Law, Jurisprudence, and Social Thought

Workshop Content

PUNISHMENT, POLITICS, AND CULTURE

Location: Amherst College, Amherst, Massachusetts

Director: Austin Sarat, William Nelson Cromwell Professor of Jurisprudence & Political Science

Meetings: 2 p.m. to 4:30 p.m., Monday, Tuesday, Wednesday & Thursday, June 30 - July 31, 2014 (5weeks)                                                                                            

 

 

The Seminar

This seminar will address three questions about punishment that go to the heart of humanistic inquiry.

 
1. What is punishment and why do we punish as we do? Punishment involves the imposition of pain in a calculating and deliberate manner. To acknowledge this fact locates the subject of punishment in relation to significant political and ethical issues, e.g. how do we deploy political and legal power in defining the limits of freedom? What justifies legal restrictions on our conduct? What are the responsibilities of those who punish in relation to those subject to punishment?

 

2. What can we learn about politics, law, and culture in the United States from an examination of our practices of punishment? How have issues of punishment figured in our “national story”? What are the arguments that today shape our thinking about punishment?

 

3. What are the appropriate limits of punishment? Do we punish too much and or too little? Are we too strict or too forgiving? What is the appropriate relationship of punishment and mercy? Are there some acts which strain our capacity to make judgments or for which punishment, no matter how severe, seems an inadequate response?

We shall read closely, and discuss at length, material ranging from such “classics” as the Book of Job, Tocqueville’s Democracy in America, and Thoreau on civil disobedience, to legal cases, literary treatments of punishment, and film. The range is broad, asking each of us to move out from our areas of specialization to see the subject of punishment through an interdisciplinary lens. Participation in the seminar demands no specialized training in law or jurisprudence. 

Let me say a brief word about the agenda for the seminar. In the first two weeks we will take up the first of the three orienting questions noted above. In the first week, entitled What Is Punishment About? On the Just Imposition of Pain, we will examine instances of punishment, or of a failure to punish, in order to explore how punishment is understood by those to whom it is applied as well as by citizens of the community in which it is applied. We read about and discuss zero tolerance policies in schools and the controversies about American detention policies at Abu Grahib and Guantanamo. To put our discussion in a broad context we examine relationships among punishment, moral guilt, and the law in two texts that have nothing to do with the United States, namely Stephen Mitchell, The Book of Job and Leo Tolstoy, “The Kreutzer Sonata.”  

In the Job story the association of punishment, even undeserved punishment, and assumptions about guilt are so strong that when someone known for his righteousness is punished his neighbors assume that he must be guilty of something. This reading invites an exploration of the pains of punishment and the social judgments that generally accompany it. Tolstoy’s short story and the film Noon Wine explore the opposite phenomenon, namely an instance in which someone who is in fact guilty of a crime is not punished. They suggest that in the absence of punishment there can be no expiation of sin. The week will conclude with a Supreme Court case on capital punishment and a recent law review article. Both examine the place and significance of punishment in our contemporary moral and legal lives. 

The second week–What Does Punishment Say About Those Who Punish?–turns from those who are punished to those who punish. We will examine some of the functions that punishment serves and ask about the demands that a just system of punishment makes on those who punish. This week takes up some of the classic arguments about punishment, and includes a reading by George Herbert Mead suggesting that decisions about when, how, and who to punish work to draw boundaries of inclusion and exclusion in any community. We will use the film The Shawshank Redemption to see how the fate of those excluded is represented in popular culture. Next we will discuss Herbert Morris’s “Persons and Punishment” and his argument that offenders have a right to be punished and that, as a result, society has a duty to punish. This argument will be contrasted with a Supreme Court decision, Robinson v. California, holding that certain people have a right not to be punished even when they are engaged in socially undesirable behavior. We will discuss the sometimes excruciating “costs” of discharging the duty to punish on those who do so. Here our text will be Herman Melville’s “Billy Budd.” 

Weeks three and four are devoted to asking what we learn about America by thinking about our practices of punishment. While the focus of the seminar is analytic not historical, in week three--The Place of Punishment in the American Story-I: Selected Episodes-- we take up three “moments” in the history of punishment in the United States, two from the Antebellum period, one from the present. We begin with Gustave de Beaumont and Alexis de Tocqueville, On the Penitentiary System of the United States and Its Application in France, and Alexis de Tocqueville, Democracy in America, using these texts to see how the character of, as well as challenges faced by, the early republic were manifest in its penal institutions and practices. Henry David Thoreau’s “Essay on Civil Disobedience” will allow us to reconsider some of these same issues, but also to examine the significance of punishment in the theory and practice of civil disobedience. We will next use some court cases to inquire about punishment in contemporary America. These cases describe conditions in our prisons and discuss what rights prisoners have in those institutions. They also open up a conversation about the intersection of race and punishment, and they will allow us to revisit the question of why we punish as we do.  

Because the United States is one of the few remaining constitutional democracies that continues to employ capital punishment, in week four--The Place of Punishment in the American Story-II: The Ultimate Punishment--we concentrate on the death penalty, asking about its justness and its place in the American legal system. We will look at Albert Camus’s “Reflections of the Guillotine” and Walter Berns’s For Capital Punishment, both of which are classics in the study of punishment. They focus on the question of whether it is just to take the lives of those who murder, emphasizing in particular the place of revenge in a system of punishment. Our attention will also be directed to court cases on the constitutional jurisprudence of capital punishment. Finally, we will use a recent film, The Green Mile, to examine popular culture treatments of this most serious type of punishment.  

Week 5--On the Limits of Punishment--concludes the seminar by revisiting some of the issues with which we began. Are there ways of responding to crime that do not depend as much on the social deployment of pain as those forms of punishment most in vogue today? What is the place of reconciliation, forgiveness, mercy, and reintegration in the future of punishment in America? Are there some acts which cannot and should not be forgiven? Are there some acts which are so heinous that no punishment could ever be adequate? Readings for the week may include Toni Morrison, Beloved, and Hannah Arendt, Eichmann in Jerusalem 

Having reviewed our agenda, let me note that because almost everyone has their favorite book or story in which punishment plays a key role, my choices of texts surely will not satisfy everyone. So rich are the possibilities that the problem is less one of choosing what to include, than of deciding what not to include. Practical considerations, e.g. the length of a book in relation to the time available, necessitate some exclusions, e.g. Crime and Punishment, The Executioner’s Song.

In reading and discussing the material we shall use the genuine seminar method, in which all contribute and all benefit from being both a speaker and a listener. What this means is that I do not see my role as a lecturer, but rather as more of a colleague and fellow participant. I will act as a resource for you as you engage with the material and the questions it raises, and as a facilitator to help insure that our discussions are as productive as possible. 

I will meet individually with each participant to learn about their goals for the seminar and offer my assistance in meeting those goals. In addition, each participant will be asked to keep a journal in which he or she records impressions about the issues under discussion. Participants also will be broken up into three groups (the membership of the groups will be shifted periodically to insure that each of the participants has an opportunity to work with every other participant). Groups will meet during the week to prepare a short analytic paper before the last session. That paper might deal with one of the issues around which the seminar is organized, or respond to a question framed by our discussion. Each week one person from each group will act as a reporter for their group and be responsible for preparing the group's analytic paper. This responsibility will be rotated to insure that every participant does it once. The three reporters will take primary responsibility for leading the last session during each week except the last. In preparation for that session I will meet with the three group reporters.

 

Clark House