Exposing the Problematic Power Relations of the American Judicial System: A Foucauldian perspective

Episode 2 of Serial Podcast’s third season, titled ‘You’ve Got some Gauls’, is as shocking and enraging as it is sad. Sarah Koenig gives the listener a brief insight into the workings of the American judicial system, focusing on the controversial decisions made by Judge Daniel Gaul. This scathing critique of the discretion afforded to judges in Ohio, describes Gaul as “acting the enraged parent” towards a specific defendant. Using Foucault’s work as a ‘tool box’, to question and critique whether the right to a fair trial can be delivered in a supposedly developed country, it is possible to highlight the impact that judicial discretion can have on an individual’s human rights. The exercise of judicial discretion can be seen as problematic in the sense that, despite Gaul being democratically elected to his position, he holds some questionable views and often oversteps boundaries in terms of predetermining guilt before a trial has even begun. Using evidence from Serial’s legal and political commentary and Judge Gaul’s previous decisions, I hope to highlight the use and abuse of power in the courtroom and apply a Foucauldian perspective in establishing problematic power relations within the American legal system.

Of all the stories told, Rayshawn Ellis's sticks out the most as a damning example of how the exercise of discretion alters power relations in the courtroom. Prior to sentencing, Judge Gaul had attempted to offer the defendant a deal if he plead guilty to both charges of felonious assault and possession of weapons. But when the defendant refused this deal, the judge became angry and suggested that he would receive the harshest punishment. His view, however, quickly changed when Rayshawn spoke for 7 minutes about every mistake he had made and the responsibility and remorse he felt towards them. Rayshawn was given half the sentence he was due to receive and was more or less promised a shock release after six months. Six months later, Rayshawn was told that he was “not accepting responsibility, and therefore… not demonstrating any remorse”, an atrocious example of the impact extreme discretion can have on an individual’s life. After the hearing, a conversation with Rayshawn exposed Judge Gaul as not looking at the facts when deciding the outcome of a case and behaving “like a king”. He even compares Gaul to a slave master, insinuating that he exercises power relations in a way that make people submit to him. This example is just one of the many that can be analysed in terms of Foucauldian conceptions of power, which I will briefly explain and apply.

Foucault’s work on power acknowledges it as a relation that runs between all people at all times. He groups these power relations into sovereign power, disciplinary power and governmentality; explaining how the exercise of power within the institutions of society creates subjects that are more easily controlled. In this analysis, I will focus on the use of power in the judicial and prison systems in order to create the subject of ‘the delinquent’. For the purposes of this article, I will focus on disciplinary power and governmentality.

The operation of disciplinary power is different to that of sovereign power, because it is often invisible. Disciplinary power is the power relation most apparent in prisons, with the use of the panoptic modes of surveillance. It is also apparent in the decisions made by Judge Gaul, particularly those relating to the case of Rayshawn. The invisibility of disciplinary power is often what makes it so effective. The apparent promise of a shock release after 6 months incarceration made Rayshawn not only a subject of disciplinary power in the prison system but also the subject of an invisible disciplinary power exercised by Judge Gaul. Although Rayshawn most likely never saw Judge Gaul in person in those 6 months, the possibility of a shock release granted by the judge would have made him alter his behaviour as if he was being constantly observed by Gaul himself. This exercise of disciplinary power created the perfect subject in the defendant, the ideal ‘delinquent’ who was easily controlled and changed for the so-called better.

Governmentality, on the other hand, is more difficult to identify since it operates in very small ways throughout society as a whole in order to manage the behaviour of individuals. Foucault describes governmentality as the “conduct of conducts”, and this definition can be perfectly analysed in terms of the conditions that Judge Gaul and others put on defendants/subjects that receive parole. At the beginning of the podcast, we hear about the case of an African-American man in his early twenties with a young child who receives 4-years-probation with the condition that he is not to have another child out of wedlock that he cannot support. Judge Gaul put that condition on the parole of two more defendants on the same day. This condition goes beyond punishment and disciplinary power, since although it is invisible and constant over the defendant in the same way, it controls a very specific conduct that is not relevant to the crime or its subsequent punishment. This mode of power relations, results in docile subjects that conform to a specific way of living. For example, Gaul’s condition results in subjects conforming to a certain way of having a family that involves heterosexual marriage and more traditional conceptions of stability. In an extremely subtle way, this condition and others such as registering to vote create subjects that participate in society only in the way that is deemed ‘acceptable’.

I hope that the use of a Foucauldian lens in analysing the power relations in Judge Gaul’s court sessions in particular, have opened up questions about whether they are just. Through the use of legal theory, we can identify the minute ways in which all people are governed but particularly those going through the ‘justice’ system. It begs the question, is the existence of an entirely fair and impartial trial a myth? And, more importantly is there a way that we can alter our human rights legislation to make it a reality? In terms of an answer to the latter question, with the United States having not yet ratified the American Convention on Human Rights and with constitutional change being unlikely, any legal developments are improbable. And, with a chaotic political climate, judicial discretion and abuse of power in the legal system are not top of the agenda.