Renowned French philosopher Michel Foucault opens his 1975 work Discipline and Punishment: The Birth of the Modern Prison with an account of the death of Robert-Francois Damiens – the last French citizen to be drawn and quartered, on 1 March, 1757.
A domestic servant, Damiens was publicly executed for allegedly attempting to assassinate King Louis XV. Foucault went into graphic detail about how the condemned man came to his demise.
On a scaffold, Damiens had the flesh “torn from his breasts, arms, thighs and calves with red-hot pincers.” Next, molten lead and boiling oil was “poured onto his body where the flesh had been torn away.” And then he was to be “drawn and quartered by four horses.”
Unfortunately, the proceedings didn’t quite go to plan. The four horses were not enough to pull the body of Damiens apart, so another two were added. But “when that did not suffice, they were forced… to cut off the wretch’s thighs, to sever the sinews and hack at the joints.”
The inception of the prison system
A few pages later, the philosopher juxtaposes this medieval practice with a set of rules “for the House of young prisoners in Paris” drawn up by Léon Faucher some eighty years after the execution.
These rules dictate the whole of the prisoners’ day, from the drumroll that awakens them in the morning, to the one that marks the time they must get into back bed. The inmates take their meals, undertake schooling, and carry out duties in the workshop at designated times, and dissent is not tolerated.
As Foucault points out, the public execution and the timetable “each define a certain penal style.” The execution marks the end of “torture as a public spectacle,” and the work schedule marks the beginning of modern institutionalised punishment.
There was a major shift from a focus on the body, to that of the soul. And with this, there was a move away from punishment as a spectacle to deter others from committing crime to the certainty of punishment that came with the modern criminal justice system.
A shift in consciousness
The forces of change that brought about this transformation were rooted in class consciousness.
In the mid-eighteenth century, the working class no longer saw people being strung up on the scaffold as the enemy, but rather as comrades under the tyranny of the rulers.
And the rising middle class in opposition to the throne began to use the language of humanist philosophy to point to a just and benevolent social order, that would see an end to the brutality of the king.
However, the middle classes had to replace the methods with ones which would continue to protect against the working class threatening their wealth. And thus, they turned to the “gentle way” of punishment embodied in the modern prison system.
A new set of norms
The ultimate rule of monarchs was gradually replaced by bureaucracies.
Judges were not the only figures to make pronouncements on justice matters, but a new league of psychologists, doctors, and parole officers began to make decisions on how punishment would be meted out to the underclass.
Concepts on what was considered “normal” and “abnormal” behaviour were established, and these were taught and implemented through a system comprising institutions such as schools, hospitals and factories.
Those who transgressed these norms were sentenced to prison time, where the new punishment was observation, supervision and the loss of liberty.
Capital punishment still played a role. But the instruments used to perform the death penalty – such as the guillotine – were replaced by those designed to be as painless as possible.
Today, killing methods such as lethal injection and the electric chair are supposed to be relatively humane – causing death relatively quickly and painlessly, although this is not always the case.
The all watching eye
For Foucault, the change to the modern European system of criminal codes and punishment – which spread throughout the western world – did not establish a more civilised society, but simply marked a change in power structures.
The epitome of these new power relations is the panopticon, which is a circular prison designed to allow a guard to observe all inmates in their cells from a central tower. The prisoners are never sure when they’re actually being watched, so they act as if they’re always under observation.
Although, this prison structure has never fully been realised, the concept of constant surveillance has pervaded modern society. It’s most overt form is the use of CCTV cameras, which not only threaten to capture people breaking the law, but also act as a deterrent.
It doesn’t matter if a CCTV camera is actually turned on or even readily visible, as the thought that one might be present is enough to influence the behaviour of most.
The French philosopher ultimately rejects the notion that these modern control systems have anything to do with humanitarian ideals, or that new modes of punishment were ever intended to rehabilitate offenders.
Race and the penal system
The United States is currently the greatest incarcerator in the world, with an imprisonment rate of more than 700 prisoners per 100,000 people.
Under the US system, Ms Davis points out that Native Americans and people of colour “were involuntarily confined and punished for no other reason than their race or ethnicity.”
She posits that while white Americans were perceived as “rights-bearing individuals… worthy of moral re-education,” African Americans were seen the opposite way, and the role of labour played a far greater part in their incarceration.
“Labour was punishment attached not to crime, but to race,” Davis wrote.
Indeed, the role of race in the Australian criminal justice system is an ever-increasing concern as the rate of Indigenous incarceration continues to rapidly rise in this country.
While the nation’s First Peoples represent 3 percent of the overall population, they currently account for 28 percent of all people in incarceration.
Whether punishment comes in the form of public displays of torture and killing, or the protracted control of large numbers of ‘undesirable’ individuals, its ultimate objective is the preservation of the status quo.
Paul Gregoire is a Sydney-based journalist and writer. He has a focus on human rights issues, encroachments on civil liberties, drug law reform, gender diversity and First Nations rights. Prior to Sydney Criminal Lawyers®, he wrote for VICE and was the news editor at Sydney’s City Hub.