Today?s discourse about punishment and, more specifically, about the admissible and appropriate means of punishing is very much, and at times completely focused on the question of the justifiability of the death penalty ? and there is good reason in that: As half of the countries worldwide are retaining capital punishment as a legitimate sanction in their legal system and as more than one third of them have still executed it recently, the fight against death penalty and its cruelty is and remains of paramount importance.

Observers try to read out of the development of the last years a certain trend towards a progressive abolition of capital punishment, and therefore towards a ?humanization? of the sanctions system. This does, according to them, not only materialize in a decreasing number of states abiding by and applying the death penalty, but particularly in the decision processes concerning the repertoire of sanctions available for the newly created international criminal tribunals. After quite passionate discussions about this question, the community of states opted for a complete abdication of the death penalty, as well for the International Criminal Tribunal for Ex-Yugoslavia resp. Rwanda as for the International Criminal Court. Apart from the possibility of imposing fines under certain circumstances, Art. 77 of the Statute exclusively litims the catalogue of sanctions to imprisonment up to 30 years or life imprisonment.

In the ? highly justified ? rejection of capital punishment people do only rarely address the ?left-over?, the reflection of this decline. They care above all about getting rid off an inhumane sanction without asking so much what comes in its place. As far as that, they participate, consciously or not, in the general consensus considering imprisonment the only feasible sanction for higher segments of criminality. It is somewhat surprising: In general, Western ?developed? and ?advanced? societies like to see themselves to be very critical about monopolies and uniformism. In opposition to the dangers and deficiencies entailed by them, they claim to promote deregulation and liberalization and to support diversity and plurality. When confronted with more and most serious crimes, there seems to be only one answer, only one recipee: the unchallenged monopoly of imprisonment. All ?enlightened? criminal codes provide for the criminal?s imprisonment when the severity of the offense in question is exceeding a certain degree. Why this automatism? From where this self-evidence?

The institution of prison has captured the ?market of sanctions? to an extent and with a comprehensiveness which should make good part of today?s neoliberalists go green with envy, especially when taking into account that the idea of a uniform means of punishment for all kinds of severe criminality is stronlgy in place since the mid of the 19th century ? a time long enough ago that in ahistorical times as ours it is considerably hard to imagine for many people that it could have ever been different.


The genealogy of prison

It is the merit of Michel Foucault to have dedicated a whole treatise to the geneaology of prison. In his book Discipline and Punish: The Birth of Prison, published in 1975, the French philosopher tries to throw light on the phenomenon of prison, its provenience, development, rationale and ways of working ?  throwing light not only in the figurative, but also in the litteral meaning of the word: The power of the institution of prison is essentially a hidden and even secret one. The dynamics and mechanisms of imprisonment work in the dark, behind walls, detracted from the eyes of the people.

In this very characteristic, prison as a means of punishment marks a significantly new stage in the evaluation of the repertoire of sanctions. In medieval times, on the contrary, visibility and publicity were central features of the act of punishment: Executions were public events, almost folk festivals which were held in central places and which all people could and even should take part in. Torture was an integrate part of this spectacle, following an as well exact as cruel dramaturgy which was designed above all to shock and alienate the crowd. When the German writer Friedrich Schiller considered theatre to be an institution for improving morality, this could not apply to anything more than to the sophisticated drama of ritually martyring and agonizing the condemned?s body under the eyes of the crowd. In this context, prison could merely be the instrument to achieve and to guarantee the availability of this body: not punishment in itself, but precondition of punishment ? ad continendos homines, non ad puniendos, as the classical proverb said.

Under the slogan of ?humanization of punishment?, of reforming the barbaric sanction system, the enlightenment and the French revolution liberated prison from its subordinated role and granted it a cometlike rise. Step by step a broad consensus emerged that prison was  to be considered the most human form of punishment, conserving the malefactor?s life as well as his physical integrity. The new formula was born: fastening, locking up, isolating the ?unformed?, i.e. unmutilated body to make and keep it available for forming the soul. The law, as Foucault puts it, should not be applied any more to a real, sensitive body, but to an abstract legal subject. Punishing did not mean any more tormenting the body, but depriving the subject of a possession, a right: its liberty; a right ? and this made it even more attractive for the thinkers of the time ? which belonged to everybody, rich or poor, in the same way, which affected everybody alike. By temporarily or permanently neutralizing someone?s liberty, one could reasonably claim to enact a perfectly egalitarian means of punishment ? ?Punishment, if it may so put it, should strike the soul rather than the body? (Michel Foucault, ?Discipline and Punish? ,published by Penguin Books, London,1991; page 16).

This very time, at least on a theoretical level, brings about the fundamental shift from retaliation and retribution as the main purposes of punishment to the ideals of (special and general) prevention and betterment. This ?humanization? of the sanctions system, praised and powerful till our days, could not so much interpret justice as the restoration of a lost balance in human relations, but as sort of pedagogical mission to improve the individual as well as the collective; it could not support any more to work looking back, but wanted to be forward- and future-oriented. The well established theories of punishment were considered antiquated, old-fashioned, outdated and had to give way to progress and advancement ? with prison as the ?forge? of the new, refined human being; one may only mention Cesare Beccaria as one of the champions in this regard. While thinkers like Immanuel Kant warned, mostly unheard, of the dangers of instrumentalization inherent in these ?techniques of betterment,? the new paradigm of taking possession of in place of erasing the deviant individual had already commenced its triumphal procession.


The ?occupied? delinquent

With the rise of capitalism, liquidation and erasement were seen the more and more as an intolerable waste of precious resources. In exact opposition to disposing of the condemned, society should seize the opportunity to accroach him in order to re-establish his usefulness as a reliable, i.e. functioning member of society. No need any more for the glamorous spectacle destined to exalt the monarch?s glory in the delinquent?s pain, blood and yells; curtain up for a modest, but well-considered procedure of appropriating and transforming the deviant individual: ?The thought of the Ideologues was not only a theory of the individual and society: it developed as a technology of subtle, effective, economic powers, in opposition to the sumptuous expenditure of the power of the sovereign. (Michel Foucault, ?Discipline and Punish? ,published by Penguin Books, London,1991; page 102).

This ?occupation? of the delinquent is the very essence of the institution of prison; it stands for a mechanism of systematically and comprehensively taking possession of, controling, and making available all aspects of the condemned?s existence: occupying his body by locking it up in a cell, his labor force by coercing him to working, his thoughts and emotions by granting him education and edification, his time by organizing every sincle moment in a ?reasonable? way (from the institution?s point of view of course). All this in the name of making the problematic individual ?better,? i.e. functioning more smoothly, or to put it in one phase: reconciling the individual with society.  

The main technique guaranteeing the desired reconciliation is discipline, and Foucault dedicates a good part of his book to this ? almost magical ? phenomenon. It is this very concept which constitutes the ?missing link,? the articulation between the individual and society, adapting and preparing the former for the needs and expectations of the latter. It is, therefore, the finest end of social institutions to contribute to the fabrication of the disciplinary individual (Michel Foucault, ?Discipline and Punish? ,published by Penguin Books, London,1991; page 308). Disciplinatory work equals efforts of normalization: The individual is confronted with an elaborated and sophisticated system of norms which it is not only expected to accept, but to which it has to learn to respond in an as well smooth as reliable way; a normality it has to internalize. Lack of discipline implicates deviance and abnormality; disciplination is the way to lead the lost individual back to normality again. It is a characteristic of the new approach to crime to see it not so much as denial of a higher order of morality, but more as abnormality, as an illness which has to be subject of an appropriate therapy under the responsibility of ?technicians of behavior, engineers of conduct, orthopaedists of individuality? (Michel Foucault, ?Discipline and Punish? ,published by Penguin Books, London,1991; page 294).

The privileged way to get a grip on and to ?heal? individuality is ? bizarrely enough ? individualization, in a specific sense of course: It means isolation, deliberately taking the individual out of the structures and relations it is embedded in, and replacing them by a well-designed and ‑controlled new environment comprising the whole range of aspects of life. This has already been pointed out in the case of the institution of prison which is nevertheless nothing more than the noblest amongst a series of social institutions as it lets culminate all the mechanisms of disciplination in a very condensed form. Those mechanisms, as Foucault strongly emphasizes, are equally at work in schools, hospitals, asylums, factories, the army, etc.

However, they are not independent of each other, but constitute a highly interdependent system. The identification and examination of this net or ? seen in a more dynamic way ? machinery of normalization is of paramount importance wihtin Foucault?s analysis: In his opinion, the many ?regional? and relatively autonomous layers of regulation ? rising in continuously adjustable intensity ? inspire themselves from and culminate in the model institution of prison. It constitutes the top and epitome of the hierarchy of normalization which is therefore also referred to as the ?archipelago assures? (Michel Foucault, ?Discipline and Punish? ,published by Penguin Books, London,1991; page 301) or the ?carceral continuum? (Michel Foucault, ?Discipline and Punish? ,published by Penguin Books, London,1991; page 303).


Panopticism

The model role of prison in the system of normalization manifests itself in a further important feature which should become relevant as an ideal for many other kinds of social institutions. In 1878, Jeremy Bentham published his influential treatise Panopticon or The Inspection House in which he presented and developed the ideal prison plan: In the middle there should be a tower encircled by a ring-shaped building. The tower should have big windows all around opening a total view on the surrounding structure; the latter should be divided in cells, completely separated one from the other, each of them having a window to the inner as well as the outer side.
 
As light can therefore penetrate from both sides, the supervisors in the tower ? and in the ideal case: one single supervisor ?, seeing the prisoners? silhouettes in the backlight, can easily and simultaneously observe and control all what happens in the cells. As Foucault puts it: ?They are like so many cages, so many small theatres, in witch each actor is alone , perfectly individualized and constantly visible (Michel Foucault, ?Discipline and Punish? ,published by Penguin Books, London,1991; page 200).Seeing without being seen, observing without being observed is the very essence of the concept of the ?see all?-institution. The Panopticon makes the individual the object of information, not a subject of communication. It guarantees a continuous flow of knowledge ?Herrschaftswissen (i.e. knowledge for the sake of dominion) in Max Scheler?s sense. At the same time and to the same extent it permits the central observer to collect and to cumulate information about each and everybody, it individualizes, isolates the individuals in their cells, thus preventing them from collaboration and conspiration.

Against horizontalism and for verticalism ? invisible omnipresence and permanent one-way acquisition of knowledge. Bentham?s ideas for the perfect Inspection House should quickly become the guiding architectonical principle for a whole series of projects eager to realize the glasshouse prison, the transparent cell. It is not too difficult to recognize the panopticist model powerfully reappearing in George Orwell?s novel 1948: The ubiquity of Big Brother raises the mechanisms of prison-like observation to the overall level of society or, to take it the other way round, makes society one big single prison.

The totalitarianism of prison is even able to transcend the borders between external and internal. The disposability even of the innermost of the human being does not only become blatantly and painfully manifest in the final chapters of 1984, but already in the context of Foucault?s description of the 19th century?s youth penitentiary of Mettray in France: After having completed the disciplinatory work of the day, still in the cell?s solitude, loneliness and intimicy at night, the phrase should be emblazoned in big letters on the walls: ?God is watching you.? These mechanisms of internalization are working so perfectly well that in our very days, the days of so-called individuality and self-determination, many people most willingly subject themselves to them, allow their unlimited observation for weeks and months under the greedy eyes of a whole televised nation and do not even resent the dystopy?s hero: Big Brother.


Power of definition

Institutions inspired by panopticism are characterized by one and the same pattern of polarity: observing and being observed, controling and being controlled, defining and being defined. The power of definition emerging from the privileged and superior knowledge obtained through observation, the power materialized in the panopticist institution separates and isolates the individuals in order to reclassify them in the light of the criteria considered opportune. In general, this leads to a dichotomization and stigmatization of individuals and assigns them according to the binary codes of normal/abnormal, harmless/dangerous, healthy/ill. Everybody who falls short of this classification has to be given over to an institution of control and therapy, an institute devoted to the individual?s orthopedy, taking care of and readapting it for live in society. We have already described above this machinery of normalization and the complex network of institutions being part of it.
Foucault analyzes criminality as a privileged instrument to permanently observe and discipline the population; through the control of the delinquents one can control the whole field of society. In that sense, criminals are not out-laws at all, but at the very heart of the legal system, in the very focus of the disciplinatory mechanisms of law: ?The prison is merely the natural consequence, no more than a higher degree of that hierarchy laid down step by step The delinquent is an institutional product. It is no use being surprised , therefore, that in a considerable proportion of cases the biography of convicts oases through all these mechanisms and establishments, whose purpose, it is widely believed, is to lead away from prison. That one should find in them what one might call the index of an irrepressibly delinquent ?character?: the prisoner condemned to hard labour was meticulously produced by a childhood spent in a reformatory, according to the lines of force of the generalized carceral system. (Michel Foucault, ?Discipline and Punish? ,published by Penguin Books, London,1991; page 301).

The main interest in all this is the fabrication of the disciplinary individual: The individual should be and is made to be at the disposal of society and its needs. In order to become a ?valuable? member of society, it has to fulfil the latter?s expectations in a well-working and well-functioning way. The key to introduce and keep the individual in this logic, is the education to obey, as materialized in the above-mentioned network of institutions, which teaches from childhood on ?Do not deviate,? ?Go conform,? ?Adapt yourself.?

In all its fundamental rejection, however, society needs, imperatively needs deviation. For the sake of keeping together and stabilizing the dominance of the ?normal? and the power relations underlying it, it is dependent on abnormality and crime and ? at the same time ? profits from them. In this context, Foucault speaks of useful delinquence: ?Prison, and in no doubt punishment in general, is not intended to eliminate offences, but rather to distinguish them, to distribute them, to use them: that is not so much that they render docile those who are liable to transgress the law, but that they tend to assimilate the transgression of the laws in a general tactics of subjection. (Michel Foucault, ?Discipline and Punish? ,published by Penguin Books, London,1991; page 272 ). Delinquence can therefore be understood as an instrument to manage and exploit illegality. And class justice would mean then the stabilization of an established distribution of power by a certain classification of illegality. As a simple, but illustrative example one could refer to the penal provisions for crimes against property in quite many criminal codes and compare them to the ones for crimes against physical integrity or sexual self-determination. One should not be surprised if the differences in the sanctions provided for are not as big as many would expect them to be.

All this ? and perhaps this is the core message of Foucault?s reflection ? should inspire us to critically question the unchallenged monopoly of prison as described above. Since 150 years, the ineffectiveness, and even the failure of the institution of prison are regularly and solemnly declared, but eventually its position is stronger than ever. For sure, it is not enough to work on a bureaucratic improvement of ?living conditions? of prisoners or to alleviate the harshness of prisoners? lives in the name of a sentimental humanitarianism. It is Foucault?s merit to have shown that an analysis of prison on and in itself is fundamentally incomplete; it has to be examined as a social institution amongst and in relation to others, and especially in the context of society and its power relations and mechanisms. What can be said in a certain way about every institution, is particularly true for prison: it is a mirror of society.