The delinquent is to be distinguished from the offender by the fact that it is not so much his act as his life that is relevant in characterizing him” (Foucault, 251).
People of the “bastardized race” may not commit illegal acts, yet they are still considered to have a propensity for committing such acts. Thus, the individual delinquent possesses a “relative autonomy” (Durkheim, 274) analogous to that in Durkheim’s theory. Durkheim explains that every individual only has relative autonomy as opposed to full autonomy because his or her actions are subject to the morals of the society in which they live. The individual is dominated by the soul, which is created by society and individuated in each person. However, Foucault’s version of relative autonomy is more sinister. In his theory, the morals and normative judgments that exert control over an individual are formed by a group of people completely separate from the individual himself. For Durkheim, everyone in society contributes to the collective, which in turn dominates the individual; For Foucault, those with resources, knowledge, and education create forces that dominate those without. Consequently, because others determine that an individual is a delinquent, that individual is more likely to go to prison and therefore is more easily controlled. The individual delinquent increasingly loses freedom, while the powerful class gains control over society. Moreover, the exertion of forces over the “bastardized race” is calculated. The domination of one class by another is purposeful. However, in Durkheim’s theory, the domination of individuals by the soul is a natural phenomenon – an transhistorical characteristic of humanity – that is not an exploitative tool of the few.
Foucault’s illustration of the forces of domination is deeply disturbing, particularly due to the fact that such forces are so pervasive in current American society. Additionally, Foucault does not articulate a way to combat the domination of discipline. The difficulty of altering the prison system and fighting against the domination of the delinquent class by those with power in American society is illustrated by the following statistic: the United States constitutes 5% of the world’s population, but has 25% of the world’s prisoners.
Sorry this was a heavy topic again, but as promised, we provided more gifs.
Until next time, good reader.