raises the basic issue of the morality of state power in its most blatant form.
It represents what M.Ignatieff describes as punishment directed at the mind
whereas before the birth of modern prison, punishment was directed at the body.
Throughout history, society has managed to conjure many different and diverse forms of punishment. Early history reports the use of whipping, branding, mutilation, hanging and other such forms to punish individuals. Within time these forms of punishments that were deliberately directed at the body, became replaced with more humane punishments such as the use of prisons which directed punishment more towards the mind than the body. Through the use of incapacitation, the early prison system was able to stop violators of the law from continuing their crimes, and punish by denying them their right of freedom. It is this denial of freedom that has brought on much skepticism as to the states use of power, particularly in its morality.
So let us analyse the meaning of morality. Morality can be defined as ones ability to be moral, and being moral can be divided into three groups, knowing right from wrong, the practice of duties, and conditions with respect to discipline. The state officially writes the books on what is right and wrong through the constitution and precedent based on what society needs and requests on a general basis, it practices its duties through the use of police officers, and finally the conditions it presents through its discipline, granted some may disapprove due to their own backgrounds, are continuously being reviewed and updated to best suit society.
Before the birth of the prison system, the state punished individuals for their wrongs through direct physical pain. As recently as the eighteenth century, criminals had to endure a variety of suffering through many different tortures including the stocks, the whipping post, dunking stools, branding, jougs (iron collar), the brank (metal face masks), mutilation, dismemberment, hanging, drowning, burning and being boiled to death, all of which took place in front of the public eye in an almost theatrical reproduction of the crime and at times the death of individuals was prolonged for hours or even days on end depending on the severity of the crimes that had taken place and were intended to produced extreme pain. Such activities where looked upon as the moment of truth for they humiliated the criminal, humiliated their families, indicate to the public what happened to those who broke the law, and also made "the body of the condemned man the place where the vengeance of the sovereign was applied". If the criminal screamed while having their arms broken, eyes pecked out, belly opened and their entrails thrown into a fire or face placed in burning oil, then they were surely guilty of the crimes brought against them. With this in mind, how can anybody question the morality of today’s state which chooses to just lock up their criminals instead of becoming just as bad as the criminals themselves in the punishments they inflict.
Before the development of the prison system, the fore runners of punishment were death, torture, banishment and fines. Punishments such as death and torture, being the prominent forms, were directed at the body as was banishment for it involved some torture. To be classified as torture, punishments had to produce a certain amount of pain that could be calculated on some level, and used in comparison. This classification can also be seen in the early forms of the prison system, though they did not consist of physical pain, instead a mental affliction through the denial of freedom. The processions for these punishments always took place before the public, who almost constituted a jury which decided if the individual was guilty or not by how they took their punishment, and how they died. If the criminal died quickly, or if they did not scream, then the public decided that they were innocent, though it made no difference at this stage.
Another reason for the public spectacle was to exercise terror and show the strength of the sovereign over those who broke the law. There was no intention to re-establish justice, only a desire to show the power that the heads of state had over society, and at times the torture was nothing more than painful revenge.
It was during the 18th century that reformists began to perceive the laws as bent, and realised that punishment had become problematic in that it went against the values of forgiveness, mercy and compassion as depicted by Christianity and thus the more society resorted to violence, the more violent and barbaric society would became (an eye for an eye would ultimately lead to a blind society). It was concluded that another form of punishment was needed for crimes that where not directly connected to the taking of anothers life (which should still be punishable by death, but in a more humane way). What they decided was that punishment should not be directed at the physical body, but instead at the mind and soul with an element of humanity. No longer should the condemned man be the property of the sovereign to be tortured, but instead the property of the people so as to be used to pay back what it had taken from society by such penalties as forced labour, and thus began the prominence of the penitentiary. Between 1830 and 1948, public executions that were preceded by torture had almost entirely disappeared.
The early prisons were far from perfect. Solitary confinement was originally designed to allow the prisoner to rediscover their own conscience and better voice through spiritual conversion. Though it was later discovered that no torture could have been worse than solitary confinement because it ended up causing many prisoners delusions, depression and on many instances madness. It wasn’t until 1850 that solitary confinement, as a form of retribution, was abandoned and only used as an instrument of terror to keep inmates in line. It was this effect of isolation that caused authorities to look further into the architectural designs of their prisons, especially those rooms that housed each prisoner.
As time progressed, prisons took on the role of not only disciplining but also of training the individual in all aspects of life including morality. No longer was punishment and removal enough, society needed to rehabilitate its criminals. Through less cruelty, less pain, and in general more kindness and respect it was hoped that it would be possible to educate and show prisoners the error of their ways. Further more, time was taken to discover if any prisoners were suffering from such things as intellectual disabilities, or madness, and if so, steps were taking to institutionalize them in the appropriate institutions for further and more appropriate treatment as opposed to just locking them away. This was not an example of society being more lenient towards crime, but instead a tactic with which to punish better and in the process challenge the criminal mind and behaviour in an attempt to show the road of righteousness. The prisons system had become more or less like a reform school for the criminal minded.
Another change that took place was the duration of sentences. These were made to fit each particular crime more appropriately. Generally though the more severe the crime, the longer one spent locked away from society.
Focault argues that society is built around a model where by ‘the powers that be’ attempt to regulate our behaviour, and place us were we belong in this model. For example, as for the work place, you are either an employee or an employer, regardless of which, you are confined to act and do certain activities. As can be seen, the penitentiary also fits into his model because it was intended to be the machine that could utilised to make and mold individuals to fit the individual requirements depicted by society, including its political, psychological and religious beliefs. It promised above all else to rebuild the legitimacy of the legal system that had been lost by all the gratuitous bloodshed that had been experienced by earlier punishments that had been administered.
Current day prisons work on a system of not only punishment, but also incapacitation, reform and finally deterrence and are visualised as the ultimate forms of punishment. They have been through a long system of trial and error and have finally reached this point. No longer do tortures exist within our legal system (Though some countries (about 32 states) still practice the use of capital punishment in minute cases. They are now more humane than ever in the way in which they administer it, for example in America capital punishment is done in the most painless manner possible. Preceding the prisoners death, he is given tranquilizers to minimise the pain that is to follow. But this is nothing like the old styled public executions that took hours to perform, nor are they as painful. Instead they use such things as lethal injections, and electric chairs to administer the punishments.).
The state now days understands that each case is different and should be approached as so. In reaching a verdict on a criminal, the courts now look at all the factors that related to the crime. It is these factors that will determine the out come of each case. If a person was mentally ill at the time of their actions they will be placed under special care; If the criminal was a juvenile, the courts might sentence him to a children’s prison; and so on. The reason for this allocation depending on factors of each case is so that not only will the criminal be punished, but will at the same time receive special attention suited to them in a hope to reform them, and ultimately persuade them to not continue on with their life of crime in future. These factors will also contribute to deciding the length of each sentence. If a person broke the law unintentionally with no guilty mind (mens rea) then they would get a shorter sentence than a person who went out of their way to break the law and knew the consequences. In this way not only are punishments made to fit the crime, but are also made to fit the criminals guilty mind.
By looking at all the changes that have taken place within the last 300 years, it is possible to see a steady pattern of change and development in the legal structure. Each change has taken society one step closer to a more humane an morally correct society. We have seen a move in power from the kings to state, with which also came the change from revenge taken by the sovereign against criminals (who were seen to have acted against the king) to punishment by the state as a whole. In the beginnings, punishments were designed to inflict pain directly to the human body through such actions as torture, but with development, the direction of punishment was turned more so towards the inner soul or mind. By attempting to alter ones mind, society hoped to create a better person who was more in touch with their inner-being, and thus knew right and wrong, in an attempt to regulate their future behaviour which would ultimately be beneficial to the rest of society. The big factors behind all the changes revolve around the prison system. With it, not only is the offender taken out of society to stop further problems, but is also put through a redevelopment program with the intent of reintegrating them into the world again at a later stage.
To say that the prison system brings up the basic issue of morality would be far from wrong for it too is only a design based on our current abilities. It is a system that is far from faultless, and in need of continual development. Undoubtedly there are other ways to deal with crime, but none have proven as successful nor as refined. Maybe in future a more morally correct system will be developed, whereby a criminal might be taken out of society for only a day, in which time they will electronically have their brains altered to suit the needs of society. But then again even such a design would somehow have the basic issues of morality brought against it. As it stands, the prisons of today are currently the only system available to us to deal with serious crime unless society would prefer to regress to its old barbaric ways.
"The practice of punishment towards a theory of restorative justice",
Foucault, M, "Discipline and punishment - the birth of prison", Penguin books, 1991
Hudson, B, "Understanding justice", Open university press, 1996
Ignatieff, M, "A just measure of pain", Mac Millian press, 1978
Marantelli, S, "The Australian Legal dictionary", Edward Arnold Australia, 1985
Morris, N, "The Oxford history of the prison", Oxford university press, 1995
Savage, Leo, "Savage thoughts - Our prisons", Internet file:///aI//prison, 1996
William, G.A, "Crime and punishment", The criminologists Autumn, 1993
Written By Evan Sycamnias