Month: September 2024

One of the major assumptions of modern penologists is that prison, as an artifact of modernity, came to replace other forms of punishment: executions, maiming, etc. Overall, I think there are three main approaches that support this idea:

The legalistic approach

Some punishment scholars—primarily those who study incarceration from a formal, doctrinal perspective—rightly point out that the legal definition of prison differed greatly in antiquity and in modernity. The modern conceptualization of criminal punishment adheres to the Enlightenment-Era logics regarding the rule of law: laws forbidding undesirable behavior must be preemptively enacted, universal in their verbiage, fairly and impartially applied by an independent judicial entity, and prescribe the minimal amount of set punishment that satisfies retributive and/or utilitarian goals. Descriptions of incarceration in antiquity (and, in particular, in the bible) rarely, if ever, conform to this model: determination of guilt is not a necessary precursor to incarceration, and when it occurs, it does not necessarily reflect what modern doctrinalists would regard as a fair, impartial judicial trial. Sentences, if meted at all, are not necessarily determinate in length. The entry and exit points of ancient confinement facilities are not always well defined and, as we will see, often reflect erratic, casuistic decisionmaking by monarchs in the throes of whims and dreams.

If the argument dismissing incarceration in antiquity relies on legalistic comparisons, it is seriously undermined by the fact that the study of incarceration in modernity has long ago transcended such formal categories. For decades, scholars have been studying the function of legal institutions on the ground, unlimited by the rational or articulated goals of said institutions. The entire field of law and society is concerned with the gaps between “law in the books” and “law in action,” often identifying the ways in which the actual operations of institutions deviate from their legal definitions. More specifically, current scholarship about the modern carceral state applies to an entire body of institutions, facilities, and practices, of a dazzling variety of shapes and sizes, and encompassing multiple goals and functions. Adopting a limiting, legalistic project of studying incarceration would miss out on a wealth of scholarship about pretrial detention, immigration detention, bail, electronic monitoring, parole conditions, and postrelease supervision, as well as on illuminating comparisons between correctional facilities and other forms of extractive confinement, such as cattle towns and private sector surveillance.

In other words, save for when stating the obvious—that confinement systems looked different and served different purposes thousands of years ago—clinging to formalism is not particularly instructive when studying the incarceration experience.

The arc-of-enlightenment approach

By contrast to the legalistic approach, some sociological pioneers have examined penal changes over the longue durée, attributing the emergence of incarceration as the most salient form of punishment to large-scale social transformation. In his classic text The Division of Labor in Society, Emile Durkheim analyzes the shift from simple societies, in which collectivity is a function of sameness and conformity, to complex ones, based on diversification and socio-economic exchange. This shift manifests in numerous ways, one of which is the emblematic penal regime. In a later essay, titled The Two Laws of Penal Evolution, Durkheim observed that punishment would change as societies became more complex: laws designed to address transgressions through repression would shift toward restitution, and corporal punishment would shift toward incarceration. Durkheim, then, tied incarceration to social complexity, which he identified with modernity.

Setting aside the many critiques of Durkheim’s identification of “simple” and “complex” societies, which exceed the framework of this book, it is notable that prison symbolized, for him, a progressive step. Other sociologists were even more explicit in identifying prison with progress. In The Civilizing Process, Norbert Elias advances the idea of a gradual reduction in interpersonal violence as a political and cultural shift. Post-medieval times, Elias argues, saw a top-down trickling of new standards regarding violence, sexual behavior, bodily functions, table manners, etc., from courtier society to lower societal strata, reflecting sublimation and self-restraint.  The formation of this more rarified etiquette paralleled the emergence of the modern state. As monarchs amassed and consolidated power, Elias argues, they assumed a monopoly over legitimate physical violence, centralizing the infliction of punishment and eliminating violent forms of dispute resolution between individuals.

Elias’ observations are echoed in the work of other people who documented long-term trends in crime and punishment. V.A.C. Gattrell notes a decline in bloodthirstiness and delight at spectacles of public savagery in Early Modern England. Robert Nye documents the increasing regulations and limitations on, and eventually decline in and disappearance of, dueling as the modern state assumed a monopoly on punishment. And Pieter Spierenburg notes the gradual disappearance of more savage forms of punishment and the turn toward confinement. In The Spectacle of Suffering, Spierenburg painstakingly documents the gradual disappearance of public executions and the emergence of penal restraint. Importantly, these scholars, especially Spierenburg, shy away from praising these trends as an unqualified good, describing them in neutral language.

The neutrality seems appropriate, given a considerable flaw in Durkheim’s take on the evolution of punishment: the transition from repression to restitution is a premise that careful historical observation does not bear out, and even if plausible, it would not necessarily dovetail with a transition from corporal punishment to incarceration. As Leon Sheleff has observed, social complexity often generates repressive forms of punishment, and as Martin Killias’ careful study of dozens of historical and modern societies shows, a rise in incarceration often occurs alongside repressive efforts.

Moreover, the extent to which these works, which focus on the emergence of the Early Modern European state, can offer useful insights about punishment in antiquity, is very limited. Durkheim and Elias were inspired by dramatic social transformations that occurred in their time and place—the long industrialization process—and likely did not give much thought to their application to a completely different setting. If the emergence of centralized state power represses savagery and interpersonal violence, one might wonder what these big-picture sociologists and historians would make of ancient empires, including those reflecting great levels of sophistication and social complexity, such as ancient Egypt, Babylonia, Persia, Greece, and Rome. It is hard to responsibly draw comparisons between these empires and the emergence of the European modern state, and even harder to speak of penological parallels, but there are indications that Fourth century Athenians, for example, believed that institutionally channeling anger through formal punishment was beneficial.

The body-to-soul approach

A more sinister take on the emergence of the prison in modernity is Michel Foucault’s influential Discipline and Punish. Foucault observes the emergence of “great confinements” in hospitals, military barracks, schools, and prisons, as a new form of governmentality. At the outset of the book, Foucault contrasts a scene of royally prescribed torture for a regicide, culminating in drawing and quartering the condemned, with a monotonous daily schedule for inmates at a juvenile facility. The shift from the former to the latter, Foucault argues, reflects a turn from centralized, dramatic displays of governing power focused on the body of the condemned to something much more pervasive: a vague but widespread web of institutions designed to produce changes in the soul through surveillance and supervision. As his central metaphor for the carceral, Foucault relies on Jeremy Bentham’s famous prison design: the panopticon. Housed in cells organized in a circle, facing a central tower, inmates have no way of knowing whether they are being watched, and thus begin to control and modify their own behavior to comply with the institutional standards, internalizing them.

Plenty of works about the emergence of the modern prison have adopted Foucault’s observations, finding evidence that control and fear increasingly shape behavior in societies with mass incarceration, identifying carceral features in many settings and areas of life beyond physical prisons, and focusing on the growing classification of people according to risk. There is also evidence that certain punishments, such as the death penalty, are increasingly regulated, medicalized, and removed from the public eye. But importantly, just like Durkheim and Elias, Foucault focuses on the transition from a European court society to the modern state, and the applicability of his framework for understanding antiquity is limited. 

When Foucault identifies incarceration with modernity, he is describing a very particular form of incarceration: one that is highly regulated and operates on a massive scale, according to the government and administration principles of Weberian formal rationality. The basic premise of Foucault’s analysis does not discount the possibility that ancient societies might have had a very different sort of prison, one that exhibits some common features with the “gloomy festival of punishment” era.

Another challenge to Foucault’s observations, as well as those of the other two approaches, has to do with the classification of incarceration as categorically distinguishable from other forms of punishment, often referred to as corporal punishment. And I have to say, the more I think about the history of punishment over the longue durée, the more I realize that the boundary between incarceration and corporal punishment is false. Not only, as I’ve said many times before, is prison itself corporal punishment, but it often comes hand in hand with corporal mortifications of various kinds. People on death row, for example, are incarcerated. People put to hard labor are incarcerated. People awaiting deportation are incarcerated. People awaiting public humiliation are incarcerated.

In other words, incarceration and other forms of punishment do not have the sort of see-saw correlation that simplistic accounts of penology would have us believe. One does not necessarily rise when the other one falls. What throws us off is that the scale of incarceration in modernity is so immense that it dwarfs the other accompanying things. But that doesn’t mean that incarceration wasn’t always there.

Samson Captured by the Philistines

Today’s example of this is Samson, whom, as I’ve just realized, I haven’t yet discussed in the context of the book. The story of Samson’s capture, incarceration, and suicide, is told in Judges 16. If the Joseph/Daniel/Esther trio can be classified as exilic fantasy/folktale and Jeremiah as political thriller, Samson is definitely in the action/adventure category, and while we have plenty of evidence for the existence of the Philistines (though their ethnicity is debated, see here, here, and here), the Samson stories are superhero fiction. By contrast to other judges, characterized by their wisdom, righteousness, and/or military strategic acumen, Samson is, first and foremost, a man of astounding physical force. David Grossman’s terrific reimagining of the Samson story casts him as a man of contradictions: his blessing is his curse, he is a terrifying antagonist of the Philistines but is fatally attracted to Philistine women, and his desire for vulnerability and openness is his undoing.

What leads to Samson’s incarceration is his disclosure to Delilah that his physical prowess stems from his long hair. Once he falls asleep, she cuts his tresses, and begins to torture him. Interpreters differ in how they understand this torture: some believe she called someone else to cut Samson’s hair, and some believe that she started taunting him physically to test whether, indeed, his power has dissipated. Then she calls out that the Philistines are upon him, and they charge, and immediately inflict horrific torture: they gauge out Samson’s eyes. They then take him to Gaza, place him in “beit ha-asurim” (literally: the house of prisoners), where he is put to work at the grinding mill. Rabbi Steinzaltz explains that the grinder works in a circle, so Samson did not need his eyesight to engage in this labor: it was well fitted for his new disability. Radak posits that prisoners had to earn their keep and therefore ground the mill.

But Radak offers an additional, and more sinister, take on Samson’s forced labor: he sees “grinding” as a euphemism for sexual slavery. According to Radak, Samson, not to put too fine a point on it, was put to stud, to impregnate Philistine women (one wonders why: did they still believe that he possessed some special supernatural powers and was therefore a valuable progenitor?) Generally, this reading dovetails with what I saw in some medieval readings of Esther: really unsavory sexual undertones and a fleshing out of the power differential stuff, which suggests that these commentators might have read the Biblical material through the lens of medieval punitive savagery. Which is not to say, of course, that sexual slavery was not within the realm of the imaginable in antiquity (we have plenty of examples). What is interesting about the Samson story is the emasculation of Samson but the preservation of his manliness for the utility of his captors (I’ve read a couple of queer readings of the Samson story that make a lot out of this stuff.)

In any case, the Philistines hold a big party at their temple, and they bring in Samson to mock him in his weakness. Unbeknownst to them (and this is a truly genius literary device from the author of this tale, I think) Samson’s hair has begun to grow back while at the prison, and when he is brought to the temple, he asks the youth who minds him to place him between the columns of the temple. He begs for God to restore his power so that he can avenge one of his eyes, and calling out “Let me die with the Philistines!” he demolishes the temple, slaughtering more Philistines than he had killed in his life. This, by the way, is often a spectacular moment in operatic productions of Samson and Delilah.

The Samson story is instructive in several important ways. First, it offers an example of incarceration that goes hand in hand with torture, humiliation, and forced labor. Second, it offers some notions of what would have been imaginable to those reading and interpreting what was surely a work of complete fiction in terms of the scope of carceral torture. And third, this story–not unlike the Jeremiah incarceration story–does a terrific job capturing the deep rage and desire for revenge by someone treated so cruelly by his captors.