Chapter 1 for Judge and Punish

1

Here in this room, or really any other similar room, in any case a room laid out in the same way, filled with the same people playing the same roles and performing the same functions, I’ve seen individuals accused, and convicted, of robbery, assault, first- and second-degree murder, manslaughter, piracy, false imprisonment, and rape. Almost all of them were men. Almost all came from disenfranchised classes or lived in low-income and marginalized environments. The proportion of nonwhites (blacks, North Africans, Asians) and foreigners (Poles, Indians, Serbs, Somalis, etc.) immediately struck me as considerable.

Statistics have always confirmed the overrepresentation of dominated groups among the accused. Around 6 percent of the French population is composed of foreigners, compared to around 12 percent of the country’s convicted criminals. Official statistics don’t include information on the class origins of individuals being tried. There is little doubt, however—and this is confirmed by existing studies—that delinquents belong overwhelmingly to lower socioeconomic classes. For example, an estimated 95 percent of murders are committed by “persons belonging to the working classes, or even to the most underprivileged social strata.”¹ That ratio also applies to the majority of countries in Europe and to the United States. Men represent approximately 90 percent of those convicted.

These observations conceal a reality that should guide any analysis of the criminal justice system and that dooms to error any undertaking that doesn’t take it into account: there is a social mechanism behind confrontations with the justice system, that is, behind acts that expose people to the state’s punitive apparatus. The existence of a social logic of illegal activity is not a hypothesis, an isolated perspective, or a debatable opinion. It is a fact. The truth. This thereby justifies, and even demands, an understanding of crimes and criminals based on social theory and, by extension, a social critique of justice and penality.

The first feeling that came over me when I began to observe court proceedings in France was, for the above reason, one of unease. As soon as you enter a courtroom, the reality that the acts being judged are determined by broader social contexts, which should allow them, at least in part, to be understood and explained, is completely suppressed and ignored—kept at a distance, in other words. Any sociological perception of individuals is refused. The slightest attempt to comprehend the cause of their actions is deemed irrelevant to the point that when certain mechanisms or variables—gender, race, class, age—are mentioned, notably by defense lawyers, their importance is dismissed. (“Come now, poor people aren’t all thieves” is a typical phrase that judges and prosecutors like to say, along with “Just because somebody drinks doesn’t mean he’ll become violent” or “You’re insulting all poor people by saying that.”)

WALLS

The legal system is built on a fundamental hypocrisy, the strength of which is obvious in a small courtroom, Room 2 in Paris’s Palais de Justice,* which I visited on numerous occasions. A single, short wall separates the clerk’s area of the court from the room in which proceedings take place. On one side of the wall is posted a list of upcoming trials on which the first and last names of the accused reveal, in this case, the overwhelming presence of ethnic minorities. Yet on the other side of the wall, the criminal justice system operates without ever addressing mechanisms of relegation, oppression, and domination. During a trial, the consequences of structural and collective forces are absent, even as, a few inches away, on the other side of the wall, their impact is visible for all to see.

When I began attending trials in the course of thinking about this book, the fact that I was defining my project in terms of sociology led me to think that I should explore at length the backstories and trajectories of defendants and victims and the social dynamics at work during a given proceeding: defendants’ relationship to the official (French) language and to legal categories; the contrast between the social backgrounds of defendants, judges, and lawyers; and the varying ways in which individuals are treated according to social and ethnic background, gender, and so forth. I realized very quickly, however, that this approach wasn’t necessary. First, because this method of analysis, intended to be critical, is inherent in the official definition of sociology, it is both expected and already accepted as valid. Everyone would have granted me the argument or premise that I would have ultimately produced, one that is already widely expressed, known, and understood. But also, and notably, I don’t think there is any point in attempting to once again prove the value of a sociological perspective. Theories of justice, law, or delinquency no longer need to attempt to highlight the extent to which social drivers influence everything that each one of us—and therefore all those who become “criminals”—says and does. It goes without saying. Neither sociology nor social theory has to be on the defensive.

We therefore need to redefine the questions raised obligatorily by any modern analysis of the criminal justice system, which should focus on what can be called the mechanisms of denial. Our investigation should be centered on the penal state’s propensity to deny reality and treat individuals as if social logics do not exist. Simply put, we must question the foundations, the violence, the political rationale, and the power effects of this practice of obscuring the social world.

NUMBERS

The acts and exchanges I witnessed during the years spent writing this book are merely one aspect of the practice of punitive criminal justice, or what I call the system of judgment and punishment. Day after day, week after week, an immense array of legal and repressive operations occurs in courtrooms, these spaces that are at once central, open, and—because they are so intimidating—little known. Individuals are placed in the dock: they are asked questions; they are interrogated; they hear testimony from experts, friends, acquaintances, victims, and psychologists and psychiatrists; they are reinterrogated, confronted. Next, two or three people argue against or on behalf of the defendant, who then waits, surrounded by police officers or gendarmes, for the court to finish deliberating and to reconvene. The court then announces whether it has decided to send the accused to prison or, very rarely, to release or acquit him or her. (France’s national acquittal rate ranges between 7 and 10 percent, and I witnessed only one acquittal during my investigations.)

The justice system functions as an objective possibility in our lives that each of us must take into account and that shapes each one of us as a result. “None of us is sure to escape prison,” stated the Groupe d’information sur les prisons (GIP) in its 1971 manifesto.² None of us is sure to escape justice either; indeed, none of us do. It is a part of our everyday lives. Rare are those individuals who will never find themselves facing a judge or lawyer, the threat of a prison sentence or damages, or the eventuality of pressing charges or being sued. But even those who never have any direct contact with the justice system will have been nonetheless unavoidably forced to take into account its existence and demands—the potential to be accused and/or convicted of a crime—if only precisely to avoid it, either by respecting the law or by adopting strategies of concealment.

The primary aim of this book is to question a reality whose validity we accept all too easily: the system of judgment and punishment. This doesn’t mean simply observing and studying trials as they take place but rather using those observations to reconstruct the foundations of the criminal justice system on a broader scale and to identify the categories, perspectives, and narratives being instituted and reproduced.

When I speak of the system of judgment and punishment, I refer to an unconscious structure within which and based on which different national judicial systems define themselves and express their unique characteristics. In the same way that we can challenge the very form of the prison, asylum, or camp, this book calls into question the trial and the court. What does the establishment of a criminal justice system and a punitive apparatus signify in a given society? What does it mean to judge and punish? To be judged? To accuse and to be accused? On what principles are these mechanisms based? What kinds of power, coercion, and domination do they exert? How does the criminal justice system manage the suffering or infliction of pain to which it gives rise?

My goal is to show the degree to which the modes through which the criminal justice apparatus is deployed are situated within a larger system of powers and perceptions. The functioning of justice in a society is intrinsically linked to other frameworks that organize social life, be they material or symbolic. Consequently, a study of the justice system cannot be limited to a local scale. On the contrary, we must endeavor to understand this system as the setting in which a broader, more global political rationale emerges and develops.

FOUNDATIONS

A close study of the theories and institutions of criminal justice is all the more necessary given that the institution of justice itself is constructed on foundations that have practically never been exhumed or questioned. A multitude of acts occur on a daily basis: people are judged, convicted or acquitted, or compensated. But in a way, the very repetition of those acts immunizes the penal apparatus from criticism. The system operates within the comfort of habit, an obvious and automatic way of reacting to illegal activity, unhindered by the need or desire to question what is happening. Accusing, summoning, judging, asking questions, and sentencing are all established rituals performed by a society without mastery of their meaning or logic. Paradoxically, that repetition doesn’t produce a need to better understand or problematize the acts in question; instead, they become routine, positioned outside the domain of what can be challenged or deconstructed. This system’s motives may well be hidden, but they continue to act unbeknownst to and in spite of us—and from that perspective we are governed by them.

During the trials I attended, there was always one moment that struck me as indicative of the justice system’s capacity to run on empty, so to speak, without examining its own operations: the moment when the prosecution discusses the defendant’s sentence. This moment, so revelatory of the mysterious nature of any criminal justice system, is akin to ritual, social magic. But nobody seems to notice its arbitrariness because, in reality, isn’t this merely the transformation of a crime into time and money? A robbery garners X number of years and/or such-and-such a fine; a rape, X number of years; a murder, X number of years; and so forth.

Every criminal justice system differs when it comes to how and when this conversion of crime into time or money is discussed. In some countries it takes place during a separate hearing held after a guilty verdict is issued. In France the defendant’s possible guilt is addressed at the same time as his sentence. At the end of the trial the prosecutor stands up and makes his case. He addresses the court (a panel of three judges and a jury) and first takes a position on the defendant’s guilt. He then calls for conviction and states the punishment desired by the prosecution. But the length of imprisonment demanded often appears abrupt and without justification (supposing that such justification is possible).

Of course, the prosecutor never fails to add that the sentence must take into account the defendant’s personality, the seriousness of the offense, and the harm to the victims. But these quasi-obligatory formulas are quickly followed by a recommendation, which lacks any visible logical or intelligible link between those considerations and the punishment: “You will sentence Mr. X to 12 years in prison,” or, more often: “You will not sentence him to less than X years in prison.”

In her book La Vie ordinaire des assises (The everyday life of the court), which describes eight trials observed by the author, Marie-Pierre Courtellemont recounts several of those surprising moments. She reproduces, for example, the closing speech delivered by the prosecution during a trial of two men accused of robbery held at the assizes court of Versailles. After attempting to establish the defendants’ guilt, the prosecutor shifts focus to their personalities: “Are they easily influenced? I don’t think so. Because if someone had told them ‘let’s jump off a bridge,’ they would have refused. So why won’t they give the names of their accomplices? I can only take that as a sign of recidivism. The law of silence is a code of honor in their world. Saint-Exupéry said: ‘What is essential is invisible to the eye.’ But for these men, the essential is what can be seen: clothes, cars, but definitely not other people, or respect for others.”³ And in a sequence typical of all the trials I was able to attend, the prosecutor moved without transition from these declarations to his recommendations: “I therefore call for 7 years of prison for K.A. and N.Y.”⁴

Therefore? Why therefore? What is the relationship between the preceding statements and the called-for sentence? To what connection does therefore refer? What does it underscore, and to what does it draw attention if not, in the end, the impossibility of establishing any such connection?

Granted, on occasion prosecutors try to justify the sentences they recommend. But they do so exclusively by referencing custom, what is “habitual,” in other words a scale of punishments instituted in a given jurisdiction: in Paris, armed robbery warrants eight to ten years; manslaughter X years, etc. If you condemn the defendant to less or more time, the jury is told, you’ll be challenging the “sentencing guidelines” and the exercise of justice, as well as the hierarchy between criminal courts and jury courts.* In short, punishments are considered solely according to a self-referential scale. The only justification that this institution can offer is expressed in terms of habit and tradition—“This is how it’s done.” A rational argument for the recommended sentence is never given, not that its absence prevents the justice system from handing down convictions on a daily basis. How strange that tradition be justified with tradition and, what’s more, that we settle for such a justification! Especially when dealing with a system that, by its nature, has dramatic and concrete consequences on the lives of tens of thousands of people each year.

We cannot live in a penal state and accept governance by its laws, with all the implied consequences, without critically examining the system of judgment and the operations it conducts on us. The state power that is de facto exercised on our lives, liberty, and property is so intense that challenging it with radical and ethical concerns becomes a quasi-ontological necessity. We must put the state itself on trial and demand that the forces exerted on us be built on a rational, justifiable, and intelligible logic.

Taking a critical distance from the system of judgment entails, as for all other social institutions, suspending our belief in its inherent validity. At that point, challenging the penal state and the concepts, procedures, rituals, or functions associated with it, as well as the impulses driving it, may seem strange, pointless, naive, or foolish. Indeed, it’s difficult to see the purpose of such an endeavor when, after all, “people should be judged for their actions,” and it’s hard to imagine the creation of a “system of impunity.” How can we possibly avoid the existence of a legal system when punishments are intended to discourage crimes or reduce recidivism? What’s the point of questioning the foundations of the criminal justice system when dismantling it would only increase violence and render the world unlivable?

This book is in no way intended to advance something that resembles, either directly or indirectly, suppression of the law or of the ethical order. That kind of objective would have zero meaning, interest, or pertinence. This also means that any such objections in that vein will be of no value. But I do want to reverse our perspective. I am struck by the fact that critical theory dedicates a great deal of its energy to imagining new arrangements that will redefine the global organization of our societies. Countless initiatives have proposed radical transformations of our world, calling into question national borders, economic structures, capitalism, democratic systems, the ecosystem, and the like. Yet it’s difficult to find texts that critically examine the judicial apparatus and concepts of guilt, responsibility, sentencing, and punishment. The existing forms of the trial and act of judgment remain uncontested and appear incontestable, as if transforming the way we handle crimes and questioning our impulse to judge and punish appeared more utopian and out of reach than dismantling national borders or establishing communism on an international scale.

What is the source of the immunity of our system of judgment and the trial form? What intimate part of us does that system affect? And why are we so reticent to analyze it rationally?

Notes

* Paris’s Cours d’Assises. In France a cour d’assisses also refers to a jury court or assize court, which tries the most serious felonies before three judges and a six- or nine-person jury.—Trans.

* In France jury courts, or “cours d’assisses,” handle felonies, whereas criminal courts, or “tribunaux correctionnels,” are limited to misdemeanors.—Trans.

1. For a sociological study of this topic see Laurent Mucchielli, “Demographic and Social Characteristics of Murderers and Their Victims: A Survey on a Département of the Paris Region in the 1990s” (www.laurent-mucchielli.org/public/Article_Population_version_anglaise.pdf). The article is a translation of “Les caractéristiques démographiques et sociales des meurtriers et de leurs victimes: Une enquête sur un département de la région parisienne dans les années 1990,” Population 59, no. 2 (2004): 203–32. See also Angèle Christin, Comparutions immédiates (Paris: La Découverte, 2008).

2. Michel Foucault, “Manifesto of the Group d’information sur les prisons (1971),” trans. Stuart Elden, Viewpoint Magazine, Feb. 16, 2016.

3. Marie-Pierre Courtellemont, La Vie ordinaire des assises (Paris: Ramsay, 2005), 206.

4. Ibid.