And then, on top of that, a new system has
penetrated
the first: we punish according to the law but in order to correct, to modify, to redress; for we are dealing with deviants and the abnormal.
Foucault-Live
I am therefore personally and unambiguously in favor of the suppression of the death penalty.
That said, my article was bom of a disturbing aston- ishment. I perceived that in this great debate there was a tacit agreement to refer only to utilitarian arguments. To me that was particularly shocking on the part of people who, claiming to be mostly on the left, consider themselves partisans of the abolition of the death penalty. Before the deluge of statistics "showing" that the death penalty doesn't discourage crime and that it has no dissuasive power, I asked myself: how can something so serious be discussed by considering it only from the point of view of the fear it provokes, even if it is to try to show that the latter is ineffective? And if other statistics were to "demonstrate" that the penalty is dissuasive? Your convic- tion wouldn't change a bit!
? 158 The Anxiety of Judging
? Robert Badinter: In your article you alluded to the role of the defense in the jury trial and you reproach me for using "utilitarian" arguments. There's much to say about that! But, before everything, I must make clear that for me a plea for the defense is dead the very moment it's uttered. It's an action, not a reflection. It can't be dissociated from the trial of which it is part. I had a stenographer record all the debates in Patrick Henry's trial. I thought, like everyone, that it was going to end with his death sentence. I wanted--and this will not surprise Michel Foucault--^the debates to remain, as an historic document. Had Henry been condemned to death, I would have published this text immediately.
? Michel Foucault: You just said something very important: no one really knows what happens in the course of a trial. Which is surprising if nothing else, insofar as it's a public procedure, in principle. Because of the distrust of the secret and the written word--which were the two principles of penal justice under the monarchy--our trials since 1794 have supposedly been oral and public. The indictments of the prose- cution are only preparatory documents. All must be played out in a theater with the public supposedly present. Yet, con- cretely, only fifty people, some journalists, a hurried judge, and an overwhelmed jury participate. There is no doubt that in France justice is a secret. And, after the verdict, it remains as such. It is nevertheless extraordinary that every day dozens of indictments are pronounced in the name of the "French people," who are essentially ignorant of them.
? A debate like the one at Troyes was extremely impor- tant. For months Patrick Henry's crime was made the object of an unprecedented dramatization in all the press. And then, and I don't know if we should be congratulating ourselves, during the trial the history of the death penalty became involved in the issue. Yet, in spite of all that, no one really knows what
? The Anxiety of Judging 159
? was said about it, what argument hit home. In my opinion the uncensored publication of the debates is indispensable, what- ever your reserves.
RB: What you just said encourages me to ask Jean Laplanche a preliminary question, a minor but very important question: Have you ever witnessed a great criminal trial?
JL: No, never.
RB: You neither, Michel Foucault?
MF: Never a big criminal trial. And The Nouvel Observateur never asked me to cover the Troyes trial, which I regret. . .
RB: Jean Laplanche has only seen artifice and clev- erness where all those who were present at the trial felt exactly the contrary. In fact, for me it was only a matter of leading the jury to a state of lucidity about what the death penalty repre- sented for them as human beings.
? I said to myself: the true problem for the jury member is his personal, secret relationship to death. I wanted to make them feel that they represented, finally, only themselves, fac ing a man seated very close to them. And that they had the aberrant and exorbitant power to prohibit this man from con- tinuing to live. Of course I spoke of the man "cut in two. " But, contrary to what Jean Laplanche imagines, this was not done out of a taste for oratorical effect. I am horrified by every rhetorical exploitation of the guillotine and torture. It was ex- actly to avoid description that I sought the barest image to represent the decapitation of a man. And however you inter- pret it, at the end of the execution this man is in two pieces in the court of Sante. That's all. So, instead of going into a wealth
? 160 The Anxiety of Judging
of disturbing details--they're going to cut off his head and put it into a basket--chose extreme bareness.
That this image evokes fundamental notions like cas- tration for a psychoanalyst is possible. But in what concerns me, it's the opposite of rhetorical artifice. That's why this ar- ticle shocked and wounded me.
JL: Badinter seems to think that I reproached him for techniques and "effects. " But it's not the sincerity of the law yer that's in question. At bottom, it hardly matters whether or not I was present at the trial. The trials like the one at Troyes
are spectator trials: all citizens, not just the audience, are sum- moned to them.
? And this leads to my second remark: you arenecessar- ily in a compromised position between your function as a defender of a man and your mission as reformer of a law. I very much admired your book L'Execution^ where you show that the defense of a man can be only an absolute witnessing, body to body, that no longer has to be concemed with justice. It's a redoubtable and admirable position. Assuming you have used certain "effects" to this end, I see nothing more to add. But your position is untenable when, at the same moment, you intend to take action against the death penalty. One of two things: either you still situate yourself in reference to the law and to justice--but tiiat impedes your absolute defense; or it's the very notion of penalty that you contest; yet tiie critic of tiie death penalty who emphasizes its "efficacity" presupposes that
justice has only the administration of the best possible rela- tionships between men as its object.
? RB: But finally the problem of the death penahy is not posed only in itself, abstractiy! It is first posed very con- cretely at the moment when a man is there next to you, at risk of being condemned to death. It takes on all its meaning, be-
? ? ? ? The Anxiety of Judging 161
? lieve me, only at the last bloody minute in the court of Sante. There's nothing theoretical about it, alas!
? JL: You tell us that each jury member finally re- presents only himself. But one can claim the same thing for every pronouncement of a penalty, whatever it is! Let's sup- pose that the death penalty is abolished. Isn't it the same situ- ation? Isn't the jury member then the person who slides the bolt on the prison cell? Don't we retum, as in the case of the death penalty, to a "man-to-man" situation where no decision can be conceived but the one of vengeance? That's very much the reason why justice is only possible when rendered "in the name of. . . " If you suppress this reference that transcends the individual you suppress justice. But what is substituted for it is not liberty, but the obligatory administration of men, with its multiple faces: technical, psychiatric, the police, etc.
? RB: At no moment in his life does a man dispose of a power comparable to the one when he says: "What am I going to do with him? Am I going to send him to prison for five years? Ten years? " And from that moment of course a lawyer's first duty is to recall to the jury the immensity of those five years. But, in the case of a prison term, which can easily be changed, nothing is really definitive. The trial will proceed in the shadow or within the framework of detention, sometimes a pardon or conditional freedom, etc. When it's a matter of death the choice is radical: it changes nature. After the decision--except for the possibility of pardon--^it's all over. When the jurors have to pronounce sentence, it's death that looks them in the face. And it is conjured away, erased, masked by the whole judicial ceremony.
? JL: The ceremony is ridiculous and absolute only when deprived of its symbolic significance, of its reference "in
? 162 The Anxiety of Judging
? the name of. . . " You insist on individualizing the judifical de- cision. But, by doing that, you render every decision impos- sible--or criminal. Every day, aren't there numerous circum- stances in which the decision of a single person leads to the death of thousands? Imagine that you are President of the RepubUc and that you have to decide whether to lower the speed hmit on highways to 90 km/hour. There's reason to spend a few bad nights. There again, the filing of a charge is not a vain trifle but what allows culpabihty to be tied to every decision. Presidents, judges, jurors obsessionally made to feel guilty: is that what we want? But then, in turn, pohce superin- tendents, technocrats, and the specialists "of the human soul" will disburden themselves of all scruples. . .
? RB: I don't see the connection. How can the fact that certain pohtical or strategic decisions invoke the life and death of others justify the judicial decision to put someone to death? It's true that the decision to keep a man in prison for five years more or less is a serious one. But how are we to admit the death penalty into today's system? At Troyes Patrick Henry escaped with his life. But Ranucci had just been guillo- tined, and, a week after Troyes, Carrein was sentenced, per- haps because some jurors felt frustrated by Henry's release. This relativism alone suffices to condemn capital punishment.
So, why not use all the arguments one has at one's disposal? There is the prosecutor, standing before you, saying: "If you don't condemn this man to death other innocent chil- dren will be savagely murdered. " At that point of the trial, if you don't respond in kind, if you don't destroy his argument-- which in reality is only a disguise for the death drive that works within us all--^you are lost. Of course criminals aren't executed in order to protect other potential victims. They are killed for other reasons, reasons that I would like to hear you, as a psychoanalyst, explain to us. But before getting to the
? The Anxiety of Judging 163
? heart of the issue, these pseudo-rational arguments have to be destroyed. If we don't take that approach it's not worth the trouble trying to save a man.
? JL: To be sure, you're in touch with the reality of the court. But I wonder if this milieu of the court, with its argu- ments that move in a closed circle, is really connected to this other reality, that of the social body, and its need for justice that you have wrongly reduced to a need for vengeance. The exemplarity or inefficiency of the penalty--that's not what resonates at the level of the population. Or rather, to make a finer distinction, we ought to distinguish between two aspects of what is called "exemplarity. " One is purely utilitarian: man is compared to a rat that one trains in a maze. If he gets a shock, he'll go in another direction. We know that this kind of conditioning--fortunately--^is for man greatly inefficient. And there is a different exemplarity that one can call symbohc, which attests to the durability of a certain network of values: the value of human life for example. So I think that, if you go to the heart of things, the "real" dissuasion doesn't particularly interest the people who clamor, sometimes in a fnghtfiil or vehement way, for criminals to be punished. What they want, simply, is that the crime be punished; the "example" of the punishment is there to attest to the durability of certain "ta- boos. " Yet, on that level, you're not responding to them; you never say to them, at any point: "Do you really understand what the punishment is? Do you really know why you desire it so much? "
? MF: Badinter's defense plea at Troyes seemed strong to me on precisely those points that Jean Laplanche is contest ing. But I don't think that you. Monsieur Badinter, are giving but a minimal interpretation of what you have done. You said to the jurors: "In the end your conscience doesn't allow you to
? 164 The Anxiety of Judging
? condemn someone to death! " And you said equally; "You don't know this individual; the psychiatrists haven't been able to tell you anything about him, and you're going to condemn him to death! " You have also criticized the exemplarity of the punishment. Yet these arguments are possible only because penal justice doesn't function so much as the application of a law or a code than as a sort of corrective mechanism in which the psychology of the defendant and the conscience of the jurors interfere with one another.
? If your strategy appears shrewd to me, it's because it puts the way penal justice has worked since the beginning of the 19th century into a trap. You have taken it literally. You have said to yourself: "According to our justice the jurors, these people chosen randomly, are reputed to be the universal conscience of the people. But there is no reason that twelve people can suddenly, by a kind of judicial grace, begin to function as the universal conscience. " Having raised this chal- lenge, you have said to them: "Monsieur Untel, you have your humors, your mother-in-law, your Uttle hfe. Can you take it upon yourself, such as you are, to kill someone? " And you were right to speak to them like that. For justice functions on the equivocation between the juror as universal conscience, as abstract citizen, and the individual juror drawn randomly according to a certain number of criteria.
Similarly, you have said: "At bottom, we judge peo- ple not so much according to their acts as according to their personality. " The best proof: We bring in a psychiatrist, character witnesses, we ask the little sister if the accused was nice, we question his parents about his childhood. We judge the criminal more than the crime. And it's the knowledge we gain of the criminal that justifies whether we inflict such and such a punishment. But, continuing to raise the challenge, you have drawn the consequences: "The psychiatrists have not been capable of telling us about Patrick Henry, we don't really know him. We cannot therefore kill him. "
? ? The Anxiety of Judging 165
? Your arguments were tactically skillful, to be sure. But above all they had the merit of openly making use of the logic of the current penal system, and of turning it back against itself. You have demonstrated that the death penalty couldn't function within such a system. But then Jean Laplan- che intervenes by saying that this system is dangerous.
JL: If I say that it's dangerous it's because it leads us to a conformism much worse than that of the law: that of con- formity. Foucault emphasizes an evolution but he pushes also in the direction of the latter. The law whose death he an- nounces is replaced, in an insidious way, by the manipulation of man in the name of a "norm" claimed to be rational. And the "norm" will not be so easily put off: it's the crabgrass that ceaselessly pushes back the ground "liberated" from the law.
MF; Let's imagine a justice that functions only ac- cording to a code: if you steal, your hand is cut off; if you
commit adultery, your sex organs are slit; if you murder, your head is cut off. It's a system of arbitrary and obligatory rela- tionships between the acts and the punishment that sanctions the crime in the person of the criminal. Thus it is possible to condemn someone to death.
But, if justice is concerned with correcting an individ- ual, of gripping the depths of his soul in order to transform
him, then everything is different: it's a man who is judging another and the death penalty is absurd. Monsieur Badinter has proved it; his defense, in this sense, is un-arguable.
JL: Not only does the death penalty become impos- sible but no punishment is truly possible.
MF: That's right. Today two systems are super- imposed on one another. On the one hand, we are still living
? ? ? ? 166 The Anxiety of Judging
? under the old traditional system which says: we punish be- cause there is a law.
And then, on top of that, a new system has penetrated the first: we punish according to the law but in order to correct, to modify, to redress; for we are dealing with deviants and the abnormal. The judge thinks of himself as a therapist of the social body, a worker in the field of "public health" in the larger sense.
? JL: I think it's a little exaggerated to proclaim that we have finished with the law in order to enter the universe of the norm--even if it's to contest it in its tum. For the people, in spite of everything, the notion of justice remains intact. There's justice, there's no justice. This man has acted badly, he must be punished: we hear this everywhere, all around us-- the need for law manifesting itself in this great collective mur- mur. It's striking to see our jurists and modem criminologists treat with contempt the notion of punishment as "retribution. "
In order to trace this current course or degradation back a little I alluded to Hegel, who anticipated the major objection: if one keeps to the level of materiality, of suffering, nothing justifies the addition of another crime and the further suffering that is imposed on the criminal. It doesn't change anything, it doesn't bring back the dead! The evil, far from being balanced, is only added to. Yet this objection, so pow- erful, can be transcended only through reference to another level, that of the law. The punishment, Hegel says forcefully, only makes sense if it abolishes, symbolically, the crime. But that, in its tum, is only comprehended because the crime itself does not lie in the material violence where it is manifested. It only exists in and through the law. We are animals dedicated to symbols and the crime adheres to our skin, hke the law. . .
? RB: A little while ago I evoked the relationship es- tablished between the one whose task is to judge and the deci-
? The Anxiety of Judging 167
? sion. You say to me: the law survives. It's true. Only we must not forget the extenuating circumstances. For the same crime you can be condemned to death or to three years in prison with a suspended sentence. Of course the range of possible sen tences is not infinite, but all the same it's very large. The di versity of possible decisions confers on judges a great power.
? In fact, if one has thus been oriented toward an expansion of the possible, it's because the judicial institution has been demanding it. Recall the thesis of Montesquieu and the Constituent Assembly: the judge must be "the mouth of the law. " It was infinitely easy for him. It sufficed that he ask himself the question: guilty or not guilty? If he were convinced that the accused was guilty, he pronounced the penalty provided by the texts. And he had the comforting feel- ing of having applied the general will. That must have been agreeable. But too easy. Today the judge, groping and uncer- tain, assumes responsibihty for the decision. But it's infinitely preferable to this automatic cleaver of abstract retribution.
? The drama is that we haven't gone to the end of per- sonalization. Of course we talk about treatment, re-education, rehabilitation. But we are given a caricature of treatment. We talk of the social rehabilitation of the convicted. And, in fact, we wimess a political exploitation of the fight against crime. No government has ever wanted to provide itself with the means to carry out these beautiful statements.
JL: We are marching in giant steps toward a total psychiatricalization of justice.
RB: No, psychiatry is only one means among others that are available to judges.
JL: I would mention psychoanalysis, which seems to me just as serious. Psychoanalysis is not there to cure dehn- quency on command.
? ? 168 The Anxiety of Judging
? MF: I will go further: what is this strange postulate according to which, from the moment someone has committed a crime, it signifies that he is sick? This symptomatization of the crime is the problem . . .
RB: Don't make me say what I didn't say: it would be a gross caricature of my thinking. Crime is a social sick- ness. But it's not by killing the ill or by confining them sepa- rately from the so-called healthy that one fights the sickness.
MF: Perhaps, but it's not a caricature of what all of criminology has been saying since 1880. We still have, in appearance, a legal system which punishes the criminal. In fact, we have a justice that proves itself innocent of punishing by pretending to treat the criminal.
? It is around this substitution of criminal for the crime that things have pivoted and that we have begun to think: "if we are dealing with a criminal, to punish him doesn't make a lot of sense unless the punishment is inscribed in a technology of human behavior. " And it is there that the criminologists of the 1880s and 90s began to advance strangely modem state- ments; "The crime cannot be, for the criminal, but an abnor- mal, disturbed behavior. If he upsets society, it's because he himself is upset. " They have drawn two kinds of conclusions: in the first place, "the judicial apparatus is no longer useful. " The judges, as men of law, are no longer competent to treat so difficult a matter, one so little juridical and so properly psychological as the criminal. Therefore, for the juridical apparatus we must substitute technical commissions of psy- chiatrists and doctors. Very specific projects were elaborated in this direction.
Second consequence: "We must certainly treat this individual who is dangerous only because he is sick. But, at the same time, we must protect society against him. " Hence
? ? The Anxiety of Judging 169
? the idea of an internment with a mixed function: therapeutic
and social preservation.
These projects aroused very hvely reactions from ju-
dicial and political authorities in the 1900s. However, in our day they have found a very large field of application, and the USSR--once more "exemplary"--^is not the exception.
RB: But all the same, one cannot advocate a return to the abstract retribution of the penalty. You speak of crime, Michel Foucault, but it's the criminal one judges. One can try to make reparations for a crime but it's the criminal that one punishes. The judges couldn't refuse to go in the direction of judicial treatment. How could they refuse the idea that one was going to change the criminal by bringing him back to the norm? What was there to do? Throw him into a hole for twenty years? It's not possible any longer. Cut him in half? It's not possible. What then? Re-integrate him by normalizing him. From the point of view of judicial technology--judge or lawyer--^there is no other possible approach. And it's not nec essarily practiced according to the Soviet system.
The other aspect of the thing that really upsets me is this rising clamor: "Death! Death! Let's hang them, let's torture them, let's castrate them! " Why? If I was so disap- pointed by reading Laplanche's article it was because he didn't respond to the question. At bottom, the only interesting approach to the problem of the death penalty is not that of the technicians of justice, nor that of the moralists nor of the phi- losophers. It is another that I would like to see bom and that will respond to all those investigating the secret function of the death penalty.
? The death penalty, in France, concems only a very small number of criminals. In the last nine years there have been only five executions. Considering these figures, look at the enormity of the passions vented. Why does one receive, as
? 170 The Anxiety of Judging
? soon as one publishes an article on the death penalty, two hundred letters of insult and delirium. For the Patrick Henry case I'm still receiving an unbelievable amount of mail: "You filth, if you think you're gonna save your own skin after let- ting him go--that monster! " Threats of torture against my wife and children then follow. Can you explain this anguish? Why do non-criminals have such a need for expiatory sacrifice?
? MF: I think you are integrating two things into the same question. It's certain that spectacular crimes set off a general panic; it's the irruption of danger in daily life, a resur- gence exploited shamelessly by the press.
? On the other hand, you can't imagine the efforts needed to interest people even a little in what you will agree is the real problem of criminal punishment, that is, the flagrant offences, the diet in correctional institutions, the trial-a-minute (proce`s-minute) where some kid, because he has stolen a piece of scrap iron off some vaguely defined lot, finds himself spending eighteen months in prison, which means that he will have to start over again, etc. The intensity of feelings that surround the death penalty is intentionally maintained by the system, since it allows it to mask the real scandals.
We have then three superimposed phenomena out of keeping with one another: a penal discourse that claims to treat rather than punish, a penal apparatus that never ceases to pun- ish, and a collective consciousness that demands several sin- gular punishments and is ignorant of the daily punishment that is silentiy exercised in its name.
JL: It seems arbitrary to me to separate so distinctly the population of delinquents fi^om that of the non-delinquents. There exists, on both sides, depths of common anguish and guilt. The great waves of anguish you were speaking of are not linked to fear but to something much deeper and harder to
? ? ? The Anxiety of Judging 171
? pinpoint. If people investigate the death penalty so much, it's because they are fascinated by their own aggressivity. Because they know in a vague way that they bear the crimes in them- selves and that they resemble the monster that confronts them.
? As for the criminals--whom I don't know so well as Monsieur Badinter--they themselves remain faithful to the law. Don't you hear, from one cell to another: "It's not fair, he got too heavy a rap," or "He got what was coming to him! "
? No, there isn't on one side a population white as snow who's afraid of lawbreakers and wants them punished, and on the other a group of criminals who hve only in and through lawbreaking. Well, what's there to say, if not that there exists a gap between the unnameable anguish that comes from our own death drive and a system that introduces the law? And that it's just this gap that permits a certain psychic equilibrium. I don't think at all that the appUcation of the law is an element that exists impUcidy, even in the one who vio- lates it. Inversely, the crime exists in each one of us, but what is psychically devastating is to treat someone as an "irrespon- sible child" when he manifests this imphcit crime in his acts. One could refer here to psychoanalysis and to its evolution in relation to the problems of education: it has been observed that the absence of law--or at least its partial deficiency, or its am- biguity--^is very anguishing, indeed "psychotizing" for the child brought up in a "permissive" environment.
? RB: There's no question of suppressing the law. It has not only a technical and repressive function but also an expressive function, in the sense that it expresses what the collective conscience judges to be proper.
? JL: I would say, in the strongest sense, that it has a
subjective function that operates in each of us; that of prohibitions that we respect--^in our unconscious--^like parri- cide and incest.
? 172 The Anxiety of Judging
? MF: For Laplanche the subject is constituted because there is law. Suppress the law and there will be no subject.
RB: I'm very sorry that psychoanalysts haven't in- vestigated any further the origin of the need for punishment that they seem to assume is a given. To say that at the same time there is identification with the criminal and anguish in this identification are words . . .
MF: It appears to me to be dangerous to demand the reason and foundation of the social act of punishment from psychoanalysts.
RB: Not reason and foundation but explication and clarity.
? JL: Psychoanalysts, and Freud first of all, have stud- ied this question at length. If one had to try and summarize their point of view in two sentences, I would say that there exists two levels of guilt: the one where it is co-extensive with the anguish of our own self-aggression; and the other where it comes to be symbolized in the constitutive systems of our social being: linguistic, juridical, religious. The need for pun- ishment is already a way of making a primordial anguish pass into something expressible, and, consequendy, "negotiable. " That which can be expiated can be aboUshed, compensated for symbolically. . .
? RB: We are content then to accept the need for pun- ishment as a given without looking for the causes. But, once the public has been informed about a punishment, the second aspect of things begins: the treatment, the personalized ap- proach to the criminal. The judiciary must then satisfy the collective need for punishment, without forgetting about re-
? The Anxiety of Judging 173
? habilitation. Obviously that sometimes grates on nerves, and the public becomes indignant: "He was condemned to twenty years and he's being let go after eight! " But why should he be kept longer if he's been reformed?
JL: One might even wonder if it's absolutely neces- sary to punish some criminals if we are sure they are reformed before being punished.
RB: We ought not. But the public demands pun- ishment. And if the judicial institution did not satisfy the need for punishment, that would produce a formidable ftiistration, which would be taken out in other forms of violence. That said, once the judicial dramaturgy is performed, the substitu- tion of treatment for punishment allows the accused to be re- inserted without affecting the ritual. And so the game is played.
? MF: Of course that grates, but see also how well oiled everything is! Of course there's someone there to punish the crime, but the president, with his ermine and his cap, what does he say? He leans over toward the deUnquent: "What was your childhood like? Your relationship with your mother? Your little sisters? Your first sexual experience? " What do these questions have to do with the crime he has committed? Naturally, that has to do with psychology. Psychiatrists are brought in to make everyone feel stupid, with discussions as much from the psychiatric point of view as fi-om the judicial, and that everyone pretends to consider as highly competent exposes. At the end of this great juridico-psychological hturgy the jurors finally accept this enormous thing: to punish with the feeling that they have accomplished an act of social secu- rity and public health, that one deals with "evil" by sending a fellow to prison for five years. The incredible difficulty of
? 174 The Anxiety of Judging
? punishing someone is dissolved into theatricality. It doesn't function badly at all.
RB: I'm not as sure as you are that the juror allows himself to be seduced by this medical approach. He thinks more simply: "He was abandoned by his mother? Let's take two years off the sentence. " Or again: "His father beat him? Then reduce the solitary confinement by four years. He had a praiseworthy childhood? Then take off three yeras. He deser- ted his wife and children? Then add on three years. " And so it goes. I'm caricaturing the situation a little, but not so much.
JL: Psychiatric expertise, such as I've known it, has been preoccupied above all with the protection of society. What would be most effective from that point of view?
That said, my article was bom of a disturbing aston- ishment. I perceived that in this great debate there was a tacit agreement to refer only to utilitarian arguments. To me that was particularly shocking on the part of people who, claiming to be mostly on the left, consider themselves partisans of the abolition of the death penalty. Before the deluge of statistics "showing" that the death penalty doesn't discourage crime and that it has no dissuasive power, I asked myself: how can something so serious be discussed by considering it only from the point of view of the fear it provokes, even if it is to try to show that the latter is ineffective? And if other statistics were to "demonstrate" that the penalty is dissuasive? Your convic- tion wouldn't change a bit!
? 158 The Anxiety of Judging
? Robert Badinter: In your article you alluded to the role of the defense in the jury trial and you reproach me for using "utilitarian" arguments. There's much to say about that! But, before everything, I must make clear that for me a plea for the defense is dead the very moment it's uttered. It's an action, not a reflection. It can't be dissociated from the trial of which it is part. I had a stenographer record all the debates in Patrick Henry's trial. I thought, like everyone, that it was going to end with his death sentence. I wanted--and this will not surprise Michel Foucault--^the debates to remain, as an historic document. Had Henry been condemned to death, I would have published this text immediately.
? Michel Foucault: You just said something very important: no one really knows what happens in the course of a trial. Which is surprising if nothing else, insofar as it's a public procedure, in principle. Because of the distrust of the secret and the written word--which were the two principles of penal justice under the monarchy--our trials since 1794 have supposedly been oral and public. The indictments of the prose- cution are only preparatory documents. All must be played out in a theater with the public supposedly present. Yet, con- cretely, only fifty people, some journalists, a hurried judge, and an overwhelmed jury participate. There is no doubt that in France justice is a secret. And, after the verdict, it remains as such. It is nevertheless extraordinary that every day dozens of indictments are pronounced in the name of the "French people," who are essentially ignorant of them.
? A debate like the one at Troyes was extremely impor- tant. For months Patrick Henry's crime was made the object of an unprecedented dramatization in all the press. And then, and I don't know if we should be congratulating ourselves, during the trial the history of the death penalty became involved in the issue. Yet, in spite of all that, no one really knows what
? The Anxiety of Judging 159
? was said about it, what argument hit home. In my opinion the uncensored publication of the debates is indispensable, what- ever your reserves.
RB: What you just said encourages me to ask Jean Laplanche a preliminary question, a minor but very important question: Have you ever witnessed a great criminal trial?
JL: No, never.
RB: You neither, Michel Foucault?
MF: Never a big criminal trial. And The Nouvel Observateur never asked me to cover the Troyes trial, which I regret. . .
RB: Jean Laplanche has only seen artifice and clev- erness where all those who were present at the trial felt exactly the contrary. In fact, for me it was only a matter of leading the jury to a state of lucidity about what the death penalty repre- sented for them as human beings.
? I said to myself: the true problem for the jury member is his personal, secret relationship to death. I wanted to make them feel that they represented, finally, only themselves, fac ing a man seated very close to them. And that they had the aberrant and exorbitant power to prohibit this man from con- tinuing to live. Of course I spoke of the man "cut in two. " But, contrary to what Jean Laplanche imagines, this was not done out of a taste for oratorical effect. I am horrified by every rhetorical exploitation of the guillotine and torture. It was ex- actly to avoid description that I sought the barest image to represent the decapitation of a man. And however you inter- pret it, at the end of the execution this man is in two pieces in the court of Sante. That's all. So, instead of going into a wealth
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of disturbing details--they're going to cut off his head and put it into a basket--chose extreme bareness.
That this image evokes fundamental notions like cas- tration for a psychoanalyst is possible. But in what concerns me, it's the opposite of rhetorical artifice. That's why this ar- ticle shocked and wounded me.
JL: Badinter seems to think that I reproached him for techniques and "effects. " But it's not the sincerity of the law yer that's in question. At bottom, it hardly matters whether or not I was present at the trial. The trials like the one at Troyes
are spectator trials: all citizens, not just the audience, are sum- moned to them.
? And this leads to my second remark: you arenecessar- ily in a compromised position between your function as a defender of a man and your mission as reformer of a law. I very much admired your book L'Execution^ where you show that the defense of a man can be only an absolute witnessing, body to body, that no longer has to be concemed with justice. It's a redoubtable and admirable position. Assuming you have used certain "effects" to this end, I see nothing more to add. But your position is untenable when, at the same moment, you intend to take action against the death penalty. One of two things: either you still situate yourself in reference to the law and to justice--but tiiat impedes your absolute defense; or it's the very notion of penalty that you contest; yet tiie critic of tiie death penalty who emphasizes its "efficacity" presupposes that
justice has only the administration of the best possible rela- tionships between men as its object.
? RB: But finally the problem of the death penahy is not posed only in itself, abstractiy! It is first posed very con- cretely at the moment when a man is there next to you, at risk of being condemned to death. It takes on all its meaning, be-
? ? ? ? The Anxiety of Judging 161
? lieve me, only at the last bloody minute in the court of Sante. There's nothing theoretical about it, alas!
? JL: You tell us that each jury member finally re- presents only himself. But one can claim the same thing for every pronouncement of a penalty, whatever it is! Let's sup- pose that the death penalty is abolished. Isn't it the same situ- ation? Isn't the jury member then the person who slides the bolt on the prison cell? Don't we retum, as in the case of the death penalty, to a "man-to-man" situation where no decision can be conceived but the one of vengeance? That's very much the reason why justice is only possible when rendered "in the name of. . . " If you suppress this reference that transcends the individual you suppress justice. But what is substituted for it is not liberty, but the obligatory administration of men, with its multiple faces: technical, psychiatric, the police, etc.
? RB: At no moment in his life does a man dispose of a power comparable to the one when he says: "What am I going to do with him? Am I going to send him to prison for five years? Ten years? " And from that moment of course a lawyer's first duty is to recall to the jury the immensity of those five years. But, in the case of a prison term, which can easily be changed, nothing is really definitive. The trial will proceed in the shadow or within the framework of detention, sometimes a pardon or conditional freedom, etc. When it's a matter of death the choice is radical: it changes nature. After the decision--except for the possibility of pardon--^it's all over. When the jurors have to pronounce sentence, it's death that looks them in the face. And it is conjured away, erased, masked by the whole judicial ceremony.
? JL: The ceremony is ridiculous and absolute only when deprived of its symbolic significance, of its reference "in
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? the name of. . . " You insist on individualizing the judifical de- cision. But, by doing that, you render every decision impos- sible--or criminal. Every day, aren't there numerous circum- stances in which the decision of a single person leads to the death of thousands? Imagine that you are President of the RepubUc and that you have to decide whether to lower the speed hmit on highways to 90 km/hour. There's reason to spend a few bad nights. There again, the filing of a charge is not a vain trifle but what allows culpabihty to be tied to every decision. Presidents, judges, jurors obsessionally made to feel guilty: is that what we want? But then, in turn, pohce superin- tendents, technocrats, and the specialists "of the human soul" will disburden themselves of all scruples. . .
? RB: I don't see the connection. How can the fact that certain pohtical or strategic decisions invoke the life and death of others justify the judicial decision to put someone to death? It's true that the decision to keep a man in prison for five years more or less is a serious one. But how are we to admit the death penalty into today's system? At Troyes Patrick Henry escaped with his life. But Ranucci had just been guillo- tined, and, a week after Troyes, Carrein was sentenced, per- haps because some jurors felt frustrated by Henry's release. This relativism alone suffices to condemn capital punishment.
So, why not use all the arguments one has at one's disposal? There is the prosecutor, standing before you, saying: "If you don't condemn this man to death other innocent chil- dren will be savagely murdered. " At that point of the trial, if you don't respond in kind, if you don't destroy his argument-- which in reality is only a disguise for the death drive that works within us all--^you are lost. Of course criminals aren't executed in order to protect other potential victims. They are killed for other reasons, reasons that I would like to hear you, as a psychoanalyst, explain to us. But before getting to the
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? heart of the issue, these pseudo-rational arguments have to be destroyed. If we don't take that approach it's not worth the trouble trying to save a man.
? JL: To be sure, you're in touch with the reality of the court. But I wonder if this milieu of the court, with its argu- ments that move in a closed circle, is really connected to this other reality, that of the social body, and its need for justice that you have wrongly reduced to a need for vengeance. The exemplarity or inefficiency of the penalty--that's not what resonates at the level of the population. Or rather, to make a finer distinction, we ought to distinguish between two aspects of what is called "exemplarity. " One is purely utilitarian: man is compared to a rat that one trains in a maze. If he gets a shock, he'll go in another direction. We know that this kind of conditioning--fortunately--^is for man greatly inefficient. And there is a different exemplarity that one can call symbohc, which attests to the durability of a certain network of values: the value of human life for example. So I think that, if you go to the heart of things, the "real" dissuasion doesn't particularly interest the people who clamor, sometimes in a fnghtfiil or vehement way, for criminals to be punished. What they want, simply, is that the crime be punished; the "example" of the punishment is there to attest to the durability of certain "ta- boos. " Yet, on that level, you're not responding to them; you never say to them, at any point: "Do you really understand what the punishment is? Do you really know why you desire it so much? "
? MF: Badinter's defense plea at Troyes seemed strong to me on precisely those points that Jean Laplanche is contest ing. But I don't think that you. Monsieur Badinter, are giving but a minimal interpretation of what you have done. You said to the jurors: "In the end your conscience doesn't allow you to
? 164 The Anxiety of Judging
? condemn someone to death! " And you said equally; "You don't know this individual; the psychiatrists haven't been able to tell you anything about him, and you're going to condemn him to death! " You have also criticized the exemplarity of the punishment. Yet these arguments are possible only because penal justice doesn't function so much as the application of a law or a code than as a sort of corrective mechanism in which the psychology of the defendant and the conscience of the jurors interfere with one another.
? If your strategy appears shrewd to me, it's because it puts the way penal justice has worked since the beginning of the 19th century into a trap. You have taken it literally. You have said to yourself: "According to our justice the jurors, these people chosen randomly, are reputed to be the universal conscience of the people. But there is no reason that twelve people can suddenly, by a kind of judicial grace, begin to function as the universal conscience. " Having raised this chal- lenge, you have said to them: "Monsieur Untel, you have your humors, your mother-in-law, your Uttle hfe. Can you take it upon yourself, such as you are, to kill someone? " And you were right to speak to them like that. For justice functions on the equivocation between the juror as universal conscience, as abstract citizen, and the individual juror drawn randomly according to a certain number of criteria.
Similarly, you have said: "At bottom, we judge peo- ple not so much according to their acts as according to their personality. " The best proof: We bring in a psychiatrist, character witnesses, we ask the little sister if the accused was nice, we question his parents about his childhood. We judge the criminal more than the crime. And it's the knowledge we gain of the criminal that justifies whether we inflict such and such a punishment. But, continuing to raise the challenge, you have drawn the consequences: "The psychiatrists have not been capable of telling us about Patrick Henry, we don't really know him. We cannot therefore kill him. "
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? Your arguments were tactically skillful, to be sure. But above all they had the merit of openly making use of the logic of the current penal system, and of turning it back against itself. You have demonstrated that the death penalty couldn't function within such a system. But then Jean Laplan- che intervenes by saying that this system is dangerous.
JL: If I say that it's dangerous it's because it leads us to a conformism much worse than that of the law: that of con- formity. Foucault emphasizes an evolution but he pushes also in the direction of the latter. The law whose death he an- nounces is replaced, in an insidious way, by the manipulation of man in the name of a "norm" claimed to be rational. And the "norm" will not be so easily put off: it's the crabgrass that ceaselessly pushes back the ground "liberated" from the law.
MF; Let's imagine a justice that functions only ac- cording to a code: if you steal, your hand is cut off; if you
commit adultery, your sex organs are slit; if you murder, your head is cut off. It's a system of arbitrary and obligatory rela- tionships between the acts and the punishment that sanctions the crime in the person of the criminal. Thus it is possible to condemn someone to death.
But, if justice is concerned with correcting an individ- ual, of gripping the depths of his soul in order to transform
him, then everything is different: it's a man who is judging another and the death penalty is absurd. Monsieur Badinter has proved it; his defense, in this sense, is un-arguable.
JL: Not only does the death penalty become impos- sible but no punishment is truly possible.
MF: That's right. Today two systems are super- imposed on one another. On the one hand, we are still living
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? under the old traditional system which says: we punish be- cause there is a law.
And then, on top of that, a new system has penetrated the first: we punish according to the law but in order to correct, to modify, to redress; for we are dealing with deviants and the abnormal. The judge thinks of himself as a therapist of the social body, a worker in the field of "public health" in the larger sense.
? JL: I think it's a little exaggerated to proclaim that we have finished with the law in order to enter the universe of the norm--even if it's to contest it in its tum. For the people, in spite of everything, the notion of justice remains intact. There's justice, there's no justice. This man has acted badly, he must be punished: we hear this everywhere, all around us-- the need for law manifesting itself in this great collective mur- mur. It's striking to see our jurists and modem criminologists treat with contempt the notion of punishment as "retribution. "
In order to trace this current course or degradation back a little I alluded to Hegel, who anticipated the major objection: if one keeps to the level of materiality, of suffering, nothing justifies the addition of another crime and the further suffering that is imposed on the criminal. It doesn't change anything, it doesn't bring back the dead! The evil, far from being balanced, is only added to. Yet this objection, so pow- erful, can be transcended only through reference to another level, that of the law. The punishment, Hegel says forcefully, only makes sense if it abolishes, symbolically, the crime. But that, in its tum, is only comprehended because the crime itself does not lie in the material violence where it is manifested. It only exists in and through the law. We are animals dedicated to symbols and the crime adheres to our skin, hke the law. . .
? RB: A little while ago I evoked the relationship es- tablished between the one whose task is to judge and the deci-
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? sion. You say to me: the law survives. It's true. Only we must not forget the extenuating circumstances. For the same crime you can be condemned to death or to three years in prison with a suspended sentence. Of course the range of possible sen tences is not infinite, but all the same it's very large. The di versity of possible decisions confers on judges a great power.
? In fact, if one has thus been oriented toward an expansion of the possible, it's because the judicial institution has been demanding it. Recall the thesis of Montesquieu and the Constituent Assembly: the judge must be "the mouth of the law. " It was infinitely easy for him. It sufficed that he ask himself the question: guilty or not guilty? If he were convinced that the accused was guilty, he pronounced the penalty provided by the texts. And he had the comforting feel- ing of having applied the general will. That must have been agreeable. But too easy. Today the judge, groping and uncer- tain, assumes responsibihty for the decision. But it's infinitely preferable to this automatic cleaver of abstract retribution.
? The drama is that we haven't gone to the end of per- sonalization. Of course we talk about treatment, re-education, rehabilitation. But we are given a caricature of treatment. We talk of the social rehabilitation of the convicted. And, in fact, we wimess a political exploitation of the fight against crime. No government has ever wanted to provide itself with the means to carry out these beautiful statements.
JL: We are marching in giant steps toward a total psychiatricalization of justice.
RB: No, psychiatry is only one means among others that are available to judges.
JL: I would mention psychoanalysis, which seems to me just as serious. Psychoanalysis is not there to cure dehn- quency on command.
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? MF: I will go further: what is this strange postulate according to which, from the moment someone has committed a crime, it signifies that he is sick? This symptomatization of the crime is the problem . . .
RB: Don't make me say what I didn't say: it would be a gross caricature of my thinking. Crime is a social sick- ness. But it's not by killing the ill or by confining them sepa- rately from the so-called healthy that one fights the sickness.
MF: Perhaps, but it's not a caricature of what all of criminology has been saying since 1880. We still have, in appearance, a legal system which punishes the criminal. In fact, we have a justice that proves itself innocent of punishing by pretending to treat the criminal.
? It is around this substitution of criminal for the crime that things have pivoted and that we have begun to think: "if we are dealing with a criminal, to punish him doesn't make a lot of sense unless the punishment is inscribed in a technology of human behavior. " And it is there that the criminologists of the 1880s and 90s began to advance strangely modem state- ments; "The crime cannot be, for the criminal, but an abnor- mal, disturbed behavior. If he upsets society, it's because he himself is upset. " They have drawn two kinds of conclusions: in the first place, "the judicial apparatus is no longer useful. " The judges, as men of law, are no longer competent to treat so difficult a matter, one so little juridical and so properly psychological as the criminal. Therefore, for the juridical apparatus we must substitute technical commissions of psy- chiatrists and doctors. Very specific projects were elaborated in this direction.
Second consequence: "We must certainly treat this individual who is dangerous only because he is sick. But, at the same time, we must protect society against him. " Hence
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? the idea of an internment with a mixed function: therapeutic
and social preservation.
These projects aroused very hvely reactions from ju-
dicial and political authorities in the 1900s. However, in our day they have found a very large field of application, and the USSR--once more "exemplary"--^is not the exception.
RB: But all the same, one cannot advocate a return to the abstract retribution of the penalty. You speak of crime, Michel Foucault, but it's the criminal one judges. One can try to make reparations for a crime but it's the criminal that one punishes. The judges couldn't refuse to go in the direction of judicial treatment. How could they refuse the idea that one was going to change the criminal by bringing him back to the norm? What was there to do? Throw him into a hole for twenty years? It's not possible any longer. Cut him in half? It's not possible. What then? Re-integrate him by normalizing him. From the point of view of judicial technology--judge or lawyer--^there is no other possible approach. And it's not nec essarily practiced according to the Soviet system.
The other aspect of the thing that really upsets me is this rising clamor: "Death! Death! Let's hang them, let's torture them, let's castrate them! " Why? If I was so disap- pointed by reading Laplanche's article it was because he didn't respond to the question. At bottom, the only interesting approach to the problem of the death penalty is not that of the technicians of justice, nor that of the moralists nor of the phi- losophers. It is another that I would like to see bom and that will respond to all those investigating the secret function of the death penalty.
? The death penalty, in France, concems only a very small number of criminals. In the last nine years there have been only five executions. Considering these figures, look at the enormity of the passions vented. Why does one receive, as
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? soon as one publishes an article on the death penalty, two hundred letters of insult and delirium. For the Patrick Henry case I'm still receiving an unbelievable amount of mail: "You filth, if you think you're gonna save your own skin after let- ting him go--that monster! " Threats of torture against my wife and children then follow. Can you explain this anguish? Why do non-criminals have such a need for expiatory sacrifice?
? MF: I think you are integrating two things into the same question. It's certain that spectacular crimes set off a general panic; it's the irruption of danger in daily life, a resur- gence exploited shamelessly by the press.
? On the other hand, you can't imagine the efforts needed to interest people even a little in what you will agree is the real problem of criminal punishment, that is, the flagrant offences, the diet in correctional institutions, the trial-a-minute (proce`s-minute) where some kid, because he has stolen a piece of scrap iron off some vaguely defined lot, finds himself spending eighteen months in prison, which means that he will have to start over again, etc. The intensity of feelings that surround the death penalty is intentionally maintained by the system, since it allows it to mask the real scandals.
We have then three superimposed phenomena out of keeping with one another: a penal discourse that claims to treat rather than punish, a penal apparatus that never ceases to pun- ish, and a collective consciousness that demands several sin- gular punishments and is ignorant of the daily punishment that is silentiy exercised in its name.
JL: It seems arbitrary to me to separate so distinctly the population of delinquents fi^om that of the non-delinquents. There exists, on both sides, depths of common anguish and guilt. The great waves of anguish you were speaking of are not linked to fear but to something much deeper and harder to
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? pinpoint. If people investigate the death penalty so much, it's because they are fascinated by their own aggressivity. Because they know in a vague way that they bear the crimes in them- selves and that they resemble the monster that confronts them.
? As for the criminals--whom I don't know so well as Monsieur Badinter--they themselves remain faithful to the law. Don't you hear, from one cell to another: "It's not fair, he got too heavy a rap," or "He got what was coming to him! "
? No, there isn't on one side a population white as snow who's afraid of lawbreakers and wants them punished, and on the other a group of criminals who hve only in and through lawbreaking. Well, what's there to say, if not that there exists a gap between the unnameable anguish that comes from our own death drive and a system that introduces the law? And that it's just this gap that permits a certain psychic equilibrium. I don't think at all that the appUcation of the law is an element that exists impUcidy, even in the one who vio- lates it. Inversely, the crime exists in each one of us, but what is psychically devastating is to treat someone as an "irrespon- sible child" when he manifests this imphcit crime in his acts. One could refer here to psychoanalysis and to its evolution in relation to the problems of education: it has been observed that the absence of law--or at least its partial deficiency, or its am- biguity--^is very anguishing, indeed "psychotizing" for the child brought up in a "permissive" environment.
? RB: There's no question of suppressing the law. It has not only a technical and repressive function but also an expressive function, in the sense that it expresses what the collective conscience judges to be proper.
? JL: I would say, in the strongest sense, that it has a
subjective function that operates in each of us; that of prohibitions that we respect--^in our unconscious--^like parri- cide and incest.
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? MF: For Laplanche the subject is constituted because there is law. Suppress the law and there will be no subject.
RB: I'm very sorry that psychoanalysts haven't in- vestigated any further the origin of the need for punishment that they seem to assume is a given. To say that at the same time there is identification with the criminal and anguish in this identification are words . . .
MF: It appears to me to be dangerous to demand the reason and foundation of the social act of punishment from psychoanalysts.
RB: Not reason and foundation but explication and clarity.
? JL: Psychoanalysts, and Freud first of all, have stud- ied this question at length. If one had to try and summarize their point of view in two sentences, I would say that there exists two levels of guilt: the one where it is co-extensive with the anguish of our own self-aggression; and the other where it comes to be symbolized in the constitutive systems of our social being: linguistic, juridical, religious. The need for pun- ishment is already a way of making a primordial anguish pass into something expressible, and, consequendy, "negotiable. " That which can be expiated can be aboUshed, compensated for symbolically. . .
? RB: We are content then to accept the need for pun- ishment as a given without looking for the causes. But, once the public has been informed about a punishment, the second aspect of things begins: the treatment, the personalized ap- proach to the criminal. The judiciary must then satisfy the collective need for punishment, without forgetting about re-
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? habilitation. Obviously that sometimes grates on nerves, and the public becomes indignant: "He was condemned to twenty years and he's being let go after eight! " But why should he be kept longer if he's been reformed?
JL: One might even wonder if it's absolutely neces- sary to punish some criminals if we are sure they are reformed before being punished.
RB: We ought not. But the public demands pun- ishment. And if the judicial institution did not satisfy the need for punishment, that would produce a formidable ftiistration, which would be taken out in other forms of violence. That said, once the judicial dramaturgy is performed, the substitu- tion of treatment for punishment allows the accused to be re- inserted without affecting the ritual. And so the game is played.
? MF: Of course that grates, but see also how well oiled everything is! Of course there's someone there to punish the crime, but the president, with his ermine and his cap, what does he say? He leans over toward the deUnquent: "What was your childhood like? Your relationship with your mother? Your little sisters? Your first sexual experience? " What do these questions have to do with the crime he has committed? Naturally, that has to do with psychology. Psychiatrists are brought in to make everyone feel stupid, with discussions as much from the psychiatric point of view as fi-om the judicial, and that everyone pretends to consider as highly competent exposes. At the end of this great juridico-psychological hturgy the jurors finally accept this enormous thing: to punish with the feeling that they have accomplished an act of social secu- rity and public health, that one deals with "evil" by sending a fellow to prison for five years. The incredible difficulty of
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? punishing someone is dissolved into theatricality. It doesn't function badly at all.
RB: I'm not as sure as you are that the juror allows himself to be seduced by this medical approach. He thinks more simply: "He was abandoned by his mother? Let's take two years off the sentence. " Or again: "His father beat him? Then reduce the solitary confinement by four years. He had a praiseworthy childhood? Then take off three yeras. He deser- ted his wife and children? Then add on three years. " And so it goes. I'm caricaturing the situation a little, but not so much.
JL: Psychiatric expertise, such as I've known it, has been preoccupied above all with the protection of society. What would be most effective from that point of view?
