The Limits of Punishment
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Description
Structures of punishment are infused with anxiety about national belonging. Since the mid-1990s, governments in the United States, Australia, and much of Western Europe have embraced the practice of immigration detention, building quasi-prisons for non-citizens at a breakneck pace. Criminal justice systems have also warped under the pressure of border control. In the past five years alone, both the United States and the United Kingdom have established special prisons to hold foreign nationals serving criminal sentences. In Britain, non-citizens convicted of criminal offenses are transferred to prisons ‘embedded’ with border agents. In the US, more than half of last year’s roughly 400,000 deportations started when a border agent entered a prison or a jail. These practices unfold at the edges of punishment. In the formal language of the law, many carceral activities are classified as regulation rather than punishment. Holding a detainee in a freezing jail cell, transferring a long-term resident to a prison 3,000 miles from home, denying non-citizens access to rehabilitative programs: none of these practices is punishment in technical, legal terms. Every day, on both sides of the Atlantic, some of the most pernicious and punitive aspects of late modern incarceration take place beyond punishment, in the gray zone of the civil sanction. This chapter explores the line between punishment and regulation. Drawing on fieldwork in Britain and the United States, we critique the growing gap between lived and legal notions of punishment. The chapter focuses in particular on non-citizens convicted of criminal offenses, a group whose experiences bring the punitive aspects of regulation to life. Building from prisoners’ testimonies, we assert that incarceration—whether in a detention center, a prison, or any facility in between—is punishment for the people subject to it. In making this claim, the chapter wades into an ongoing conversation about the proper scope of punishment. In recent years, legal scholars and criminologists have debated the merits of a narrow definition of punishment. Some argue that cabined legal definitions ensure procedural protections. Others contend that legal terms ought to expand to reflect lived experience. This chapter joins that debate, and aims to advance it, by asking how the law comes to define carceral practices in ways that disguise their punitive force. Turning to landmark legal cases, we argue that the limits of punishment enable increasingly harsh carceral regimes. This argument proceeds in three parts. Part I maps the boundary between civil and criminal sanctions. Part II draws on ethnographic fieldwork to contend that prolonged incarceration is punitive, no matter how courts define it. This second part of the chapter presents prisoners’ testimonies about incarceration, and specifically, how confinement becomes a mode of punishment for having the ‘wrong kind’ of identity. Part III returns to the law to examine cases in which lived experience creeps into the formal definition of punishment. Paying close attention to the text of legal opinions, we conclude that the law, while often a limiting force, can also create space for a more empathetic conception of punishment. Before advancing that claim, a methodological caveat is in order. This chapter draws on work by authors trained in different disciplines, namely sociology and law. It contains, on one hand, testimonies from a yearlong ethnographic study of British prisons, and on the other, observations from several concentrated months of work in a clinic based in an American law school. These are two quite distinct contexts of punishment; they clash at times, and each comes with its own academic mores. Ethnography permits more first-hand narrative, but lives at a distance from the law. The law shapes the possibilities of punishment, but the dictates of client confidentiality affect how personal and rich legal storytelling can be. Ultimately, this chapter displays the norms of our respective disciplines as much as the boundaries of punishment. In this respect, it encourages scholars and critics of incarceration to consider how interdisciplinary thinking might make punishment less extreme.
Source Publication
Extreme Punishment: Comparative Studies in Detention, Incarceration, and Solitary Confinement
Source Editors/Authors
Keramet Reiter, Alexa Koenig
Publication Date
2015
Recommended Citation
Kaufman, Emma and Weiss, Sam, "The Limits of Punishment" (2015). Faculty Chapters. 962.
https://gretchen.law.nyu.edu/fac-chapt/962
