from London, United Kingdom
In transitional contexts, the issue of punishment has been largely contested. On the one hand, supporters of retributive justice envisage punishment as the mechanism through which reconciliation can be best achieved in the future. On the other hand, restorative justice narratives- despite the lack of an overarching theory- reject punishment as a universal goal and prioritise truth-seeking practices to restore victims and perpetrators whilst favouring the community healing through amnesty. Punishment as a discourse of power means that monolithic accounts of retributive and restorative narratives do not account for the complexity of practices taking place in regimes’ transitions. In light of these two competing narratives of reconciliation, this essay argues that punishment is strongly linked to the exercise of power and social control, thus sociological analysis is an essential approach for the understanding of social change over time.
In the first part, the essay presents a philosophical account of punishment with reference to Hampton’s moral education theory. This departure point allows to develop, in the second part, a critique of punishment as a mechanism through which humans are led to reflect on what is morally wrong. Sociological approaches and the example of mass incarceration in the US are employed to demonstrate the political character of punishment and the dangers in universalising its application. Having assessed the latter, I turn, in the final section, to the role of punishment in transitional contexts, arguing that both restorative and retributive practices of reconciliation are aimed at legitimising nation-building. Accordingly, both punishment and amnesty can function as tools of statal social control.
Moral education theory
In her consequentialist reading, Hampton (1984) has argued that punishment can be justified on the basis of benefitting the people who experience it, in a way that helps them to gain moral knowledge as a rational being, whilst also ‘giving a lesson’ to the larger community. This allows the theory to incorporate elements of deterrence and retributivist and rehabilitative views. The restorative and retributivist characters are therefore compressed in the moral character of the theory, based on the educative feature of punishment as a means for the state to convey ethical knowledge to wrongdoers.
As autonomous rational beings, Hampton (1984) argues, humans have the capacity of reflecting, thus realizing that certain actions are morally wrong. Furthermore, because the principal concern is to convey morality, the state must communicate the punishment in public. The communication of punishment is important for the victims because they can see their plight as recognised. At the same time, it also functions as a way of restoring the moral status of victims after it has been infringed by their assailants (Hampton, 1984). Finally, elements of deterrence can also be identified in the communicative aspect of punishment. The very threat gives people a nonmoral incentive, such as incarceration, to refrain from the prohibited action. Yet, Hampton’s moral education theory presents some challenges for the values it has in reconciliation, ranging from the neglect of the situational context of crime and the representation of the state as an essentialist benign actor.
Punishment and society
In The Division of Labor in Society, sociologist Emile Durkheim (1984) argued that criminal punishment represents a privileged object of social investigation because it plays a fundamental role in instating bonds within communities, ranging from a collective consciousness to a morality of law. It is, in this sense, strongly tied to the exercise of power and social control within society. Foucault’s sociological approach (1991) also engaged with punishment through the concepts of power and rationality. In Discipline and Punish Foucault (1991) speaks of punishment as a ‘political technology’ to control and produce behaviour. This is achieved through the disciplinary training of wrongdoers but also by way of deterring the general population from committing a crime. Ultimately, penal practice is calculated to maximise social control (Ibid, 1991). The fact that Hampton, in his theory of punishment, completely neglects concepts of power and social control ends up ignoring several aspects.
Mass incarceration in the US
Hampton’s theory of punishment (1984) assumes that as rational beings with agency we are to deter crime once we reflect- or are made reflect through punishment- on what is morally wrong. Not only this narrative ignores the spectrum of behaviours of individuals living in particular socio-political conditions (Levi, 1989), but it also assumes that the state is always benign in its moral judgment. It neglects, in this sense, the dynamics of power that are inherent in state and non-state institutions. If we consider, for instance, the issue of mass incarceration in the US it is evident how the state can use punishment as the primary vehicle of racialised social control (Alexander, 2010). Despite crime rates in the US have not been markedly higher than those of Western countries, the US has the highest rate of incarceration in the world (Pew Center, 2008).
In her work The New Jim Crow, Alexander (2010) equates, metaphorically, the mass incarceration system in the US to the Jim Crow segregation due to its functioning as a “racial caste system” that stigmatises a racial group locked into an inferior position by law and custom thus permanently barring it from mainstream society and economy. The US example is also evidence of the lack of correlation between crime and punishment (Tonry, 2004). The total neglect of proportionality of punishment to crime patterns points out to governments’ use of incarceration as a tool of social control (Ibid, 2004). In this reading, punishment has nothing to do with deterrence or conveying a moral education. Much sociological research points to the fact that people are not significantly deterred from committing crime by the threat of prison. In fact, individuals with meaningful economic and social opportunities are hesitant from committing crimes regardless of the penalty, whilst those who went to prison were more likely to commit crimes again in the future (Alexander, 2010).
Transitional justice
Having assessed how punishment is strongly tied to power and social control within society, we can now turn to analyse it in the context of regimes. In transitional contexts, both retributive and restorative narratives have political significance for reparations. Similarly to punishment, also reconciliatory practices, such as victims’ reparations can function by controlling social suffering and regulating “political and historical meaning with which the crimes of the past are endowed” (Moon, 2012: 188). In Argentina, the refusal of financial and memorial reparations represented for las Madres de Plaza de Mayo their rejection of transitional politics in controlling the past, a way of claiming information about the fate of their children and criminal prosecution for those responsible for the disappearances (Moon, 2012).
Ignoring the political aspects of reconciliatory practices- whether retributive, restorative, or, as in most cases, a mix of the two- can only be detrimental for the establishment of societies coming out of a violent past. It is therefore plausible to argue that, in all cases, narratives advanced by new regimes are aimed at legitimising the construction of the ‘community’ and instilling new social values. Garland, (2012: 251) has argued that penal practices and discourses actively shape generative processes through which “shared meanings, values, and -ultimately- culture are produced and reproduced in society” (Garland, 2012: 251). In this sense, penalty communicates meaning also about power, legitimacy and authority, whilst organising the moral and political understanding of society (Ibid, 2012). While this is undeniably true, Garland (2012) ignores the fact that also practices that are not linked to the penal system can function in this exact way. Amnesty, the primary mechanism proposed by restorative justice knowledge, is an example.
South Africa
The legitimisation of the post-apartheid state in South Africa represents a case where the absence of a criminal justice system and the dismissal of punishment for all those who had sustained apartheid was the result of specific historical and political conditions. Former apartheid national parties threatened, to overthrow a peaceful transition if they were to be criminally prosecuted. Accordingly, the TRC opened investigations for gross human rights violations also among opponents of the former apartheid regime. This contributed to a narrative in which responsibility was attributed evenly across any party with political objectives, excluding broader structural violations (Moon, 2008). Within this context, advocates of amnesties and the South African Truth and Reconciliation Commission (TRC) emphasised their opposition to retributivist legal mechanisms to deal with past atrocities due to the close connection between retribution and revenge.
The emotional character of this link was narrated as morally unacceptable and unsuitable for transitional justice (Wilson, 2009). Against this view, Wilson (2009) argues that it was precisely the lack of punitive justice for human rights offenders that exacerbated an already existing context of judicial impunity and further increased crime figures in townships and white suburbs. This form of vengeance was the direct consequence of the failure of state institutions to regulate social conflict through institutionalised forms of retribution (Wilson, 2009). The pursuit of amnesty in South Africa was aimed at legitimising the redefinition of the ‘community’. The Committe and Human Rights Violations Committee (HRV) hearings privileged particular narratives on experiential accounts of the apartheid promoting collective truths (Ibid, 2009). Ultimately, the absence of punishment functioned as a way of promoting nation-building.
Conclusion
This essay has argued that state punishment functions as a tool of social control. This is true in non-transitional contexts like the US where mass incarceration functions as a powerful vehicle for the maintenance of a racial caste system. At the same time, punishment’s connection to the exercise of power and the production of political and historical meanings within societies can also be identified in practices of political reconciliation. The acknowledgment of the political character of transitional justice, having its origins in Western liberal thought, represents an essential step for the establishment of societies coming out of a violent political past. It raises questions of legitimacy and makes us analyse the socio-political conditions under which certain retributive and restorative practices arise. As Wilson (2009) has observed in South Africa, the lack of retributive practices was the source of vengeance and further violence.
It is thus clear that monolithic understandings of retributive vis-à-vis restorative narratives do not account for the complexity of situations in which transitional justice occurs. If punishment through incarceration and the judicial system in the US function as racialised exclusionary categories, in South Africa the very absence of criminal prosecutions was at the roots of social injustice. It is evident that the diverse conditions of the two contexts require different responses. A non-fixed understanding of punishment, functioning as a form of social control and state legitimation across different socio-political contexts represents a key for this analytical investigation.
Bibliography (A-L):
Alexander, M. (2010). The New Jim Crow. Mass Incarceration in the Age of Colourblindness. Penguin Books. London.
Durkheim, E. (1984). The Division of Labour in Society. In eds. Steven Lukes. Palgrave Macmillan
Foucault, M. (1991). Discipline and punish. The Birth of the Prison. In eds: Allen Lane. Penguin Books: London.
Garland, D. (2012). ‘Punishment as a Cultural Agent’ in eds. Punishment and modern society: a study in social theory. University Chicago Pres: Chicago, pp.249-276.
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Levi, P. (1989). The Drowned and the Saved. In: Abacus: London.
Bibliography (M-W):
Moon, C. (2008). Narrating Political Reconciliation: South Africa’s Truth and Reconciliation Commission. Lexington Books: Maryland.
Moon, C. (2012). ‘Who’ll Pay Reparations on My Soul?’ Compensation, Social Control and Social Suffering. Social and Legal Studies [Online], Vol. 21 (2), pp. 187-199. Available at: https://doi.org/10.1177/0964663911433670 [Accessed 28 October 2020]
PEW Center on the States (2008). One in 100: Behind Bars in America 2008. PEW Charitable Trusts: Washington DC. Available at: https://www.pewtrusts.org/en/research-and-analysis/reports/2008/02/28/one-in-100-behind-bars-in-america-2008
Tonry, M. (2004). Thinking About Crime: Sense and Sensibility in American Penal Culture. Oxford University Press: New York.
Wilson, R. A. (2009). ‘Chapter 6. Vengeance, Revenge and Retribution’ In eds. The Politics and Reconciliation in South Africa. Legitimising the Post-Apartheid State. Cambridge University Press, pp. 156- 187.
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Autore dell’articolo*: Ginevra Canessa, laureata in Politics and International Relations, BA (Hons), University of Kent (Regno Unito). Studentessa presso la London School of Economics per un Master (MSc) in Human Rights. Addetta alle questioni di Global Gender Justice del Think Tank.
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