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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 6(3)

Ghraib, and undisclosed locations in Asia and Eastern Europe. Political theorists have explored these phenomena and the conceptions of the subject that drive them. 13 All of these philosophical and historical explorations of punishment are largely continuous with the humanities' earlier treatment of the prison, with its focus on the investment of power in the individual subject and the production of distinctly indi­ vidualized power dynamics and truths. Ironically, the death penalty is the one part of contemporary American society that continues to view itself as a deep inquiry into the criminal as an individual social, psychological, and even biological subject (this is in part the product of 1970s constitutional jurisprudence in such as Gregg v. Georgia, 428 US 153 (1976); Furman v. Georgia, 408 US 238 (1972); see also McClesky v. Kemp, 481 US 279 (1987). Likewise the creation of prisons as part of the war on terror has made the extraction of information from the imprisoned subject a central aspect of the political rationality of detention. Though this is a bit different from the way the penitentiary and its successors surveyed the truth of the penal subject, the focus on the individual prisoner is clear. In short, no longer engaged in investing the individuality of the penal subject with power and truth, the contemporary practice of mass incarceration holds little interest to humanities scholars, many of whom remain enthralled with the genealogy of the modem soul. This literature's lack of focus on mass incarceration is striking and consequential. As both a mode of governance and a penal philosophy, the war on crime and the explo­ sion in prison populations it has driven have been the defining features of American penality during the past few decades and continue to order many aspects of American social and political life. Today, instead, it is the social sciences that have become attentive to the distinctive features of contemporary penality and to mass imprisonment in particular. 14 Ironically (or should one say, dialectically), the rekindling of interests by social scientists in impris­ onment might be said to owe a substantial debt to the humanities and cultural studies scholarship of the 1970s and 1980s. Not only Foucault, but scholars like David Rothman, E.P. Thompson, Stuart Hall, Stephen Schlossman, Thomas Dumm, Peter Spierenberg and Edward Ayers helped reframe the context in which practices of imprisonment were discussed. In the remainder of this article I want to reckon with both the contribution of the human­ ities and cultural studies to the formation of a critical reflection on penality in the 1980s

13. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1998); Giorgio Agamben, State ofException (Chicago: University of Chica­ go Press, 2005); Judith Butler (2004) Precarious Life: The Powers ofMourning and Violence (London, UK: Verso). 14. Jonailian Simon, Poor Discipline: Parole and the Social Control ofthe Underclass, 1890-1990 (Chicago: University of Chicago Press, 1993); Garland, Mass Imprisonment; Bruce Western, Punishment and Inequality in America (New York: Russell Sage Foundation 2006); Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (Cambridge, UK: Cambridge University Press, 2006); Todd Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worst (New York: Oxford University Press, 2007); Loic Wacquant, Urban Outcasts: A Comparative Sociology of Advanced Marginality (London: Polity Press, 2008). Simon 331 and since, and elaborate further on the consequences of the failure of that scholarship to seriously grapple with mass imprisonment.

II. Then: 1970 to 1990 Dates are arbitrary. These roughly describe a period in which an intellectual and political mobilization around the problem of the prisoner coincided, in the United States, with a continuing drop in the prison population. A prisoners' rights movement emerged in the 1960s in both the United States and France. In France, Foucault, along with Jean Genet, Jean-Paul Sartre, and others, formed a support group of intellectuals in support of the prisoners. In the United States, a legal rights movement for prisoners which paralleled the development of a quasi revolutionary struggle inside prisons for control of the broader radical left during Vietnam was epitomized by radical prisoner or ex-convict writers like Malcolm X, Eldridge Cleaver, and George J ackson. 15 Prisoners and intel­ lectuals in both societies condemned the rehabilitative penology that dominated prison regimes as a cover up for racism and brutality, and a source of totalitarian efforts to penetrate the psychological interior of the penal subject. 16 One starting point is the Attica rebellion, in September of 1971, which began with prisoners taking over a yard and seizing guards as hostages in response to growing anger over medical care in the prison, and sparked by the death, a few days earlier, of California prisoner leader, George Jackson. Two days later, in the midst of a negotiating process involving journalists and lawyers, New York governor Nelson Rockefeller authorized the retaking of the prison with an undisciplined mob of correctional officers and state police, many armed with irregular weapons, resulting in the deaths of 39 men, including 10 of the 33 hostages. Coming after decades of rehabilitative penology, the rebellion confirmed for many intellectual observers, that the forms of power expressed by the modem prison were problematic not just in their failures of implementation, but in the very regime of truth they sought to constitute over prisoners, including compulsory psycho-therapy. The ferocity of the riot and the state's violence shocked many among liberal academic and media elites and may have led prison managers to be more con­ cerned about prison conditions, but to the general public, it was confirmation of the necessity to intensify punitive control over prisoners in the United States. The humanities and cultural studies took up the problematic nature of the rehabilitative prison in the 1970s. The "whiggish" tale of the prison and the modem asylum as great triumphs of humane and enlightened social policy began to be challenged by historians and philosophers at a time when most sociologists and criminologists either actively began participating in the experiments of the rehabilitative penal state, or focused on the distinctive features of prisoner society. 17

15. Eric Cummins, The Rise and Fall of California~· Radical Prison Movement (Stanford, CA: Stanford University Press, 1994). 16. Struggle for Justice (Stanford, CA: Stanford University Press, 1971 ). 17. Important exceptions were Erving Goffman, A,ylums: Notes on the Social Situation ofMental Patients and Other Inmates (New York: Anchor, 1961); John Irwin, Prisons in Turmoil; and Sheldon Messinger, Strategies of Control (unpublished Phd Dissertation, UCLA, 1969). 332 Law, Culture and the Humanities 6(3)

David Rothman's The Discovery of the Asylum18 was one of the first to explore the social context around the emergence of specialized institutions of confinement in the United States in the Jacksonian era. Rothman depicted the prison and asylum as responses to the crisis of authority in formerly colonial societies produced by the revolution. Among moral philosophers, the status of rehabilitative imprisonment, and in particular, the indeterminate sentence, which left the actual length of imprisonment dependent on the discretion of a supposedly expert administrative board, came under critical scrutiny. 19 Punishment as the delivery of a justly deserved sanction based on past bad acts was embraced as a rights-based approach to criminal law and an alternative to the potentially totalitarian claims of an administrative security state. The growing use of penal repression in both the US and the UK drew attention from historians like E.P. Thompson and his students at Warwick University who began to explore a historical epoch with striking parallels, the rise of the gentry class and the Whig Party in 17th-century England. 20 As new property "rights" destroyed traditional collective rights, a wave of crimes of popular resistance broke out with masked bands of men hunt­ ing deer in restricted estates, or destroying fishponds. The emerging Whig Party defended this new capitalist rural regime with a wave of penal repression, including the adoption of over 100 new capital crimes in the so-called Black Act of 1723. England in the 1960s had its own cultural panics about delinquency and crime. Stuart Hall and his collaborators produced one of the foundational texts of contemporary cul­ tural studies, Policing the Crisis2 1 as a study of how police and media constructed an ambiguous series of low level crimes into a wave of "muggings" as a major threat to social order. Michel Foucault's genealogy of the penitentiary stands as the most influential and generative contribution from the humanities and cultural studies. 22 Foucault, a philoso­ pher and historian, comes as close as anyone to being an icon for the humanities and cultural studies in the last quarter century. The book offered an extraordinarily provoca­ tive re framing of rehabilitative incarceration in its first fifty pages. Rather than an enlight­ ened and humane alternative to the gruesome rituals of scaffold execution, the penitentiary represented a whole new mode of power, one far more comprehensive and effective in its capacity to produce compliance. The modem penitentiary, with its methods of therapy and medical discourse of treatment, promised to help the individual offender, but only on the condition that it exercise almost totalitarian administrative power. For Foucault, the prison was both the most florid and the most compromised site of an expanding political technology of disciplinary control over the individual body as an

18. David J. Rothman, The Discovery ofthe A,ylum: social order and disorder in the new republic (Boston, MA: Little Brown, 1971). 19. Andrew von Hirsch, Doing Justice: The Choice of Punishment (New York: Hill and Wang, 1976). 20. E.P. Thompson, Whigs and Hunters: Origins of the Black Act (New York: Pantheon, 1975); Albion;, Fatal Tree: Crime and Society in 17th Century England (New York: Pantheon, 1975). 21. Stuart Hall, et al. Policing the Crisis: Mugging, the State and Law and Order (London, UK: Palgrave Macmillan, 1978). 22. Foucault, Discipline and Punish. Simon 333 anatomo-physical entity. These disciplinary techniques were also at the center of the emergence of the industrial factory, the common school, and the mass inscription military, all institutions central to the making of modem societies, as they were still understood at the start of the last third of the 20th century. The prison was far from the most technically advanced of these institutions, but its link to the state's power to punish the subject, left a trace of cruelty, and stigma, and blame. The disciplines, according to Foucault, were methods that allowed a simultaneous expansion of the scale of governance over larger and larger ensembles of forces, and a deeper and deeper penetration into the individuality of the subject. The deep interior subject of romantic and modem sensibilities was, in fact, the by-product of this new regime of punishing. The most revealing schema of disciplinary power, according to Foucault, was Jeremy Bentham's proposal for a private prison he called the Panopticon. The import that Foucault's genealogy of the penitentiary had for the humanities was captured with great precision and force by Leo Bersani in his 1977 review of both Surveiller et Punir: Naissance de la Prison and, Vol. 1 of Histoire de la Sexualite La Volant de Savoir, as well as a third volume by another author on prisons and romantic literature.

Prisons provide a gaudy display of a society's disciplinary intentions; in a sense, they merely bring a supplementary degree of intensity to the "normalizing power" at work elsewhere in society.23

The prison is then a pathway to discerning the crucial elements of a disciplinary archi­ pelago that runs through contemporary society, and one rather problematic in its dis­ tinctive features. The disciplinary technology revealed in these practices leads to what is really valuable to the humanities and cultural studies, a history of the preconditions for the formation of a modem soul, or self.

But his map of the awesomely neat coordinations between the exercise of power and the production of knowledge includes effects which neither of those abstractly active verb-nouns pouvoir and savoir can perhaps wholly account for. The sustained impersonality of his work turns the analytic light on the confession-producing mechanisms rather than on the psychic content-the delectably troubled desires of an individual soul-which those mechanisms pursue. 24

It is primarily (but not exclusively) through Foucault that we find the prison a central image and analytic scheme for the humanities from the late 1970s on. Paul Bove's 1980 article on Kierkegaard's then recently translated letters and the complete text of his book, Two Ages, draws on both the metaphor of the penitentiary and Foucault's account of Panopticism in describing Kierkegaard's analysis of the objectivizing gaze of contempo­ rary society.

23. Leo Bersani, "Review: The Subject of Power," Diacritics, Vol. 7, No. 3 (Autumn, 1977), pp. 2-21, 2. 24. Bersani, Subject ofPower, p. 5. 334 Law, Culture and the Humanities 6(3)

Kierkegaard identifies the social equivalent of the panopticon's internalization of regulation and authority as the means by which his reflective age extends itself.... This fact is evident not only from Kierkegaard's adoption of the penitentiary as a metaphor to describe the entrapment of even the individual who hopes to rebel against the forces of alienation and oppression, but by his recourse to visual metaphors in his discussion of how society can regulate itself and homogenize its misfits.25

Examples abound as the penitentiary, mostly as metaphor or schema, worked its way through the imagination scholars in the humanities and cultural studies. Donald Preziosi noted the resemblance between the Panopticon and the position of art history criticism. 26 D.A. Thomas analyzed the persistent trope of homosexuals as men with female souls trapped within them, in 19th-century "sensation" novels as constructing an essentially carceral narrative of homosexuality.

For if what essentially characterizes male homosexuality in this way of putting it is the woman­ in-the-man, and if this "woman" is inclusa, incarcerated or shut up, her freedoms abridged accordingly, then homosexuality would be by its very nature homo-phobic: imprisoned in a carceral problematic that does little more than channel into the homosexual's "ontology" the social and legal sanctions that might otherwise be imposed on him. Meant to win a certain intermediate space for homosexuals, Ulrich's formulation in fact ultimately colludes with the prison or closet drama-of keeping the "woman" well put away-that it would relegate to the unenlightened past.

While in most of these references, the prison serves as little more than an evocative example of the technologies of the self in modern societies and some work also attended to the prison as an ongoing site of social interaction. Writing in the Theatre Journal in 1983, Timothy Murray saw a patriarchal Panopticism as the underlying target of "Getting Out," a play about a contemporary women's prison. 27 By then references to the Panopticon were legion, but would the play, and its content regarding the highly sexual­ ized domination of female prisoners by guards have ever been written about for the "theory" audience of an academic theater journal if not for what Bersani aptly called Foucault's "dazzling display of controlled power" in his studies of the prison and sexuality. 28 Other work pursued the history of the prison and its relationship to the American state, building on Foucault's analysis of the prison as a disciplinary institution, but extending its power by focusing it on historically specific and systematically studied

25. Paul Bove, "The Penitentiary of Reflection: S0ren Kierkegaard and Critical Activity," boundary 2, Vol. 9, No. 1, A Supplement on Irony (Autumn, 1980), pp. 233-58, 254. 26. Donald Preziosi, "That Obscure Object of Desire: The Art of Art History," boundary 2, Vol. 13, No. 2/3, On Humanism and the University II: The Institutions of Humanism (Winter-Spring, 1985),pp. l-41, 15. 27. Timothy Murray, "Patriarchal Panopticism, or the Seduction of a Bad Joke: 'Getting out' in Theory", Theatre Journal, Vol. 35, No. 3, The Poetics of Theatre (Oct., 1983), pp. 376-88. 28. Bersani, Subject ofPower. Simon 335 examples. Thomas L. Dumm's book, Democracy and Punishment: The Disciplinary Origins of the United States, is among the strongest examples. 29 Dumm studied two quite real and distinct regimes in the US, Pennsylvania's separate system of labor in silence and total isolation, and New York's congregate system of group labor in silence followed by isolation. While strikingly similar in some regards, Dumm suggests that the more imitated congregate model was a far more disciplinary model aimed at produc­ ing useful and docile ensembles of men, while the separate system retained a commit­ ment to the individual as a sovereign and self governing body. Dumm 's analysis showed how the historic victory of a liberal capitalism over a more republican and agrarian kind of polity owed to disciplinary technologies like the congregate model. Other important historical work on the prison emerged from sources independent of and by the 1980s in some critical dialog with Foucault's.30 Most of the audience for this work in the humanities and cultural studies found the prison at best a helpful model for thinking about the forms of power and subjectivity with which their disciplines were becoming more engaged. However, an unexplored role of this literature was in helping to rejuvenate the sociology of punishment. The sociology of the prison had flourished in the United States (and in Europe as well) during the 1950s and 1960s. Ironically, most of this sociology had little to say about the distinctive qualities of the disciplinary prison. Instead, it was largely preoccupied with the larger theoretical questions of organizational sociology. Does the organization (here the prison) produce the culture of personal behavior and beliefs one finds among prisons, or is it a product of the external environments that shaped them before they entered, was the primary focus ofresearch.31 The access of sociology to prisons was itself a function of the peno-correctional establishment and its need for social science research as part of its regulation of the prison (a Foucauldian power/knowledge story). By the 1980s that was ending32 and the problem of prisons was disappearing in social science behind a new category of research on sentencing and governmental discourses focused on punishment and deterrence that could be given epistemological heft through economics rather than empirical research. When the sociology of punishment began to

29. Thomas L. Dumm, Democracy and Punishment: The Disciplinary Origins of the United States (Madison: University of Wisconsin Press, 1991). 30. David J. Rothman, Conscience and Conveniene: The A,ylum and its Alternatives in Progressive America (Boston, MA: Little Brown, & Co., 1980), Pieter Spierenberg, et al., The Prison Experience: Disciplinary Institutions and their Inmates in Early Modern Europe (New Brunswick, NJ: Rutgers University Press, 1991). 31. There were some exceptions. One was John Irwin, whose study, The Prison in Turmoil, was the most important book after Foucault's to show how much the correctionalist prison whose genealogy so interested Foucault, was now being replaced by a different kind of prison al­ together. Another was Stanley Cohen, whose book, Visions ofSocial Control (London: Polity, 1985), began to understand forms of penal surveillance beyond the panopticon. 32. When I was doing my dissertation research in 1987 I got access to parole in California (and through that to some prison-based parole hearings) through my adviser, Sheldon Messinger, a sociologist of that golden era, and his contacts in the parole division which is where the remnants of that earlier establishment with ties to academia remained. 336 Law, Culture and the Humanities 6(3) re-emerge with David Garland's 1990 book, Punishment and Modern Societ/3the influence of the humanities is clear. It was Foucault, Michael Ignatieff, E.P. Thompson, Douglas Hay, Pieter Spierenberg, and other historians that are integral ( along with social theory) rather than American sociology that is central. 34 By the end of that decade, this humanities-infused sociology of punishment was discovering the emergence of a new kind of prison, one that operated more like a warehouse or a waste management35 facility than a hospital, and new practice mass imprisonment.

Ill. Now: 1990 to the Present Today, there is a vital and increasingly empirical sociology of punishment that is con­ cerned with the transformation of the peno-correctional prison into the greatly extended system of mass incarceration.36 Although this literature is indebted to work in the human­ ities, there is an absence of current engagement between the two fields today, one that raises a question of intellectual history, but also one that gives reason for concern. Here is the irony. When the humanities and cultural studies found the prison a really important mirror for society, during the 1970s and 1980s, incarceration was first shrink­ ing, and then its renewed growth remained largely invisible for a long time. In 1977, Leo Bersani 's insightful review of Surveiller et punir begins with the now startling sentence, "The era of prisons may be nearly over."37 It was an opinion that many sociologists would have agreed with. 38 Yet by the end of the next decade, it would become abun­ dantly clear that America was in the midst of a radical expansion and transformation of its use of imprisonment; one with large and ominous consequences for all the forms of inequality with which the humanities and cultural studies have been normatively much concerned. Yet the passage to mass imprisonment has been largely ignored. There are important exceptions to this, including Alex Lichtenstein's study of the convict lease system in Georgia between the Civil War and the progressive era. 39 Marxist rather than Foucauldian, and concerned with an overtly racialized penal system that made little pretense of rehabilitation, Lichtenstein's study of convict lease may have primed him to respond to the coming of mass incarceration. Another important exception is the work of Wahneema Lubiano on ideology, gender and race formation in

33. D.A. Thomas, "Cage aux folles: Sensation and Gender in Willie Collins's The Woman in White," Representations, No. 14, The Making of the Modern Body: Sexuality and Society in the Nineteenth Century (Spring, 1986), pp. 107-136. 34. In my own 1993 study of parole and prisons, the influence of Foucault, Dumm, Thompson and others is profound. Simon, Poor Discipline, p. 17. 35. Simon, Poor Discipline, p. 260. 36. Garland, The Culture of Control; Western, Punishment and Inequality in America; Clear, Imprisoning Communities; Gottschalk, The Prison and the Gallows. 37. Bersani, Subject ofPower, p. 1. 38. Andrew Scull, Decarceration: Community Treatment and the Deviant, a Radical View (Upper Saddle River, NJ: Prentice Hall, 1977). 39. See, Alex Lichtenstein, Twice the Work of Free Labor: The Political Economy of Convict Labor in the New South (London: Verso, 1995). See, Alex Lichtenstein, "The private and the public in penal history", in Garland, Mass Incarceration. This article is one of the few by historians to have taken up the problem of mass imprisonment. Simon 337 contemporary literature.40 Perhaps the most telling exception of all is a special "theories and methodologies" section of the newsletter of the Modem Language Association, PMLA, devoted to "Incarceration and Social Justice."41 The section which contains pro­ vocative and insightful essays by a range of veteran and recent humanities scholars addresses mass imprisonment in its distinctive features in a tone that reflects the sense of breaking a long silence. 42 This is not because of the absence of work in the humanities and cultural studies on the panoptic prison. When I searched a selection of humanities and cultural studies­ related journals on the JSTOR digital library, from 1970 to 1990 for articles and book reviews with the terms, prison or penitentiary, and, disciplinary or panoptic, I turned up over 700 separate hits. I expected it would fall off of that impressive total in the next twenty years. But in the shorter time period of 1991 through the most current information (JSTOR is at least two years behind current releases), the same search terms generated over 1700 hits. It is also not because of the lesser quality of scholarship of this geme. Some of the most important and revealing studies of the panoptic prison, like Michael Meranze's study of the Eastern State Prison in Philadelphia,43 and Charles Bright's study of Jackson prison appear in this period. 44 Indeed, some of the strongest most influential work in the humanities and cultural studies continues to be very concerned with questions of punishment, surveillance, and detention. The study of capital punishment, historically45 and in terms of political theory,46 has flourished and has explored the distinctive features of America's modem capital punishment system. The Bush administration's creation of a system of extra­ territorial prisons in which torture and detention without trial have been constitutive parts of the regime, has received powerful treatment by influential critical social and political theorists. Indeed, Agamben's remarkable study, Homo Sacer: Sovereign Power and Bare Life seemed to almost anticipate the war on terror. 47

40. See, "Black Ladies, Welfare Queens, and State Minstrels: Ideological War by Narrative Means," in Race-ing Justice, En-Gendering Power, edited by Toni Morrison, 323-63 (1992); "Black Nationalism and Black Common Sense: Policing Ourselves and Others," in The House that Race Built, ed. Wahneema Lubiano, 232-52 (1997). 41. PMLA, Vol. 123, No. 3, May 2008, 632-702. 42. See, e.g., H. Bruce Franklin, Can the Penitentiary Teach the Academy How to Read? 634; Avery F. Gordon, Methodologies of Imprisonment, 651; Jody Lewyn, Academics Belong in Prison: On Creating a University at San Quentin, 689; 43. Michael Meranze, Laboratories of Virtue: Punishment, Revolution, and Authority in Phila­ delphia (Chapel Hill, NC: University of North Carolina Press, 1996), pp. 1760-1835. 44. Charles Bright, The Powers that Punish: Prison and Politics in the Era ofthe Big House (Ann Arbor, MI: University of Michigan Press, 1996). 45. Stuart Banner, The Death Penalty: An American Story (Cambridge, MA: Harvard University Press, 2002; Randall McGowen, "Civilizing Punshment: The End of Public Execution in England," Journal of British Studies 33: (1994) p. 257. 46. Sarat, When the State Kills; Banner, The Death Penalty; Culbert, Dead Certainty; Kauffman­ Osborne, From the Noose to the Needle: Capital Punishment and the Late Liberal State (Ann Arbor: University of Michigan Press, 2002). 47. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press). 338 Law, Culture and the Humanities 6(3)

Unfortunately this discourse has thus far failed to discern any link with America's mass incarceration regime in part because of its failure to observe the post-Panoptic career of the prison.48 For example, Agamben insists at the outset of his analysis on the difference between the camp and the prison and the distinctive relationship of the former to the state of exception.

The camp-and not the prison-is the space that corresponds to this originary structure of the nomos. This is shown, among other things, by the fact that while prison law only constitutes a particular sphere of penal law and is not outside the normal order, the juridical constellation that guides the camp is ... martial law and the state of siege.49

In a brilliant analysis of what she calls "the new war prison" (the Bush administration's prisons in Iraq, Guantanamo, and Afghanistan), Judith Butler recognizes their centrality to the distinctive forms of contemporary government:

The prison presents the managerial tactics of governmentality in an extreme mode. And whereas we expect the prison to be tied to law-to trial, to punishment, to the rights of prisoners-we see presently an effort to produce a secondary judicial system and a sphere of non-legal detention that effectively produces the prison itself as an extra-legal sphere. 50

Yet Butler emphasizes the differences with the prison, the absence oflegality, rather than the commonalities, e.g., the commitment to community security through mass incapaci­ tation of dangerous subjects.

Slavoj Zizek reads Abu Ghraib as a window into American society that requires Americans to acknowledge an underlying barbarism to their civilization. Bush was thus wrong: what we are getting when we see the photos of the humiliated Iraqi prisoners on our screens and front pages is precisely a very direct insight into American values, into the very core of the obscene enjoyment that sustains the US way oflife.51

48. An important exception is Joshua Comaroff's article, "Terror and Territory: Guantanamo and the Space of Contradiction," Public Culture, 19: (2007), pp. 381-405. Comaroff criticizes those who saw in Abu Ghraib a playing out of Agamben's state of exception without noticing that "the famous torture techniques were imported, at least in part, from the American prison system," at 385. However, Comaroff himself never really reflects on the logic of domestic imprisonment that foments techniques of torture. Concluding that Guantanamo operates pri­ marily ideologically to constitute a geographically coherent enemy, "to create a territorial trap for a mobile enemy," at 400, Comaroff ignores the link to domestic mass imprisonment in which the previous logic of incarcerating and transforming dangerous individuals is replaced by the promise to incapacitate whole segments of a criminally dangerous class. 49. Agamben, Homo Sacer, p. 20. 50. Judith Butler, Precarious Life: The Powers ofMourning and Violence (London: Verso, 2004), p. 70. 51. Slavoj Zizek, Violence: Six Sideways Reflections (New York: Picador, 2008), p. 176. Simon 339

But a link to the more than two million Americans that find themselves incarcerated in prisons and jails is not part of this insight. Ironically much of the powerful critique that political theorists have developed against the practices of war on terror applies as well to the vast system of mass imprisonment in the United States. It is a system of legality only in the most formal sense. A great deal of the criminal procedure decisions of the past several decades have weakened the panoply of constitutional rights against which many of the critics of the war on terror imagine they are comparing the enemy combatant procedures. More important, aggres­ sive expansion of new crimes that penalize the status of being a high risk subject, and which allow administrative imprisonment, like parole revocation and immigration detention, have eliminated the traditional requirement of a substantial bad act.

IV. Conclusion There is a lag in the way the humanities and cultural studies today imagine the practices ofimprisonment.52 Ironically, it may be a function of the rhetorical power of Foucault's account of the panoptic prison. Those of us who have tried to describe mass imprison­ ment have not succeeded in bringing the same level of analytic power to begin to shape theory development in the humanities and cultural studies. It may also be that the very nature of mass imprisonment, with its reduction of the subject to a thin risk calculus, annihilates the self that remains the primary interest of the humanities. But if so, this crisis of the self facing millions of our citizens, especially the poor, minorities, and the young (whereas Foucault had noted that disciplinary practices actually invested those at the bottom of power hierarchies with individuality, history, a deep interior truth), one that calls out for response by the humanities and cultural studies. No doubt there are important insights to be gleaned from continuing to explore the penitentiary project in all its historic and global variations, but in clinging to the Foucauldian moment of Panoptic incarceration, cultural studies runs two risks. First, in so far as this scholarship fails to grapple with the disappearance of the disciplinary project in the correctional system generally and in domestic (not just terrorist) prisons, its basic account of the contemporary subject may be open to question (fealty to Foucault's methodology requires abandoning his genealogy of the disciplinary prison as not particularly relevant to understanding our own warehouse variant). Second, and of bigger concern here, in their contemporary role as the repository of critical theory and the parrehesiastic tradition in western philosophy, the humanities and cultural studies have a distinctive role to play in calling the prison to account with our contemporary values that stands in clear contrast to predominant tendency in American criminology.53

52. This may be beginning to change. A recent issue of the Boston Review was devoted to mass imprisonment including an article by sociologist Bruce Western, and a review essay by Robert Perkinson of several recent books on mass imprisonment. See Bruce Western, "Reentry: Reversing Mass Imprisonment," Boston Review, July-August 2008, and Robert Perkinson, "Guarded Hope: Lessons from the History of the Prison Boom," Boston Review, July-August, 2008. 53. Michel Foucault, Fearless Speech (Semiotexte, 2001 ); Jonathan Simon, "Parrhesiastic 340 Law, Culture and the Humanities 6(3)

While scholars from the humanities and cultural studies have helped defined American capital punishment and the post-9/11 detention centers set up outside the United States to interrogate and control terrorism suspects as dangerous aberrations from American val­ ues there is no comparable indictment of mass imprisonment. Indeed, one fears that it is possible to read the condemnation ofAbu Ghraib and Guantanamo as an implicit endorse­ ment of mass imprisonment which has been largely carried out under constitutional requirements.

Acknowledgements

The author is grateful to Jack Bouboushian (Berkeley Law class of 2011) and Omari French (Berkeley Law class of 2011) for research assistance and to an anonymous reviewer for helpful suggestions.

Accountability: Investigatory Commissions and Executive Power in an Age of Terror," Yale Law Journal, 114: (2005), pp. 1419-57.