Judicial discretion over penalties was transferred to prison administrators
Evidence
It is a question, in effect, of measures that by definition can intervene only after the sentence and can bear only on something other than the offences. Those who administer detention must therefore have an indispensable autonomy, when it comes to the question of individualizing and varying the application of the penalty: supervisors, a prison governor, a chaplain or an instructor are more capable of exercising this corrective function than those who hold the penal power. It is their judgement (understood as observation, diagnosis, characterization, information, differential classification) and not a verdict in the form of an attribution of guilt, that must serve as a support for this internal modulation of the penalty … All this ‘arbitrariness’ which, in the old penal system, enabled the judges to modulate the penalty and the princes to ignore it if they so wished, all this arbitrariness, which the modern codes have withdrawn from the judicial power, has been gradually reconstituted on the side of the power that administers and supervises punishment. — Michel Foucault, Discipline & Punish- The Birth of the…, 377
Categorization
- XREF: connects to: The prison’s disciplinary excess over legal detention was present from its birth — Michel Foucault, Discipline & Punish- The Birth of the…, 379