How Did Our Prisons Get That Way?


Indeed, penologists now wanted to “treat” offenders’ propensity toward criminality in the same way a physician would treat a disease. This quasi-medical approach gave correctional people the status of professionals. If a physician was best suited to treat a hospital patient, correctional administrators should be best qualified to decide how to treat and when to release a convict. As a result, prison administrators began to enjoy considerable discretion with regard to their decisions.

A greater flexibility in dealing with prisoners was achieved mainly by the widespread acceptance of certain innovations that had been developed but used sparingly in the late 1800s. Chief among these was the indeterminate sentence, whereby a judge sentences the offender to a range of time, say, five to ten years, and a parole authority establishes the release date within those limits according to such factors as the offender’s criminal history and his behavior in prison. At last hardened criminals could be treated differently from first-time offenders.


The indeterminate sentence had been devised in the mid-1800s by Capt. Alexander Maconochie, a Scotsman who advocated letting inmates earn freedom through hard work and good behavior. The idea had first been applied in Ireland, and when it was introduced in this country, in the late 1800s, it was called the “Irish system.” The indeterminate sentence was warmly embraced by correctional administrators. It would make offenders responsible for their fate: if they behaved and worked hard, they would receive their freedom sooner, and if they did not, they would prolong their incarcerations. Underlying this enthusiasm, however, were the freedom and power the indeterminate sentence allowed prison administrators, particularly in dealing with overcrowding.

Like the medical model of treatment, the indeterminate sentence elevated the status of wardens. At the close of the nineteenth century most of them were little more than caretakers of corrupt and brutal institutions. Now they were often being appointed to release panels, gaining not only public respect but immense new leverage over their charges’ behavior. They could encourage good behavior; they could ease overcrowding; they could also coerce.

To help judges and prison administrators make decisions based on individual circumstances, the presentence investigation report was developed. This was, and is, basically a biography of the convict with a discussion of his or her crime and prior record and a recommendation to the judge about sentencing. In some cases a psychological evaluation is also included, as are interviews with the victim, police officers, and the offender.

Out of the indeterminate sentence grew the concept of parole. Since a convict could now be released before he or she had served the entire term, the unserved portion could become a testing period. If released convicts behaved themselves, they would be allowed to remain in the community; if not, they would go back to prison.

Probation was another major twentieth-century phenomenon with nineteenth-century roots. It was first conceived in Boston in the 1850s when a citizen named John Augustus persuaded the courts to give him custody of some young offenders. Between 1900 and 1920 it became a common courtroom disposition. In its simplest form probation means that the sentencing judge suspends incarceration and has a probation agent supervise the offender. If the offender does well, he or she stays free; if not, the original sentence is imposed.

Reformers had pressed for this practice as a way of both reducing prison populations and treating the individual. Probation has never achieved the success expected by its early proponents. Whether it could have is uncertain, for the concept has never been funded at appropriate levels. Originally, probation agents were to have small case loads and spend considerable time with each person. But from the outset probation case loads in most states grew to such levels that agents could do little more than process the paperwork, and many probationers have been required only to send in postcards to keep in touch with their agents.


Again, probation was widely accepted partly because of the flexibility it allowed the criminal justice system, especially in dealing with overcrowding. Despite its promise, probation, like the indeterminate sentence, seems to have been embraced more for its side benefits than for its ostensible purpose.

As the “medical model” and the role of rehabilitation grew in importance, reformers moved to abolish archaic practices such as striped uniforms, the lockstep, and the rule of silence. Silence and isolation were considered repugnant. How could anyone take a normal place in society after such treatment? There were efforts also to encourage visitation and correspondence, to treat inmates as social creatures, and to provide them with entertainment—movies, bands and orchestras, exercise, commissary privileges, libraries, and other trappings of outside life. States established diagnostic centers where inmates’ problems, aptitudes, and potential for rehabilitation could be assessed, and treatment prescribed.

By the 1930s most systems were beginning to outlaw whipping and the physical punishments of the 1800s. Solitary confinement became the primary punishment, and a host of rules and regulations governing its use sprang up.