How Did Our Prisons Get That Way?

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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.

 

The largest ground swell for reform in America came from Quakers, and they played a crucial role in inventing the prison. Most of them lived in Pennsylvania and western New Jersey—in and around the nation’s most important city, Philadelphia—and they were the only significant religious group to find brutal criminal punishments irreconcilable with their Christian beliefs. Toward the end of the eighteenth century, as new ideas about punishment spread, the Quakers set about to transform penal practices.

First, in 1786 they persuaded the Pennsylvania legislature to limit the death penalty to murder, treason, rape, and arson. People convicted of robbery, burglary, sodomy, or buggery would now have to give up their possessions and be imprisoned for up to ten years; if convicted of larceny, they could have to make double restitution (half to the state) and spend up to three years in prison. Next, the Quakers took on the terrible conditions in jails. Philadelphia jails locked up men and women in the same rooms at night. Inmates were thrown together with no regard for age, seriousness of offense, or ability to defend themselves. Liquor was sold on the premises. And detainees had to pay a fee to underwrite their own incarcerations, even if they were found innocent of any crime.

In 1787 the Quakers and their sympathizers formed the Philadelphia Society for Alleviating the Miseries of Public Prisons. Many prominent citizens took up the banner. In March, Dr. Benjamin Rush gave a lecture at the home of Benjamin Franklin in which he recommended dividing a large house into apartments for convicts, with special cells for the solitary confinement of troublesome inmates.

The Philadelphia Society soon persuaded the Pennsylvania legislature to convert a jail on Walnut Street into a prison for the confinement of convicted criminals from across the state. It was designed for two classes of inmates: serious offenders would be housed in sixteen solitary cells; less hardened ones would sleep in large rooms and would work together in shops. This became the first prison as we know it.

The creation of the Walnut Street prison in 1790 elicited tremendous enthusiasm in Philadelphia. It promised a vast improvement in the treatment of jailed offenders. And the initial results were very promising. Yearly commitments dropped from 131 in 1789 to just 45 in 1793. Burglars and pickpockets seemed to disappear from Philadelphia, and few discharged prisoners were caught committing new crimes. The Pennsylvania legislature was so impressed that it again amended the law in 1794 to reduce the number of crimes calling for capital punishment to just one: first-degree murder.

When society began putting into practice the new theories of penology, Americans became confident that a rational system of certain but humane punishment would vastly reduce crime. If colonial laws had contributed to crime, new laws would deter it. The prison was necessary, but the focus was on the laws, not on the nature of the prison. No one was yet arguing that life inside a prison would improve anybody.

The Walnut Street prison, the first in the world, served as the prototype for all other prisons built in this country over the next thirty years. But just as the Walnut Street Prison represented a dramatic departure from colonial practices, so developments in New York and Pennsylvania in the 1820s represented another departure of even greater magnitude—one that was to make even Europe vitally interested in the course of American penology. Before that happened, things went to pieces in Walnut Street.

Despite the initial enthusiasm over the prison, conditions soon became dreadful. As yet no one had very clear ideas about what prisons should look like or how they should be run. Between 1790 and 1820 they tended to be like houses where all prisoners not in solitary confinement lived in common rooms and ate in large dining halls. It was difficult to avoid putting more and more offenders in the large rooms, and this caused overcrowding and management problems. Moreover, it was hard to make inmates work. Difficulties with uncooperative prisoners led to a gradual resurrection of the very corporal punishments the prison had been created to eliminate, although some prisons did try using isolation and the withholding of rations to control inmates.

By the early 1800s Walnut Street and other prisons were gruesome places. The early prison historian Richard Phelps described the prison established in 1790 in an abandoned copper mine at Simsbury, Connecticut—one of the first after Walnut Street: “The passage down the shaft into the cavern was upon a ladder fastened upon one side and resting on the bottom. At the foot of this passage commences a gradual descent for a considerable distance, all around being solid rock or ore....On the sides, in the niches of the cavern, platforms were built of boards for the prisoners, on which straw was placed for their beds. The horrid gloom of this dungeon can scarcely be realized. The impenetrable vastness supporting the awful mass above impending as if ready to crush one to atoms; the dripping water trickling like tears from its sides; the unearthly echoes, all conspired to strike aghast with amazement and horror. A bell summoning the prisoners to work brought them up from the cavern beneath through a trapdoor, in regular numbers, two or three together....The prisoners were heavily ironed and secured by fetters and being therefore unable to walk made their way by jumps and hops. On entering the smithy some went to the side of the forges where collars dependent by iron chains from the roof were fastened around their necks and others were chained in pairs to wheelbarrows. The attendants delivered pickled pork to the prisoners for dinner at their forges, a piece for each thrown on the floor and left to be washed and boiled in the water used for cooling the iron wrought at the forges. Meat was distributed in a similar manner for breakfast.”

 

By 1817 the Philadelphia Society acknowledged that Walnut Street had so degenerated that as many as forty prisoners were being housed in an eighteen-by-eighteen-foot room, that it was now no different from a European jail, and that it had become a virtual “seminary for vice.” As a remedy the society persuaded the Pennsylvania legislature to build two new prisonsone in eastern and one in western Pennsylvania. These were to be built with only single cells, so that every inmate could be kept alone, eliminating all the problems of congregate living.

The criminal justice situation in New York before the 1790s had been similar to that in Pennsylvania: many crimes called for capital punishment, and corporal punishment was extensive. In 1794 reformers from New York visited Philadelphia and decided to emulate Walnut Street. New York reduced its list of capital crimes to just murder and treason, and two prisons were built—one at Albany and one in Greenwich Village. As in Pennsylvania, they soon became overcrowded. Conditions so degenerated that in 1816 a third and very different prison was authorized, at Auburn.

The Auburn prison followed a new scheme: the worst offenders went into solitary confinement; but a second class was put in separate cells three days a week, and minor offenders were allowed to work together six days a week. By 1823 most of the Auburn inmates serving long terms in solitary had suffered mental breakdowns. Isolation was discontinued, and the governor pardoned most of the remaining isolated inmates. The Auburn system was now revamped to allow congregate work by day for all (with a rule of total silence) and solitary confinement by night. This was essentially a compromise between total group living, which had led to such horrendous conditions earlier, and total isolation, which bred insanity.

These developments in Pennsylvania and New York became the basis for a tremendous thirty-five-year rivalry between what were seen as the two basic forms of the prison: the individual system, represented by Pennsylvania, and the congregate system, represented by Auburn. The supporters of the Pennsylvania system (the Philadelphia Society) called Auburn a cheap imitation. Auburn’s defenders (the Boston Prison Discipline Society) called the individual system extravagant and claimed it led to death and insanity while failing to eliminate interaction between inmates, since heat ducts and water pipes still allowed clandestine communication.

As various states contemplated prison construction, they moved firmly into one camp or the other. The Reverend Louis Dwight, self-styled spokesman for the Boston Prison Discipline Society, made sure that state legislatures contemplating building prisons received copies of his annual reports. He promoted the Auburn system with religious zeal and regarded any opposition as heretical. His reports were quite misleading—as were those promulgated by advocates of the individual system—but he was very effective in encouraging other states to emulate Auburn.

Prison reformers in both camps agreed that the great mistake of the 1790s had been the failure to keep inmates from associating with one another. The only issue was whether they should labor and eat silently in groups or remain alone in their cells. For this reason prison architecture—the layout of cells, eating and sleeping arrangements, and work facilities —became a vital concern.

Reformers in the 1820s agreed that inmates must never mix with one another.

Attitudes had already changed drastically since the prison’s first years. Whereas the focus had been on more humane laws, which were supposed to eliminate crime from society, now it was believed that laws had failed but the internal routine of the prison could reform offenders before returning them to society. In 1829 and 1830 inspectors at the Auburn prison interviewed inmates about to be released in hope of uncovering clues to the origins of their criminality. It emerged that most of them had come from broken or otherwise unwholesome homes. The inspectors concluded that a lack of rigorous childhood training in discipline and obedience was, along with exposure to vice, a major cause of crime. If so, order and discipline in the penitentiary should inculcate criminals with proper values and work habits, and isolation from evil influences should allow the basic goodness in man to emerge.

So much effort was expended to isolate inmates from the evils of society that even newspapers were banned from one prison. Correspondence with one’s family was typically either forbidden or limited to one letter during the whole confinement. The occasional visitor had to be of unquestioned moral character. The warden of Sing Sing (established in 1824) told inmates in 1826: “It is true that while confined here you can have no intelligence concerning relatives or friends....You are to be literally buried from the world.”

The Pennsylvania system isolated the inmate for his entire stay. He was to leave the institution as ignorant of his fellow convicts as when he arrived. A convict arriving at Pennsylvania’s Eastern Penitentiary was examined by a physician and then given a hot bath and some clothes. Later he was blindfolded and led to a central rotunda, where the superintendent explained the rules and operation of the prison. Then, still blindfolded, he was taken to his cell, whose number became his name. He was allowed to exercise in the little yard next to his cell only when the inmates in the adjoining yards were not present. He was left alone except when brought meals. After a few days he was asked if he would like some work—an offer usually accepted because of boredom. If he behaved, he would be allowed a Bible. So isolated were the prisoners that they did not hear for months about a cholera epidemic that decimated Philadelphia, and not one inmate caught the disease.

At Auburn prisoners slept alone in their cells at night but worked and ate in groups. They were forbidden to converse or even to exchange glances with other inmates. Strict routines were established to maintain this silence. Since Auburn officials couldn’t have inmates casually walking from place to place, they invented the lockstep. Standing immediately behind one another, each looking over the shoulder of the man ahead, with faces turned down and to the right to prevent conversation, prisoners shuffled along in unison. The lockstep survived until the 1930s.

The routine at Auburn was described graphically, if uncritically, in an 1826 report of the Boston Prison Discipline Society: “The unremitted industry, the entire subordination, and subdued feeling among the convicts, has probably no parallel among any equal number of convicts. In their solitary cells, they spend the night with no other book than the Bible, and at sunrise they proceed in military order, under the eye of the turnkey, in solid columns, with the lock march to the workshops, thence in the same order at the hour of breakfast, to the common hall, where they partake of their wholesome and frugal meal in silence. Not even a whisper might be heard through the whole apartment.

“Convicts are seated in single file, at narrow tables with their backs toward the center, so that there can be no interchange of signs. If one has more food than he wants, he raises his left hand, and if another has less, he raises his right hand, and the waiter changes it....There is the most perfect attention to business from morning till night, interrupted only by the time necessary to dine—and never by the fact that the whole body of prisoners have done their tasks and the time is now their own, and they can do as they please.

“At the close of the day, a little before sunset, the work is all laid aside, at once, and the convicts return in military order, to the silent cells where they partake of their frugal meal, which they are permitted to take from the kitchen, where it is furnished for them, as they returned from the shop. After supper, they can, if they choose, read the scriptures, undisturbed, and can reflect in silence on the error of their lives. They must not disturb their fellow prisoners by even a whisper.”

Many important Europeans came to visit these institutions with the hope of applying the new systems at home. In fact, the typical distinguished foreigner would no more have passed up a chance to visit a prison than he would have missed seeing a Southern plantation or a Lowell, Massachusetts, textile mill. Alexis de Tocqueville’s second main objective during his visit, after studying our form of government, was the examination of our prisons. He found strengths and weaknesses in both systems. In his view, inmates at Auburn were treated more harshly, but at Pennsylvania they were more unhappy. He concluded that seclusion was physically unhealthy but morally effective; and that although the Pennsylvania system was more expensive to construct and operate, it was easier to administer.

By the late 1800s, citizens had lost faith that prisons could cure crime.

As the debate about the two forms of prison crossed the Atlantic, European officials felt compelled to choose one or the other. In 1846 an international prison conference in Frankfurt gave over its entire agenda to a discussion of the two systems. Ultimately the individual system won out in Europe; but most American states emulated the congregate system, mainly because it cost less.

Some reformers thought so highly of the prisons of the day that they longed to apply the same order and discipline to the entire society. The Reverend James B. Finley, a chaplain at the Ohio penitentiary, wrote, “Could we all be put on prison fare, for the space of two or three generations, the world would ultimately be the better for it.”

Theories were one thing; in actual practice and with the passage of time, the new prison systems deteriorated. By the mid-1800s prisons everywhere scarcely reflected the designs that had been so fiercely debated. The rigorous routine at Auburn and the solitary confinement of Pennsylvania both had been virtually abandoned.

The major reason was overcrowding. Sentences were extremely long and of fixed duration. With no provisions for early release or parole, prisons filled up fast. Overcrowding led to a relaxation of rules, and this in turn enabled inmates to mix freely. Prisons again began to experience the old problems of congregate living. Part of the trouble was that prisoners were not segregated by age or criminal record, and rules and regulations were geared to the worst offenders.

It had originally been anticipated that inmates would read the Bible, talk with and emulate those exemplary outsiders approved to enter their institution, and contemplate their sins in silence. But most inmates couldn’t read and had no use for do-gooders. Whereas the fathers of the penitentiary had expected inmates to be amenable to change, most were hardened criminals serving long sentences and had little to lose by making trouble or trying to escape. So wardens concentrated on maintaining order, and almost every form of brutality found its way back into the penitentiary. Floggings were so common that the public became appalled when it found out about them. At Sing Sing in 1843 as many as three thousand lashes per month were administered.

 

Many of the punishments had a medieval cast. Prisoners were tied up by their hands with their toes barely touching the floor. They were strapped on their backs to boards or bars for twenty days at a time. They were placed in sweatboxes—unventilated cells on either side of a fireplace. Alcohol was poured on epileptics having seizures and then ignited to detect shamming. New Jersey investigators in 1829 discovered a fourteen-year-old boy who had been imprisoned with hardened criminals and also physically restrained because he could fit through the gratings in prison doors. Prison officials had placed an iron yoke around his head and fastened his hands to it twenty inches apart at shoulder level.

The distressing aspects of the penitentiary did not stop at the prison walls. In the 1830s inmate labor was often leased to private contractors. Its low price meant a valuable competitive advantage, and the awarding of contracts for it unavoidably invited graft and corruption. Some states began to restrict the use of inmate labor by the mid-1840s.

By the last half of the nineteenth century, citizens had lost faith in the idea that a properly structured environment could cure society’s crime problem. As the nation’s prisons grew in size and number, legislative investigations periodically reported substantial corruption and brutality, but overcrowding always seemed to be the most immediate problem. Popular prison reform movements came and went with little lasting effect. Then, as now, the majority of people had an “out of sight, out of mind” mentality. Most inmate populations consisted mainly of immigrants and other minorities that commanded little public sympathy. But by the end of the 1800s, concern about prisons was slowly rising again, and a new age of penal reform dawned.

The twentieth century was to witness two broad eras in the development of the penitentiary. The first lasted until the 1960s and brought the development of modern programs such as probation and parole, along with an emphasis on rehabilitation. The second era, still continuing, has been marked by a popular repudiation of those reforms.

Just as profound social and ideological currents at the turn of the nineteenth century had directly influenced the early development of the prison, so a new set of cultural perspectives guided twentieth-century reformers. One very important notion was the idea that it was possible to measure specific personal qualities. At the turn of the century Alfred Binet, in France, was working on a test to quantify intelligence. The emerging field of psychology was studying individual differences in perception and reaction times. Might it not be possible to assess the causes of criminality in different people and treat each criminal accordingly? It began to seem much less logical to punish all perpetrators of a given offense in the same manner.

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.

The array of twentieth-century reform measures was never adopted fully by any institution, and prison life never emulated life outside very well. When physical punishment was officially outlawed, it went underground, approved by some prison officials with a wink and a nod.

The liberated practices of the early 1900s continued virtually unopposed and unquestioned until the 1960s, when many of them, including parole, probation, and the indeterminate sentence, began to meet with widespread opposition. The public perception of the threat of crime grew immensely during that decade, and with it grew concern about the effectiveness of the criminal justice system in general and of prisons in particular. Of the many shifting currents of popular opinion, one came to dominate—the desire to get tough.

The primary strategy of latter-day reformers has been to legislate limits to the broad discretion of sentencing judges and correctional officials. Lawmakers have attempted to mandate fixed sentences and establish sentencing and parole guidelines, with the aim of getting more criminals into prisons and for longer stays.

At the same time, courts have become increasingly interested in the conditions inside the nation’s crowded prisons. Until the mid-1960s, courts, like legislators, usually stayed uninvolved with prison administration. Courts generally upheld the warden’s administrative expertise and worked on the premise that prisoners enjoyed privileges, not rights. As long as prison officials avoided escapes, riots, and publicity, they were allowed free rein in running their institutions. But prisoners became more vocal and sophisticated in their demands for humane conditions, and as they did, the courts opened up to them, broadening their rights to legal counsel and to due process. A landmark Supreme Court decision in 1964 was a watershed, giving state prisoners the right to challenge state prison practices in federal court.

During the 1970s nine state correctional systems were found to be unconstitutional and put under court supervision; by 1982 forty-two state systems were under court order to reduce overcrowding and improve conditions. Prisoners have legally challenged virtually every aspect of prison life, including housing, health care, recreation, mail privileges, classification, and diet. The “hands off” attitude of the judiciary has now been reversed to the point where about 10 percent of all cases in federal court are by or on behalf of inmates.

The experience of Texas offers a striking example of the difficulty faced by the courts in ensuring that inmates are treated humanely. An assortment of Texas prisoners’ complaints in the 1970s were assembled by a judge into one case tried in 1978 that challenged several specific elements of prison conditions. A main issue was the use of building tenders, or trusties —favored prisoners who were given special privileges in return for keeping order among the general inmate population by sheer force and intimidation. In 1980 the judge in the case, William Justice, ordered an end to the brutal tender system, and mandated more guards, more medical care, and less crowding throughout Texas’s prisons. In 1981, as the state appealed the order, a disturbance erupted among inmates at the state’s Eastham prison in which prison officials stood by while the tenders went on a rampage, bloodying dozens of inmates with clubs, bats, chains, and knives. In 1983 the trusty system was finally abolished, but despite all the court’s efforts, murders in the prisons continued to increase, and conditions in general worsened with overcrowding.

Then, in January 1987, Judge Justice declared that the system had failed to solve its overcrowding, understaffing, and medical-treatment problems and remained “sorely deficient in providing secure living areas for the vast majority of its prisoners.” He found the state in contempt and threatened to impose stiff fines. In April he determined that things had finally started to improve. Meanwhile the prison system has been forced repeatedly to turn away new prisoners and grant early release to old ones, and is diverting money from other state programs to build new facilities. One lesson from Texas’s painful experience is that prisons are inherently enormously expensive. Another is that judicial oversight is sometimes indispensable for ensuring that inmates are treated humanely.

After decades of liberalizing reforms, a get-tough backlash began in the 1960s.

An interesting alternative to traditional imprisonment is being tried out in several states. The Regimented Inmate Discipline program, as Mississippi calls it, takes certain low-risk, first-time felons and submits them to a grueling ninety-day regimen of exercise and hard labor in hope of making them into confident, upright citizens. Inmates are punished on the spot for poor performance and are given lectures on criminal behavior and classes in decision making and motivation. Only eight of the first three hundred Mississippi graduates returned to prison—a recidivism rate far below normal. Oklahoma and Georgia have similar programs, and several other states may soon follow.

Although reformers continue to try to improve prison conditions and to find useful forms of punishment, the public at large seems to have little sympathy for prisoners these days. In fact, it seems as if we have reached a point where public sentiment is diametrically opposed to what led to the creation of the penitentiary back in 1790. While people then were appalled by the use of capital punishment, now a majority supports it. Where there was then public dismay over the brutal treatment of prisoners, now there is animosity toward “bleeding heart liberals” who would go easy on them. The surpassing aim in the public mind is simply to lock up as many prisoners as possible and forget about them, and the states are currently spending four billion dollars simply to try to build prisons fast enough to keep up with the demand.

It would seem a great loss to abandon entirely the lofty ideals of the creators of the penitentiary. Instead, we should evaluate the system in the light of its convoluted history and learn from the mistakes and successes of the past. Despite the attractions of a simple “get tough” mentality, our history tells us that Americans will not accept, over the long term, a philosophy of simply locking up prisoners and throwing away the keys. We have too strong a legacy of concern about what is right and humane to give up all hope of amelioration.

In the words of former Chief Justice Warren Burger: “We must focus more attention on the conditions of incarcerated persons....To put people behind walls and bars and do little or nothing to change them is to win a battle but lose a war....It is wrong. It is expensive. It is stupid.” Perhaps our best hope is that eventually we can learn more about the various causes of criminal behavior—economic, societal, domestic, psychological, and physiological—and so can begin to get away from the notion that the prison is our only real weapon against crime. Americans invented the penitentiary, and Americans should be able to develop other means of dealing with crime. Meanwhile, our experience may be our greatest tool.

TO FIND OUT MORE

The historian David J. Rothman has explained in masterful fashion what the inventors of the penitentiary were faced with and how their original ideas evolved into the institution we now accept as commonplace. Two books of Rothman’s,Conscience and Convenience: The Asylum and Its Alternatives in Progressive America (Little, Brown, 1980) and The Discovery of the Asylum: Social Order and Disorder in the New Republic (Little, Brown, 1971), help make sense of things we do even today in all aspects of criminal justice.

The Story of Punishment: A Record of Man’s Inhumanity to Man, by Harry E. Barnes (Patterson Smith, 1972), and The Development of American Prisons and Prison Customs, 1776-1845 , by Orlando F. Lewis (Patterson Smith, 1967), afford excellent descriptions of prison life and of the road from Walnut Street to the major penitentiaries of the nineteenth century.