Article Law, Culture and the Humanities 6(3) 327-340 Beyond the Panopticon: ©TheAuthor(s) 2010 Reprints and permission: sagepub. Mass Imprisonment and the co.uk/journalsPermissions.nav DOI: I0.l 177/1743872110374255 Humanities http://lch.sagepub.com ISAGE Jonathan Simon School of Law, University of California at Berkeley Abstract In the 1970s and the 1980s, the role of the prison in modern society was seared into the imagination of the humanities by Michel Foucault's treatment of the prison in Discipline and Punish: The Birth of the Prison; his genealogy of the modern "soul." At a time when the social sciences had little to say about the nature of imprisonment as a specific historical practice (rather than a problem of social organization), the humanities helped define the prison as a contemporary problem. During this era, ironically, a new model of imprisonment was arising, one based on the mass imprisonment of whole demographic categories of the population rather than the disciplinary investment of the deviant individual. The scale of imprisonment has arisen by more than five fold. Unfortunately the humanities and cultural studies have been slow to reckon with the nature of mass imprisonment.While a new wave of social science scholarship, partially inspired by the earlier work of the humanities, is engaging the topic, the absence of the humanities, especially their critical and normative edge, is significant. Keywords Humanities; cultural studies; mass imprisonment; discipline; panopticism. I. Imagining the Prison The humanities and cultural studies (humanities throughout is intended to include cultural studies) in the United States generally compare rather favorably to the social sciences in making issues of race, class, and gender inequality central to the discussion of contemporary life. One glaring exception to that achievement (which is consider­ able, when one recognizes how conservative a role the humanities have played in most societies), however, is the humanities' relative indifference to that institution perhaps most implicated in the construction of inequality in American society today, mass Corresponding author: Jonathan Simon, School of Law, University of California at Berkeley, 592 Simon Hall, Berkeley, CA 94720. E-mail: [email protected] 328 Law, Culture and the Humanities 6(3) imprisonment. Scholarship in the humanities and cultural studies has largely failed to grapple with the nature of mass imprisonment as that practice has developed in the United States since the 1980s. This stands in contrast to the 1970s and 1980s when, following the publication of Michel Foucault's Discipline and Punish: The Birth of the Prison in 1975 in French and 1977 in English, a wave of humanities scholarship took the prison as a central part of the production of modem subjectivity. 1 Following Foucault's account,2 humanities scholars interrogated the prison in its modem correctional form as a space of disciplinary power in which the criminal, the ultimate traitor to disciplinary societies, was objectified by a penetrating criminological knowledge and subjected to an interiorizing self-examination. At a time when the social sciences in the United States had largely abandoned serious reflection on the practice of imprisonment,3 cultural studies kept the practice of imprison­ ment a central topic in analyzing modem govemmentalities.4 During these very decades, however, the practice of imprisonment in the United States was being transformed. The disciplinary and therapeutic prison of Foucault's genealogy became the focus of intense criticism and within a decade had lost the epis­ temological legitimacy it had enjoyed for more than a century and a less focused, more schizophrenic crime control complex began to arise in its place. 5 The war on crime, launched in the 1960s, began to take hold at the state level in the late 1970s and 1980s, generating and enforcing tough new laws intended to send a wider variety of offenders to prison for longer terms, often with no possibility of early release through parole. 6 Of course, this also catalyzed a new wave of prison construction. California's prison population, which numbered about 20,000 during the height of the prisoners' rights 1. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Pantheon, 1977). 2. The prison already seems to have been pressing on the imagination of the humanities before the publication of Discipline and Punish, see, e.g., Frederic Jameson, The Prison House of Language: A Critical Account of Structuralism and Russian Formalism (Cambridge, MA: MIT Press, 1972). 3. Imprisonment formed a major subject of American sociology from the 1940s through the 1970s. In many respects, however, punishment was a secondary interest even in these studies to questions of community and formal organization. See, Donald Clemmer, Prison Community (Boston, MA: The Christopher Publishing,1940), Gresham Sykes, Society of Captives: A Study of a Maximum Security Prison (Princeton, NJ: Princeton University Press, 1958). Ironically, sociologists began to lose interest in the prison just as mass imprisonment made the experience of incarceration a more central experience for American society. See, Jonathan Simon, "The Society of Captives in the Era of Hyper-Incarceration," Theoretical Criminology 4, No. 3, 285-308 (2000). The great exception to this was John Irwin, see Irwin, Prisons in Turmoil (Boston, MA: Little Brown, 1980). 4. Michel Foucault, "Governmentality," in The Foucault effect: studies in governmentality, G. Burchell, C. Gordon, P. Miller, (eds.) (Chicago: University of Chicago Press, 1991). 5. David Garland, The Culture of Control: Crime and Social Order in Late Modernity (Chicago: University of Chicago Press, 2001 ). 6. Jonathan Simon, Governing through Crime: How the War on Crime Tram.formed American Democracy and Created a Culture ofFear (New York: Oxford University Press, 2007). Simon 329 movement in the early 1970s, reached a peak of about 173,000 in 2006 (now housed in 33 prisons). Compared to the individualized disciplinary focus of the F oucauldian account, the logic that animates contemporary imprisonment, called "mass imprisonment" by David Garland,7 operates very differently in both practice and in discursive imaginary. In contrast to the penitentiary project that Foucault took to be epitomized by the Panopticon, Jeremy Bentham's dream of a frictionless machinery of surveillance and self-improvement, con­ temporary prison now functions more like warehouses, or a waste management system. Disciplinary methods limited to maintaining a population largely kept in forced docility have been outpaced by a more system-oriented focus on command and control, 8 with prison governance and general social organization becoming increasingly more interlocked. If the penitentiary was designed to tum the self inward upon itself, mass imprisonment ignores the self to more directly operate on whole segments of the popula­ tion, especially minorities and the poor, among whom individualization is limited to a crude form of risk assessment. 9 The humanities have largely failed to come to grips with the distinctive features of imprisonment, in this era of mass incarceration, nor its central role in shaping the meaning of social stratifications. This is not to say they have been silent. Philosophers have written extensively on the prison as a vehicle of retribution (an ideology which has itself enjoyed an upsurge in prestige due to the punitiveness of prison sentences ). 10 Historians and scholars of culture have continued to explore the rise of the penitentiary and its global dispersion. 11 Indeed, the death penalty, that other salient feature of American punitive distinctiveness, has received considerable attention by the humanities. 12 Another example is the post-9/11 re-emergence of torture as a major theme in the discussion of punishment, state power, and the peculiar prisons created by the US military in Guantanamo, Abu 7. David Garland (ed.), Mass Imprisonment: Social Causes and Consequences (London: Sage, 2001). 8. Jonathan Simon, "The Ideological Effects of Actuarial Practices," Law & Society Review, 22:771-800 (1988). 9. Malcolm M. Feeley and Jonathan Simon, "The New Penology: Notes on the Emerging Strategy of Corrections and its Implications," Criminology, 30:449-74 (1992); Garland, Mass Imprisonment, supra note 7. 10. On the shift of policy makers and academic experts away from rehabilitative penology see Garland, supra note 5. For examples of the resurgence ofretribution among academic philoso­ phers and legal academics see, Jean Hampton, "Correction Harms versus Righting Wrongs: The Goal of Retribution," UCLA Law Review, 39: 1659; Jeffrie G. Murphy, Retribution Reconsidered: More Essays in the Philosophy ofLaw (Kluwer, 1992); Dan M. Kahan, "Two Liberal Fallacies in the Hate Crimes Debate," Law and Philosophy 20: 175-193, 2001. 11. Ricardo D. Salvatore and Carlos Aguirre, The Birth of the Penitentiary in Latin America: Essays on Criminology, Prison Reform, and Social Control, 1830-1940 (Austin, TX: University of Texas Press, 1996). 12. Jennifer Culbert, Dead Certainty: The Death Penalty and the Problem ofJudgment (Stanford, CA: Stanford University Press, 2007); Austin Sarat, When the State Kills: Capital Punishment and the American Condition (Princeton, NJ: Princeton University Press, 2002); Stuart Banner, The Death Penalty: An American History (Cambridge, MA: Harvard University Press, 2002). 330 Law, Culture and the Humanities