The shift between atrocious and humane punishment is a reformulation of the shift between public execution and prison. Foucault explains this in terms of the audience. An audience is necessary because the people must watch, or the ritual will have no meaning. By watching, however, they also take part. Watching can cross the line drawn by the sovereign, when the people physically attack the executioner, or try to free the prisoner. Participation can also involve reading or writing about crime in literature. Eighteenth century crime literature, according to Foucault, was centered on the convict's last words, which contrast with the relative silence of torture. If the process of punishment is seen as a discourse, then the very moment of execution becomes the one moment when the accused can speak. This is a dangerous and unstable moment. Last words were printed in pamphlets and broadsheets, which were another unstable way of representing crime to the world.

Responses to this literature and the behavior of crowds are part of what Foucault calls popular illegality. Popular illegality covers a whole range of behavior that is beyond and outside the law, such as demonstrations and riots. Similarly, changes in the literature showed changes in penality itself. Crime literature stopped being a dangerous space and focused on investigation rather than on execution. In a sense it became more "official" and repressive.