Michel Foucault v. The City of New York: On Discipline and Justice

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Michel Foucault begins his work “Discipline and Punish” with a description detailing the transformation of punishment from those that target the body - such as drawing and quartering - to punishments that target the soul. The main idea being that the benefits that old forms of punishment came with are no longer present and it is better to reform individuals by teaching discipline rather than harming or in the extreme cases killing the criminals. The earliest ideas of restorative justice can be found in Foucault’s work and a lot of places around the world are attempting to introduce some form of restorative justice in place of the current system which is often seen as retributive. New York City is one of the cities that is trying to replace its criminal justice, but the city’s approach has often come under scrutiny for having what many say is the complete opposite outcome that the city has intended. Both Foucault and The City of New York prefer a form of restorative justice to the alternative, but when it comes to actual criminal justice, whose approach is more solid in actually accomplishing its objective?

Foucault’s work predates the criminal justice reforms of New York by almost half a century so it is important to understand how Foucault came to understand the modern form of the Western penal system and what it means to him. Foucault’s analysis focuses on the transition from punishment of the physical body to that of the soul. Taming the soul, and teaching it discipline being the most effective tool of reform for the person as a whole. Foucault draws on the procedures from the time of the Black Death as a means to illustrate how discipline is a more effective means than physical harm. The discussion centers on how under the threat of being punished, rather than actual punishment itself, the people in the quarantine complied with orders and learned obedience in a time of absolute pandemonium. Foucault concludes this discussion by asserting “it is the certainty of being punished and not the horrifying spectacle of public punishment that must discourage crime” (Foucault, “Discipline and Punish” , Part 3). He goes on further to discuss that there are institutions beyond just prison that invoke the teaching of discipline; with schools being the primary institution that teaches discipline to those who come through it. Preventive discipline is the key when discussing these other institutions, like schools, that expose the soul to discipline, it is there that people learn to be productive and that productivity can come from conformity as well. Foucault states that “The body of the disciplined man is docile and subjected, but also productive and never wholly subtracted by the power that controls it" (Foucault, “Discipline and Punish” , Part 3). The ideas expressed reflect the rise of liberalism throughout the 18th and 19th centuries as the advent of an individual oriented society warrants the advent of self discipline or in the event that is deemed to be lacking institutions that will instill discipline by whatever means they see fit. At its core, from Foucault's work, restorative justice would mean to restore the soul to a place of stability and rearm it with the disciplines needed to properly function in society.

In New York, the efforts toward restorative justice have looked a bit different. For a lot of types of crimes, specifically misdemeanors and low level felonies, there is no cash bail allowed which would mean you would not have to sit in jail while awaiting their day in court. The idea being that people of lower incomes wouldn’t be discriminately held due to them being unable to afford bail while wealthier individuals would be able just bail themselves out. A noble goal taken to extreme lengths and often in contrast with wider state laws, most notably the ‘three strike’ law on the books in the state of New York. Along with these changes some felonies are also often knocked down to misdemeanors to avoid the person being a felon (this happens in a lot of places but often New York can take it to the extreme). The negatives are often very easy to spot with a system like this. Back in 2021, a Columbia University student was murdered at the hands of a person who had 16 prior arrests and was out waiting for his court date due to another previously committed crime. A more recent example would be when migrants got involved with a brawl with police officers in Times Square and were released with no bail and proceeded to vacate the city. This has led many to consider the approach New York is taking to be one of ‘catch and release’ (New York's 'catch and release' policies fail to hold criminals accountable: police rep, Fox News, 2024) The only true way in which the actions of New York City align with anything described in Foucault’s work is with the idea of mass surveillance. Foucault describes the idea of the panopticon where prisoners would know that they are always being watched but not able to see where the person watching them was. This being a form of discipline as it psychologically messes with prisoners into not committing any bad acts due to always being watched. Combining the mass allotment of cameras that NYC has at its disposal along with the previous description of how crime is often handled makes a fair amount of law abiding citizens worried that the purpose the cameras serve is to intimidate them rather than those who are actually at risk of committing a crime.

True restorative justice should aim to bring the individual back into a state of being capable of being released into society, marking the slate clean in the process. Like how Catholics treat the sacrament of confession. Discipline is a trait that is a prerequisite for proper functioning in human society and Foucault was correct in asserting that there are institutions, other than prisons, which have a goal of instilling discipline. These institutions are present in all stages of life and are meant, when executed properly, to get us ready to interact with the wider world. Simply not holding lots of criminals, especially those with a prior record, accountable does no one any favors and certainly doesn’t teach them discipline but rather that they can do it again and again with little to no repercussions. “Discipline and Punish” can be interpreted in many different ways but the core statement of the work which is the same among many of the interpretations is that the certainty of being punished needs to be the deterrent rather than the punishment itself. If you have no deterrent then you lose your leverage and in this case the City of New York is guilty having lost its leverage but it is never too late to get it back and to execute restorative justice the right way rather than effectively enacting retribution on citizens who committed no crimes.