How Should Criminals be Punished? From Bentham's "Enlightened" Panopticon to the Universal Human Rights of Prisoners

How should we punish criminals? In Impermissible Punishments, the Arthur Liman Professor of Law at Yale Law School, Judith Resnik, provides a historical narrative of punishment in European and American prisons. Tracing the evolution from Jeremy Bentham's utilitarian Panopticon through post-World War II human rights frameworks, Resnik argues that punishment systems developed as a transatlantic rather than uniquely American project. Her analysis reveals how prisoners themselves, not reformers, first articulated the concept of retained rights during detention. Resnik’s new book chronicles a crucial divergence after the 1980s, when European systems maintained stronger human rights commitments while American prisons retreated from recognizing prisoners as rights-bearing individuals, thereby making prison a problem for its democracy. 1. Prison systems developed as a transatlantic project, not American innovation Punishment theories and practices emerged from shared Enlightenment thinking across Europe and America in the 1700s-1800s. Figures like Beccaria, Bentham, and Tocqueville created interconnected ideas about rational, purposeful punishment that crossed national boundaries.2. Prisoners, not reformers, first articulated the concept of retained rights While reformers debated how to punish effectively, it was people in detention themselves—like Winston Talley in Arkansas in 1965—who first argued they retained fundamental rights during incarceration. This represented a revolutionary shift from viewing prisoners as "civilly dead."3. World War II created the crucial turning point for prisoners' rights The horrors of concentration camps and fascist regimes made clear the dangers of treating any group as less than human. The 1948 Universal Declaration of Human Rights and 1955 UN prison rules marked the formal recognition of prisoners as rights-bearing individuals.4. America and Europe diverged after the 1980s on prisoner treatment While both regions initially embraced prisoners' rights in the 1960s-70s, the U.S. retreated during the "war on crime" era. Europe maintained stronger human rights commitments, while America expanded punitive measures like solitary confinement and mass incarceration.5. Prison conditions reflect broader democratic health Resnik argues that how a society treats its most marginalized members—prisoners, immigrants, minorities—indicates the strength of its democratic institutions. Authoritarian treatment of any group threatens the rights of all citizens in a democratic system.Keen On America is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit keenon.substack.com/subscribe