Foucault, Crime and Power

Problematisations of Crime in the Twentieth Century

Christian Borch

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317813224
• Edition: 1
• Topic: Historia
• Subtopic: Historia europea

This book presents a Foucauldian problematisation analysis of crime, with a particular focus on the twentieth century. It considers how crime has been conceived as problem and, by scrutinising the responses that have been adapted to deal with crime, demonstrates how a range of power modalities have evolved throughout the twentieth century.

Christian Borch shows how the tendency of criminologists to focus on either disciplinary power or governmentality has neglected the broader complex of Foucault's concerns: ignoring its historical underpinnings, whilst for the most part limiting studies to only very recent developments, without giving sufficient attention to their historical backdrop. The book uses developments in Denmark – developments that can be readily identified in most other western countries – as a paradigmatic case for understanding how crime has been problematised in the West. Thus, Foucault, Crime and Power: Problematisations of Crime in the Twentieth Century demonstrates that a Foucauldian approach to crime holds greater analytical potentials for criminological research than have so far been recognized.

Chapter 1

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The birth of criminology

Free will

As a prelude to the study of problematisations of crime in the twentieth century, this chapter considers the background to the emergence of a scientific perspective on crime. The problematisations that made headway in Denmark in the early twentieth century emerged as a critical response to the concept of crime that revolved around the idea of free will. Hitherto, in brief, the argument in this conceptual universe had been that criminal acts (indeed all actions) are, as a rule, attributable to free will. This, in turn, gave rise to so-called deterrence theories, which posited that potential offenders would refrain from transgressing due to the threat of punishment and its actual enforcement. While deterrence had a general preventive aim, the imposition of the actual punishment was designed to reform the individual criminal.

In this chapter, I first discuss how the notion of free will was adopted in Danish approaches to crime. The emphasis will be on the Criminal Code of 1866. Next, I examine how a range of scholarly developments in the late nineteenth century challenged the idea of free will. That discussion will centre on Cesare Lombroso and his positivist school of criminology, the French sociological school (Émile Durkheim and Gabriel Tarde) as well as the German school, whose main representative was Franz von Liszt. Common to these three schools is their critical attitude towards conceptions of crime that pivot around the notion of free will and their attempt instead to foreground ideas about social and/or biological factors in explanations of, and hence also penal responses to, crime. The chapter ends with some reflections on the analytical alternatives to free will and the forms of power to which they gave rise, as well as the continuities and changes involved in the developments outlined in the chapter.

But let me begin with the Danish Criminal Code of 1866, which provides a neat summation of the prevailing conception of crime at the time. The basic tone of the 1866 Code was preventive. This is reflected, for example, in the fact that the emphasis in sentencing was on the ‘objective’ aspects of the criminal deed, such as the level of danger involved, the gravity of the offence, the importance of any object that was damaged, etc. (Criminal Code of 1866: Section 57). The Code also adopted a partially individualised view of crime, since the sentencing was also expected to take into account the steadfastness ‘in the perpetrator’s will, the reasons for the crime, his upbringing, age and previous conduct, his particular relationship to the aggrieved party and his behaviour subsequent to the criminal act’ (Criminal Code of 1866: Section 57).¹ However, the inclusion of such considerations does not obscure the fact that ‘the objective gravity of the crime and, through this, the general preventive aims were to be the defining characteristics of criminal sentencing’ as Iuul observes (1952: 46).

The question of free will was particularly evident in the sanity provisions, which established equivalence between the exercise of free will and sanity. A series of exceptions were also noted. For example, children under 10 years of age were exempt from prosecution (the age of criminal responsibility), although they could be subjected to rehabilitation and precautionary measures. The reasoning was that children aged under 10 were not thought to be capable of recognising the criminal nature of their actions (see the Criminal Code of 1866: Section 36). The same logic and exemption from prosecution were extended to adults who lacked the same ability, namely:

individuals who are deemed insane or whose faculties are either so poorly developed or so weakened and disturbed that they cannot be assumed to be aware that a deed constitutes a crime or who, at the time of the deed, were not in control of their faculties.

(Criminal Code of 1866: Section 38)

Precautionary measures were an option for these individuals, usually through confinement in a psychiatric institution (see the Criminal Code of 1866: Section 38; see also Adserballe 2000: 24). By contrast, individuals who were not obviously deranged or disturbed (i.e. the sane) were liable to incur punishment, although those deemed not to be exercising completely free will were to be punished less harshly.²

Finally, a link was established between the idea of free will and the factors believed to influence a person to make immoral choices in the ‘either/or’ moment leading up to an offence (Jürgensen 1866: 135). So in much the same way as the general preventive perspective posited that the threat of punishment could influence an individual’s weighing up of the pros and cons of committing a criminal offence, it was claimed that, by regulating other factors, it would be possible to steer free will, and therefore choice, in the direction of what was best for society. Indeed, a central and declared purpose of punishment was to ‘rehabilitate the criminal. It follows that the punishments used must be of a type that really could raise the individual concerned to a higher degree of morality’ (Jürgensen 1866: 5, italics in the original; see also 9, 22). Through rehabilitation, the criminal would thus be brought back to the path of the law-abiding citizen. In particular, this could be achieved through educational measures, as education was thought to be the key to the individual’s choice (see Jürgensen 1866: 149). In short, to ensure that an individual would, in future, choose the moral and socially responsible option when faced with a choice, moral – perhaps religious – education was necessary.

The urge to rehabilitate was also the basis for both of the types of institution that the 1866 Code established as the setting for penal servitude: tugthus (prisons with hard labour) and forbedringshus (houses of correction). There were many differences between the two but, in general, the former was for criminals whom it was thought would be difficult to rehabilitate.³ Here, unlike in a house of correction, individual inmates were held in complete isolation. By contrast, houses of correction were for convicts with better prospects of rehabilitation. Offenders could be sentenced to between two years and life in prison with hard labour, whereas sentences to a house of correction ranged from eight months to six years. The 1866 Code also allowed for simple imprisonment (from two days to two years), prison on a standard inmate diet (from two days to six months), prison on bread and water (from two to 30 days) and, in rare cases, what was known as state prison (from six months to ten years or life).

In the first half of the nineteenth century, long debates considered the merits of a general reform of the existing penal institutions, a central theme of which was the moral improvement of the criminal. Two US American-inspired penal systems attracted particular attention: the Auburn and Pennsylvania models. Under the Auburn model, as practised in the Auburn Prison in New York from 1823, prisoners endured collective hard labour during the day and were isolated in solitary cells at night. Communication between prisoners was strictly prohibited and punishable by flogging. In the Pennsylvania system, the isolation of the individual prisoners was even more absolute, as they worked in their cells and were kept there day and night. Exercise in the prison yard was allowed, but only in isolation. In contrast to the Auburn model, the emphasis was on contact with selected individuals, e.g. the prison chaplain, who, it was believed, could effect a moral improvement of the inmates. This was to counteract the allegedly malign influence of their fellow inmates, which was part of the reason for the isolation and ban on communication. The governmental rationale of both models was that isolation would discipline the prisoner, and provide him with an opportunity to reflect on his misdeed and improve his character. In the Pennsylvania system, this was augmented by edifying conversations with individuals considered to be moral role models (Smith 2003: 86 ff.). In both the Auburn and Pennsylvania models, the starting point for the rehabilitation was, therefore, a spatial technology of power that separated the individual inmates: a technology of power designed to isolate the prisoner and encourage self-technological effects. It was, in short, a government of the prisoner’s self-government.

These models also made their mark in Denmark. A prison commission, set up in 1840 ‘to realise the purpose that imprisonment would not act solely as a deterrent, but would also cater for the moral rehabilitation of the criminal’ (quoted in Smith 2003: 129), discussed whether to implement one of these systems or the other. King Christian VIII opted for both models – two Auburn institutions (prisons) and two slightly modified Pennsylvania institutions (houses of correction) (Smith 2003: 141 ff.). The Vridsløselille house of correction, which opened in 1859, was an example of a practical realisation of the Pennsylvania system’s governmental rationality in Denmark. Given that different prisoners were believed to be in need of different types of rehabilitation, individualising techniques were to be deployed right from the start in order to generate knowledge about each individual inmate. Every prisoner’s personality and development were to be evaluated and recorded. As well as a short biography, the documentation for each prisoner noted their personality and moral constitution, and thus served as the basis for the individual programme (Smith 2003: 188). In this perspective, the spatial technology of power supported the individualisation of the inmate, who was identified and evaluated as a criminal subject with specific rehabilitation needs; and discipline and norms served as, respectively, a technique and a focal point for the rehabilitation, the normalisation.⁴

As mentioned above, the central aim of moral rehabilitation was to put the individual inmate back on the right track. The main source of this guidance was to be the prison chaplain, who should act as an intervening figure and guardian of normality. The chaplain’s duties included holding religious services in the prison, individual counselling and interviews with prisoners. Smith (2003: 249) describes this as the application of religious technologies of the self, where religion served as a conduit for the individual prisoner’s work on their own morals. Contemporary reports by chaplains document this individualising approach, which was prevalent in debates about imprisonment. Pastor William Munck, who served as chaplain at the Christianshavn penal institution from 1869, wrote that the rehabilitation work ‘must be done through conversations in private with the individual, and by achieving in-depth knowledge of each individual’ (1922: 129). The chaplain in Viborg, E.G.A. Hindberg, noted that the pastoral role required chaplains to ‘learn more and more to tailor their care to the various individualities’ (1865: 133).

The promotion of the idea of the house of correction illustrates the tension between the Criminal Code’s focus on general prevention and the individualising techniques prescribed in the actual enforcement of sentences. On the one hand, a general discourse of free will prevailed, while, on the other, the work of the house of correction was supposed to focus on the individual inmate’s moral constitution. Amassing knowledge about the individual concerned allowed their character to be corrected by means of moral-religious education and instruction in work on the self. Even though this entailed fluctuation between what are usually described as general and special preventive considerations, the intersection was in the attempt – via rehabilitative education – to inculcate into the free will the moral strength necessary in a virtuous social order (see also Aude-Hansen 1952a: 60–1; Smith 2003: 138–9). The governmental rationality underpinning this programme can therefore be expressed by the following formula: Those in possession of free will should be governed by regulating the calculation on which they based their choices. Those not in possession of free will should be governed by endowing the exercise of will with a moral habitus.

How might one make sense of these developments in terms of power modalities? As David Garland (1997b: 28–9) has pointed out, in the mid-nineteenth century, the proposals for solving the problem of crime constituted a general governmental endeavour which was, in the final analysis, about regulating the population as effectively as possible. The problem of crime, and solutions to it, were not considered separate or distinct from general governance. That is, criminal behaviour did not require explanatory models that differed from those used to explain other forms of behaviour. On the contrary, criminal law was supposed to operate on the basis of the calculating citizen – the same basis used to govern the market. The ideas of free will and education in the ways of a moral social order were, quite simply, the foundation for general political rule, including how offenders were dealt with.

Challenging the metaphysics of will: the emergence of the criminal individual

The belief in the metaphysics of free will and the attempts to build a penal system around it were dealt significant blows at the end of the nineteenth century. At this time, a number of theoretical developments led to the emergence of what Garland (1997b) refers to as a ‘Lombrosian project’, namely a specifically natural-science view of the problem of crime, which was closely associated with the work of the Italian, Cesare Lombroso. I shall outline the basic features of some of the currents within this project below. Since they largely originated in debates outside Denmark, the Danish situation and the discussions that followed in the wake of the Criminal Code of 1866 will be left aside for the time being. The discussion will revolve around three currents that differed in several respects, but converged in a critique of the idea of free will. These currents, or schools of thought, are the Italian positivist school, started by Lombroso, the primarily French sociological school (Émile Durkheim, Gabriel Tarde) and the German school, associated, in particular, with Franz von Liszt.

Lombroso’s criminal-anthropological programme constituted the most strident challenge to previous understandings of crime.⁵ Inspired by a palette of contemporaneous scientific disciplines, theories and methods – anthropology, phrenology, degeneration theory, Darwinian evolutionary theory, psychology, etc. – he introduced a new perspective on the understanding of criminal behaviour: an anatomically based criminal psychology (Lombroso 1894a: xxiii–xxiv). Based on empirical studies of several thousand criminals, incorporating a wide range of parameters (physiognomy, hair colour, tattoos, handwriting, anatomy, etc.), Lombroso concluded that it was possible to distinguish a number of characteristics specific to criminal individuals. He argued that, in their physiological, psychological and anatomical constitution, these individuals were different from ‘normal’ people. From this, he developed the idea of the ‘criminal type’ or born criminal, the concept that made Lombroso’s name. According to Lombroso, the criminal type, homo delinquens, was characterised by his (or, in the case of criminal women, her) atavism, his (or her) similarity to inferior people. He therefore observed an equivalence between criminals and what he defined as the physical and spiritual properties of wild people, e.g. a hairy forehead, thick, curly hair, big ears, cruelty, recklessness, etc. Lombroso also linked criminal behaviour with epilepsy, moral insanity and degeneration (for a summary, see 1894a: 534 ff.; 1902: 326–7; 2006). All this challenged the idea of free will, which Lombroso discarded as metaphysical speculation (2006: 220). In contrast, he promoted a new subject construction by endowing certain individuals with criminal tendencies, in the light of their physiological, psychological and anatomical characteristics.⁶

Using Garland’s (1997b) distinction, it can be said that the governmental project was founded on a biopolitical regulation, in which individuals – criminal or not – were governed on the basis of their free will (irrespective of whether this could be affected directly or first had to be modulated through moral and religious education) and in which distinctions were not, therefore, made between types of individuals.⁷ In Foucault’s terms, this governmental project assumed that ‘[h]omo penalis, the man who can legally be punished, the man exposed to the law and who can be punished by the law is strictly speaking a homo œconomicus’ (2008: 249, italics in the original). The Lombrosian project, on the other hand, identified an entirely new type of person, one who could be studied in his or her peculiarity, and who was described in a pathological register as a social abnormality.⁸ One central corollary of Lombroso’s project was, therefore, that it introduced disorder into the conceptual logic that had previously formed the basis for work on policy affecting criminals: the triangle the law–the crime–the punishment, which, by not focusing clearly on the relationship between the crime and the criminal, had largely ignored the latter (Pasquino 1991: 237).

It should be noted that Lombroso drew a distinction between different types of criminal, distinguishing (especially with regard to female criminals) between e.g. habitual criminals, occasional criminals and criminals whose misdeeds were crimes of passion (Kurella 1911: 62 ff.). Further, Lombroso did not want to speculate as to the numbers of the different types of habitual criminal. Mapping this would necessarily be an empirical matter: ‘Every day, some new species of criminal, some new type of criminal, is discovered’ (1894b: 138), among whose number he also counted vagabonds and informers.

It should also be noted that, although Lombroso’s own writings – especially his early works – suggested that he was only interested in the criminal’s physiological, psychological and anatomical constitution, these were, in fact, only aspects of his overall programme. Anything that could empirically be shown to cause crime was, in principle, relevant to Lombroso. For example, he gradually incorporated more pronounced spatial explanatory factors, which complemented the otherwise highly prominent subjectification focus. Inspired by Enrico Ferri, whose studies included links between crime and temperature, hi...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Introduction: Foucauldian cues
• 1 The birth of criminology
• 2 For the protection of society
• 3 The rise and fall of the treatment ideal
• 4 Serving the community
• 5 Crime prevention: towards a totalitarian biopolitics
• 6 Empowerment and repression
• Conclusion: the twentieth century and beyond
• Notes
• References
• Index