Punishing was one thing, preventing another. If the state could head crime off at the pass, it would save itself enormous bother.

But how to do that? Deterrence was the oldest of the state's preventive tools. Although it remains in steady use, it is blunt, unwieldy, and unpredictable. More promising were the authorities' hopes of fore­casting the criminal character, thus anticipating who might offend, where, and when and acting to prevent this.

Heretics and political dissidents were often rational, well­meaning, stubborn people at odds with the official ideology. The dissident mindset was indicated by a verbalized thought, an act, or a ritual. The authorities sought to punish and thus to change not any one act or idea but the person who could think and behave in a certain way. They aimed at the underlying personality and its core of belief. Over time, beliefs were increasingly relegated to the private sphere. Religious divergence mattered only if it disturbed public order. Political dissent was channeled into the appropriate machinery of controversy in systems growing evermore democratic. So long as it steered clear of sedition and treason, it was not a crime.

That left certain offenders as the primary concern. The easiest to deal with were opportunists, weak-willed but not evil people who fell for temptation. Deterrence might hope to persuade them to stick to the straight and narrow. But habitual offenders, inherently likely to transgress, were tougher nuts. With ideological crimes, the state had aimed at belief systems that underpinned acts. With more conventional offenses, its focus remained on an underlying behav­ioral stratum, the character of the criminal, the personality that prompted such offenders habitually to offend.

Only the state could prevent crime. Private parties seeking ven­geance or compensation for particular offenses had no concern to anticipate others. True, the bodies of the dead were often displayed to publicize the resolution of feuds, to halt further vengeance, and possibly to discourage potential transgressors.¹ But, by and large, kin groups had little concern to head off crimes more generally. Prevention was a public good that only the state could deliver.² As with disease, prevention beat cure. For crimes feared as endangering the entire community, prevention was an urgent necessity. Char­lemagne's ninth-century capitulary defined adultery not simply as sin but also as a crime against the Christian community, to be punished so that “others may have fear of doing the same: so that uncleanness may be altogether removed from the Christian peo- ple.”3 And for crimes that were inherently hard to discern, prosecute, and convict—such as simony and clerical concubinage—prevention was the best tack.⁴

“Have you ever been punished before?” the Danish comedian Storm P. is asked. “No, always afterward.” That was historically the nub of the matter. Preventing crimes, not just punishing them post facto, was complicated. Making an example of offenders by sanc­tioning them severely and publicly might deter others. Hardening the environment to make it more resistant to crime (locks, lights, cameras) impeded all forms of offending, whatever their motives, but beyond such rudimentary tactics, preventive action by the state meant identifying potential offenders and stopping them in their tracks. The authorities had to penetrate more deeply into sub­jects' lives and thoughts, anticipating wrongdoing, and interven­ing before it was realized. Law enforcement had begun as a private matter, the authorities only gradually assuming the task. With the ambition to prevent crime, an interventionist state actively plunged into civil society, aiming to manage it.

The preventive enterprise focused on communal harms, seeking to provide a public good. It therefore raised once again the classic utilitarian dilemma: Are individuals mere ends to a larger goal? A man should be hanged, as the dictum had it, not because he had stolen a horse but that horses might not be stolen.⁵ Even as rudi­mentary a preventive strategy as deterrence was not necessarily just. It often made a harsh example of offenders who happened to be unlucky. "Altho' one suffereth, numbers are protected and relieved,” an eighteenth-century Philadelphia judge explained the logic; "the punishment of a few is the preservation of multitudes.” In the eigh­teenth century, capital punishment was intended less to sanction the immediate culprits than to warn off others. The proper end of pun­ishment, William Paley wrote in 1785, is "not the satisfaction of justice, but the prevention of crimes.” Asked how to treat the Gor­don rioters in 1780, Edmund Burke recommended hanging only six of them, but with maximum publicity.⁶

Initially, when the state had little power or capacity, deterrence was its best preventive tool. The few offenders it got its hands on were publicly and savagely punished to warn others. In China, the Legalist school elevated this logic to a maxim: strict and brutal laws might sound abhorrent, but precisely their stringency meant that once having had their initial deterrent effect, they would not require enforcement any longer.⁷ Life for most people was nasty and brutish; punishments had to be worse. The scaffold deliv­ered a theater of horror, and prisons were made even more ghastly than offenders' everyday lives. Civil society still only imperfectly socialized subjects to moderate their impulses, curb their appetites, and discipline their most unruly instincts. Life was horrid; the state had to be even more so. To deter, punishments also had to be public to broadcast the message. Savagery in the town square caught every­one's attention.

For lesser crimes, shame helped prevent, too. In 1001 Nights, being paraded disparagingly (sitting backward on a donkey, for example) was the commonest sanction. During the Western Middle Ages, offenders were publicly humiliated by marks that proclaimed their offense: branding on the thumb or cheek for those spared the gallows via benefit of clergy, red tongues sewed on false witnesses' clothing, yellow crosses for Cathars. Those condemned to penitence attended church carrying rods, which the priest used to beat them in front of the congregation.¹⁰ In seventeenth-century Scotland, fornicators were seated on tall repentance stools. After such offenses were decapitalized in late seventeenth-century Massachusetts, adul­terers and the incestuous were mock executed, forced to stand in the gallows for an hour, then branded with the letter of their crime. Women who had consorted with the Nazis had their heads shaved in postwar Europe.¹¹ In our own era, public sex-offender registries are officially intended to allow neighbors to protect themselves, but shaming perpetrators is a motive for their existence, too.¹² Chinese sentencing rallies, sometimes attended by huge crowds, inflict mass humiliation.¹³

Yet shame worked only insofar as the targeted actually suffered the emotion.

Death was the most useful deterrent—for others. Other harsh punishments could also prevent. John Stuart Mill favored the death penalty precisely because it delivered the same deterrence as life imprisonment but less cruelly.¹⁷ Enlightenment philosophes who opposed capital punishment proposed a lifetime of hard labor as an alternative. In 1907, French prime minister Aristide Briand consid­ered lifelong solitary confinement equally deterrent.¹⁸ The Tuscan penal code of 1786 replaced death with ergastolo, a life of solitary confinement in chains, which many considered worse.¹⁹ But these expensive solutions were beyond the administrative ken of early modern states. Public shows of force were among states' few means of rattling cages. “Killing a chicken to scare the monkey,” was the Chinese slogan.²⁰ Death was made agonizingly spectacular to trum­pet the message that crime did not pay.

Imperial Rome asserted the state's might through grotesque public death.

Punishments became increasingly public and spectacular. The pillory was an early public sanction. Criminals were exposed while the crowd hurled insults and worse. In England, Ann Marrow lost both eyes when pilloried in 1777 for having impersonated a man in marriage to three different women.²⁴ Recidivists were punished ever worse—an ear sliced off in the first instance, a foot in the sec­ond, hanging for a third offense. Public whippings were added. The wheel was mentioned first in France in 1385.²5 Following the Roman example, the absolutist monarchies of the eighteenth cen­tury again staged spectacular deaths to demonstrate their might and glory. Gruesome public punishments reached their apogee perhaps in 1757 when the would-be regicide Robert Damiens was broken, eviscerated, and drawn and quartered in Paris—the scene immortal­ized for a modern audience by Foucault's prurient pen portrait.²⁶

In the course of execution, such unfortunates were of course killed many times over, and death was often specifically added to death. For good measure, Peter the Great had the corpses of viricides (women who killed their husbands) hanged after their execution. In many European nations, executions were made even more painful by breaking offenders on the wheel first.²⁷ Criminals' corpses were often also desecrated. Plato argued for parricides to be stoned after execu- tion.²8 In 1751, the English decided not only to execute murderers but also to dissect them afterward.²⁹ Not until 1949 did Scotland for­mally abolish drawing and quartering traitors posthumously.³⁰ Into the nineteenth century, executed bodies were publicly displayed for weeks and months as they rotted.³¹ Though less adept at spectacu­lar punishment than the continental regimes, the English stood out for sheer numbers. They applied the death penalty to a dismayingly large range of offenses. Homicides, arson, rape, and major larceny were givens, but they also executed for felling trees, attacking deer, stealing hares, hunting at night, buggering men or beasts, practicing witchcraft, and committing all manner of petty thievery. Defraud­ing the mail remained a capital crime until 1835.3² In the early nine­teenth century, England had 223 capital crimes in its statutes, France 6. The English sentenced to death proportionately five hundred times as many as the Prussians, executing sixty times more.³³

At some point, however, this rudimentary deterrent lost its luster. Eighteenth-century reformers were appalled at its barbarity, whether it achieved its goal or not. The rowdy, unruly crowds at executions seemed to be enjoying themselves immoderately, their worst instincts stoked by raw violence.³⁴ Intended to demonstrate the state's awful majesty, public executions had instead turned into carnivals—both literally as mortification of the flesh and metaphorically as baccha­nalia. Even worse, the mobs were often feeling sympathy with the condemned, undermining brutality's deterrence.³⁵

By the eighteenth century, then, sheer brutality was no lon­ger thought to deter. That change in attitude shifted—without undermining—the logic of deterrence. Beccaria and the Enlight­enment philosophes argued that deterrence could be achieved without immorally making an example of some criminals for the public good. Certainty of punishment was more preventive than its cruelty.³⁶ Knowing that most offenders were likely to be caught, convicted, and punished would do more to dissuade than random savage affliction of a few misfortunates. In fact, as we have seen, the utilitarian reformers advanced an ethical argument for their own position. Whereas retributive punishments were just the state tak­ing vengeance, thus wreaking more havoc, only punishments that deterred future offenses could be justified.³⁷ Medieval canonists had already argued that efficient prosecution and sanction were good deterrence—without the need for bloodshed. In the 1760s, Adam Smith agreed that preventing crime was done best by enforcing just laws rigorously.³⁸ More recent reformers have concurred. Knowing that a well-functioning system delivers equitable justice impartially in itself deters without the immorality of making some offenders serve the public purpose of scaring others off from crime.³⁹

Enlightenment reformers did not object to public punishment so long as it was not too brutal. Putting criminals to hard work in public in special uniforms or in mines where the public could visit was con­sidered deterrent. Beccaria thought lifelong slavery deterred more than death.⁴⁰ In the long run, however, publicity went the same way as brutality. Punishment moved out of the limelight. In 1783, London magistrates abolished the procession to Tyburn, though not the actual hanging, which still drew large crowds. Public hangings in England ended in 1868, six years after public whippings.⁴¹ The French revolutionaries were at pains to avoid the spectacles of the old regime. The guillotine's semiclinical efficiency was intended not only to democratize death but also tone down the circus atmo­sphere, marrying deterrence to decency. Torture was ended as part of executions, and decapitation was permitted as the only technique, though beheadings were still performed in public.⁴²

But after the excesses of the revolutionary Terror, any publicity proved too much. Executions were shifted from the town square to the prison courtyard and were now attended by only a few offi­cials, not the rabble. In 1851, the new Prussian penal code brought executions within the prison walls. By the 1830s, most northern US states executed only inside prisons, England three decades later. The last public execution in the United States occurred in 1936 in Kentucky, in France on the eve of war in 1939.⁴³ And already by the late eighteenth century, public punishments were falling out of favor more generally. In England, the pillory was abolished in 1837. In the 1830s, the last old-style public punishment ended in France when convicts sent to the prison ships at Toulon or Brest began being conveyed in closed carriages, no longer paraded through the streets.⁴⁴ Spectacular deterrence persists in some nations. Prisoners are still killed publicly in the Middle East and in China, where mass executions are scheduled on public holidays and festivals.⁴⁵

Administered away from the public eye, how could punish­ments still deter? In the absence of brutal spectacle, would potential offenders understand crime's consequences? Legislators in Wash­ington State forbade published accounts of executions in 1909, thus eliminating even the vicarious experience.⁴⁶ Foucault echoed Beccaria by claiming that concealing sanctions shifted them from everyday experience to the realm of abstract consciousness. Punish­ment's effectiveness now resulted from its inevitability, not its visi­ble intensity. The certainty of punishment, he thought, discouraged crime.⁴⁷ But that glossed over the inherent contradiction that hid­den penalties could not deter crime. Punishment did not become more certain by virtue of being carried out in private. Punishments that were both certain and public were equally thinkable. And if the public did not know that sanctions were administered, how could its ignorance influence its behavior? The Norwegian government in London exile during World War II reinstituted the death penalty to discourage Norwegians from collaborating with the occupying Nazis. But how would those who were meant to be deterred from treason hear of this threat in a legally effectful manner when the only means it was conveyed were clandestine BBC broadcasts that few were likely to hear?⁴⁸

More likely to be deterrent was the severity of sanctions. But that could also brutalize society, implicating the authorities in the same kinds of actions they were punishing and promoting further vio­lence as offenders realized they had little to lose. Speedy justice swiftly administering punishment might also deter, but it threat­ened the rule of law, whose gravitas could not be hurried. In their periodic “strike hard” (yanda) campaigns starting in the 1980s, the Chinese—much like Europe's absolutist rulers—assumed that harsh public punishments swiftly carried out especially deter.⁴⁹ But on the whole, deterrence was never more than a crude first approximation of what the state really sought—the ability to discover and punish but even more so to predict, anticipate, and thus head off crime.