El rol del Estado y las políticas públicas

Shakespeare’s prisons (through the play Measure for Measure)

Generally, Shakespeare was writing plays that depict prison and law enforcement as a reflection of the penal system in operation during the 17th _{century. Imprisonment was}

not a punishment; it was a waiting room or holding area whilst prisoners were brought to trial, the punishment was decided, or they were released. Time served in prison had no set limit and people in this space often died of starvation or the cold (Salgado, 1977, p.170), from poor exercise or sanitation (Dobb, 1964, p.98). Sentences and punishments, when they were finally decided were various, but often brutal. Mullan (2016) highlights that ‘the audiences for whom Shakespeare wrote his plays were used to seeing punishments inflicted on offenders against the law’. Punishment from arrest, imprisonment, and to penalty was very much at the heart of Renaissance life with flogging, branding, stoning, mutilation and whipping being common, corporeal, and public (McAvinchey, 2011). This is seen throughout a range of Shakespeare’s plays:

‘Macbeth opens with Thane of Cawdor being accused of treason and sentenced to death without trial. Lady Macduff affirms that traitors "must be hanged". In The Winter's Tale and The Twelfth Night, the characters mention the practice of boiling a convict in oil or lead. Drowning is mentioned in The Tempest, and hanging appears in All’s Well that Ends Well, Henry IV, and The Merry Wives of Windsor. Restrain and humiliation is mentioned in The Taming of the Shrew, Measure for Measure, and The Two Gentlemen of Verona, and other types of punishment documented in Shakespeare's work include the wheel, stocks, the press, whipping, branding, the wisp, and defacement’ (ShakespeareMag, 2013).

143 Specifically, Shakespeare was also writing his plays around the time when law; its intentions, purposes and science were being more thoroughly explored, and when ‘English society in the 17th _{century found itself in a phase of transition between two}

penal systems: the system/age of terror (punishment of the body), and the system/age of confinement (punishment of the soul)’ (Werkman, 2015, p.6). Werkman (2015, pp.7- 9) explains that:

‘The new system made an end to the autonomy of the monarch and started a new method of investigation and judgment; and punishment such as torture disappeared and instead were related to the body in a different manner such as imprisonment, confinement, forced labour, penal servitude, prohibition from entering certain areas, and deportation; the main object of punishment now was no longer the body but the soul of the convict; […] the aim of the punishment was to correct the wrong inflicted on society, but also to punish just enough to avoid repetition’.

The terms of confinement and terror were initially termed by Foucault in his seminal text Surveiller et Punir: Naissance de la Prison (1975) and is important to acknowledge in line with Foucault’s general consideration of the prison and concepts of power (see 5.2.2).17 _{However, it is important to remember that Foucault’s analysis is an historical}

reading depicting certain patterns at a particular time in history (18th _{century) and}

Shakespeare’s plays are literary texts not completely based on reality and influenced by a different time in history (17th _{century). Werkman (2015, p.15) warns that ‘this}

combination can indicate an anachronistic situation in which ideas and perspectives of the 20th _{century on the 18}th _{century are used to interpret the 17}th _{century’. However}

the justification behind combining Foucault’s terms with a reading of Shakespeare’s

17 _{Foucault also analyses 17}th _{century Europe’s torture upon a criminal’s body and how this mode of}

punishment gradually gave way to a more humanitarian penal system with different disciplinary mechanisms.

144 plays can be found in the argument that, although the major changes to the philosophy and practice of punishment upon criminals happened after Shakespeare wrote his plays, in the 18th _{century, it is important to reference that the desire for change in law}

and its enforcement in the 17th _{century could very easily have had an influence upon}

Shakespeare’s desire to write this play. In this way the play selected for this chapter is to be analysed in reference to the historical and cultural events reflected in the 17th

century, and supported by Foucault’s understanding of the subsequent changes that were made in the 18th _{century to highlight more specifically the 17}th _{century as a time}

of judicial transition and unrest. By not reading Shakespeare’s plays through this historical context, the historical traditions surrounding the time in which the play was originally created, against the changes to the legal system that were subsequently made, may go unnoticed (Wilson, n.d.).

The shift during the early 1600’s saw an important move away from the power to punish, to a deeper consideration of mercy and justice. The cause of transition and the manner in which Shakespeare’s work reflects upon it is an important consideration to make in order to explore Shakespeare’s reactions to the penal system that was in existence at the time in which he was creating his work.

The chapter that follows will examine Shakespeare’s presentation of prison and punishment throughout the play Measure for Measure. It will explore Shakespeare’s presentation of justice and its uncertainties, and changing law and law enforcement in reference to the penal system of the 17th _{century to which Shakespeare may have}

been reacting. It is Measure for Measure, a play that operates around the uncertainties of justice that perhaps most closely shows us the purpose of prisons during Shakespeare’s time. The prison Shakespeare presents ‘shows the workings of a

145 prison- the presentation of warrants, the preparations for execution […] and the prison has sucked in all of the diseases that float in the surrounding cesspool of Vienna’ (Knowles, 2002, p.64).

Regarded as a problem play generally, the biggest complication surrounds the idea that no one really knows what the best or most just decisions are and therefore the uncertainties of justice, its potential subjectivity and elevation of judgement, promotes the ambiguities of the legal system through the choices the characters make throughout the play. This is a play of antithesis and the characters themselves become personifications of the problems and questions addressed throughout. The play ultimately attempts to show what an ineffectual justice system can do to the people who live by its rules and demonstrates how people wanted change (Werkman, 2015).

The play predominantly focuses upon the application of sexual law to demonstrate the inefficiencies and confusions in regards to justice and its enforcement. The application of the law throughout the play is regulated by the absurd sentencing of Claudio to death for his practice of pre-marital sexual activities. Claudio is deprived of procedural right in relation to his access to a counsel for his defence or the following of the due process of law, which Foucault (1969, p.21) highlights as ‘an element of the old system, since the changes in the new model saw the influence of advisers in jurisdiction’. It is Angelo’s precise enforcement of sexual law, his strict temper and stricter rule that provokes a confused response from the people of Venice, as highlighted in the exchange between Pompey and Mistress Overdone:

Pompey: Yonder man is carried to Prison. Mistress Overdone: Well! What has he done? Pompey: A woman.

146

Mistress Overdone: But what’s his offence? Pompey: Groping for trout in a peculiar river

(Shakespeare, 1991, 1.2, p.73).

The existing complex rule of sexual law asks Angelo to judge Claudio through a specific enforcement of punishment. In Renaissance England, church and state struggled to control sexuality and it is documented that ‘the ecclesiastical courts tried so many cases of sexual offences like prostitution and bastardy that they were called the ‘bawdy courts’ (Bawdy Courts, n.d.). Constables could bring to court anyone they felt to be a suspect of sexual crime, as Elbow does with Pompey. Those accused of sexual deviance could not escape punishment simply by marrying, and as Angelo does with Claudio, offenders would undergo penance and public humiliation. Although death was not often the final punishment, whipping until blood was drawn would be used.

Claudio’s punishment is one of the most complicated issues present throughout the play. Legally he has fornicated outside of wedlock and Juliet carries his bastard child. However socially, he is betrothed to Juliet, she is his fiancée and they are promised to each other in marriage. Although Claudio’s fate throughout the play may appear to a modern audience as extreme, the ambiguities surrounding marriage at the time in which Shakespeare was writing may in fact play a role in Angelo’s exercise of the sexual law. According to Sokol & Sokol (2003, p14):

‘The fact that no specific language existed to confirm marriage merely added to the ambiguity. A variety of signs, not all of them even verbal, was accepted as sufficient to indicate the existence of this consenting state. Not surprisingly, there were often difficulties in the interpretation of such signs’.

147 Therefore the interpretation of whether a marriage exists is rendered from a subjective judgement. Angelo does not follow the ‘law precisely; he is instead rendering a subjective judgment on an act that may or may not even constitute a crime’ (Funk, 2012, p.17). Marriage is an interesting device to not only make commentary on marriage as an institution dogged with confusion, but a commentary upon law in general and its ambiguities and uncertainties in the consideration of justice. Ingram (1987, p.133) explains that:

‘the late sixteenth and early seventeenth centuries—the era in which Shakespeare wrote—constituted “an uneasy transition period” for marriage law: despite widespread acceptance of church marriage and the decline of spousals even as a preliminary to ecclesiastical solemnization, the fact that an informal contract could still create a binding union entailed uncertainty, moral ambiguities and opportunities for deceit and fraud’.

Therefore, Shakespeare depicts ‘Angelo’s understanding and practice of the law to reveal the inconsistency at its core’ (Sokol & Sokol, 2003, p.15).

Although marriage or engagement represents the conclusion of the play its impacts are far from positive, from Isabella’s silence in reaction to the Duke’s proposal (Intezar, 2013), Angelo’s commitment to Mariana, to the reunion and subsequent marriage between Claudio and Juliet, all appear as unstable, confusing and contradictory conclusions to fix the problems presented throughout the play. Although marriage for Claudio and Juliet had been their desired goal from the start, their marriage now appears unstable in relation to the legal judgements surrounding it and point again to the complicated nature of the law that punishes crime and the corrupt use of power residing in those that judge crime. Shakespeare asks the audience to question whether the law should be incited ‘to the letter’, or whether it should take account of the special characteristics and extenuating circumstances of each offender. The play

148 in this way can be read as work that questions whether the law could be making better judgements in its consideration of punishment as a way to ameliorate crime.

If Angelo is to be seen as a metaphorical representation of the law in place during Shakespeare’s time, then he depicts its corruption and right-wing asceticism. He is a manifestation of the age of terror and bodily punishment and Shakespeare is perhaps suggesting the need for a more considered approach regarding both the crime and the criminal, represented to some degree in Duke Vincentio and his left-wing liberalism. The Duke is therefore a manifestation of the age of confinement and as Werkman (2015, p.22) summarises:

‘Angelo clearly represents the old system through his excessive use of power, corruption and distance to his people. The Duke however, represents the new system of surveillance, mercy, and his exercises of power of the lives of his subjects instead of their death’.

Claudio is used as an example by Angelo, but his corrupt application of using Claudio to teach Vienna a lesson appears to be more about social control (e.g. the idea that Claudio’s punishment is used to incite fear in the minds of others, links to cops-in-the head see 5.2.1) rather than the application of a clear legal process. Depriving Claudio access to considered punishment results in confusion. The level of suffering inflicted on the offender and the lessons this speaks ‘to the many is not by itself a just basis for depriving the offender of his liberty and reputation’ (Eldridge in Bridges, Weiss & Crutchfield, 1996, p.108). Punishment should never be used:

‘merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime, for a human being can never be manipulated merely as a means to the purpose of someone else and can never be confused with the objects of the law of things’ (Kant, 1985, p.21).

149 However, Angelo’s zealous pursuit of the written law means he ignores the imperfect justice in which he attempts to operate and continues to provide a confused and seemingly unfair application of a punishment at odds with the crime.

The complex legal backdrop for Measure for Measure is clearly established in the earliest stages of the play, but it is the manner in which the characters interact with the law that highlights most specifically the side of transition to which they fall, the side of terror, or the side of confinement.

Isabella is the first to ‘give argument for the more lenient and humanitarian penal system of the 18th _{century’ (Werkman, 2015, p.18) when she appeals to Angelo to}

‘condemn the fault and not the actor of it’ (Shakespeare, 1991, 2.2, p.79). She also criticises the punishment Angelo chooses for Claudio when stating ‘who is it that died for this offence?/There’s many have committed it’ (Shakespeare, 1991, 2.2, p.79). Isabella highlights a desire to implement a system of confinement and considers the ‘self’ in punishment and prosecution. Although Isabella herself is not imprisoned or tried for a crime, she consciously decides to punish her soul through her confinement in the nunnery and ‘is determined to abjure physical pleasure, public life, and procreation’ (Watson in Kendall, 1998, p.144) when at the beginning of the play she asks for ‘more restraint’. Throughout the play however she is repeatedly removed from her pursuit of salvation and instead required to deal with the business of body, family, and state. Watson (in Kendall, 1998, p.144) highlights this notion further when stating that:

‘Isabella is steadily drawn into the marketplace of the physical, into mentality that thinks more about desire than religion, more about the threat of death than the hope of immortality, more about bodily confinement (a grave) than about spiritual injury (disgrace or

150 damnation) that would be a restraint/ though all the world’s vastidity you

had’.

Although Isabella throughout the play cries out for a new system of confinement in relation to the consideration of the soul in punishment, she exists in Angelo’s age of terror and he affirms ‘I talk not of your soul’ (Shakespeare, 1991, 2.4, p.82), instead Angelo proposes a bodily exchange to save her brother.

Angelo: Now took your brother’s life, or, to redeem him,

Give up your body to such sweet uncleanliness, as She that he hath stain’d?

Isabella: Sir, believe this,

I had rather give my body, than my soul

Angelo: Might there not be a charity in sin

To save this brother’s life?

(Shakespeare, 1991, 2.4, pp.81-82).

The Duke as the undercover overseer of Vienna also represents an age of confinement and a move towards a new penal system. Werkman (2015, p.17) explains how:

‘the choice of the Duke very much resembles the surveillance in the panoptical in order to control the people […] it’s the Duke’s aim to position the characters in confessional subjection, which he does by repressive tolerance, not oppression’.

The panoptical was one of the techniques regarded by Foucault in being able to regulate people via non-violent means. Mason (2018) discusses how ‘the panopticon offered a powerful and sophisticated internalized coercion, which was achieved through the constant observation of prisoners. Constant observation acted as a control mechanism; a consciousness of constant surveillance internalized’ (See 5.2.2). Power is achieved via the position of observing others, often from a distance, which marks

151 the change in punishment to a disciplinary power where movements are supervised instead of bodies punished. This can be seen when in Act Five the Duke reveals he has been concealed as Friar Lodowick. Angelo states:

Angelo: O my dread lord,

I should be guiltier than my guiltiness, To think I can be undiscernible,

When I perceive your grace, like power divine, Hath look’d upon my passes. Then, good prince, No longer session hold upon my shame,

But let my trial be mine own confession: Immediate sentence then and sequent death Is all the grace I beg.

(Shakespeare, 1991, 5.1, p.98).

Although the Duke does not explore the possibilities of the prison as a form of correctional punishment, his notion that counselling, therapy and mitigating and aggravating circumstances should be considered is important and offers an indication of the changes surrounding how punishment is conceived. This links to Foucault’s suggestion of penitentiary or correctional behaviour. For example, Pompey is excused of execution, which would be ‘needless cruelty’ (Shakespeare, 1991, 3.2, p.86); and is instead required to be separated from bad company and rehabilitated through therapy and ‘correction and instruction’ (Shakespeare, 1991, 3.2, p.86). This was recommended to not only help Pompey become a more sociable human ‘but also to provide him with job skills so that he might become a more productive member of society’ (Time, 1999, p.135). In this way the Duke is modernity in his consideration of self-repression and through experimenting with abandoning:

‘public violence in return for the private discipline of its citizens. Increasingly during that period the therapeutic idea began to gain ground although its implementation differed from the contemporary therapeutic notions a healthy dose of labour discipline’ was deemed to be a panacea for criminality’ (Time, 1999, p.22).

152 Despite evidence of progressive thought regarding the penal system through some of Shakespeare’s leading characters, ‘the age of terror’ is still present in the play. The prison remains a place where criminals wait for punishment instead of it being a method of punishment itself (Foucault, 1969, pp.118-119). Both the Duke and Angelo demonstrate unyielding power, criticised by Isabella ‘Oh it is excellent/ to have a giant’s strength, but it is tyrannous/ to use it like a giant’ (Shakespeare, 1991, 2.2, p.80). They also both decide punishment without consultation; their power is Machiavellian and relates to a sovereign’s freedom of action. Through Angelo specifically, Shakespeare depicts the techniques and methods of the old system. Angelo’s power is presented as infinite and not restricted, he repents and confesses to show the fault first and the punishment to come next and he highlights how the body can be punished via penance. Angelo’s monologue in Act Two, Scene Four represents an important moment in the play where Angelo is struggling with sexual desire for Isabella. Confessing his sins to God to no avail he ‘becomes fixated on a punishment to his physical state and his self-lacerating language in the speech that follows, suggests that Angelo might actually flagellate himself during this speech’ (McCandless, n.d., p.10).

Angelo: When I would pray and think, I think and pray

To several subjects. Heaven hath my empty words Whilst my intervention, hearing not my tongue,