Essay on Net Widening Criminal Justice

Since as early as the 1820s, it is a well-known fact that the sentence of imprisonment and prison system as a whole fails to meet any of its legitimate penological objectives (Garland 1986, p. 863). It is neither an effective form of punishment nor a correction treatment, with no influence on reducing crime or recidivism rates in society. And yet, all over the world, the criminal justice system is adamant in their use of imprisonment as a response to crime, with over 10 million people living in prison cells in 2018 itself (Wagner & Sawyer 2018). This along with census that a large majority of the prison population belongs to the minority groups raises the question, are prisons used as a tool for containing and controlling ‘undesirable’ populations? (Rabuy & Kopf 2015) This essay will focus on Michel Foucault, the French philosopher’s perspective that prison is indeed used to contain and control ‘undesirable’ population, which is the low socio-economic community to him. However, the control of this population is not gained by labelling them as offenders but rather by creating a criminal class within them. The following essay aims to further describe and critically analyse his theoretical perspective by evaluating it and how it connects with other theories in the field.

The History of the Present

Foucault (1977, p.276) holds the unpopular opinion that the prison system is a successful project rather than a failure, as he believed it met the true intended purpose for its creation. He gained this insight by the ‘genealogy of modern punishment’, which means to examine the past, that is the development of penal reforms, to understand the function of present concepts such as the prison. He explains how the shift from the punitive system, that is torturing the criminal to a corrective system, that is curious over understanding the criminality in the offender, came across the 19th century in France (Foucault 1977, p.257). This shift coincided with the time when “spectators of lower classes” began to view the one being publically executed as one of their own, and the executor as the enemy (Foucault 1977, p.263). Foucault (1977) argues that this was a sign for the authorities, which at the moment where upper-class, white men, that the previously submissive population might unite and revolt. And so, the ones in power decided to shift punishment from being conducted in front of the public to behind closed doors, that is the jailhouse, to keep the underclass under control and the aristocrats in the position of power. Foucault (1977) interprets that underneath the proclaimed objective of having a transforming rather than avenging perspective on criminality, hides the true agenda of maintaining political dominance and rather a horrific form of industrial management of the lower and labouring classes (Silver & Miller 2002).

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While it is important to note that Foucault’s (1977) recollection of the classical period has been criticised for not being as patchy as he presented them to be (Hudson 2003). The reliability of this Foucauldian view was further strengthened in the 1960s when the African American community - one of the most suppressed minorities of the United States - fought for their civil rights. The prison was used as one of the major tools by the government to contain the Black population and silence their voices to ensure freedom was still within the authority’s hand, according to renowned political prisoner, George Jackson (eds Rosenblatt 1996, p.256).

In other words, the state wants the society to believe only one single truth, the truth that they tell. However, there are many truths to the situations we face today, for example: on the punishment system. And subjugated knowledge of minority groups such as the low-social economic, aboriginals, immigrations, LGBTQ+, playing together is a threat to the people in power. This is why Foucault (1977) explains that disciplines such as prisons are created to ensure the political supremacy is maintained by what theorists refer to as the ‘bourgeoisie’ (Marx & Engels 2002).

Delinquency and Normalisation

The carceral system that is the prison and its operations fabricate a product – delinquents, which Foucault (1977, p.301) argues is the key to conserving dominance over the ‘unwelcomed’. He explains that unlike when one is a criminal, the focus is not so much on the delinquent’s offending act, but rather on their entire life such as their social background (Foucault 1977, p.251). Which meant more information was needed on the delinquent besides the kind of crime he or she committed. This provided the medical bodies of knowledge an opportunity to collaborate with the law and work together (Foucault 1977, p.11). That is, doctors began assisting the state in figuring out objectively how to define offenders, how to punish people according to their alleged dispositions or setbacks.

This may seem like a positive advancement, but one must realise deviance can only be defined after limits for what is ‘normal’ are set. That is, through the Foucauldian lense, this differentiation between an offender and a law-abiding individual creates this medical notion of what is ‘norm’. Criminals, in turn, were classified not by the law, but by how far they were from the norm (Foucault 1977, p. 253). Foucault believes this is destructive for society, as it suggests that those who offend are abnormal and different from the rest of the population. The state implicitly encourages this normalisation process by using society norms to evaluate and categorise us into classes. The ‘criminal class’ is largely in the lower class, due to factors such as their lack of finances, family support, that make them more vulnerable to crime than the upper-class society (Foucault 1977, p.276).

This is hugely beneficial for the state as through this alienation of the ‘criminal class’, a divide is created among the entire working class society, which ensures that they cannot bond together and revolt for their rights. Rather, since it is almost always the poor that are victims of everyday crimes in society, they rely more on the law for justice (Droit 1975). In other words, fear makes the lower class more submissive and willing to accept the state holding power over them (Garland 1991, p.138). Which is why, as Foucault (1977) repeatedly mentions, the state places support on the penal intuition. For a key flaw of prison – the high recidivism rate - he provides the rare insight that the recidivism conditions produced by imprisonment, through the fact that they leave ex-convicts with no skills, and extreme social stigma is rather helpful to the state as it ensures that delinquent class is maintained. And an individual that enters as a one-time offender transforms into a career criminal (Garland 1990, p. 386).

While this Foucauldian theory may seem a bit questionable to some, it is supported by studies that find that prisoners return with more negative attributes from prison than they previously had, for example, drug addiction, which increases their likelihood of committing a crime in future (Easteal 2001, p. 97). Moreover, when these delinquents return into society with illegalities such as drug use or prostitution, they further deteriorate the cohesion in labour class neighbourhoods and families (Foucault 1977, p.268). In other words, the more delinquents are created and released by prisons into the real world, the better for the state to control the ‘undesirable’ population. Foucault goes as far as to claim, in an interview that the existence of the criminal world is “absolutely correlated” with the existence of prisons, and since this was not backed up by any empirical evidence, the claim arguably comes off as an over-exaggeration (Droit 1975).

Surveillance

Foucault (1977) explains that the creation of a delinquent class leads to the authorities knowing who the habitual criminals are and thus makes it easier for them to manage and keep under police surveillance (Garland 1990, p.387). That is, delinquents released into society provide a reason for the state to monitor labour class regions. A modern example of this would be, in the name of “protecting” us from internet paedophiles, legislation was passed that allows the police to read our emails. That is, another way the institution’s ability to create delinquents came to be used as a tool to contain and control the undesirable is surveillance. He uses Bentham’s panopticon as the ideal model for modern disciplinary power, which is one of his most famous metaphors (Foucault 1977, p.200). The concept is that, similar to the panopticon, the general population is unaware of if and when they are being watched, which induces them into a ‘state of conscious and permanent visibility’ (Foucault 1977, p.201). So, they modify their behaviour and produce ‘normal’ behaviour. This way the state is more aware of any working-class strikes or political groups forming in these communities. 

Foucault (1977, p. 233) theories that this kind of surveillance in prison turns criminals, who are power resistance into ‘docile bodies’ who monitor their own self’s behaviour and do not attempt to fight the authority of prison guards. Now that we have truly entered a high surveillance society, where everyone is being watched at every point and their location is within palm’s reach of authorities, Foucault’s (1977) theoretical perspective on surveillance is now, more than ever, useful and relatable. It would be fair to assume that in this modern age, Foucault would generalise the influence of surveillance in creating ‘docile bodies’ to the general population as well, which would act as a political advantage.

Other Theorists: Cohen

Stan Cohen’s (1985) net widening theory is an appropriate follow up to Foucault’s theoretical perception. Cohen explains that since the society and the correctional system are looking for alternatives to imprisonment, they have chosen to take precautionary steps when individuals are found engaging even in the smallest of crimes. That is with the system’s net widening, low-level offenders who wouldn’t have been previously caught are now involved with the penal system. This is similar to Foucault’s argument that the penal system simply increases the criminals in society, rather than decreasing it. Cohen (1985, p.52) identifies that these low-level offenders that would have back in the day simply received a warning with no record tend to younger and female. The female population is the kind of subjugated knowledge that Foucault identifies the upper class, powerful men are afraid of. Additionally, in the last decade both these demographics are frequently found to be revolting against the government’s power over and demanding changes in legislations. For instance, the global climate change strike is being conducted by teenagers and women in different parts of the world are fighting for rights over their own body and uterus.

Foucault would interpret this as, by entering these low-level offenders into the state’s records system early on, the government gets an upper hand as they can begin supervising the activities on these power resistance citizens sooner. And the introduction of youngsters to the judicial system early on means they’re also introduced to the concept of delinquency sooner. That is, net widening is also used as a tool to control communities that are likely to overpower the upper-class men who are in control if they come together.

Evaluation

Michael Foucault comes from a privileged background, with the most elite upbringing, he is very much aware of the power the high-class society holds over the state and the dislike they have for those who do not share the same status and wealth as them (Eribon 1991). However, Foucault being a homosexual in a deeply anti-gay society could relate to the ‘undesirable’ population. He was subjected to a normalising regime that formulated him as a deviant homosexual, first-hand experience with medical imprisonment. So, he is well-aware of how disciplinary institutes such as mental asylums and prisons are used to control and contain the unaccepted groups in society. Which explains why unlike any other sociologists studying punishment before him, he was able to go into a deeper depth regarding certain discursive dimensions of punishment (Garland 1990, p.155).

According to Foucault (1977), the undesirable population is the working-class, which is true to the extent that a large majority of minority groups in different countries live the life of poverty such as Aboriginal people in Australia (Tilbury 2015). However, he fails to explicitly acknowledge and analyse minorities individually. Moreover, he lacks insight or appreciation for female criminality and how it influences the gender power dynamics in prisons (Schwan & Shapiro 2011, p. 46). He simply over generalises his theoretical perspective across all types of prisoners globally (Hudson 2003).

Conclusion

To summarise, Michael Foucault (1977) theorises that prison is indeed used as a tool to contain and control the ‘undesirable’ population, that is the working class. He explains that the penal institute does so by fulfilling its implicit purpose - producing delinquents and thus creating a criminal class. This way the low-class neighbourhood is divided and the upper-class place as the authority is maintained. In other words, according to his theoretical perspective prisons do not control the criminals, as much as they control the working class through techniques such as surveillance and normalisation (Garland 1991, p.138). Overall, Michael Foucault’s theoretical perspective on the penal system, despite having its fair share of flaws, is well respected explored by scholars all across the globe.