Note that this is blackstone retold in what is really only slightly different form--with an express analytical vocabulary of cost-benefit analysis But to commit to instrumental behavioral control and economic effiiciency as the purposes of punishment is not necessarily to adopt a simplified view of the human nature of the criminal. Effective and efficient behavioral control requires understanding and manipulating the whole person, including the inner psyche. And so the ambitious utilitarian, even if ultimately concerned only with outward behavior, must enter the soul and, to a critic of theory this means that the theorist of utilitarianism must"invent"its human object Thus, now turn to Foucault's Discipline and Punish, and do not fear bein ostentatiously chic, because this is one Foucault book that undeniably speaks substance and common historical sense. Foucault shows us how the Benthamite approach to crime ultimately overcame the earlier jurisprudence of violent punishment. 9 Between 1760 and 1840, says Foucault, Europe and the United States saw a"redistribution"of"the entire economy of punishment "As modern codes were drawn up across Europe, one decisive change in penal justice occurred: the end of torture as a public spectacle. Foucault reluctantly acknowledges that this change could be merely viewed as part of the process of"humanization, that it may be a mere footnote to such great reforms as the formulation of explicit, general codes and unified rules of procedure with the almost universal adoption of the jury system, the definition of the 9Michel Foucault, Discipline And Punish: The Birth Of The Prison
5 Note that this is Blackstone retold in what is really only slightly different form--with an express analytical vocabulary of cost-benefit analysis. But to commit to instrumental behavioral control and economic effiiciency as the purposes of punishment is not necessarily to adopt a simplified view of the human nature of the criminal. Effective and efficient behavioral control requires understanding and manipulating the whole person, including the inner psyche. And so the ambitious utilitarian, even if ultimately concerned only with outward behavior, must enter the soul, and, to a critic of theory, this means that the theorist of utilitarianism must "invent" its human object. Thus, now turn to Foucault's Discipline and Punish, and do not fear being ostentatiously chic, because this is one Foucault book that undeniably speaks substance and common historical sense. Foucault shows us how the Benthamite approach to crime ultimately overcame the earlier jurisprudence of violent punishment.9 Between 1760 and 1840, says Foucault, Europe and the United States saw a "redistribution" of "the entire economy of punishment." As modern codes were drawn up across Europe, one decisive change in penal justice occurred: the end of torture as a public spectacle. Foucault reluctantly acknowledges that this change could be merely viewed as part of the process of "humanization,” that it may be a mere footnote to such great reforms as the formulation of explicit, general codes and unified rules of procedure, with the almost universal adoption of the jury system, the definition of the 9Michel Foucault, Discipline And Punish: The Birth Of The Prison (1977)
essentially corrective character of the penalty and the tendency .. to adapt punishment to the individual offender. 10 But he finds something subtler and more important in the end of torture: The body as the major target of penal repression disappeared, and the new object of penal policy became the soul, "the heart, the thoughts, the will, the inclinations. "11 So read Foucaults famous description of the new utilitarian prison, with its goals of incarceration and ehabilitation, and its design of a new individual Bentham's Panopticon is the architectural fl gure of this Each individual, in his place, is securely confined to a cell from which he is seen from the front by the supervisor; but the side walls prevent him from coming into contact with his companions He is seen, but he does not see; he is the object of information, never a subject in communication. The crowd, a compact mass, a locus of multiple exchanges, individualities merging together, a collective effect, is abolished and replaced by a collection of separated individualities. From the point of view of the guardian, it is replaced by a multiplicity that can be numbered and supervised; from the point of view of the inmates, by a sequestered and observed solitude(bentham, 60-64) Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.... 12 10 Id at 7-8 lld.at8,l6; see id,at3,6-8,16,29-30,200-206,217,221. 12Id.at200-0 6
6 essentially corrective character of the penalty and the tendency . . . to adapt punishment to the individual offender.10 But he finds something subtler and more important in the end of torture: "The body as the major target of penal repression disappeared," and the new object of penal policy became the soul, "the heart, the thoughts, the will, the inclinations."11 So read Foucault's famous description of the new utilitarian prison, with its goals of incarceration and rehabilitation, and its design of a new individual: Bentham's Panopticon is the architectural figure of this composition. ... Each individual, in his place, is securely confined to a cell from which he is seen from the front by the supervisor; but the side walls prevent him from coming into contact with his companions. He is seen, but he does not see; he is the object of information, never a subject in communication. . . . . The crowd, a compact mass, a locus of multiple exchanges, individualities merging together, a collective effect, is abolished and replaced by a collection of separated individualities. From the point of view of the guardian, it is replaced by a multiplicity that can be numbered and supervised; from the point of view of the inmates, by a sequestered and observed solitude (Bentham, 60-64). Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. . . .12 10 Id. at 7-8. 11Id. at 8, 16; see id, at 3, 6-8, 16, 29-30, 200-206, 217, 221. 12Id. at 200-01
Foucault views this"panoptic modality of power"as the "other, dark side of the bourgeoisie' s establishment of an explicit, coded and formally egalitarian juridical ramework, made possible by the organization of a parliamentary, representative regime 13 Certainly thecrimes and ' on which judgement is passed are juridical objects defined by the code, but judgement is also passed on th passions, instincts, anomalies, infirmities, maladjustments, effects of environment and heredity; acts of aggression are punished, so also through them, aggressivity; rape, but at the same time perversions; murders, but also drives and desires .. the knowledge of the criminal, one's estimation of him, what his known about the relations between him, his past and his crime, and what might be expected of him in the future. 14 With this new psychology of punishment in mind, we can return to the conventions of legal doctrine to see how the psychological subject of economical punishment emerges in a legal typology of the mental and the punitive. Examine George Fletcher,s work on the history of theft offenses, as it traces the gradual shift toward greater emphasis on mental and moral culpability than on manifest act or harm. 15 As theft law developed at the turn of the Nineteenth Century, the actor's wrong came to have less to do with the manner of acquiring physical control over the object than the intent of the actor as evidenced by his unauthorized exercise of control over the property. You can then link larceny law to the very changes Foucault describes the nineteenth centurys 13Id.at221-22 14Id.at17-18 15George Fletcher, The Metamorphosis of Larceny, 89 Harv. L. Rev. 469(1976)
7 Foucault views this "panoptic modality of power" as the “other, dark side of the bourgeoisie's establishment of an explicit, coded and formally egalitarian juridical framework, made possible by the organization of a parliamentary, representative regime."13 Certainly the 'crimes' and 'offences' on which judgement is passed are juridical objects defined by the code, but judgement is also passed on the passions, instincts, anomalies, infirmities, maladjustments, effects of environment and heredity; acts of aggression are punished, so also through them, aggressivity; rape, but at the same time perversions; murders, but also drives and desires . . . the knowledge of the criminal, one's estimation of him, what his known about the relations between him, his past and his crime, and what might be expected of him in the future.14 With this new psychology of punishment in mind, we can return to the conventions of legal doctrine to see how the psychological subject of economical punishment emerges in a legal typology of the mental and the punitive. Examine George Fletcher's work on the history of theft offenses, as it traces the gradual shift toward greater emphasis on mental and moral culpability than on manifest act or harm.15 As theft law developed at the turn of the Nineteenth Century, the actor's wrong came to have less to do with the manner of acquiring physical control over the object than the intent of the actor as evidenced by his unauthorized exercise of control over the property. You can then link larceny law to the very changes Foucault describes: the nineteenth century's 13 Id. at 221-22. 14Id. at 17-18. 15George Fletcher, The Metamorphosis of Larceny, 89 Harv. L. Rev. 469 (1976)
legislative codification of criminal law, the development of professional police forces, and the shift from corporal and capital punishment of crime to reliance on incarceration in penitentiaries. And look below the vocabulary to see what is after all a rather minor elision from the postmodernist notion of"the subject"to the more comfortable and nerely modern notion of the subjective [the subjective]conception, the intent to violate a legally protected interest constitutes the core of the crime.. The critical implication of subjective criminality is that an act "quite innocent on its face"may qualify as a criminal act. It does not matter whether mounting the horse [picking up the cravats or receiving the bails]. incriminates the actor. We trust the police to elicit other forms of evidence to establish the required intent. Confessions are good evidence, as are admissions to friends of the suspect. prio convictions will do, as will secretive conduct after the incident.. [ By contrast, the older] principle of manifest criminality rejects the possibility of convicting someone of larceny .. on the basis of an act not incriminating on Most modern statutes have incorporated these developments under a unified definition of theft, focusing on the thiefs intent and his exercise of dominion and control over the property. Where Foucault might speak of the pragmatic creation of a proper type of moral mentality for punitive discipline, Fletcher speaks more modestly of the versatility of new doctrines of mens rea in defining and then sanctioning culpability 1 6George Fletcher, Manifest Criminality, Criminal Intent, and the Metamorphosis of Lloyd Weinreb, 90 Yale l.J.119,338(1976 8
8 legislative codification of criminal law, the development of professional police forces, and the shift from corporal and capital punishment of crime to reliance on incarceration in penitentiaries. And look below the vocabulary to see what is after all a rather minor elision from the postmodernist notion of "the subject" to the more comfortable and merely modern notion of "the subjective." Under . . . [the subjective] conception, the intent to violate a legally protected interest constitutes the core of the crime. . . . The critical implication of subjective criminality is that an act "quite innocent on its face" may qualify as a criminal act. It does not matter whether mounting the horse [picking up the cravats or receiving the bails] . . incriminates the actor. We trust the police to elicit other forms of evidence to establish the required intent. Confessions are good evidence, as are admissions to friends of the suspect. Prior convictions will do, as will secretive conduct after the incident.. . . [By contrast, the older] principle of manifest criminality rejects the possibility of convicting someone of larceny. . . on the basis of an act not incriminating on its face.16 Most modern statutes have incorporated these developments under a unified definition of theft, focusing on the thief's intent and his exercise of dominion and control over the property. Where Foucault might speak of the pragmatic creation of a proper type of moral mentality for punitive discipline, Fletcher speaks more modestly of the versatility of new doctrines of mens rea in defining and then sanctioning culpability. 16George Fletcher, Manifest Criminality, Criminal Intent, and the Metamorphosis of Lloyd Weinreb, 90 Yale L.J. 119, 338 (1976)
In addition to its intuitive plausibility, the standard of intent has important olitical significance in generating a widely acceptable theory of criminal sanctions. Unlike the issues of harm and objective criminality, the concept of intent appeals both to protectionists, whose central concern is identifying dangerous persons, and retributivists, whose focus is punishing the More significantly, neither retributivists nor traditionalists have seen a reason to criticize the ascendancy of intent, precisely because it seems so closely related to moral blameworthiness. As the common denominator of contemporary theory, the concept of criminal intent provides a foundation for the ideologically fragile system of criminal justice to enjoy wide support. 17 But however versatile the new rules of mental and moral culpability, they left courts with heavy burdens of interpretation and rhetoric. To appreciate the early modern efforts to refine these culpability standards, scan the seriatim opinions in such classic and quaint British cases as Faulkner and Prince, as they descant upon the nuances of subjective criminality --[]n order to establish the charge.. the intention of the accused forms an element in the crime to the extent that it should appear that the defendant intended to do the very act with which he is charged, or that it was the ecessary consequence of some other felonious or criminal act in which he was engaged, or that having a probable result which the defendant foresaw, or ought to have foreseen, he, nevertheless, persevered in such other 17Fletcher, supra note 11, at 525
9 In addition to its intuitive plausibility, the standard of intent has important political significance in generating a widely acceptable theory of criminal sanctions. Unlike the issues of harm and objective criminality, the concept of intent appeals both to protectionists, whose central concern is identifying dangerous persons, and retributivists, whose focus is punishing the blameworthy. . . . More significantly, neither retributivists nor traditionalists have seen a reason to criticize the ascendancy of intent, precisely because it seems so closely related to moral blameworthiness. As the common denominator of contemporary theory, the concept of criminal intent provides a foundation for the ideologically fragile system of criminal justice to enjoy wide support.17 But however versatile the new rules of mental and moral culpability, they left courts with heavy burdens of interpretation and rhetoric. To appreciate the early modern efforts to refine these culpability standards, scan the seriatim opinions in such classic and quaint British cases as Faulkner and Prince, as they descant upon the nuances of subjective criminality: --[I]n order to establish the charge . . . the intention of the accused forms an element in the crime to the extent that it should appear that the defendant intended to do the very act with which he is charged, or that it was the necessary consequence of some other felonious or criminal act in which he was engaged, or that having a probable result which the defendant foresaw, or ought to have foreseen, he, nevertheless, persevered in such other 17Fletcher, supra note 11, at 525