Modes Of Punishment Research Articles

On prison systems

In The Idea of Prison Abolition, Tommie Shelby evaluates arguments for and against the elimination of incarceration as a mode of punishment. In this article, we discuss and expand upon Shelby's arguments, using two very different systems—those of Norway and the United States—as examples to illustrate some general principles.

NOTE: The Development of Modern Criminal Justice Processes and Institutions in Ethiopia (1907-1974): An Overview

This note briefly discusses the institutional and process developments in Ethiopia’s modern criminal justice. There is a close relationship between political administration and justice administration considering the issue of judicial independence in a historical context. The year 1907 is taken as a starting point in the development of criminal norms and institutions because the Ministry of Justice was established and Afe Negus Nesibu was appointed Minster of Justice. The institutional and normative developments in this period were merely reactive to problems. Twelve judges were appointed to help the Minster of Justice who was entrusted to see all the cases by himself. Procedural rules were introduced as schedules in order to manage the inflow of cases. The enactment of the 1930 Penal Code helped judges determine sentences rather than sending convicts to the governor for sentencing. Regulation of appeal and preliminary processes such as providing a copy of judgement were introduced. The second phase in Ethiopia’s modern criminal justice system started from 1941 onward because this year is a landmark for the establishment of modern legislation and modern criminal justice institutions. The police were established as an investigation institution that executes orders given by the court. Prison was established signaling imprisonment as a mode of punishment. The prosecution institution was established under the Ministry of Justice. Thereafter, several substantive and procedural rules have been adopted governing the initiation of cases, summons, evidence, judgement and appeal. The last institution established during this period was the judicial organ.

“The Dregs of the Mau Mau Barrel”: Permanent Exile and the Remaking of Late Colonial Kenya, 1954–61

Abstract This article seeks to illustrate the emergence and significance of permanent exile in the latter years of British rule in Kenya. Drawing on concepts of the “state of exception” in the imperial context, the analysis places Kenyan policy into a longer history of penal practice. Exile as a mode of punishment was a permanent fixture in the repertoire of the British Empire as a method of controlling rebellious subjects. In Kenya, it was a tool to ostracize “troublemakers” from their home community, stabilizing the body politic in fractious moments. However, during the State of Emergency declared against the anti-colonial Mau Mau movement, the legal and spatial production of spaces of exception, settlements in the far-flung corners of the colony, reached its apotheosis. Drawing on long histories of colonial banishment, and specific legal precedents shrouded in liberal language, administrators hoped to make Kenya safe for a loyalist ascendancy by excising the “irreconcilables.” Critically, permanent exile was deemed necessary for a section of the population “infected” with Mau Mau ideology. In large exile settlements, rebellious subjects were expected to be remade into pacified workers. Colonial correspondence, as well as the petitions of the displaced, reveal the production of exile during these years as well as its misdiagnosis of the various imaginations of the exiled. “Settlers,” at exile camps like Hola, retained an autonomous vision of “land and freedom,” refusing their forced migration, and eventually precipitating the collapse of the scheme.

Penal accountancy and the Spanish Inquisition

In this paper, we examine how accounting and financial conditions mediated public policy processes of prosecution, punishment, and imprisonment in the Spanish Inquisition during the late 16th and early 17th Centuries. Foucault’s (1979) notion of penal accountancy addresses the extent to which punishment is proportionate to the offence; drawing on this notion, the paper asks two research questions. First, what form of penal accountancy was implicated in determining the punishments of offenders? Second, to what extent was penal accountancy malleable to the financial conditions of the Spanish Inquisition? We examine original archives and extant literature on the Spanish Inquisition and draw on the work of Foucault (1979, 1980, 2002) to address these questions. We show that the Spanish Inquisition operated with two modes of punishment; one similar to that of the Ancien Régime where punishment was public execution as sovereign revenge, and a differentiated system of illegality with a penal accountancy that graded punishment according to the severity of the offence. Our findings suggest that the financial and social status of individuals impacted inquisitorial decisions about prosecution, sentencing and imprisonment. Furthermore, we argue that during periods of resource availability sentencing offenders was dominated by religious/political concerns, if at the margin moderated to reflect the offenders’ social conditions. However, sentencing became malleable to shortages in finance whereby penal accountancy worked out equivalences between reduced or commuted sentences in return for money or reduction in prison costs.

Punishment, Proportionality, and Aggregation

Criminal theorists struggle to account for the “totality principle”—the idea that no matter how many small crimes you commit, your punishment should not exceed that for a more serious offense. Andrew Ashworth, for instance, argues that “overall proportionality” should be preserved but that this is a “pragmatic” solution. This paper argues that a retributivist can accept overall proportionality without abandoning her retributivism. I offer two lines of defense. The first is to show that the unit that we are aggregating may be more complex than first appears. The second relies on insights from the headaches versus lives literature, and how we should rescue one person dying before preventing one million people from headaches. The harms that we impose on others, and the harms that defendants suffer because of punishment, do not exist on one single scale. Hence, the true problem, I maintain, is not how culpability functions, but how our particular mode of punishment does. When we only have one primary mechanism to punish (particularly once we start aggregating)—put people in prison—then aggregating offenses appears as though it must quickly lead to numerous acts of littering being punished more than arson. With a more nuanced punitive response, we can punish minor offenses every time without surpassing the kinds of punishment we impose on more significant offenses.

Osmanlı Devleti’nde Manastırbend Cezasının Tatbikinde Surp Nişan Ve Anna Manastırları Örnekleri

The Christian rayah, who peacefully lived together with Muslim subjects in the Ottoman Empire for centuries, were organized within a structure called the Ottoman Millet (Nation) system managed by the patriarchs. Non-Muslim subjects of the Ottoman Empire had to follow their own spiritual leaders and obey the rules of their own millet in many legal areas including marriage, divorce, alimony, custody, wills, deceased estates, powers of attorney, and the establishment of foundations in non-Muslim subjects in the Ottoman Empire. The patriarchs, the highest ranking religious leaders among the clergy, could punish those from their own millet if they perpetrated a crime, however, the punishment could only be administered after approval by the padishah. Monastic confinement was one mode of punishment. This penalty was a kind of banishment and would sometimes include imprisonment in a tower. Built in Sivas in the 11th Century, the Monastery of Sourb Nshan was an important religious building which played host to the Sivas archbishopric of the Armenian Patriarch for hundreds of years. The Armenian Patriarch used this central building, along with the Anna Monastery of Tokat, for the monastic confinement of offenders from among the clergy. Based on documentary evidence, this study focuses on these two monasteries to shed light on monastic confinement, which was a kind of religious banishment in the Ottoman’s outer “tasra” regions, and attempts to explore the religious and social diversity witnessed in the Sivas Eyalet which was home to a significant Armenian population in the 19th Century. Keywords: Ottoman Empire, Non-Muslims, Monastic Confinement, Sourb Nshan Monastery of Sivas, Anna Monastery of Tokat.

Respect, Punishment and Mandatory Neurointerventions

The view that acting morally is ultimately a question of treating others with respect has had a profound influence on moral and legal philosophy. Not surprisingly, then, some scholars forcefully argue that the modes of punishment that the states mete out to offenders should not be disrespectful, and, furthermore, it has been argued that obliging offenders to receive neurological treatment is incompatible with showing them their due respect. In this paper, I examine three contemporary accounts of what showing respect for offenders in our sentencing practices would amount to: that it involves not interfering with offenders’ capacities for rationality and autonomy, that it should not undermine offenders’ prospect of reform, and that it amounts to treating offenders as if opaque. I then critically discuss whether any of these accounts plausibly imply that mandating neurointerventions to some offenders is necessarily morally wrong. I argue that they do not.

The Life of Benjamin Rush Reflects Troubled Age in U.S. Medical History

The Life of Benjamin Rush Reflects Troubled Age in U.S. Medical History

How to Prevent School Shootings and Other Mass Homicides

Mass homicides, of which school shootings are a species, are all too common. What makes them philosophically interesting is that the usual punishments for such crimes are ineffective. How does one deter a person who is intent on killing himself or herself upon completion of the massacre? After clarifying the concepts of prevention, deterrence, and punishment, I describe various modes of punishment. If we are serious about preventing mass homicides, we must not rule out any mode of punishment a priori. I suggest several punishments, such as torture and imprisonment with hard labor, that may deter prospective mass murderers. The aim is to find a punishment that the prospective mass murderer fears more than death. I also recommend the inculcation of theism (understood as belief in a retributive god) as a means of deterring mass homicides.

The Hidden Punitiveness of Fines

The fine is the most common penalty imposed by courts of summary jurisdiction in Australia, and fines imposed by way of penalty notice or infringement notice are a multiple of those imposed by the courts. The latter are being used for an increasing range of offences. This progressive ‘monetization of justice’ (O’Malley) and its effects have passed largely unnoticed. The enforcement of fines has, in most parts of Australia, been passed from the justice system to government revenue agencies with barely any public scrutiny or academic analysis. Sentencing councils, law reform commissions and audit and ombudsman offices have completed inquiries on fines, some of them wide-ranging and highly critical of existing arrangements. Yet, these inquiries arouse little public or media interest and, partly in consequence, there has been little political will to tackle fundamental problems as distinct from tinkering at the margins. After surveying the theoretical literature on the role of the fine, this paper considers the neglected question of fines enforcement. We present three case studies from different Australian jurisdictions to highlight issues associated with different models of enforcement. We show that fines enforcement produces very real, but often hidden, hardships for the most vulnerable. Despite its familiarity and apparent simplicity and transparency, the fine is a mode of punishment that hides complex penal and social realities and effects.
 

The Hidden Punitiveness of Fines

The fine is the most common penalty imposed by courts of summary jurisdiction in Australia, and fines imposed by way of penalty notice or infringement notice are a multiple of those imposed by the courts. The latter are being used for an increasing range of offences. This progressive ‘monetization of justice’ (O’Malley) and its effects have passed largely unnoticed. The enforcement of fines has, in most parts of Australia, been passed from the justice system to government revenue agencies with barely any public scrutiny or academic analysis. Sentencing councils, law reform commissions and audit and ombudsman offices have completed inquiries on fines, some of them wide-ranging and highly critical of existing arrangements. Yet, these inquiries arouse little public or media interest and, partly in consequence, there has been little political will to tackle fundamental problems as distinct from tinkering at the margins. After surveying the theoretical literature on the role of the fine, this paper considers the neglected question of fines enforcement. We present three case studies from different Australian jurisdictions to highlight issues associated with different models of enforcement. We show that fines enforcement produces very real, but often hidden, hardships for the most vulnerable. Despite its familiarity and apparent simplicity and transparency, the fine is a mode of punishment that hides complex penal and social realities and effects.
 

Edgar Allan Poe's Tarred and Feathered Bodies: Imagining Race, Questioning Bondage, and Marking Humanity

Edgar Allan Poe's Tarred and Feathered Bodies:Imagining Race, Questioning Bondage, and Marking Humanity Marina Trninic (bio) "The keepers, … having been suddenly overpowered, were first well tarred, then—carefully feathered, and then shut up in underground cells."—Edgar Allan Poe, "The System of Doctor Tarr and Professor Fether" Tarring and feathering, on American soil, was a mode of punishment and a trope of literature since pre-Revolutionary agitations. The late 1830's and 1840's saw the most concentrated resurgence of tarring and feathering since that time, making the practice part of a larger process of discursive and visual racializing that underlies the historical formation of U.S. citizenship as white. Dramatizations of the ritual in antebellum literature reveal the deep political and psychological anxieties about the use of violent social coercion to establish the always shifting class and racial boundaries of U.S. nationalism. Acutely aware of both longstanding literary conventions and emerging discourses in print culture, Edgar Allan Poe incorporated the ritual into two tales of social inversion: "The System of Tarr and Fether and Professor Fether" (1845) and "Hop-Frog; Or Eight Chained, Ourang-Outangs" (1849).1 With Poe's tales, the notion of race is embedded in tar and feathers and gains a psychological connection to violent slave uprisings. The image of the tarred and feathered body as ape, for Poe, is the embodiment of white terror associated with the chaos of rioting and insurrection. Seemingly separate arenas which culturally produced the ideas of blackness in the nineteenth century—including emerging racist pseudosciences, theories of insanity, performances of blackface minstrelsy, and preoccupations with cultivating good taste—merged in Poe's fiction not only to appeal to his audiences, but also to reveal that tarring and feathering signifies a crisis in citizenship, one that always asks, "what is human?" [End Page 26] I. Tarring and Feathering: Pre-Revolutionary Prologue On the eve of the American Revolution, colonists brought out feathers and tar buckets to publicly darken, defile, and animalize the bodies of boycott violators, loyalists, and low-ranking British officials. Although the peculiar practice was an adaptation of a longstanding maritime punishment, the Sons of Liberty first appropriated it on American soil to intimidate customs agents and to discipline traitorous townsmen as a means of resisting the series of revenue acts imposed by the Crown.2 As historian Gary Nash indicates, "Anyone involved in ferreting out violators, fastening on them the opprobrium of the community, and coercing them to mend their ways could think of himself or herself as a civic actor."3 Continuing a decade after 1766, tarring and feathering facilitated colonists in processing their conflicted sense of citizenship. Individual participants took part for a variety of motives, of course, but the consolidation of these motivations into the act of tarring and feathering nevertheless produced a relatively coherent public statement. Through this violent ritual, colonists disavowed their British identities and affirmed their patriotism and allegiance to each other.4 However unifying, the practice's inherent contradiction—arguing on behalf of liberty while taking it away—was problematic for some colonists and many British alike. The specific meaning-making of tarring and feathering varied according to localized enactments; the practice was multifarious and highly adaptable to the moment, and merged with other forms of public shaming or misrule rituals.5 Participants' senses irrevocably involved them in the ritual; they ran, shouted, banged pots and pans, gestured with their faces and arms, and smelled the tar in the air. As such the ritual served a cultural and visceral function by manifesting public sentiment collectively, moving the abstract to the material and highlighting a supposed corruption of the private interior on the public exterior of the body. More humiliating and injurious than deadly, the violence of tarring and feathering rarely escalated into an outright summary execution. The continuities of tarring and feathering can be understood via Mary Douglas' ideas in her now classic Purity and Danger, in which she explains that public rituals "work upon the body politic through the symbolic medium of the physical body."6 The materials used, tar and feathers, were "matter out of place,"7 and therefore...

A More Marxist Foucault?

This article analyses Foucault’s 1972–3 lecture course,La société punitive. While the course can certainly be seen as an initial draft of themes for the 1975 bookSurveiller et punir (Discipline and Punish), there are some important differences. The reading here focuses on different modes of punishment; the civil war and the social enemy; the comparison of England and France; and political economy. It closes with some analysis of the emerging clarity in Foucault’s work around power and genealogy. This is a course where Foucault makes use of Marxist language and categories, engages with historical materialism, and offers a complementary and at times corrective focus.

Is Death Penalty About to Die… - Indian Perspective

Death penalty has been a mode of punishment since time immemorial. The arguments for and against have not changed much over the years. Crime as well as the mode of punishment correlates to the culture and form of civilization from which they emerge. With the march of civilization, the modes of death punishment have witnessed significant humanized changes. However, in India not much has been debated on the issue of mode of execution of death sentence.

'Smart on Crime': How a Shift in Political Attention is Changing Penal Policy in America

After decades of witnessing increasingly punitive sanctions to combat crime, U.S. penal policy has begun to reverse itself in the 2000s. Policy is trending toward “softer” alternatives that reduce criminal penalties, invest in human capital, and rely less on the prison as the primary mode of punishment. I ask how this unlikely set penal of policy reversals has managed to reach the governing agenda and become successfully adopted when policymakers for the most of the previous decades had rejected softer reform alternatives because of a pervasive fear of being labeled soft on crime. Guided by theories of agenda setting this research develops a politically-centered explanation, placing emphasis on the emergence of what I call the “smart on crime” frame of American penology and policymaking. As discussed, smart on crime involves a shift in collective attention within two major dimensions of the crime issue. It moves the debate away from an emotionally-based understanding of crime that views punitiveness and the prison as essential crime fighting instruments, to a new understanding that emphasize the failings of the carceral boom on one hand, and on the other hand, the efficacy and moral justness of softer data-driven prison alternatives.

The Painful Question: The Fate of Judicial Torture in Early Modern Sweden

Three decades ago, John Langbein published an influential book on medieval and early modern judicial torture. Before Langbein, Enlightenment philosophers such as Beccaria and Voltaire had traditionally been credited with the final abolition of judicial torture in the leading European states during the latter part of the eighteenth century. Langbein dismissed the traditional explanation as a “fairy tale,” claiming that the use of torture had in fact declined in major European countries since the sixteenth and seventeenth centuries, well before its formal abolition. In the medieval statutory or Roman-canon theory of proof, judicial torture was originally designed to produce confessions in cases of serious crime in which “full proof” in the form of confession or two eyewitnesses was needed to convict. The argument that Langbein advanced is that the emerging new modes of punishment for serious crime, such as forced labor, transportation, and imprisonment, enabled European criminal courts to take full advantage of the medieval legal institution of extraordinary punishment,poena extraordinaria, which could be imposed without confession if the evidence was otherwise convincing. Extraordinary punishment was by definition something else than the ordinary punishment, usually less than capital punishment. In practice this meant milder punishment on less evidence. Langbein's pivotal point is that the rise of the extraordinary punishment rendered torture unnecessary in many cases, although it still remained legal. Causing a revolution in the law of proof, free judicial evaluation of evidence thus in fact developed alongside the old statutory theory of proof, which now lost its monopoly.

Probation, Punishment and Restorative Justice: Should Al Turism be Engaged in Punishment?

AbstractThe argument of this article is that we should understand probation as a mode of punishment: not as the kind of ‘merely punitive’ punishment which is all too familiar in our existing penal systems, but as a mode of constructive punishment which seeks to bring offenders to face up to the effects and implications of their crimes, to rehabilitate them, and to secure the kinds of goal — reparation and reconciliation — that are emphasised by advocates of restorative justice. To support this argument, I sketch a conception of punishment as a communicative enterprise in which probation officers would play a crucial role — not merely in administering sentences, but as mediators between offenders, victims and the wider community.

« The administration of discipline by the English is very rigid ». British Military Law and the Death Penalty (1868-1918)

For too long, historians have regarded military law in isolation, as if it were an organic entity whose evolution is separate from the parent society. Taking as its starting point the relative severity of punishments — particularly the death penalty – in the British army during the First World War, this article analyses similarities in approaches to punishments in both the military and criminal codes. Despite attempts to reform the military code during the late nineteenth-century, those responsible for the the regulation of discipline in the army clung to traditional forms of punishment rather than modernising practises. In this respect Britain had more in common with the older empires of Russia and Austria than it did with those in France and Germany or with the United States. It is argued that the varying approaches to military discipline was clearly related to practises in modes of punishment within the parent societies.

Treatment and Rehabilitation as a Mode of Punishment

Treatment and Rehabilitation as a Mode of Punishment

The Prison and the Factory; Origins of the Penitentiary System

Editors' IntroductionThis is the first appearance in English of an Italian work which has become one of the seminal books in its field, and which has been influential in shaping recent Marxist studies of social discipline and control. The Prison and the Factory, like Rusche and Kirchheimer's Punishment and Social Structure, has become a much cited but largely unavailable text for those working in the field of deviance and social control. Because of the attention which The Prison and the Factory has attracted, we believe it to be important to provide a translation for English-speaking audiences. A second reason for publishing this work is to extend more widely the interest that has been generated by more recent work by Dario Melossi which has become available in English.The Prison and the Factory is where Melossi and Pavarini established their fundamental arguments concerning the interrelationship between the development of capitalist accumulation and forms of punishment and discipline. These arguments have become a basis for increasing exploration and debate in this area, which has merged a variety of different academic starting points: in law, sociology and history. This focus of interest has been manifested in recent work in Britain, in organisations such as the National Deviancy Conference and the Conference of Socialist Economists; in the USA, particularly through Crime and Social Justice, as well as in other European countries through the European Group for the Study of Deviance and Social Control, and La Questione Criminale.In more general terms, the work of Melossi and Pavarini coincides with a major expansion of interest in historical criminology: for example, in the work of Hay, Linebaugh and Thompson. As Melossi and Pavarini themselves point out in their Introduction, one particularly sharp focus of this move to historical analysis has been the relationship between the crisis of prison systems and the attempt to unearth the social and historical origins of those institutions. It has become increasingly apparent that in all Western societies, the penal system, no matter what its specific national form, is failing in its selfproclaimed tasks of rehabilitation and deterrence. One of the responses to this 'crisis' has been the attempt to excavate the real nature of the connection between prisons and social structures. As such, he prison has emerged as one of the key sites for analysing the relation between social regimes and forms of discipline and regulation. Melossi and Pavarini's entry to this debate follows the direction established in Rusche and Kirchheimer's pioneering work, Punishment and Social Structure. The Prison and the Factory reconsiders and develops the work of Rusche and Kirchheimer in examining the relation between modes of production and modes of punishment. The specific form of this project in The Prison and the Factory is the analysis of the connection between the genealogy of capitalism and the genealogy of the penal institution. The prison as a specific form of punishment is located within the emergence of capitalist social relations and the development of generalised labour. It is this development which they argue produces a regime of punishment based on the deprivation of liberty.Within this analysis, Melossi and Pavarini provide a synoptic tracing of the shifts and developments in penal regimes in relation to changes in the process of capital accumulation and the problems of the regulation of labour associated with that process. This work deals with the early stages of capitalist development through the specific national forms which this development took in a number of European States and in North America. The Prison and the Factory thus lays the foundation for major investigations of the relationship between capitalist modes of production and their apparatuses of social discipline and control.