Pain, Death, and the Law

The Problem of Pain in Punishment: Historical Perspectives

The Problem of Pain in Punishment: Historical Perspectives Karl Shoemaker Within a relatively short period of years, beginning roughly in the latter portion of the eighteenth century, a wide range of corporal punishments employed throughout western Europe and the American colonies gave way to less bloody penal methods. By the early nineteenth century, a multitude of different capital punishments, including burning, hanging, exposure, and dismemberment, and an even broader range of noncapital bodily punishments, such as maiming, branding, dunking, and flogging, were replaced, with only a few exceptions, by incarceration. This rather sudden and comprehensive shift from extravagant corporal and capital penalties toward incarceration was tethered to a dramatic reduction in the amount of physical suffering experienced in punishment. No longer did punishment focus upon the dramaturgy of a condemned undergoing intense physical pain; now punishment operated without bloodletting, with minimized physical suffering, and almost exclusively within the walls of a penitentiary. This essay asks after the sense of this transformation. How are we to understand this movement in which physical pain and suffering no longer stand as explicitly intended and prominent elements of punishment ? If, as modern scholarship suggests, punishment is intimately bound up with cultural sensibilities, both reflecting and shaping our understandings of ourselves and our world, then this swift and sure exiling of the deliberate infliction of physical pain from punishment, a 16 PAIN, DEATH, AND THE LAW movement to which we are heirs, must tell us something about ourselves .1 But what are we told about ourselves in this transformation? A range of answers has been offered to the question of this decline in painful punishments. One school of thought, argued forcefully by Pieter Spierenburg, finds in this transformation a rise of humanitarian sensibilities.2 In the early modern period, the argument runs, a dominant mentality arose in the West that found the spectacle of pain and suffering repulsive and that actively sought, as a moral imperative, forms of punishment that did minimal violence to the body. Another account, furthered by the cultural historian Thomas Haskell, ties the abandonment of physically painful punishments to a broad range of cultural transformations that culminated in a new "cognitive style" that no longer accepted the lavish and promiscuous sufferings of the ancien regime) By this account, the same modes of causal thinking that gave rise to capitalism and modern commercial exchange also enabled criticism and eventually abolition of corporal punishment on grounds that at once encompassed self-interest and altruism. A still separate account, made famous by Michel Foucault, finds not a humanitarian sentiment, but a more refined configuration of authority in which power is stamped more effectively on the soul than on the body.4 Thus, the infliction of pain fades from modern punishment, not because we became more moral, but because authority received a greater return of "epistemological dominance" when prison discipline replaced the gallows and the whipping post. We shall have opportunity to examine these accounts further, but the treatment of pain in each is striking. While each notes the historical diminishment of the physical pain inflicted in modern punishment, the significance of pain itself, the manner in which pain is understood as a facet of punishment, seems to recede from view. A movement is identi1 . David Garland, Punishment and Modern Society: A Study in Modern Social Thought (Chicago: University of Chicago Press, 1994), 249-92. 2. Pieter Spierenburg, The Spectacle ofSuffering: Executions and the Evolution ofRepression (Cambridge: Cambridge University Press, 1984); Spierenburg, "The Body and the State: Early Modern Europe," in The Oxford History ofthe Prison: The Practice ofPunishment in Western Society, ed. Norval Morris and David J. Rothman (New York: Oxford University Press, 1985),44-7°. 3. Thomas L. Haskell, "Capitalism and the Origins of the Humanitarian Sensibility ," American Historical Review 90 (1985): 339-61 (part 1), 547-66 (part 2). 4. Michel Foucault, Discipline and Punish, trans. Alan Sheridan (New York: Vintage, 1977)· THE PROBLEM OF PAIN IN PUNISHMENT fied in each of these works in which physically painful punishments become socially unacceptable, or in conflict with capitalist values, or less useful to authority, but the substance of these asserted transformations is less clear. One asks: What were the conditions of thought that previously had allowed pain to play such a central role in punishment? Likewise, what conditions of thought so rapidly made painful forms of punishment unacceptable relics of the past? Can it be that the intelligibility of pain itself...