Founded in 1978 by scholar and philanthropist Obert C. Tanner, The Tanner Lectures feature scholars and academics lecturing on topics and areas of research related to the study of human values. 

An anthropologist, sociologist and physician, Prof. Fassin has conducted fieldwork in many countries across several continents, including France, South Africa, Senegal and Ecuador. His research focuses on topics ranging from medical anthropology, to investigations on how ethics and morality intersect with state institutions, such as policies of policing, and the prison system.

Fassin presented the 2016 Tanner Lectures at the University of California, Berkeley, entitled ‘The Will to Punish,’ over three consecutive afternoons in April of that year, followed by participant’s comments and a short reply by Fassin. The overall thrust of the lectures was to critically examine the nature of punishment in Western, capitalist societies against the backdrop of classically normative theories of punishment. This book is a transcript of that three-day lecture series.

Fassin divided his lecture in three sections, over three days:

1. What is punishment?
2. Why does one punish?
3. Who gets punished?

While Fassin acknowledges that this approach to the topic of punishment is a new area of research and inquiry for him, he draws on the substantial ethnographic field work he has done – specifically among the police, prisons, justice systems – to inform his analysis.

Fassin begins the lecture with a case-study – a cross-cultural comparison of punishment, between, on the one hand, a young Trobriand man accused of violating that culture’s endogamy taboo, and, on the other, a young man from the Bronx, arrested for stealing a backpack. Both of these cases end in suicide. For Fassin, these two stories raise the question of what punishment means in relation to crime. According to Fassin, these stories challenge two common assumptions about crime and punishment: that punishment is always or necessarily a response to a legal or moral offense; and concomitantly, that from a legal or moral basis, punishment must be in relation and proportion to an offense.

Since, in the Trobriand case, there was a crime but no punishment, and in the Bronx case, a punishment without the establishment of a crime, these two cases challenge the classically normative theories of punishment, be they retributivist, utilitarian or both, argues Fassin, in a number of distinct ways: first, crimes do not inevitably imply or require punishment – alternative responses are available; second, punishment is not necessarily a response to crime, so much as a response to extra-legal socio-economic factors; and, third, the requirement that the extent of the punishment be proportional to the severity of the crime is not borne out by the sociological and ethnographic evidence. 

Current normative theories of punishment, such as that of H.L.A. Hart, fail to understand this profound disconnect between crime and punishment, continues Fassin. In Hart’s case, for instance, it is because his theory relies on legal concepts such ‘offences,’ and ‘offenders,’ which he takes to be value-neutral. Fassin’s argument is that, when viewing the actual operations of the criminal justice systems of the United States or France (regions where Fassin himself has conducted fieldwork), one finds that these seemingly neutral and formal concepts are, in fact, heavily value-laden and informed by extra-legal socio-economic factors such as race and poverty. Thus, the interactions between the police, the courts, and the poor are informed and tainted by the extra-legal values that underlie the criminal justice system. Indeed, the very act of policing poor and racially segregated communities can, itself, be seen as a form of state-sanctioned punishment, he concludes. In this way, Fassin argues, the practices of punishment instantiated within modern Western societies do not reflect the classical theories of punishment, such as Hart’s, which focus on ideals such as individual responsibility, and the seemingly objective standards of mens rea and actus reus.

In short, Fassin challenges the view that, in practice, it is morally necessary to punish crime and morally necessary for punishment to be a response to crime. The penal system in the United States, he points out, unequally distributes punishment, disproportionately targeting the poor and disenfranchised over the wealthy.

Fassin also challenges that foundational notion of classical legal theories of punishment that punishment necessarily involves pain or other unpleasant consequences. Historically, he points out, this was not always nor necessarily the case. He attributes the transition of punishment from that of a notion of debt compensation to that of harm and deprivation within Western Capitalist societies to the influence and growth of the Christian church where “only the infliction of pain can give access to redemption and salvation” (54). Fassin insists on the importance of acknowledging this influence of Christianity on contemporary criminal law for any successful critical analysis of the legal system.

In the second of Fassin’s Lectures, he continues with his critique of analytical, normative accounts of punishment in favor of an approach based on an “idiographic method” (64) – one that relies on sociological, historical, and genealogical theories and methods. While these former normative approaches to understanding punishment have some theoretical merit (Fassin does not go into much detail on this point), “they describe an ideal world, which can be challenged with a reality principle” (72).

Fassin next explores the extra-legal, or ‘non-rational’ aspects of punishment, relying heavily on a Nietzschean analysis where the goal of, or justification for, punishment is a sadistic desire to “produce a gratuitous suffering… for the mere satisfaction of knowing that the culprit suffers” (81). He continues, stating that the “spectacle of the punishment and its cruelty, which gathered people around the scaffolds where tortures and executions took place, has not disappeared” (85); the gathering place is now the media – newspapers, television, the computer screen. Moreover, while such violence is not explicitly the goal of the penal system, Western society sanctions and authorizes gratuitous and non-redemptive harms within the prison system (such as neglect, abuse, brutality, even torture) though inaction, apathy, and ignorance. These abuses are not exceptions to the rule, but rather, through institutional instantiation, the rule itself, argues Fassin (though he does acknowledge that some European penal systems – Germany, for example – recognize the need to respect the humanity of the incarcerated).

The third lecture, on who gets punished, revisits themes discussed in the first two lectures but focuses primarily on the systemic structuring that promotes and reifies the socio-economic and racial inequalities within the criminal penal system. These systems are structured so as to mask such inequalities behind a mirror of objectivity and personal responsibility. Economic marginalization within a Capitalist society is not seen as a mitigating factor for responsibility (as evidenced by the wide-spread rejection of the rotten social background defense, for instance) for instance: 2 Ala. C.R. & C.L. L. Rev. 79 (2011) The Rule of Criminal Law: Why Courts and Legislatures Ignore Richard Delgado’s Rotten Social Background, Taslitz, Andrew E. [79 to 130]) but, instead, as an incriminating circumstance that functions to heighten responsibility for the poor and marginalized. Fassin compares the story of a young black man from a disadvantaged background accused of talking back to the police with that of a young middle class white student accused of rape: “the difference in treatment between the two cases is… not so difficult to comprehend when taking into account the distance between the social worlds of the defendants and the disparity of their social competencies in court, two elements that, subjectively, lead the judge to feel animosity against one and show leniency toward the other” (108).

Fassin concludes this lecture by stating that the distribution of punishment and the identification of the punishable promotes and perpetuates social-economic and racial disparities – targeting populations “whose present conditions are often the legacy of particular historical circumstances such as slavery, colonization, or immigration” (116).

By concentrating on both the theological foundations of punishment as pain, along with the sadistic desire to witness others suffering, as identified by Nietzsche, Fassin presents us with an a posteriori conception of punishment. – one situated in its social and historical context, revealing the otherwise hidden value-laden dimension of legal notions taken to be objective – in place of the classical, normative, a priori theories of punishment. The normative, for Fassin, is useless if all it does is hide the inequality and disparity of the real behind the myth of a moral link between crime and punishment.

And in the end, this is the overall point of Fassin’s lectures: to explore and explode the myth of a moral link between crime and punishment. Does he succeed? I’m not entirely sure. Yes, there is no doubt a deep and troubling disconnect between the ideals expressed in nearly all normative theories of punishment and the actual practices of punishment within modern Western Democracies. But it is these very normative theories themselves that help us identify and reject those departures. The misapplication of a model in practice is not necessarily a condemnation of the model in theory – objections to capital punishment that focus on its misapplication to the innocent, for instance, fail to address its theoretical justice for the guilty. In a similar way, Fassin’s focus on the unequal distribution of punishment along socio-economic lines does nothing to tell us if Hart’s theory, for instance, is theoretically sound. If so, it might still prove to be a worthy pursuit, pace Professor Fassin.

 

Ⓒ 2020 Travis Hreno

 

Dr. Travis Hreno, Associate Professor of Philosophy,Department of Philosophy,University of Akron

Categories: Philosophical

Keywords: philosophy, punishment