"Putting Cruelty First": Liberal Penal Reform and the Rise of the Carceral State

Abstract Why are so many people in prison today? How do we make sense, more generally, of the fact that all the world's liberal democracies rely on incarceration as an essential tool of punishment? Specifically, why is it that the discourses and practices surrounding punishment in today's liberal democracies consider torture and other forms of physical abuse to be unacceptably cruel, while long-term incarceration is considered unproblematic? Vick approaches this problem through a consideration of the liberal reformism of Cesare Beccaria and Jeremy Bentham, which helped to pave the way for a transition from irregular, and usually corporal, punishment to the regular, systematic liberal justice system that eschews corporal punishment but relies heavily on incarceration. To develop this argument, the author engages with the literature that focuses on the role of cruelty within liberalism, in particular the work of Judith Shklar. By drawing on Shklar's distinction between physical cruelty (which liberals abhor) and moral-psychological cruelty (about which liberals are ambivalent), the author is able to better illuminate how humane reformists such as Beccaria and Bentham could both oppose corporal punishment and favor incarceration as a satisfactory liberal solution to the issue of punishment that minimizes (physical) cruelty. Keywords: Beccaria, Bentham, penal reform, liberalism, cruelty, incarceration, Shklar, Nietzsche ********** WHY ARE SO MANY PEOPLE IN PRISON TODAY? WHAT ACCOUNTS FOR THE FACT that about 2.2 million Americans are behind bars, and approximately one in 35 adults are subjected to prison, jail, probation, parole, and other forms of surveillance? (1) How do we make sense, more generally, of the fact that all the world's liberal democracies rely on incarceration as an essential tool of punishment? (2) Specifically, why do the discourses and practices surrounding punishment in today's liberal democracies consider torture and other forms of physical abuse to be unacceptably cruel, while long-term incarceration is considered unproblematic? (3) To approach this problem, I consider the liberal reformism of Cesare Beccaria and Jeremy Bentham, which helped to pave the way for a transition from irregular, and usually corporal, punishment to the regular, systematic liberal justice system that eschews corporal punishment but relies heavily on incarceration. In developing this argument, I engage with the literature that focuses on the role of cruelty within liberalism, in particular the work of Judith Shklar (her phrase, "putting cruelty first," appears in the article title). Shklar argues, as does Richard Rorty (1998), that liberalism's defining feature is its opposition to cruelty. In other words, before it is concerned with individual rights or limited government, liberalism is fundamentally against cruelty. This sensitivity is found in a number of early liberal thinkers, from Montaigne to Montesquieu (Shklar 1984). (4) By drawing on Shklar's distinction between physical cruelty (which liberals abhor) and moral-psychological cruelty (about which liberals are ambivalent), I am able to better illuminate how such humane reformists as Beccaria and Bentham could be opposed to corporal punishment while favoring incarceration as a satisfactory liberal solution to the issue of punishment that minimizes (physical) cruelty. Most of this article focuses on Cesare Beccaria and Jeremy Bentham, two European thinkers whose work in the eighteenth and nineteenth centuries established their place as standard bearers of liberal penal reform. I argue that they attempt to justify the shift toward what we would recognize as a liberal justice system, which includes the prohibition of torture, the reduction or elimination of capital punishment, equal protection before fixed, public law, proportional (and generally mild) punishments, deterrence as the sole justification for punishment, and an attempt to render the justice system regular, systematic, and universal. …