Chapter 12 Pain is not (Necessarily) Torture

Chapter 12
Pain is not (Necessarily) Torture

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TORTURE SESSIONS are common in many parts of the world today. Electric shock has become the favorite instrument of torture, although many other traditional methods such as pulling off fingernails and denial of sleep are still popular.(1)

"Takeoff your clothes."
The prisoner meekly obeys.
"all right, get on this table and lie still."
The interrogator attaches the electrodes to the prisoner's cheeks. An assistant fiddles with some dials. The prisoner can smell the pungent odor of salami on his captor's breath. He remains listless, eyes closed.
"You know, I don't want to hurt you. It tears me apart to see you suffering in this way for no reason at all..."
A pause. The prisoner stays silent. Does he feel the faint tickle of electric current? No ... it's the anticipation.
"Now, tell me the names of your accomplices..."
Silence.
Then screams of horror as the prisoner receives a jolt of electricity to his cheeks and his head jumps about like that of a marionette. But he does not answer.
"Please, don't do this to yourself..." More electric shock, causing pain that is indescribable. And it continues until the purpose of the torturer is fulfilled.
This description of torture was constructed from Timmerman's moving book Prisoner Without a Name, Cell Without a Number, in which he described his treatment in the hands of the military junta of Argentina. While one may decry all that happened to Timmerman and thousands like him in many other countries, we must make one very important clarification about the torture he went through: it was a process, one that was psychological as well as physical in nature.

It is widely believed that torture is solely concerned with the application of physical pain to the body, so that when tortures are reported in the press their superficial attributes are described, but their psychological and social functions are not. In addition, they are usually reported in the context of stories concerning political turmoil, these days especially in Latin America. It is thought that physical punishment only serves fascist political purposes, in that it signifies the absolute domination of the State over the little man.

There are many ways that the State can and does dominate the little man that are far more totalitarian and domineering without in any way applying acute pain to the body. We have seen how this is so in the case of prison which attempts to take over the prisoner's very mind as well as his body. We have argued that to punish the body according to the philosophy of the old retributivists preserves an individual's freedom much more than a punishment that seeks to wrench out the offender's soul.

Furthermore, the types of bodily punishments that have been presented to the public-indeed, have only ever been considered by criminologists-have been those which were in the service of the torture process: that is, behavior modification as represented in the novel A Clockwork Orange, in which the process is the application of bodily pain to cause the offender to completely change his ways. This view of corporal punishment makes it appear fascist (which in procedure it was) and that therefore all bodily punishments should never be considered.

The Trinity of Torture

There is also a good historical reason why physical punishment is popularly equated with torture. During the height of the Holy Inquisition, when torture became high art, there was no clear distinction between the investigatory process, the punishment, and the judgment. The offender was "put to the question," interrogated, tried and punished all in one:

We, by the Grace of God...,having carefully considered the proceedings against you, and seeing that you vacillate in your replies and that there is nevertheless much evidence against you, sufficient to expose you to torture and torment in order that the truth may be had from your mouth and that you should cease to offend the ears of the judges declare, judge and sentence you by an interlocutory order at such-and-such a time and day, to undergo torment and torture ...(2)
The Inquisitors applied a carefully planned routine. They would begin by asking the accused simple questions to which they would expect no difficulty in obtaining an answer, would then proceed to questions that would ask admission of the less serious offenses. The accused would then be shown the various contraptions of torture, and warned that he would be subject to them if he did not tell the hole truth. Historians of the Inquisition report that the large majority broke down quite easily and that the application of machines f torture was unnecessary in most cases. However, there were any for whom this was not the case, and many whose confessions ere not believed anyway: and this is the strange paradox of torture.(3)

Confession Obsession

Throughout history, the main purpose-almost an obsession-of torture has been to obtain confessions, to purge the lies of the accused, and supposedly get at the truth. This is why, in ancient me, testimony by slaves as witnesses (not as accused) was inadmissible unless obtained under torture, since it was thought that here was no way they could be believed, given their low position in society, except if the information were obtained under the purging process of torture.(4)

This difficulty was clearly recognized by the Inquisitors who wrote handbooks on how to distinguish between genuine and false confessions. People under torture were likely to say anything to spare themselves from further pain, which means that they could not e assumed to be telling the truth. This is why burning at the stake, he main death penalty applied by the Inquisitors, was reserved for those who, having confessed to a particular crime under torture, later recanted their confession.

Yet, if one says what the torturer wants one to say, how can one say that these confessions are actually false? Here lies the dark contradiction, the terrible conflict of the torturer: he forces the accused to confess to crimes and conspiracies that he, the torturer, wants to punish. Yet he may well know that, if he had to resort to such extreme measures, the evidence he extracts may be lies. in other words, the torturer has merely created the crimes for which he now convicts and punishes at the same time. His mind is already made up, so that he punishes before he has any knowledge of the crime of the accused.

The use of torture displays the lie underlying the torturer's claim of justice. He must treat the confessor's lies as truth. It is as if there is a strange pact between the torturer and the tortured that this lie must be maintained. Indeed, in the cases reported where the accused would not break down under torture, it would appear that the torturer can suffer severe mental breakdown, because he has such a desperate need to have the justice of his own position as torturer underwritten by the tortured.(5)

It can be catalogued for almost any period in history that torture has been used to obtain confessions, to make a show of the inherent criminality of the accused, and to underwrite the morality and justice of the torturer. This process has been documented for the ancient Romans and Greeks (and the modern Greeks during the sixties right wing coup), to the Holy Inquisition, the purges of Stalin and his show trials (perhaps the most sophisticated example of the extraction of justificatory confessions), to their use under various regimes in Africa and in Latin America. There are abundant examples provided by Amnesty International's Report on Torture.

The Betrayal of Others

It is not only himself that the accused must betray by confession (false or otherwise). It is also widely documented in the annals of torture that, in times when torture has reached its height, he must give the names of accomplices. Malies Ruthven in her informative book Torture the Grand Conspiracy has noted that this is probably the most serious consequence of torture, since it is the ultimate betrayal, it destroys what is social in the accused, destroys the relations between men. This means that torture necessarily dehumanizes its victims, takes away their honor and dignity, makes them into something less than human.

The tortured becomes the object of an obsession, his soul and his body must be completely subjected to the purpose of justifying the torture. It is a highly utilitarian process.

The element of greatest utility in that process is that of time.

Time as Torture

It has been noted by Dr. Willard Gaylin in his book Partial Justice, that the emotional and suspenseful part of the processing f an offender is not at the trial stage, the finding of "guilty" by he court, as so dramatically depicted on fictional television. This as mostly been decided in a mundane and bureaucratic manner by haggling among the police, prosecutors and defense. Rather, the big cliff hanger is the sentencing, for often the offender literally does not know whether he will walk out of the court on probation, be carried off to prison for whatever period.

In most jurisdictions, separate sentencing hearings are held, often weeks and months after the finding of guilt. We see at work ere the torturous use of time in administration of the punishment-although it is at least separated from the solicitation of confessions these days.

(Strictly speaking, this may not be so, since lawyers will often advise their clients to display much contrition, to appear subdued and enlightened as to the wrongs of their past in the hopes of obtaining more lenient sentence. In this sense, therefore, it may well be that confession when seen as an act of contrition is very closely tied to e degree of punishment.)

The capriciousness of sentencing is similar to the process of torture, where it is the "judicious" use of time that is the essential ingredient of the pain to be administered. The convicted offender may be released on probation or fined. But on the other hand, he may find himself sentenced to torture by time: a "stretch" in prison (is it a coincidence that an old torture was to be stretched on e rack?).

Another important element in the use of time in torture is to low the accused to see the instruments of torture, so that he will quake in fear of the anticipation of pain. This is, of course, a way f producing mental anguish, but it also amounts to something se: it is the expert use of time as a way of aggravating the physical application of pain. For example, Timmerman's torture was spread out over several months during which he was given short doses of pain, then removed back to his cell to ponder over what might happen next.

The necessity to control time makes it abundantly clear that the expert use of torture requires as its base a prison system. Prison not only provides the possibility of manipulating time, but also the necessary secrecy for the administration of torture.

Prison as Torture

Clearly, prison is a form of torture: it seeks to place the whole of the person-his body and soul, to use the words of Michel Foucault-in complete submission. It is no mistake at all that the inmates of such prisons are often referred to as creeps, scum and animals: the process is just as dehumanizing as are the better known forms of physical torture.

The torture of prison as it is currently used is much more drawn out, and is conducted with a kind of brutality never envisaged by the Inquisitors because the Inquisitors cared about the souls of the accused. It was their intention to save them as far as possible by extracting confessions, even if it had to be done through the application of torture. Prisons do not have this clear purpose.

Indeed, prisoners are tantalized by never knowing when or whether they will be released, since the decisions of parole boards are just as capricious as those of sentencing judges.' This is because prisons are, in their present form, quite literally mad.

We put persons in prison claiming that they have been found guilty of a crime. We say to them that they cannot be released until it is clear that they have "paid for their crime." Today this is often measured in terms of duration of suffering, which is analogous to the process of torture. It is quite common for those tortured to be released at the end of the drawn out process of torture, provided that they confess. It is as if the torturer has grown tired of the affair, or at least has dispelled his energy as in the sexual act, and subsequently shows no interest in the subject until the next "willing subject" comes along. The drawn out process of torture is begun again, and the offender is eventually released with an expunged sigh of relief by the parole board.

Clearly the whole process is unsatisfactory. The recidivist (that is, an offender who commits an offense after release), just like the heretics of the Inquisition, breaks his "promise" to go straight thereby demonstrating that he had confessed falsely (that is, he did not learn his lesson in prison). He is again rounded up by the criminal justice system and punished even more severely for having broken the faith.

This is why we must push our system of criminal punishment to an ever-widening dual track. There must be as few prisoners allowed to break the faith as possible. This means that there should be fewer offenders taken into the "faith" of prison in the first place, but it also means that, once inside, there should be far fewer let out unless we are very, very sure that they can keep their faith.

And for the great number that we shall not place in prison, we must develop other punishments that do not require the offender to enter into a promise he cannot keep. Acute corporal punishments ill clearly achieve this purpose so long as they are not administered as part of the process of torture.

This means that acute corporal punishments should never be used inside or in conjunction with prisons, because it is their special combination with prison that makes real torture possible.

It is also clear that to punish with pain for utilitarian purposes that is, to change the offender's behavior through such techniques as behavior modification) is a process closely akin to torture since here is no way of letting up until the offender gives in-which may be early for most, but nevertheless after much suffering for some. is another important reason why the old retributive position is morally superior to any other justification of punishment.

But now it is time for us to become accommodating to the utilitarians. Suppose, for the sake of argument, we grant that the utilitarian position is morally superior to that of retribution. How difficult would it be to defend the use of the variety of punishments described in this book? That is, could we justify the use of specific pains with the aim of eliminating certain kinds of crimes?

And if so, what kind? How do the variety of punishments stand up to the test that the deterrence theorists have set for themselves: that punishment must work to reduce crime and eliminate criminality? The research that bears on this question is that on "individual deterrence."


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Footnotes
1 . For a catalog of these horrors see: Amnesty International, Report on Torture (New York: Farrar, Straus, Giroux, 1975).

2. M. Ruthven, Torture the Grand Conspiracy (London: Weidenfeld and Nicolson, 1978).

3. Lea, Inquisition of the Middle Ages.

4. W. N. Buckland, A Textbook of Roman Law From Augustus to Justinian (Cambridge: University of Cambridge Press, 1921).

5. See F. Fanon, The Wretched of the Earth (New York: Grove, 1968).

6. See Rothman, Conscience and Convenience.