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How Did Our Prisons Get That Way?
The penitentiary was invented in the United States as a more rational and humane way of punishing. It quickly ran into problems that still overwhelm us.
July/August 1987 | Volume 38, Issue 5
Prisons are a fact of life in America. However unsatisfactory and however well-concealed they may be, we cannot imagine doing without them. They remain such a fundamental bulwark against crime and criminals that we now keep a larger portion of our population in prisons than any other nation except the Soviet Union and South Africa, and for terms that are longer than in many countries. Furthermore, we Americans invented the prison.
It was created by humanitarians in Philadelphia in 1790 and spread from there to other cities in the United States and Europe. The stubborn questions that perplex us today about how prisons can and should work—what they can achieve and how they might fail—began to be asked almost as soon as the first one opened. The history of prisons in America is the history of a troubled search for solutions.
Before there were prisons, serious crimes were almost always redressed by corporal or capital punishment. Institutions like the Bastille and the Tower of London mainly held political prisoners, not ordinary criminals. Jails existed, but primarily for pretrial detention. The closest thing to the modern prison was the workhouse, a place of hard labor almost exclusively for minor offenders, derelicts, and vagrants. Once a felon was convicted, he was punished bodily or fined but not incarcerated. Today’s system, where imprisonment is a common penalty for a felony, is a historical newcomer.
The colonists did not have prisons. Until the Revolution they were required to follow the British criminal code, which depended heavily on corporal and capital punishment. The code applied to religious offenses as well as secular ones, and it was sometimes hard to tell the difference. A condemned man about to be executed commonly had to face his coffin while a clergyman exhorted the congregation to avoid this soul’s plight. Crimes that didn’t warrant the death penalty were dealt with by fines (especially for the rich) or “sanguinary” punishments, such as flogging and mutilation (more often for the less well-off).
Many colonial punishments were designed to terrorize offenders and hold them up to ridicule. The ducking stool, the stocks and the pillory, branding of the hand or forehead, and public flogging were all commonplace.
Many crimes were punishable by death. In Pennsylvania between 1718 and 1776, under the British penal code, execution could be prescribed for high treason, petty treason, murder, burglary, rape, sodomy, buggery, malicious maiming, manslaughter by stabbing, witchcraft by conjuration, and arson. All other felonies were capital on a second conviction. The death penalty was usually carried out by hanging, although stoning, breaking on the rack, and burning at the stake were not unknown.
Toward the end of the 1700s people began to realize that cruel physical retribution did little to curb crime; more important, society was experiencing changes that would profoundly affect penology. The nation’s population began to increase dramatically. As people began to move around more frequently and easily, the effectiveness of ridicule naturally declined. People began to perceive the old penal code and its punishments as not only obsolete and barbaric but also foreign, left over from the hated British. A more just American solution should and could be developed.
Ironically the search for new punishments was to rely heavily on new ideas imported from Europe in the writings of such social thinkers of the Enlightenment as the baron de Montesquieu, Voltaire, Thomas Paine, and Cesare Beccaria. Whereas the Calvinists of colonial times had regarded man as basically depraved, these thinkers saw him as essentially good. It followed that a criminal could be rehabilitated. And since all men now were held to be born free and equal, even the worst were entitled to certain elementary rights to life, ultimate liberty, and at least some chance to pursue happiness.
The European theorizer who had the most direct influence upon penology was Beccaria, the Italian author of an influential 1764 essay, On Crimes and Punishments. Beccaria, a nobleman, had become deeply concerned about the deplorable treatment of criminals in his country. His work had a profound effect on criminal punishment the world over.
Beccaria wrote that “the purpose of punishment is not to torment a sensible being, or to undo a crime [but] is none other than to prevent the criminal from doing further injury to society and to prevent others from committing the like offense.” He urged that accused criminals be treated humanely prior to trial and be afforded every opportunity to present evidence in their own behalf. Trials should be speedy, and secret accusations and torture to extract confessions abolished. He also wrote that overly harsh and inequitably applied laws caused more problems than they alleviated. “The severity of the punishment,” he wrote, “of itself emboldens men to commit the very wrongs it is supposed to prevent. They are driven to commit additional crimes to avoid the punishment for a single one....The certainty of a punishment, even if it be moderate, will always make a stronger impression than the fear of another which is more terrible but combined with the hope of impunity.”
Beccaria believed the answer was to make punishments fit specific crimes. His writings had such enormous impact in this country that by the early 1800s most states had amended their criminal codes and strictly limited the death penalty to a few of the most serious crimes.