Punishment, Politics and Culture.

Vol. 14 No. 8 (August 2004), pp.609-618

PUNISHMENT, POLITICS AND CULTURE, by Austin Sarat and Patricia Ewick (eds.). Amsterdam: Elsevier, 2004. 294pp. Hardback €90.00 / $90.00. ISBN: 0762310723.

Reviewed by Marvin Zalman, Criminal Justice Department, Wayne State University, Email: aa1887@wayne.edu

PUNISHMENT, POLITICS AND CULTURE is Volume 30 in the Studies in Law, Politics and Society series that has been edited by Sarat and Ewick since Volume 17. The articles in this particular “Special Volume” resulted from a 2002 National Endowment for the Humanities-sponsored seminar at Amherst College. Given this provenance it is a bit surprising and disappointing that the editors have not provided any overviews, introductions, or summaries of the chapters. The eleven chapters are grouped into three sections and encompass an extremely diverse range of methodologies and concerns. A researcher or specialist is not likely to be professionally interested in more than one or two of the chapters, although a reader with an eclectic interest in themes of law and literature, corrections, and punishment philosophy, and the time to browse this volume, will find much that is interesting and provocative.

The range of topics, disciplines, methodologies and literatures of the eleven single-authored chapters, as I said, are extremely diverse. Only two, by philosophers (Zaibert and Sturr), appear to be conversant with the same literature and in a sense converse with one another. These aside, the chapters concern the way in which literature in the first half of the nineteenth century illuminated views and practices of prison rehabilitation in England (Kaladiouk); how changes in the Supreme Court’s treatment of the doctrine of comity in relation to punishment marked the decline in autonomy of Indian tribes vis à vis the U.S. Government (Shoemaker); a political philosophy disquisition on the meaning of prison labor (McBride); a closely-observed case study by a political scientist of the workings and political context of a successful local community corrections institution (Lyons); a case study of the influence of a social scientific consensus (that the death penalty does not deter) on a legislative debate (Sasson); a literary analysis of the meanings of punishment in Vladimir Nabokov’s LOLITA (Sweeney); a postmodern discursis on the “psychic life of punishment” (Mladek); a documentarian’s ruminations on how to undo the power position of the documentary maker in relation to the subject (Juhasz); and reflections on the civic-educative role of small claims court television shows (Karno).

Given this extreme diversity it is difficult, and perhaps impossible, to characterize the volume as a whole, leaving to the reviewer the task of commenting on the chapters seriatim. With one exception, I found the chapters worth reading at some level of interest and usefulness to potential readers. Several of the chapters are written from academic perspectives in which I have [*610] no expertise, so my praises may be taken as naivety and my criticisms as ignorance.

Somewhat to my surprise the chapters I found most engaging were farthest afield of my usual academic haunts – those involving the arts and humanities. There may be a personal/professional reason, as I have begun to use film and “stories” to bring home experience of wrongful conviction in a new class on this topic.

Of these, my personal Palme d’Or goes to “Victim Stories: Documenting Pain, Punishment, Prison and Power” by Alexandra Juhasz. The shortest chapter, this is a jargon-free exploration by a documentary film-maker of the ethics of representing the powerless without reinforcing the power differential between documentarian and “object.” Juhasz had organized an “activist video project about women and prison that produced “RELEASED: 5 Short Videos about Women and Prison” (p.248) (visit http://www.strangerbaby.com). This essay concludes with a description of the collaborative effort that led Juhasz to invite “five political activists” to make short videos on this subject with the aim of exploring the “immensity and the intricacy of this issue all the while undoing singular documentary authority” (p.255). The description was prefaced by an effective discussion of ethics and power in documentary making, and the felt necessity of the ethical documentarian to represent “the crisis of women’s victimization in prison . . . in ways that challenge this harm without its self-perpetuation” (p.248). As an experienced documentarian and scholar she makes it clear that the power differential between documentarian and her subject cannot be entirely erased, but that understanding this dynamic can be put to use in framing an effective film while “undo[ing] binaries that have served best to control, separate, and discipline” (p.252). Given the literature she cites, this apparently is not unfamiliar ground to documentary film-makers. This chapter seems to be a must-read for those who plan to do prison documentaries, perhaps especially, for mainstream news reporters. While interesting, the chapter seemed at first peripheral to the concern of correctional scholars. On second thought, Juhasz’s essay should be useful reading to those academics, journalists, and writers who encounter prisoners in the flesh, so to speak. They have to come to terms with their own place in the complex world of prisoner, custodian, staff member, and administrator. Jim Jacobs’s classic STATEVILLE comes to mind, although there are many other examples.

Valerie Karno’s “Remote Justice: Tuning In To Small Claims, Race, and the Reinvigoration of Civic Judgment” would fit better in a volume on popular culture and law but is a lively and interesting piece nonetheless. Her chapter is an analysis and interpretation of eleven Televised Small Claims Court Shows that currently air. These include such popular fare as Judge Judy, Mathis, Joe Brown, Hatchett, Mills Lane, Texas Justice, Divorce Court and People’s Court. The foil for her optimistic thesis is put forward by a writer who looks askance at popular culture and law: “Richard Sherwin’s recent caution about legal legitimacy, that law is becoming dangerously delegitimized due to television and film representations, reflects a trend of what he considers to be foreboding consequences resulting [*611] from shows like Judge Hatchett” (citing Sherwin, WHEN LAW GOES POP) (p.278). Unlike Sherwin, Karno posits that these “pseudo-Reality TV Court events offer a new form of public arena for citizens to rehearse the virtues of deliberate and communicative democracy” (p.262). Before getting to the core of her thesis she informs the reader that these shows take some license with the cases (e.g., some litigants are flown into the local jurisdiction from afar; the judges are not bound by local law); that the judges are experienced jurists; that the shows are popular as measured by market share; and, as determined by the ads that run during the shows, the target audience is “the unemployed, uneducated sector of the U.S. population” (p.264).

To Karno the judge show is not mere entertainment, but is “a vehicle for law to reinforce its legitimacy by cunningly inculcating the evolving imagination of its utility and the possibilities for participatory citizenship into the popular discursive will” (p.265). The thesis, seemingly far-fetched, is convincingly supported by analyses of the type of litigant who appears, the profiles of the judges, and the meaning of their hectoring styles:

It seems more than an accident that with disenfranchised television viewers watching from large minority population centers, in a nation whose highest incarceration rate is of African-Americans, and whose legal system is plagued by the problem of eradicating racial profiling, four of the most popular of these Court TV Judges, Judges Mathis, Joe Brown, Hatchett, and Ephraim (from Divorce Court) are African-American. (p.266)

Her point is that instead of downplaying race, or the “Southern White” flavor of a Judge Mills Lane, or a demonstrably Jewish (or Italian) arm-waving Judge Judy, these shows “function to include ‘race’ in the judicial system differently than the populace has previously been able to observe it: through demonstrations of ‘racial’ judging” (p.268). This is done by the judges themselves as they invoke slavery, or hint at their own experiences. Karno’s fascinating thesis is filled out by noting that “these judges present a self-conscious judicial performativity, wherein they subvert stereotypical notions of dry and unemotional judging through their own stereotypical racialized behavior toward claimants” (p.270). In short, they so frequently chastize stupid litigants that THE STUPID becomes a central part of Karno’s thesis, one that should be viewed “with some curiosity and attention.” By selecting cases in which some litigants are so absorbed in their own cases or so obtuse as to appear stupid to the judge and the audience (which sits in a superior position to such litigants), and by the judges openly heaping scorn on such litigants, these shows expose the “polluted reasoning” of some litigants and allow audience members to absorb notions of judgment based on reason. This in turn allows us to “rehearse how we might bring our civic evaluations to more potent public spheres of deliberation” (p.273).

Although Karno’s sunny view of the effect these shows is heartwarming to the soul of a small-D democrat, at least several questions or qualifications must be addressed. One is that she may be mistaken in her assessment of the low reasoning capacities of the dispossessed [*612] in relation to better educated and more affluent citizens. Another is that we have no way of knowing whether the TV shows have the effect that Karno posits. One can imagine a variety of techniques (focus groups; interview or survey studies) that could better assess whether the civic capacity and engagement of steady watchers of these shows has indeed been increased. Another qualification is that many cases decided by these judges are, according to Karno, one-sided and easy to resolve; yet, more difficult legal questions for which ordinary citizens are called on to decide as jurors typically require more difficult judgment than deciding whether a litigant is obviously “stupid.” As for elevating the capacity for civic judgment, the kinds of cases or issues that reach supreme courts or legislative bodies involve the difficult weighing of competing “goods.” While Karno’s essay may raise more questions than are answered, she has explored an interesting area of law and pop culture and has generated a novel thesis.

“Executing Sentences in LOLITA and the Law” by Susan Elizabeth Sweeney is an engaging literary and “law and literature” analysis of Vladimir Nabokov’s once-sensational novel. The essay worked best by drawing me into the coils of Nabokov’s book, in which the narrator, Humbert Humbert judges his own case while awaiting trial, thus inviting the reader to participate. The essay’s intriguing description, analyses, and questions, led me to ask why, of all the novels in all the gin joints in the world, I had not gotten around to this one. Having been a pre-teen when LOLITA was first published, it was in the air, so to speak; but if I recall correctly, Grace Metalious’ potboiler, PAYTON PLACE, published at about the same time, sufficiently answered the burning questions facing a pubescent boy in that repressive era when oral sex (any sex) was still uncommon in most junior high schools (as we called middle schools in those far-gone days). Thinking that LOLITA might now appeal to a more mature sensibility, I have placed the novel on my ever-lengthening list of books to read. Sweeney nicely situates LOLITA in the context of literary-legal analysis of sentences that are not carried out. While intriguing, the fun of this chapter was in her ringing the changes on LOLITA.

Anna Kaladiouk’s essay, “‘Pattern Penitence’: Penitential Narrative and Moral Reform Discourse in Nineteenth-Century Britain” is a nicely rendered study of the uses of language in early nineteenth century English prison reformation. Her story is that at that time crime was viewed as a moral disease, spread by contaminating the minds of innocents by the stories told by the vile, and nowhere more potently than in prison. The classification of prisoners mandated by the 1823 Gaol Act was designed to prevent this moral contagion. Attempts to classify prisoners by strictly objective variables (called “ostensible circumstances” by Bentham) did not prove satisfactory. Victorian era prison officials’ fixation on language as a reflection of the degree of a prisoner’s vileness was seen in the extent to which prisoners’ narratives were held to reflect reform. That is, narratives that abounded in expressions of contrition and religious conversion were taken as prima facie evidence of rehabilitation. The risk in this enterprise was that some prisoners would feign reform to gain betterment in their classification or perhaps early [*613] release. Into this situation comes the preeminent reformer-novelist of the era, Charles Dickens, who “condemned the mixture of narcissism and hypocrisy that, he believed, ‘the system’ promoted in the convict when it made him the center of universal attention, often at the expense of the forgotten victim” (p.17), most pointedly in DAVID COPPERFIELD. The reliance on prisoners’ “pattern penitence” essays might, according to Kaladiouk, reflect the inability of officials to sift out the “author [from] the character in the authoring activities” (p.25). Another reason may be the need or ease of the penal system to “concentrate on the form, taking less (or no) notice of the content” (p.25). This becomes an opportunity to draw on the work of a “contextualist” Russian philologist, M.M. Bakhtin, new to me but apparently quite important in literary analysis. (Reviewer’s Confession: if one finds a cogent site through Google one can cut through an author’s dense prose and unexplained assumptions and get the background; see http://www.press.jhu.edu/books/hopkins_guide_to_literary_theory/m._m._bakhtin.html).

I think that Kaladiouk’s point is well taken, and although it can be the occasion to play a riff on literary theory, the emphasis of form over content by prison officials can simply reflect the bureaucratic need for efficiency over effectiveness, the inability of prison systems to hire the most astute social workers or psychologists, and of course, the inherent limits of the moral (as opposed to legal) classification of prisoners. She seems to acknowledge something like this in her conclusion:

By relating experiences that were characterized by radical specificity with reference to conventions that were characterized by strict uniformity, pattern penitence helped to neutralize the challenges posed by what was diverse and unverifiable on the level of content by making it appear homogenous and repeatable on the level of form. In so doing, it constituted a (partial) response to the institutional predicament of using standard procedures to enact change that was the same in the material that was radically diverse, while simultaneously giving expression to the dialogue between materialist theories and evangelical discourses that had found its meeting place in the institution of the Penitentiary (p.27).

Kaladiouk’s article should be read by students of penal history and academics and practitioners in the game of rehabilitation, for it provides much food for thought. Bakhtin sounds like a thinker worth knowing; perhaps the author could have introduced his ideas in a slightly less oblique manner for the uninitiated.

We now move from the literary and historical studies (but for one) to the legal, philosophical and political science works. Karl B. Shoemaker draws on legal cases and doctrines to tell an interesting story in “‘Foremost Among the Prerogatives of Sovereignty’: The Power to Punish and the Death of Comity in American Criminal Law.” In international law and conflict of laws, comity refers to a doctrine by which a sovereign will agree as a matter of “courtesy” (and not strictly as a legal requirement) to recognize the law or judicial acts of another nation. Shoemaker notes that the Supreme Court has stated the obvious point (as it often does) that the power to punish is a [*614] “centerpiece of sovereignty” (p.34). The nineteenth-century “English Rule” held that as a matter of comity, sovereigns respected the penal judgments of other sovereigns. Shoemaker traces the decline of penal comity in Supreme Court cases in regard to punishment by Indian tribes. In the first half of the nineteenth century, “white on white” crimes committed in Indian territory were tried in state or federal courts, but courts struggled with jurisdictional issues. These cases turned on citizenship.

In an overly condensed and opaque style, Shoemaker traces changes in the law that resulted in the diminution of Indian jurisdiction over major crimes. A factor in this change was the Supreme Court’s shift in viewing jurisdiction as based now on “race” in an opinion by Chief Justice Taney (“surprise!”). Federal criminal jurisdiction came to include major crimes; whites could not be tried by Indian courts for on-reservation crimes; and jurisdiction over minor crimes became concurrent. In the late twentieth century some measure of sovereignty was returned to the tribes by the Court, but in so doing, the Court terminated the “English rule” and comity. This tale of views on Indian tribal sovereignty thus fits into the Court’s prosecution-enlarging double jeopardy jurisprudence—the “dual sovereign” cases which, by eliminating comity, declared
open season on criminal defendants. This highly specialized chapter has some interesting notes on how judges and legislators viewed Indians, but is likely to be useful to specialists in Native American law.

The two chapters on punishment philosophy appear to respond to an article by P. DeGrieff in the BUFFALO CRIMINAL LAW REVIEW, which challenges the emphasis of punishment philosophers on the issue of philosophical justification of state punishment—i.e., the old chestnut of retributive vs. utilitarian or consequentialist theories—and apparently calls for a more deliberate incorporation of political considerations into the work of moral philosophers. Both chapters include competent reviews and analyses, but are of limited value to correctional or legal scholars.

“Punishment, Institutions, and Justifications” by Leo Zaibert reviews a number of important works of punishment justification, including Hart, Rawls, Quinton, and Duff. His reviews and analyses brought me back to an area that I once read with some interest, although I have not kept up with it. The lengthy essay is discursive and may hold greater interest for an adept. As I paddled up this river, I was wondering where it was going. When Zaibert finally got to his main point (25 pages into a 30-page essay), my reaction was that it went nowhere. His goal is not to explore the issue of how and when the state should punish but to contrast this to the question of “when persons should punish other persons” (p.75). If moral or political philosophers find this interesting, I wish them well. To a criminal lawyer, Zaibert’s exploration is incoherent. For criminal law scholars, punishment philosophy is essential; it simply cannot be avoided. Anyone who teaches the law that defines acts that lead to the imposition of state punishment must have some idea of what on earth the state is doing. In coming to grips with this vital question, and deciding how punishment shapes the teacher’s [*615] approach to the subject, the work of moral philosophers is essential reading, along with readings on the sociology and politics of state punishment. What Zaibert’s calls pre-institutional punishment (a moviegoer slapping another for talking during a show), I call assault (p.76). His point seems to be that “pre-institutional punishment” involves an irreducible level of retributivism. This seems right to me but entirely beside the point. An anthropological or psychological exploration of the culture or human emotions that underlie more formal punishment would have been more satisfactory and useful. Zaibert cites a number of his articles (which I have not read) whose titles point to more mainstream concerns with punishment and criminal law theory. Perhaps his summer sojourn at Amherst was an opportunity to take a flyer on a tangential topic that intrigued him, and this volume provided a place to try it out.

The other philosophical piece, “Philosophical Theories of Punishment and the History of Prison Reform” by Christopher Sturr excited my interest by promising to offer thoughts on how a philosopher can “contribute to efforts to address the prison crisis”—a worthy goal (p.86). Although Sturr does not substantively address the issue, his essay can be seen as a prolegomenon to punishment philosophy by radical activists. He takes note of the fact that historic movements for prison reform have all failed to bring about a truly reformative and humane prison regime by quickly reviewing the familiar stories of the failures of progressive-era penal reform and the radical prison movement of the 1960s and 1970s. He cautions would-be reformers to be alert to the dangers of unintended consequences and offers some guidelines: e.g., ground theory in “concrete social political and economic relations,” avoid “individualist and idealist approaches,” tailor theory to the needs of “actual resistance movements,” and embrace partiality. Having lived through the era of early enthusiasm for sentencing guidelines as a would-be facilitator, which itself grew out of the penal reform spasm of the 1960s, I am impressed by Sturr’s observations. I have two observations of my own. First, it is not clear to me that the academic-philosophy or political theory establishment would accept Sturr’s prescription as what constitutes their line of work. What he suggests sounds more like sociology. Thus, I am not sure where the radical activist philosophers will hang out, but it seems that the sub-field of “critical criminology” might be a home. Second, Sturr’s chapter raises in my mind the question of “what do radical activists want?” If they want to create a working model for a penal system, they would have to deal with the fiscal, political, legal, and cultural tensions that influence any governmental institution. Sturr examines the American Friends STRUGGLE FOR JUSTICE (1971), but the actual prescriptions put forward in that book were impossible and would, like most utopian communities, have collapsed if implemented (see Auerbach, JUSTICE WITHOUT LAW?). Whatever radical activists want, it seems to me that their real value is, as outsiders, to criticize the penal system for its failings. Analyses grounded in the reality of the penal enterprise, done with a critical eye, are essential to exposing the failings of the system. Just as Juhasz’s documentaries serve an important purpose in shaking its watchers out of [*616] their lethargy about the condition of women in prisons, the kind of scholarship Sturr calls for (but does not accomplish here), should stimulate a better understanding of the limits of the practice of punishment.

This goal, in fact, is accomplished in three excellent political scientific studies that constitute Part II of this volume (Penal Practices in the Modern State). Keally McBride, in “Hitched to the Post: Prison Labor, Choice, and Citizenship,” moves smoothly from a crisp discussion of the meaning of labor and forced labor in a Lockean perspective, to a review of the failings of the prison labor enterprise and the enduring tension between prison labor as rehabilitation or punishment. The chapter draws on the work of sociologists and uses a Supreme Court case to great effectiveness, enhancing my own quick (and narrowly legalistic) reading of HOPE v. PELZER. I hope that this chapter finds its way into anthologies on corrections; it should be must-reading for any student of prison labor.

In contrast to McBride, who paints a broad panorama, William Lyons in “Perhaps All Pain is Punishment: Community Corrections and the Hyperghetto,” offers a detailed picture of one model correctional complex, the Hampden County Correctional Center (HCCC) in Springfield, Massachusetts, based on extensive interviews, observations, and documentary analysis. Lyons grounds his careful description of the various institutions and programs at HCCC in the critical literature of community policing, prosecution, and corrections. HCCC is exemplary in its programs that place inmates into the community. What Lyons brings to this work, that a sociologist or criminologist might not, is a depiction of Sheriff Michael Ashe as an effective political leader. “Like older political machines, the sheriff devotes as much energy to managing the inputs (hiring, public relations, community connections, etc.) as he and his staff do to managing the outputs (programs, re-entry, etc.)” (p.151). A closeup view of Sheriff Ashe depicts a concerned, progressive and effective correctional and community leader who has molded the HCCC into a

model that both punishes those who refuse to help themselves and seeks to assist those who demonstrate a desire to redirect their lives. And [he has] done this through decades where the larger political-culture has been demanding increasingly harsh, unreasonable, and criminogenic punishments for all offenders (p.152).

A great strength of this study is its placement of this local success in a larger picture of a failed national correctional and social policy. Springfield remains a depressed economy—the “hyperghetto” of the chapter’s title—and even the most progressive jail cannot correct that. Indeed, by shifting basic social services into the more expensive correctional setting, the model jail plays its role in supporting the larger irrationalities of penal treatment in America.

The last empirical piece in this part, “How Science Matters: Discourse on Deterrence in a Death Penalty Debate” by Theodore Sasson, demonstrates that the near-consensus of criminologists on the non-deterrent effect of capital punishment (when compared to life sentences) influenced the arguments of Massachusetts legislators when they [*617] debated the death penalty in October 1997. Sasson applies discourse analysis and frame analysis to show that death penalty proponents could get no traction on the deterrence argument and had to rely on “common sense” and just punishment arguments, while opponents relied on the scientific literature. This study should be read by criminologists for the purpose of gaining a finer understanding of how their scientific work is filtered into actual legislative debate.

These three works by McBride, Lyons and Sasson support my view that the (multi-)disciplines of criminology and criminal justice need greater input from trained political scientists. These chapters integrate their research with the findings of sociologists/criminologists, but bring to bear the critically important perspectives of political theory, political science, and politics. Punishment is a public institution, and a rounded academic perspective must include the political and bureaucratic realities of the enterprise, something that these chapters do admirably. Too often, criminologists write as if their findings, however well-grounded, will or must automatically lead to policy adoption without the messy intervention of politics, budgets and the like. No human institution, universities and university departments included, run in this way.

Finally: “The Psychic Life of Punishment (Kant, Nietzsche, Freud)” by Klaus Mladek. I found this to be mostly a turgid morass of impenetrable prose, underwhelming insights, with a theme masked in mist, lurching from one loosely connected idea to another, interspersed with occasional islands of lucid sentences unconnected to the mainland. The chapter begins with an untranslated French quotation from Lacan, reminding me of a talk at a Criminology conference in which Dragan Milovanovic told us that we really could not understand him if we did not read Lacan in French. Perhaps, but I don’t get it, even in English. Try for yourself (see Milovanovic 1994). If the price of saying that the emperor has no clothes is to be cast out with the ignorant, so be it. This chapter plays on the word jouissance, which simply means enjoyment, but seems to take on monumental importance in the postmodern lexicon. Mladek plays on this “enjoyment” of law and punishment in a variety of ways that remain opaque to me. It seems to me that those postmodern scholars who talk in tongues do a disservice to the insights of post-modern artists and scholars who attempt to illuminate the strange and artificial world that we presently occupy (the kind of thing that Alexandra Juhasz seems to be striving for). This chapter brought to mind the appendix to Gordon Craig’s THE GERMANS, on the decline of the clarity of the German language in the nineteenth century and the value of muddled language to bad politics.

REFERENCES:

American Friends Service Committee. 1971. STRUGGLE FOR JUSTICE: A REPORT ON CRIME AND PUNISHMENT IN AMERICA. New York: Hill and Wang.

Auerbach, Jerold S. 1983. JUSTICE WITHOUT LAW? RESOLVING DISPUTES WITHOUT LAWYERS. New York: Oxford University Press.

Craig, Gordon A. 1982. THE GERMANS. New York: G. P. Putnam’s Sons. [*618]

Dickens, Charles. 1985. DAVID COPPERFIELD. London: Penguin Classics.

Jacobs, James B. 1977. THE PENITENTIARY IN MASS SOCIETY. Chicago: University of Chicago Press.

Metalious, Grace. 1956. PEYTON PLACE. New York, Messner.

Milovanovic, Dragan. 1994. “The Postmodernist Turn: Lacan, Psychoanalytic Semiotics, and the Construction of Subjectivity in Law.” 8 EMORY INTERNATIONAL LAW REVIEW 67.

Sherwin, Richard K. 2000. WHEN LAW GOES POP. Chicago: University of Chicago Press.

CASE REFERENCES:

HOPE v. PELZER, 536 US 730 (2002).

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