Key Arguments

• Foucault observes that ‘All this “arbitrariness” which, in the old penal system, enabled the judges to modulate the penalty and the princes to ignore it if they so wished … which the modern codes have withdrawn from the judicial power, has been gradually reconstituted on the side of the power that administers and supervises punishment.’
• He identifies the new sovereign figure as ‘the warder’: ‘It is the sovereignty of knowledge possessed by the warder: “He is a veritable magistrate called upon to reign as sovereign in the prison … who, in order not to fall short in his mission, must combine the most eminent virtue with a profound knowledge of mankind” (Bérenger).’
• Summarizing Charles Lucas, Foucault speaks of a principle he terms the ‘Declaration of Carceral Independence’, which ‘claims the right to be a power that not only possesses administrative autonomy, but is also a part of punitive sovereignty.’
• Lucas’s program breaks criminal judgement into levels: the legislative classification of acts; the judicial assessment of agents’ ‘intentionalities’; and a third, ‘perhaps the most important’ level—‘penitentiary judgement’—which must be autonomous and for which the court’s assessment is only ‘a “way of prejudging”’.
• Lucas argues that ‘the morality of the agent can be assessed “only when put to the test. The judge, therefore, requires in turn a compulsory and rectifying supervision of his assessments; and this supervision is that provided by the penitentiary prison”’, thus subordinating judicial verdicts to carceral evaluation.
• On this basis, Foucault concludes that ‘One may speak, therefore, of an excess or a series of excesses on the part of imprisonment in terms of legal detention – of the “carceral” in relation to the “judicial”’, conceptualizing imprisonment as going beyond the legal form of detention to exercise its own punitive powers.

Source Quotes

When in 1846, Bonneville presented his project of release on licence, he defined it as ‘the right of the administration, with the previous approval of the legal authority, to place in temporary liberty, after a sufficient period of expiation, the completely reformed convict, on condition that he will be brought back into prison on the slightest well-founded complaint’ (Bonneville, 5). All this ‘arbitrariness’ which, in the old penal system, enabled the judges to modulate the penalty and the princes to ignore it if they so wished, all this arbitrariness, which the modern codes have withdrawn from the judicial power, has been gradually reconstituted on the side of the power that administers and supervises punishment. It is the sovereignty of knowledge possessed by the warder: ‘He is a veritable magistrate called upon to reign as sovereign in the prison … who, in order not to fall short in his mission, must combine the most eminent virtue with a profound knowledge of mankind’ (Bérenger).

All this ‘arbitrariness’ which, in the old penal system, enabled the judges to modulate the penalty and the princes to ignore it if they so wished, all this arbitrariness, which the modern codes have withdrawn from the judicial power, has been gradually reconstituted on the side of the power that administers and supervises punishment. It is the sovereignty of knowledge possessed by the warder: ‘He is a veritable magistrate called upon to reign as sovereign in the prison … who, in order not to fall short in his mission, must combine the most eminent virtue with a profound knowledge of mankind’ (Bérenger). And so we arrive at a principle, clearly formulated by Charles Lucas, which, although it marks the virtual beginning of modern penal functioning, very few jurists would dare to accept today without some hesitation; let us call it the Declaration of Carceral Independence – in it is claimed the right to be a power that not only possesses administrative autonomy, but is also a part of punitive sovereignty.

It is the sovereignty of knowledge possessed by the warder: ‘He is a veritable magistrate called upon to reign as sovereign in the prison … who, in order not to fall short in his mission, must combine the most eminent virtue with a profound knowledge of mankind’ (Bérenger). And so we arrive at a principle, clearly formulated by Charles Lucas, which, although it marks the virtual beginning of modern penal functioning, very few jurists would dare to accept today without some hesitation; let us call it the Declaration of Carceral Independence – in it is claimed the right to be a power that not only possesses administrative autonomy, but is also a part of punitive sovereignty. This affirmation of the rights of the prison posits as a principle: that criminal judgement is an arbitrary unity; that it must be broken down; that the writers of the penal codes were correct in distinguishing the legislative level (which classifies the acts and attributes penalties to them) and the judicial level (which passes the sentences); that the task today is to analyse in turn this later judicial level; that one should distinguish in it what is properly judicial (assess not so much acts as agents, measure ‘the intentionalities that give human acts so many different moralities’, and therefore rectify if it can the assessments of the legislator); and to give autonomy to ‘penitentiary judgement’, which is perhaps the most important; in relation to it the assessment of the court is merely a ‘way of prejudging’, for the morality of the agent can be assessed ‘only when put to the test.

And so we arrive at a principle, clearly formulated by Charles Lucas, which, although it marks the virtual beginning of modern penal functioning, very few jurists would dare to accept today without some hesitation; let us call it the Declaration of Carceral Independence – in it is claimed the right to be a power that not only possesses administrative autonomy, but is also a part of punitive sovereignty. This affirmation of the rights of the prison posits as a principle: that criminal judgement is an arbitrary unity; that it must be broken down; that the writers of the penal codes were correct in distinguishing the legislative level (which classifies the acts and attributes penalties to them) and the judicial level (which passes the sentences); that the task today is to analyse in turn this later judicial level; that one should distinguish in it what is properly judicial (assess not so much acts as agents, measure ‘the intentionalities that give human acts so many different moralities’, and therefore rectify if it can the assessments of the legislator); and to give autonomy to ‘penitentiary judgement’, which is perhaps the most important; in relation to it the assessment of the court is merely a ‘way of prejudging’, for the morality of the agent can be assessed ‘only when put to the test. The judge, therefore, requires in turn a compulsory and rectifying supervision of his assessments; and this supervision is that provided by the penitentiary prison’ (Lucas, II, 418–22). One may speak, therefore, of an excess or a series of excesses on the part of imprisonment in terms of legal detention – of the ‘carceral’ in relation to the ‘judicial’.

The judge, therefore, requires in turn a compulsory and rectifying supervision of his assessments; and this supervision is that provided by the penitentiary prison’ (Lucas, II, 418–22). One may speak, therefore, of an excess or a series of excesses on the part of imprisonment in terms of legal detention – of the ‘carceral’ in relation to the ‘judicial’. Now this excess was observed very early on, from the very birth of the prison, either in the form of real practices, or in the form of projects.

Key Concepts

• All this ‘arbitrariness’ which, in the old penal system, enabled the judges to modulate the penalty and the princes to ignore it if they so wished, all this arbitrariness, which the modern codes have withdrawn from the judicial power, has been gradually reconstituted on the side of the power that administers and supervises punishment.
• It is the sovereignty of knowledge possessed by the warder: ‘He is a veritable magistrate called upon to reign as sovereign in the prison … who, in order not to fall short in his mission, must combine the most eminent virtue with a profound knowledge of mankind’ (Bérenger).
• let us call it the Declaration of Carceral Independence – in it is claimed the right to be a power that not only possesses administrative autonomy, but is also a part of punitive sovereignty.
• and to give autonomy to ‘penitentiary judgement’, which is perhaps the most important; in relation to it the assessment of the court is merely a ‘way of prejudging’, for the morality of the agent can be assessed ‘only when put to the test. The judge, therefore, requires in turn a compulsory and rectifying supervision of his assessments; and this supervision is that provided by the penitentiary prison’ (Lucas, II, 418–22).
• One may speak, therefore, of an excess or a series of excesses on the part of imprisonment in terms of legal detention – of the ‘carceral’ in relation to the ‘judicial’.

Context

After establishing the autonomy of the prison administration in modulating penalties, Foucault explicitly theorizes this as a transfer and reconstruction of discretionary power from courts and sovereigns to the carceral apparatus, epitomized in Lucas’s doctrine of penitentiary judgement and the exaltation of the warder as a kind of internal magistrate.