"Enemy Jurisprudence"

Hanno Kaiser has an excellent blog posting over at the Law and Society blog. The entry discusses the case Arizona v. Berger, in which of a 52-year-old man was sentenced to 200 years in prison for possessing 20 images of child pornography (link here). Clearly this kind of excessive punishment -- the sentence is more severe than those for rape, assault and second degree murder -- makes a mockery of the idea of justice in our courts.

Kaiser talks about how, especially in emotionally touchy situations, the law sometimes acts as an expression of moral outrage, rather than an agent of justice. Kaiser cites the work of Michel Foucault, which I am quite familiar with, calling this form of excessive punishment a "celebration of moral hatred". Foucault's work Discipline and Punish, from which the term "moral hatred" is taken, is a penetrating analysis of the structures of control and punishment within our societies, from the legal system to more "soft" forms of control, such as education and social pressure.

There is surely something wrong with our legal system when such extreme forms of punishment are approved, even when challenged as conflicting with the Constitution's protection against cruel or unusual punishment. Without a doubt, the punishment of this man was extremely unusual and excessive -- this case shows the injustice that can result from a societal obsession with moral retribution, when combined with a lack of concern for individual rights. I highly recommend reading Kaiser's blog.