I wrote the following in a recently published article:
The entity or system subjected to discipline should have a reasonable number of options, and the one directing the discipline should also have multiple options. But the closer the disciplinary mechanism moves to the coercion side of the continuum, the fewer options the disciplinary apparatus has. At some point, for example, the prison system just locks a prisoner up twenty-four hours a day and feeds him through a slot in the cell door. The burden of discipline—i.e., the task of reducing contingency—then falls wholly on the shoulders of the disciplinary apparatus; the one subject to discipline is, paradoxically, released from any obligation to share in his own discipline. As Luhmann puts it, “the reduction of complexity is not distributed but is transferred to the person using coercion” (1979: 95).
I want to go into this a little more deeply. As the autonomy of the prisoner is reduced, the burden on the prison system, in tandem with the legal system, grows. At the extreme, when a prisoner is executed, the burden falls completely on the prison and the legal systems. While the prison system must carry out the execution, the legal system is compelled to justify the execution on legal grounds. And those outside the legal system who support the death penality have to justify the execution on moral grounds. This happens initially when a court pronounces the death sentence and again every time an appeal is made to the courts, which often happens up to the last hours before the execution. At the same time, the person waiting to die doesn’t have to do anything at all.
The fact that the prison system, and not the legal system, actually carries out the execution is important because, as Foucault showed, the legal system doesn’t want to get its hands dirty with these things.
Another case is slavery in the American south. The slaves were allowed to leave the master’s property with a pass, and any white person could ask to see the pass. The plantations were not enclosed by razor-wire fences or high walls; they weren’t prisons. If the slave owners had made their properties like prisons, they would have placed a much greater burden on themselves. But by giving slaves a pass and giving any white person the right to ask to see the pass, the slave owners delegated power to those whites. Surveillance was thus extended throughout the exterior of the slave owner’s property, even as far as the northern states. Christian Parenti writes about this in The Soft Cage: Surveillance in America, from Slave Passes to the Patriot Act, 2003.
Slave owners were also compelled to justify slavery; the burden was on them to craft arguments in defense of slavery, just as the legal system must find arguments to defend the death penalty. These arguments in defense of something like slavery or capital punishment become increasingly complex as they respond to criticisms. But ultimately it becomes apparent that making the argument is more trouble than it’s worth.