Criminal Policy from a “Bio-political” Perspective: with Discussion on Anti-Terrorism Criminal Justice as Prologue

After 9/11, the United States began the War on Terror, resulting in phenomena of more heavy punishments in criminal justice system, pre-incrimination, and deprivation of procedural rights of criminal defendants. The discourse behind such counter-terrorism criminal justice, in fact, still stands in the context of the Anglo-American criminal policy discourse; the social meaning of “othering” behind the criminal policy has not been changed, and it is only, in the response to serious crime type, performing the highly crime-control strategies to the high-risk types of crime by the criminal policy taking “risk” as the main line of discusses. In Taiwan, where the appearance of social change, the development of criminal policy, as well as the legislative trends are similar to the U.S., the said context of discourse likewise is also present here. In Taiwanese Sexual Assault Crime Prevention Act and related regulations, whether on substantial or procedural aspect, the treatment of sexual assault crime defendants can be explained by the same context and main line of discusses. Among these, what can be seen is the discrimination of criminals and crime types, and the treatment in diverse degree of severity corresponding to different defendants, as well as the relationship of mutual influences between the criminology and criminal policy discourse, and the criminal justice.

The mutual relationship of such discourse and practice and the treatment of criminals can be interpreted as the "governance" of life in the thought of Michel Foucault and Giorgio Agamben. Both Foucault''s understanding of the power of life through the interactive network relationship of the heterogeneous elements and Agamben’s the sovereign power over the abandonment of bare life show the relationship between governance and life. This article compares the two governance discourses, and chooses Foucault''s viewpoint of the power of life as the perspective of analysis. This article considers that the combination of the image of the criminal and risk discourse is just the element of discourse in Foucault’s Dispositif concept, while the aspect of criminal justice practice is regarded as a non-discourse element. In order to respond to crime types in different levels of risk and criminals standing for different degree of risk source, these elements will strategically perform their way of governance in the criminal justice, and in the discourse of life concern, the practical aspect of the criminal justice will carry out the exclusion or correction of individuals, and it will lead the crime rate or risk go back to a stable, normal state on an overall aspect. The consequence of governance will shape the ideal image of individuals and that normal order state the society ought to be, that is, within the operation of governance, it will shape the image of “human” in criminal justice. This article will eventually try to seek whether there is any means of liberation when confronting a shaped image in the criminal justice operation, resisting such governance mechanism shaping persons as individuals and the whole society.