Punishment in World History (Themes in World History) [1 ed.] 1032547375, 9781032547374

Table of contents :
Cover
Half Title
Series Page
Title Page
Copyright Page
Table of Contents
Acknowledgments
Chapter 1: Introduction
Challenges in the History of Punishment
Data
Severity and Normalcy
Social Structure
Who Does the Punishing?
Costs
Emotions
Historical and Comparative Perspective: The Basic Challenge
Why do Societies Punish?
Retributive Punishment
Preventive Punishment
Restorative Punishment
Rehabilitative (or Reformative) Punishment
Where We Go from Here
Further Reading
Part I: Early Human Societies
Chapter 2: Punishment in Hunter-Gatherer Societies
The Debates
Crime
Punishments—Basic Characteristics
The Layers of Punishment
Gossip and Rumor
Shaming
Ostracism
Violence Against Violence
Conclusion
Further Reading
Chapter 3: Early Civilizations and a Transformation of Punishment
An Eye-for-an-eye—or More
China’s Five Punishments
Mesopotamia
Egypt
Other Early Cases
Causation
Social Change
Crime
The State
Available Apparatus
Complexities
Clemency and Other Options
Punishments Outside the State
Inequality
Further Innovations: Fines and Prisons
Conclusion
Further Reading
Part II: The Classical and Postclassical Periods
Chapter 4: The Classical Societies
China: New Debates and some Reform; the Classical Period and its Legacy
Signs of Change
A Genuine Philosophical Debate
Balance Sheet: The Han and Later Dynasties
Classical Greece and Rome, and their Legacy
Greece
Philosophers and Punishment
Rome
Legacy: The Byzantine Empire
Conclusion
Further Reading
Chapter 5: The Postclassical Period and the Role of Religion
New Regional States
Japan
Russia
West Africa
Religion
Judaism
Hinduism
Buddhism
Islam and Christianity
Christianity and the Christian States in Europe
Islam and Islamic States
Conclusion
Further Reading
Part III: The Early Modern Period, 1450–1800
Chapter 6: The Empires of Asia and Eastern Europe
China
Japan
Ottoman Empire
Russia
Conclusion
Further Reading
Chapter 7: New Prisons and New Ideas in Western Europe
Corporal Punishment
Penal Colonies
Emergence of Modern Prisons
The Philosophers Weigh In
A New Context for Punishment
Responses
Conclusion
Further Reading
Chapter 8: Punishment in the New European Colonies
Latin America
The British Colonies
Enslavement and Punishment
Conclusion
Further Reading
Part IV: The 19th Century
Chapter 9: An Age of Reform and Its Limitations: Western Europe and Beyond
Rethinking Child Discipline
Public Shaming
Recalibrating Punishments
Debating the Death Penalty Itself
The Need for Alternatives
Policing
Transportation
The Modern Prison
American Enthusiasm
Prisons in Europe: Divergent Trends
Prisons and Problems
Punishment Outside the Law
Conclusion
Further Reading
Chapter 10: Reform Efforts in Asia, Russia, and Latin America
Russia
Ottoman Empire
Japan
Latin America
Conclusion
Further Reading
Chapter 11: Punishment in the New Empires: From the 19th Century to the Mid-1950s
Capital Punishment
Transportation
Corporal Punishment
Prisons and Labor Service
Further Reading
Part V: The Contemporary Period
Chapter 12: Major Changes
New Forms of Retribution or Deterrence
Innovations in Torture
Capital Punishment
Concentration Camps
Extending the Reform Effort
The Death Penalty
Whipping
Spanking
Prisons
Restorative Justice
Conclusion
Further Reading
Chapter 13: Regional Patterns in the Contemporary Period
East and Southeast Asia
India
The Middle East
Sub-Saharan Africa
Russia
Western Society and the American Exception
Latin America
Conclusion
Further Reading
Chapter 14: Conclusion
Index

Citation preview

Punishment in World History

This book focuses on major changes in punishment patterns during the principal phases of world history, tracing continuities, reforms, and regional differences. Punishment in World History studies the official penalties enacted by governments throughout time, chronicling the limited courses of action in hunting and gathering civilizations, the array of punishments in early agricultural societies, and the various efforts to reform these patterns since the 17th and 18th centuries. There is also discussion on community sanctions and disciplinary patterns applied to children. A secondary emphasis involves analyzing different regional traditions, including the impact of the principal religions, varying definitions of punishable crime, and, in the modern period, differing levels of reliance on physical punishments and imprisonment. The regional analysis also pays close attention to the effects of colonialism, imperialism, and the slave trade. Ending with an assessment of the contemporary period, the book considers the efforts to develop and apply global standards to punishment. With far-reaching coverage of a variety of human civilizations in history, this book is a core resource for students and scholars of the history of corrections, world history, and criminal justice. Peter N. Stearns is University Professor of History at George Mason University. He has written widely in the fields of world history and the history of emotion, with recent books on Human Rights in World History (rev. ed.) and Happiness in World History.

Themes in World History Series editor: Peter N. Stearns

The Themes in World History series offers focused treatment of a range of human experiences and institutions in the world history context. The purpose is to provide serious, if brief, discussions of important topics as additions to textbook coverage and document collections. The treatments will allow students to probe particular facets of the human story in greater depth than textbook coverage allows, and to gain a fuller sense of historians’ analytical methods and debates in the process. Each topic is handled over time – allowing discussions of changes and continuities. Each topic is assessed in terms of a range of different societies and religions – allowing comparisons of relevant similarities and differences. Each book in the series helps readers deal with world history in action, evaluating global contexts as they work through some of the key components of human society and human life. Modern Travel in World History Tom Taylor Education in World History Mark S. Johnson and Peter N. Stearns Human Rights in World History (Second Edition) Peter N. Stearns Food in World History (Third Edition) Jeffrey M. Pilcher The Turkic Peoples in World History Joo-Yup Lee Punishment in World History Peter N. Stearns

Punishment in World History Peter N. Stearns

Designed cover image: © Loki / Alamy Stock Photo First published 2024 by Routledge 605 Third Avenue, New York, NY 10158 and by Routledge 4 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2024 Peter N. Stearns The right of Peter N. Stearns to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. ISBN: 978-1-032-54737-4 (hbk) ISBN: 978-1-032-54676-6 (pbk) ISBN: 978-1-003-42726-1 (ebk) DOI: 10.4324/9781003427261 Typeset in Times New Roman by SPi Technologies India Pvt Ltd (Straive)

Contents

Acknowledgments vii 1 Introduction

1

PART I

Early Human Societies

17

2 Punishment in Hunter-Gatherer Societies

19

3 Early Civilizations and a Transformation of Punishment

31

PART II

The Classical and Postclassical Periods

49

4 The Classical Societies

51

5 The Postclassical Period and the Role of Religion

65

PART III

The Early Modern Period, 1450–1800

83

6 The Empires of Asia and Eastern Europe

85

7 New Prisons and New Ideas in Western Europe

94

8 Punishment in the New European Colonies

112

vi Contents PART IV

The 19th Century

119

9 An Age of Reform and Its Limitations: Western Europe and Beyond

121

10 Reform Efforts in Asia, Russia, and Latin America

140

11 Punishment in the New Empires: From the 19th Century to the Mid-1950s

150

PART V

The Contemporary Period

159

12 Major Changes

161

13 Regional Patterns in the Contemporary Period

182

14 Conclusion

196

Index 199

Acknowledgments

My thanks to Sinead Monaghan and Elise Mertz for their help with this project.

1 Introduction

Punishing is one of the oldest and most important functions of society, though it may not win as much consistent attention as decisions about government structure or conducting wars. Punishments are often part of a society’s characteristic signature as well, reflecting distinctive values and traditions. While all social groups punish, their methods and sometimes their motives can vary widely. In today’s globalized world, regional punishment patterns also contribute to basic impressions about the quality, and even the basic humanity, of ruling regimes. Thus, one of the identifiers of the Taliban government in Afghanistan, in power between 1996 and 2001, and again since American withdrawal in 2022, involves an eagerness to use public punishments as a means of intimidating both criminals and potential political opponents, including defenders of women’s rights. On November 14, 2022, a Taliban leader announced the return of a variety of public measures, including executions, stoning, flogging, and amputations, rejecting international protest and arguing that the measures simply implemented Islamic law. (Several other Muslim-majority countries quickly disputed this.) Thus, convicted murderers may be killed in a public stadium by a single shot to the head, administered by a member of the victim’s family (though the family can also accept a payment instead); the first implementation occurred already in December of the same year, when a man was shot by the victim’s father before several hundred spectators including a number of Taliban officials. Women convicted of indecency, including talking with a man not in their own family, may be flogged, again in public—in one case, a woman was whipped 30 times until she passed out, and told not to cry aloud because strangers should not hear a woman’s voice. This is obviously an extreme case in the contemporary world, but there are other less dramatic regional profiles. China apparently executes more people each year than the rest of the world combined—by lethal injection or shooting, though the government keeps precise statistics a secret. Probably about 8,000 people have been put to death each year since 2000, although there may have been some decline after about 2010. Less well known, but a DOI: 10.4324/9781003427261-1

2 Introduction vital part of the Chinese pattern, is the fact that courts often issue a reprieve for a death sentence, possibly more often than not, to demonstrate both the seriousness of the crime but also official mercy and leniency. Russia has its own style, and has had since at least the 18th century. The nation has abandoned the notorious system of gulags which operated during the Soviet Union, in which millions of prisoners died. But it still has penal colonies, where prisoners are held in group barracks, subject to sometimes sixteen-hour workdays and harsh discipline (including beatings by other prisoners). Many camps—like the gulags—are located in Siberia, where bitter cold adds to the misery. Prisoners, some of whom have been arrested for political protests, are also subjected to compulsory sessions of propaganda films glorifying the Russian state. The United States, whose spokesmen are often critical of punishments practiced in other societies, also has its claims to fame. For the past several decades the nation has led the major countries of the world in the percentage of citizens held in jails and prisons: though the figure has been falling, about 500 people per 100,000 population were incarcerated in early 2023. Notoriously, rates for Blacks and Latinos were particularly high. (Other rivals for the top spot included Rwanda, where the jail population soared because of punishments meted out to participants in the genocidal rising of the 1990s, plus El Salvador, Cuba, and Turkmenistan, all cases where among other things rates of political imprisonment ran high.) In contrast, Finland (at 50 per 100,000), Japan (at 37) and India (at 35)—to take scattered examples— were decidedly at the low end of the international scale, and far below the levels in the United States. Something was peculiar about punishment in the various jurisdictions of the world’s third largest country; a country that likes to see itself as the land of the free. Regional differences of this sort are both new and old. China, for example, has long emphasized the importance of capital punishment in its punishment roster, though data do not permit tracing actual execution rates over time. On the other hand, the methods employed have changed in fundamental ways, with noticeably less cruelty involved today. American imprisonment has soared since the mid-20th century, though the recent slight dip is significant—so there are important new elements involved in prompting the disproportionately high rates. But national confidence in prisons goes back for two centuries. In other words, history is essential in exploring why different countries choose to punish as they do. At the same time, societies are certainly not trapped by the past: many have introduced vital changes in very recent decades, and even more over the most recent centuries. But change itself requires explanation, which is where historical analysis comes in again. The history of punishment in fact offers vivid illustration of the classic historical balance between change and continuity: both are vital in explaining punishment today. Punishment is also a recurrent target for debate. This

Introduction  3 is clearly true in our own time, as many Islamic-majority countries dispute the Taliban’s interpretation of relevant Islamic law; or as African countries revisit punishment systems established under European imperialism; or as American political parties argue over how much prison time to mandate. But it was also true in the past, with vigorous disputes in China, for example, between Confucianists skeptical of the results of harsh punishments but other groups insisting that they were essential to public order. Here is another dimension where history provides vital examples and perspectives that feed into contemporary discussion. Punishment does not, however, feature strongly in most conventional treatments of world history—perhaps not surprisingly, given how much else there is to cover. There are exceptions: Roman punishments play a vital role in the early history of Christianity. Dramatic reform ideas were an important part of the 18th-century Enlightenment and ensuing revolutions. Gulags and concentration camps illustrate the brutality of 20th-century authoritarian regimes like the Soviet Union and Nazi Germany. Yet, the kind of systematic treatment that provides an active backdrop to punishment issues today, or explores the role of punishment as part of the basic operation of societies in the past, is largely missing. Several very good “global” studies of punishment history really confine themselves to Western history—an interesting challenge for further work. The history of punishment is not simply an occasional topic. It forms part of the fundamental ways in which societies function—not surprisingly, one of the earliest functions of governments once they began to be formally established. Punishments deeply affect the lives of at least a minority of the population, in the past as today, and they have some impact on populations more generally, exposed to the results of whatever systems are in place, but also their costs. They reveal a great deal about crucial values in any society, including the balance between hope and fear in dealing with crime and disorder. This book explores systems of punishment within the standard chronological and regional framework of world history, linking them to more familiar aspects of the past and connecting them directly to the patterns and debates of contemporary global society. The focus is on how societies or social groups deal with crimes and other offenses; the treatment of military prisoners, sometimes particularly harsh, is largely sidestepped. Even with this exception, the history of punishment involves some painful elements, in past and present alike, though there are also redeeming cases where punishment has clearly constructive results or where it has been modified in the interest of mercy or justice. Whatever the outcome, no society avoids some fundamental decisions about what punishment is for and how it should be carried out, making the subject an obvious candidate for historical evaluation.

4 Introduction Challenges in the History of Punishment Assessing punishment in a world history context involves a number of issues, which will emerge clearly in the following chapters. Some are clear constraints, others generate vital questions of interpretation, others will inevitably involve basic value judgments. Data

Problem #1 involves the frequent inadequacy of available data. The problem is particularly acute for societies before the 19th century, when, gradually, records began to improve. But it can impinge on patterns today as well. In contemporary China, for example, it is actually illegal to publicize rates of capital punishment, though occasionally the regime highlights an execution to set an example. This is an unusual case, but it is clear that, through policy or simple inattention, several facets of punishment are hard to pin down and that there are noticeable differences from one region to the next. Overall, the data challenge looms particularly large in two respects. First, again, particularly before modern times, it is very difficult to know rates of punishment. The legal criteria are usually fairly clear, but it is hard to know how often certain kinds of punishment were actually carried out. Not infrequently, the harshest penalties were not applied because of some official reprieve or other hesitation, and it is also virtually impossible to know how many convicted criminals managed to escape. The second deficiency centers on the effects of punishment, including levels of recidivism. Many governments today do a pretty good job of tracing the number of prisoners who serve their terms but then commit additional crimes, but this is at best a recent achievement. Before modern times, and to an extent still, evaluating whether punishments served their purpose or not involves a great deal of guesswork. It is hard to determine how well punishments work, though the subject is vitally important. Severity and Normalcy

The data problem helps explain a second challenge: the frequent gap between the most striking punishments on a society’s list, and the punishments that were actually normal. Again particularly before modern times many societies, indeed probably most societies, had a fearsome list of severe punishments for what were seen as the worst crimes: not only capital punishment, but also a variety of forms of often gruesome tortures. Not surprisingly, many histories of punishment linger on these cases, because they could be important, or can draw a degree of horrified fascination. The torture instruments of medieval Europe are a common part of museum exhibits for tourists, in venues as

Introduction  5 famous as the Tower of London or Madame Tussaud’s Waxworks, while the punishments in traditional China, including an extreme form of capital punishment called slicing, understandably draw shocked interest. These punishments were unquestionably real, and they deserve attention. But they must be balanced against two other factors. First—and this again gets at the data question—they were not necessarily carried out very often, precisely because they were so awful. The history of punishment involves a great deal of cruelty, but it also involves mercy or simple revulsion. So it is important not to overdo it. The second factor, even more obvious, is that normal punishments were considerably different from the historical horror show—although as we will see, many traditional societies had a pretty long official list of offenses that could merit rather excruciating forms of death. For many hundreds of years, and still today, the most common official punishment has been a fine; not death or maiming. Fines can seem rather humdrum, compared to visions of prisoners being hung on a wall in chains or put to death by fire, but they could have a huge effect on individuals and larger societies alike. They loomed particularly large in the lives of poor people, and this remains true today. So a history of punishment must attempt to balance fascinations with extremes with attention to the more prosaic and common experience. Social Structure

Few societies punish evenly across the social spectrum. They usually give the upper (and wealthy) classes advantages. They may do this openly, reserving some punishments only for the masses. Or they be more subtle: giving the lower classes little opportunity to hire effective lawyers, compared to their wealthier counterparts, or trapping them with fines that the wealthy can more easily afford. Paying attention to social differentials, and how they change, is a vital feature in the history of punishment, but the patterns are not always straightforward. Gender differentials are also complex, and sometimes counterintuitive. In virtually all major societies over the past 10,000 years, women have been held to be inferior, though the differentials have been changing in recent decades. Gender inequality has some predictable results in the history of punishment; for example, in frequent distinctions about penalties for sexual offenses or, to take an important but extreme case, in executions for witchcraft. Law codes in traditional China and elsewhere often insisted on whipping a wife who hit her husband, while punishing the husband only if he broke his spouse’s bone. On the other hand, sometimes women have been treated more leniently because of assumptions about the “weaker sex,” making them less likely to face some of the more severe physical ordeals. The gender variable in punishment is less predictable than is true for some other topics in world history.

6 Introduction Who Does the Punishing?

This topic may seem fairly trivial, but there are some nuances. Ever since governments came into existence the most obvious source of punishment has been the state, from localities upwards. In the chapters that follow we shall be paying primary attention to this punishment source. But obviously, other organizations punish too. Sometimes, as we will see, particularly in Chapters 3 and 5, governments deliberately leave room for other groups to punish, even in cases of serious crimes like murders. On other occasions, non-state groups simply act on their own. Thus, while many religious institutions assigned certain kinds of punishment to the state, some punished directly—as in the famous Inquisition of the Catholic Church. Many religious institutions, to this day, have other forms of punishment, such as exclusion, which deserve attention. Other organizations punish as well, including schools, and while it is impossible to pretend to cover all available ramifications, some attention will be useful: there is often a link, for example, between the ways schools punish and a society’s more formal punishment list. Finally, private groups punish. In American history, the importance of lynching provides an obvious example: between 1877 and 1950 at least 5,000 African Americans were lynched for a variety of often imagined crimes (there were also lynchings of Latinos and others), and a small number of private lynchings may still occur—one report claims eight since 2000. But there are other kinds of informal group actions as well, including punishments meted out by families, and they deserve some attention as part of the larger story of how societies attempt to keep order and how they define what order is. A focus on state action alone—though it sits at the core of the history of punishment since the advent of government—will simply not do the trick. Costs

Punishments consume resources, and this aspect of the subject may not receive enough attention—even in the present day, not to mention the historical record. The contemporary United States, because of its huge prison system, is an atypical example, but it clearly illustrates the point. Currently, the nation spends about $80 billion annually on jails and prisons, but a total of around $300 billion on the criminal justice system more generally, including parole boards, halfway houses for some released prisoners, and so on. Add to this the costs to accused or imprisoned individuals (lawyers’ fees, the huge amount of lost work time) and the total soars to at least 5% of total Gross National Product—even more than the budget for defense. Again, this is an extreme: most societies spend less. But it dramatizes the general point that punishments cost money. Many argue, of course, that

Introduction  7 without punishments crime would cost society even more. But the resource factor in punishment must be kept in mind in dealing with the subject historically, in two major respects:

• First, societies determine suitable punishments based in part on what they can afford, though they may not discuss this explicitly. Many early societies clearly established punishments that placed little burden on resources, at least directly (they still could generate lost labor time or capacity). Major prison systems developed only in societies that were becoming wealthier. One of the obvious reasons for the ongoing popularity of fines is that they get around part of the resource problem by paying for themselves, at least in part. • Second, societies are often eager to try to figure out how convicted criminals can be made to pay, rather than simply consuming resources. Again, fines loom large here. But so does a recurring impulse to use at least some prisoners for productive labor, including subjecting them to slavery. (Some societies also use prisoners in the military, which Russia has been doing in the war in Ukraine that began in 2022.) Again, this impulse runs strongest in earlier historical periods, when social resources were lower, but it still factors in today. The Russian labor camp system is a case in point, but the impulse has an American version as well. Currently about 800,000 prisoners in the United States are compelled to work, sometimes long hours and for little or no pay (either no wages or as low as two cents an hour; though the average is 52 cents). Many states are debating whether this is simply a modern form of slavery, though decisions continue to vary state to state. The main point is clear: it is important to keep the resource issue in mind in interpreting the kinds of punishments societies emphasize and the ways they may seek to make criminals pay back as part of the punishment pattern. Sometimes practices that seem particularly odd or cruel result in part from resource constraints. Emotions

The emotional factor is at the opposite extreme from resources, but it clearly plays a vital role in punishment in any historical period. Punishment is never a matter of carefully calculated decisions based on dry reason alone— though authorities (from parents on up) may be urged not to punish in anger. Keeping the emotion factor in mind is a vital, and perennially interesting, aspect in the subject’s history. Further, the emotions involved can vary widely. Fear looms largest. In many societies punishment levels vary with the amount of social fear, and

8 Introduction while fear partly results from objective factors like crime rates, it can also operate independently, based on rumors and false impressions. Along with fear come anger and grief: many punishments reflect the victims’ deep sense of emotional grievance plus their rage at the perpetrator, and sometimes these emotions are shared more widely. Punishments also, in many cases, reflect hatreds, going beyond anger at a particular crime: groups may be subjected to particular kinds of punishment because of social hatred, and hatred may in turn be motivated by beliefs that certain groups are particularly prone to crime. But this is not the whole emotional story. Punishments also reflect emotions of mercy and empathy. In Mexico in the early 19th century, for example, a number of lower-class women who killed an infant were not punished by the courts, even though their action was illegal, because of sympathy for their plight (including the fact that some had been raped). One of the reasons that severe punishments were often less common in fact than on paper was because authorities or juries took pity on the offender. Even beyond these frequent individual cases, punishment systems themselves were sometimes revised because of new levels of empathy for their targets. Finally, of course, punishments involve guilt and shame, sometimes intentionally but almost always in fact. Here again, there is debate and variety. Most current experts in Western Europe and the United States argue that shaming convicted criminals is a bad idea, creating resentments and interfering with rehabilitation; guilt, where the individual is urged to see that a particular act was wrong but not that he is a bad person, is a more constructive approach. But other societies today, and certainly in the past, rely intentionally on shaming—and even in the Western world shaming is difficult to avoid in fact. Figuring out the emotional context of punishment can be a complicated proposition. Historical and Comparative Perspective: The Basic Challenge Most people—most readers of this book—have some definite assumptions about certain kinds of punishments that seem too horrible to contemplate, and they may also have ideas about punishments that seem too weak or inadequate. Polls of American college students around the year 2000 revealed great concern that the United States was being too “soft” on crime, though this reaction has changed since then. Many of us, in other words, are quite ready to criticize major characteristics of punishments in the past, in other societies, and sometimes in our own. Sometimes this impulse can take unexpected turns. Many Americans, for example, probably find death by guillotine a cruel alternative. Guillotines were invented in Europe in the 16th century (in English, the device was often called the Halifax gibbet), but they became widely used in France during the

Introduction  9 Revolution of 1789 because, it was argued, they provided a far quicker and more painless means of death than conventional beheading or use of a firing squad. This was the argument of a doctor, Joseph-Ignace Guillotin, after whom the device became named. And indeed the French continued to use the guillotine until 1981 (the last execution was in 1977). But to people in many other societies, influenced by impressions that the device was used excessively during the Revolution itself, with crowds rejoicing at the slaughter of kings and aristocrats as their heads dropped into a basket, the guillotine became a symbol of bloody cruelty. Clearly, many societies punish in ways that other societies find objectionable, even appalling. And the history of punishment, particularly before modern times, can easily become a story of inexplicable cruelty giving way, if gradually, to more humane procedures. But judgments of this sort can conceal at least as much as they illuminate. They risk obscuring the reasons that past societies believed they had to punish as they did. They can confuse the actual rates of severe punishment with what happened occasionally (the data problems loom large here). And they may also make modern punishments look better than they actually are. Indeed, one major historical philosopher, the French scholar Michel Foucault, won a huge reputation in part by arguing that the modern impulse, to imprison widely, was actually a step backward; we shall deal with his maverick evaluation in Chapter 8. The main point is this: it is always important to suspend the impulse to judge in dealing with the past, lest the result oversimplify the complexity of past and present alike and obscure the causes of differences—and this warning quite clearly applies to punishment. It is vital to figure out why societies punished as they did (and do), and what they thought they were accomplishing. It is important as well not to assume that the modern history of punishment is simply a story of progress. This does not mean that value judgments must be suspended permanently. Even when other practices are better understood, they still may be criticized or condemned. But evaluations should be complicated, not triumphal, and they must always be tempered by the realization that even the most enlightened societies today are still struggling to figure out how punishments can be done properly. And deciding which societies are indeed most enlightened today should be a complex task in its own right. Why do Societies Punish? The history of punishment inevitably reflects the fact that decisions about how and why to punish embrace a number of goals, some of which are mutually contradictory. Not all punishment systems try to incorporate all the factors, but few operate simply on the basis of one approach alone. Diversity reflects the fact that punishment affects at least three major players: the

10 Introduction victims of the offense and those close to the victims; the perpetrator (complicated by the fact that it is not always easy to be sure that those convicted are guilty); and society at large, usually represented by the state. The goals of punishment vary depending on which element is emphasized. Current theories of penology or retribution largely agree on a list of punishment’s major purposes—though they do not resolve the issue of which purpose should come first—and it will be useful to have these purposes in mind before turning to the historical record. There is a variety of ways to define the major reasons to punish and approaches to punishment, and some of them overlap. Here is one list of the principal categories: retributive; preventive (sometimes called incapacitating); restorative (sometimes called expiatory); and rehabilitative or reformative. Note that these broad categories can be applied to punishments from the state, but also to actions by other agencies—including parents dealing with children. In some societies, at least, there is some consistency in the purposes of punishment at various levels, from family on up to state, another thing to keep an eye on in dealing with historical patterns. Retributive Punishment

Revenge is a powerful motive in punishment; this was true for many of the earliest human punishment systems, and it remains true today though arguably it has become somewhat less fashionable, or at least more camouflaged. The crime has caused harm—often both material and emotional—and the victim wants the criminal to suffer in consequence. The effort at retribution inevitably raises questions about how to define compensatory suffering. The case of rape is sometimes cited: it rarely if ever makes sense simply to rape a rapist—but what should be done instead? The retributive approach is often described as an eye for an eye, or the lex talionis (law of retaliation): a classic example is putting murderers to death. But there are situations where literal retaliation does not work. Another key issue involves agreeing on the victim. Obviously, this includes the person or persons against whom the crime was committed. But often, the victim concept may be extended to the family, which also suffered; and in the case of murders, when the direct victim is gone, family suffering becomes even more obviously relevant. In some societies also, concepts of honor extend victimization even to more remote family or clan members. The whole group has been offended by the crime against one of their number, and cries out for retribution in return. Finally, the victim may be society at large, which has been so upset by a crime—a terrorist attack might be a case in point—that it insists on compensatory suffering for the perpetrator. In some modern societies, the vicious killing of a child sometimes generates that kind of outrage, where widespread grief and anger can be appeased, at least in part, only through knowledge that the

Introduction  11 punishment causes suffering in turn. In places like the United States today, retribution is often the key component of what many victims or their relatives refer to as “closure”—again, a sense that justice has been done through the compensatory pain the punishment will cause. Some of the most powerful emotions in the whole domain of punishment center on the retributive approach. Preventive Punishment

Here, clearly, the main motive is to seek a punishment that will prevent the crime from recurring, or at least aims in that direction. There are two angles here. The first involves a convicted criminal directly, seeking to make it more difficult for him to repeat the offense. Various methods may be involved, though they all entail some degree of exclusion. The criminal may be taken out of operation, temporarily or permanently, most obviously by death or imprisonment. Or the criminal may be publicly identified, making further offense more difficult: here, tactics can range from some kind of physical branding (like cutting off the hand of a thief) to requirements to register as an offender and carry a criminal record. Or simple shaming tactics may be involved, so that the relevant public is aware of the offense and, through emotional pressure on the offender, can hope to impede recurrence. The second angle highlights the use of punishment to warn others not to offend in the first place, a goal sometimes given the label of deterrent punishment. The deterrent effort does not always receive the attention it deserves, when the focus is narrowly on the criminal and immediate victims, but it is vitally important, and some would argue that it is ultimately the most important purpose that punishment serves. Deterrence in turn has at least two facets, and some authorities contend that there is also a third. First, it helps shape the severity of the punishment itself: what measures are harsh enough to counter the motives for crime or other misbehavior that other people might harbor? The goal here is a punishment that inspires fear in society at large. But second, deterrence must also involve visibility and public awareness. How are punishments communicated, so they can serve as warning and example, well beyond the circle of offender and victims? Here, societies have used a variety of methods over time, and approaches vary considerably to this day. Clearly, it is not enough to seek punishments that cause fear; they also must be publicized. At the same time, the deterrent goal can also require careful calibration (the third facet), so that punishments are not so wildly excessive that the relevant public turns against the process or dismisses the threat as unrealistic. Harshness and deterrence do not always go hand in hand.

12 Introduction Punishment is not of course the only element in preventing crime. A full preventive effort involves attention to social-economic and psychological factors that a society should address to minimize the impulse to crime. But punishment inevitably plays a role, even in the most enlightened cases, and, in turn, exclusion and deterrence frequently explain many of the core features of punitive policy. Restorative Punishment

This approach, sometimes also called expiatory punishment, draws attention to the victims of offense—in some cases including society at large. The goal is to use punishment to help repair damage caused by the crime in the first place. Sometimes the effort can be fairly straightforward: a thief is called upon to return the stolen item and pay something additional for the trouble caused. But there are other approaches, involving for example broader requirements of community service or religious exercises, that can work toward the same restorative goal. The restorative approach carries a number of complications, beginning with the potential clash with other punishment goals including retribution. Certain kinds of offenses—crimes against persons most obviously, including murder or rape—do not easily lend themselves to restorative efforts. Even in simpler cases, such as minor property crimes, the perpetrators may simply not have the means to offer amends. Many societies, in past and present alike, face obvious dilemmas in seeking restoration from the poor, which may make other punishment goals more attractive. Rehabilitative (or Reformative) Punishment

Finally, punishment can center on efforts to redeem the offender himself, giving the person the chance to learn from mistakes, offering guidance about alternatives, and preparing the individual for a more constructive life in future. The rehabilitation goal calls attention not only to the punishment itself, but to the mechanisms provided to help an individual move from the disciplinary period back into normal life—the measures available for reintegration. The various purposes of punishment—and again, the precise list and the terminology can vary—present an obvious challenge: it is virtually impossible to pursue all of them simultaneously. Punitive agencies must make decisions, either implicitly or explicitly, about priorities. To be sure, there are some important overlaps: punishments that serve as retribution may also have a deterrent effect, and the same applies to restoration. Rehabilitation arguably can meet the social goal of prevention, by leading offenders toward a different path. But the tensions are clear as well. Rehabilitation may well not satisfy those seeking retribution. Retribution may actually complicate

Introduction  13 prevention, by antagonizing offenders (and their supporters) and leading to additional offenses in retaliation. Onerous restoration may complicate rehabilitation and as well as failing to meet the demands of those calling for retribution. The tensions between a desire to use punishments as warnings and an interest in helping the offender return to a constructive life are often crucial. There are, in sum, a host of permutations, which is why determining and implementing punishments can prove so complicated. The same multiplicity also helps account for change, even though, as we will see, it is hard for authorities and even general publics to shift gears when punishments have been well established, as in the tenacious American belief in prisons, societies at some points do decide that a past set of priorities was misplaced, and by recalibrating goals—for example, from primary emphasis on retribution to greater attention to rehabilitation—introduce major change in the whole punitive apparatus. While the major purposes of punishment complicate policies in fact— again, both historically and in the present day—they offer considerable guidance to those who are trying to figure what punishment is all about, including students and scholars dealing with the history of the subject. One of the key reasons for regional differences in punishments today is the simple fact that different societies apply distinctive priority combinations in their punitive approach. Similarly, in dealing with the past, when some punishments may seem particularly bizarre, figuring out the mixture of goals involved is a crucial step toward understanding why the practices were selected in the first place, even when the agents involved were not very explicit about their punishment criteria. Where We Go from Here The organization of the following chapters is fairly straightforward, resting primarily on chronological divisions but with attention to regional diversity as well. In Part I (Chapters 2 and 3): the special features of hunter-gatherer societies offer an initial baseline, with punishments rather different from those that would come later but with some revealing—and durable—techniques and motives. Chapter 3 then takes up the often-fearsome punishments initiated by governments in early civilizations, offering a basic opportunity to try to explain why, and to what extent, punishments began to go to extreme lengths. Part II, with Chapters 4 and 5, takes the story into the classical and postclassical periods. The more elaborate civilizations that developed in places like China and the Mediterranean (Greece and Rome) certainly built on the precedents of the early societies, but introduced a number of modifications that, in some cases, slightly reduced severities. The classical period also

14 Introduction generated philosophers like Confucius and Plato who actively discussed the nature and purpose of punishment as part of their musings on good government. Chapter 5 focuses on the complex impact of the major religions, which could add to the motivations and even the fury of punishments but could also introduce new emphasis on mercy and forgiveness—a point that, advocates say, is central to the punishment tradition in India. Part III, with three chapters, deals with the early modern centuries, between about 1450 and the 1790s. The unprecedented creation of new empires, in Asia and Eastern Europe, picked up some of the standard themes in traditional official punishments but added important twists, not only on physical punishments but also the use of fines. Interaction between religion and punishment generated some new developments as well. At the same time, within Western Europe, two significant changes emerged that were ultimately partly intertwined: new kinds of prisons began to be built, beginning in places like Amsterdam, and then in the 18th century an array of new arguments started to be directed against the range and cruelty of traditional punishments, urging a fresh approach. Some of these arguments would fold into the punishment approach advocated by the wave of revolutions at the end of the century, and they would ultimately have a larger global impact. Finally, the new European overseas empires, many of them also embroiled in the new slave trade from Africa, brought important changes to the customary punishment patterns in several regions, most obviously the Americas. Indigenous people were often shocked at the European approach. European-indigenous contact, but also the use of punishment to enforce slavery, began to suggest new racial issues in punishment as well. Part IV deals with the 19th century, picking up on several of the themes discussed in the early modern section. Chapters 9 and 10 focus on the accelerating current of reform, not only in Western society but also in Russia, the Ottoman Empire and elsewhere. Not only were many punishments scaled back, in some cases in favor of the growing use of prison, but the traditional emphasis on public punishments gave way to more private implementation. There is much to explain in these developments. But the 19th century was also the age of expanded imperialism, and this brought patterns of punishment to places like India and Africa that were very different from prior regional traditions, and different as well from what was going on in Europe—the focus of Chapter 11. Part V takes up developments in the past century, in their obvious diversity. Chapter 12 covers major patterns of change. This centers first on innovations in punishment, resulting from novel (and often fearsome) technologies and enhanced organizational capacities. These developments were most obvious under new types of authoritarianism, but they also affected democracies as well. The second part of the chapter, however, returns

Introduction  15 to the theme of reform, particularly in the decades since World War II, and how innovation in punishment became a basic part of new, global human rights movements and the organizations designed to advance this cause. Chapter 13, finally, returns to the theme of regional patterns in the contemporary world, including developments in the many societies that emerged from the shadow of imperialism. Chapter 14, in conclusion, returns to the basic problem of changes and continuities in this crucial facet of world history, and to the ways historical understanding contributes to an evaluation of punishment today and potentially in the future. Punishment is unquestionably a complex topic, most obviously because of the variety of motives that mix into the process and the many options available. Societies have made a number of different choices in their emphases, both in the past and today, but there has been, and is, a great deal of overlap as well: comparison is vital, but it must embrace similarities as well as differences. Change is the other great theme, most obviously dividing many modern societies from their more traditional predecessors. Here too, however, it is vital not to overdo: basic motives have not necessarily changed all that much, and some of the debates and uncertainties around punishment today echo divisions in the past. It is impossible to avoid discussing whether modern changes, overall, can be described as progress—but judgments are unquestionably complicated. The history of punishment sheds light on past and present alike, as the following chapters attempt to show. The main goals are twofold: first, some understanding of how punishment fit the other basic features of life and social organization in the past, and second, how changes—and continuities—in punishment help us understand some of the challenging issues faced by societies today. Further Reading On special topics, Maley William, Fundamentalism Reborn? Afghanistan and the Taliban (London, 2001) and Antonio Giustozzi, Decoding the Taliban (New York, 2009); Steven Barnes, Death and Redemption: The Gulag and the Shaping of Soviet Society (Princeton, 2011); Daniel Gerould, Guillotine: Its Legends and Lore (New York, 1992); Michael Kerrigan, The Instruments of Torture (London, 2017). On the history of punishment, Michel Foucault, Discipline and Punish: The Birth of the Prison (New York, 1979); Michael Roth, An Eye for an Eye: A Global History of Crime and Punishment (2015); Lewis Lyons, History of Punishment (London 2017); John Bessler, The Death Penalty as Torture: from the Dark Ages to Abolition (Chapel Hill, NC, 2017); Richard Ward, Executions and the Criminal Corpse (London, 2015); Norval Morris and David Rothman, eds., Oxford History of the Prison: The Practice of Punishment in Western Society (Oxford, 1998); Terance Miethe and Hong Lu, The History of Punishment in China (Cambridge, UK, 2012).

16 Introduction On theories of punishment, Michael Tonry, ed., Why Punish? How Much? A Reader on Punishment (Oxford, 2010); Michelle Brown, The Culture of Punishment (New York, 2009); Bill Wringe, The Expressive Theory of Punishment (London, 2016); David Garland, Punishments in Modern Society: A Study in Social Theory (Chicago, 1997); Simon Baron-Cohen, The Science of Evil: Empathy and the Origins of Cruelty (New York, 2022). Other work on punishment includes experimental psychological studies, though many of them focus primarily on the effects of punishment. For wider discussion, Antony Duff and David Garland, Punishment: a Reader (Oxford, 1998); Jefrrey Ulmer and Mindy Bradly, Handbook on Punishment Decisions (New York, 2018); and P. Holth, “Two Definitions of Punishment Today,” The Behavior Analyst Today 6 (2005); Nicholas Palmetti and Jennifer Russo, The Psychology of Punishment (Hauppauge, NY, 2011); Craig Haney, Death by Design: Capital Punishment as a Social Psychological System (New York, 2005).

Part I

Early Human Societies

For tens of thousands of years, after the emergence of the human species and as it spread from East Africa to other parts of the world—in various evolutionary stages ultimately including homo sapiens—people were organized in hunter–gatherer societies. These groups were usually small, with 60–80 members, and informally organized, though with occasional links to other bands through mutual festivals and intermarriage. Records for the long hunter–gatherer past are scattered at best, often based on what can be gleaned from remains of skeletons and tools plus anthropological studies of the few remaining hunter-gatherer groups today. But the results do provide some evidence about the nature of crime (far different from the range of crimes relevant today, but with some connection) and the way crimes were handled. The data admittedly leave some key questions unanswered, but they do provide a baseline against which later developments can be measured. Around 11,000 years ago, initially in regions around the Black Sea, agriculture was introduced, involving a very different economic system from hunter–gatherer, and introducing a host of changes in social organization. Agriculture gradually spread to other parts of Asia, Europe, and Africa, and it was separately invented in East and Southeast Asia (from about 7000 BCE onward) and in the Americas (from about 5000 BCE onward), ultimately becoming the predominant economic form in most inhabited parts of the world. Almost immediately, agriculture widened the list of possible crimes, and ultimately prompted new methods of dealing with crime as well—though hunter–gatherer precedents were not entirely forgotten. In most regions, the needs and resources of agricultural societies ultimately generated a more complex form of human organization often called civilization. Initial civilizations arose around 3500 BCE in the TigrisEuphrates valley of the Middle East and soon after that in Egypt; other early civilizations took shape in what is now Pakistan and also in northern China. Early civilizations emerged separately, and later, in Central America and the Andes region. The most obvious innovations that civilizations introduced included: some expansion of cities, though the vast majority of DOI: 10.4324/9781003427261-2

18  Early Human Societies people remained in the countryside as farmers; a related increase of trade; the introduction of writing; and the emergence of small formal governments, with a handful of state officials including people designated as judges. One of the clear purposes of forming governments, in turn, was to provide better and clearer methods of dealing with crime, so the early civilization period is crucial in the history of punishment, with a host of new features attached. Use of writing also enabled punishments to be more fully described and codified, and it enabled the recording and dissemination of laws and regulations. The early civilization period would last, in the regions involved, for many centuries. But ultimately—in Southern Europe, Asia, and Africa—it would be replaced with somewhat larger and even more formal civilizations, from about 800 BCE onward. It is crucial to remember that even by 800 CE, many regions of the world still operated in hunter–gatherer or nomadic societies, and that even some agricultural areas avoided a commitment to formal institutions of government. Still, organized states, and their approach to punishment, applied to the largest concentrations of human population, setting patterns that still have some applicability today. The innovations they introduced concerning punishments were truly fundamental, and although many would later be modified or overturned, they still exercise influence over punishments in the contemporary world.

2

Punishment in Hunter-Gatherer Societies

The characteristics of hunter-gatherer societies prove increasingly intriguing to a number of historians and anthropologists, despite the fact that we know far less about them than might be desirable. This was a society very different from our own. It featured some clear disadvantages, for example in the levels of material comfort available to many. But it had some comparative assets as well, and crime and punishment may be a prime example. Some distinctive features are obvious. The small size of the characteristic groups is one, amplified by the fact that about half of the group was usually made up of children; the societies featured small numbers of adults, who knew each other very well. Hunter-gatherer bands had no written laws, as there was no writing of any sort; no formal court system, as there was no organized government at all; and no police force. The definition of crimes and other social offenses was up to group consensus, and the same applied to the range of punishments available. Given how distinctive these societies were, it is legitimate to ask why it is worth inquiring about early human crime and punishment patterns in the first place. What do they reveal that is relevant to the later history of the subject, much less the background for the many contemporary issues in the field? The question is compounded by the deep debates that surround the subject, though as we shall see, these apply more to crime rates than to the nature of punishment. There is much uncertainty about crucial issues, and this too can detract from any sense of relevance. But there is a counterargument, even aside from a claim that the patterns and debates involved are simply interesting as part of the complex story of humanity. Almost the entirety of human history to date—over 99%—was wrapped up in one version or another of the hunter-gatherer structures; even with a focus only on our own human species, homo sapiens, the figure is 96%. It would be extraordinary if many of the features of crime and punishment in this long human experience did not create relevant illustrations and precedents for characteristic behaviors later on. At the same time, to the extent that they were very different from later developments—which is clearly DOI: 10.4324/9781003427261-3

20  Early Human Societies the case—the distinctions that mark hunter-gatherer societies set up crucial questions about the causes and significance of change—questions that would be less clearcut if we assumed that these later developments were somehow simply natural. So, a brief look at “original” human involvement with crime and punishment, along with the debates and uncertainties involved, offers an initial baseline against which subsequent experience can be measured. It clarifies some patterns that remain fundamental in the field, including the complex human dance between harshness and mercy, and at the same time it helps organize crucial questions about why and how many initial patterns would ultimately give way to change. The Debates Common images of early human existence are strikingly varied. On the one hand are the cavemen; crude and barbaric compared to what humans would later become. On the other, there is the persistent image of some kind of original paradise, a garden where crime and violence were unknown, which the species, tragically, could not sustain. Not surprisingly, truth falls in between: noticeably less brutish than the caveman image, yet less flawless than some past perfection. But where the balance lies, between undeniable crime and necessary punishment on the one hand, surprising restraint and consensus on the other, is the subject of considerable and indeed growing debate. Debate reflects the basic problem of available data: there are no direct crime records from the early societies, and no convenient account of agreedupon punishments. On crime, the best direct evidence involves the percentage of prehistorical skeletons found with their heads bashed in, presumably the victims of murder or collective violence. But even here there is dispute, with some observers claiming a high percentage of deaths due to violence, others insisting on a relatively low figure. Given the limited evidence, some interested scholars turn to data from the near neighbors of humans among higher mammals, and particularly our genetically close cousins, the chimpanzees. But this may not be very helpful, as it turns out that chimpanzees are almost certainly considerably more violent than humans are. Still more researchers examine the small number of hunter-gather bands that still exist today—widely scattered but intriguing. But this too has its limits: there is a strong argument that many contemporary hunter-gatherers, confined to more limited spaces than their prehistoric ancestors, behave in markedly more violent fashion, some featuring high murder rates and frequent bloody raids to plunder neighboring bands (in a few cases including cannibalism). Thus, one study claims that 25% of all deaths in one current

Punishment in Hunter-Gatherer Societies  21 hunter-gatherer group in Latin America result from violence. But this may have little or no relevance at all for the more important question of traditional rates, when conditions were very different. Another predictable complication involves variety. While there is a temptation to seek a single image of prehistoric humans, in fact people were scattered in small groups across virtually all of the currently inhabited world at least as early as 35,000 years ago, in many different environments, and they had all sorts of opportunities to develop distinctive styles. In that context, various groups displayed very different impulses toward crime, and this remains true for remaining hunter-gatherers today. Thus anthropologists can find fascinating contemporary societies, like some Inuit groups in Canada, that work hard and successfully at limiting many of the emotions that can lead to violence; most notably anger. One group for example, the Utku, while very indulgent toward infants below age three, then begin to impose strict limits on displays of anger, by ignoring or ridiculing manifestations— such that the group has almost no explicit concept of anger or the adult behaviors that might result. (And a moody foreign anthropologist, easily annoyed, is correspondingly shunned until she learns to measure up.) In a similar way, the Semai people in Malaysia deliberately strive to avoid any conflict, internal or external: as one elder put it, “dispute is more dangerous than the tiger.” But there are other groups where aggressiveness is actually valued, a badge of masculinity, and where some acts of violence almost inevitably result. A somewhat disputed study of the Yanomami people in the Amazon, for example, found a society deeply committed to warfare, with most adult men claiming to have killed at least one person from a neighboring band. With all this, and granting uncertainty as well as variety, it is possible to project a plausible picture of key features of crime in early human societies, and an even clearer picture of the range of available punishments that seemed necessary. This in turn provides the baseline against which crucial later changes, but also some important continuities, can be measured. Crime Here’s the starting point, which admittedly veers toward the optimistic portrayal of the early human condition. The range of types of crimes was unquestionably lower than would be the case later on, which in turn limited the need to devise a wide range of punishments. Most obviously, there was little or no theft, if only because there was little to steal. These were highly egalitarian societies, with little internal economic differentiation; and a crucial question for later history centers on the extent to which inequality both causes crime and determines many of the ways punishments are administered. To be sure, a few “prehistoric” graves have

22  Early Human Societies been found with a bit of jewelry, suggesting that a few hunter-gatherer leaders may have been singled out—which could in theory have provoked envy and theft—but there were no major distinctions overall. In fact there was little property. A hunter-gatherer family might have some tools and other simple possessions—rarely very different from what every other family had—but there was little beyond this level. These groups did not store surplus. They typically shared any major food items. Thus, if a hunting band brought back a big game animal, the meat was available to the group—though the hunter directly responsible for the kill might get first choice of portion. Admittedly, this could lead to some tension, with implicit competition to obtain the best position to bring down an animal, but the problem was more subtle than with outright stealing. With property crime largely absent, attention turns obviously to the issue of violence. These were small groups of people, living and working very closely together. It is not hard to imagine that tensions could erupt, simply as personalities clashed. Some hunter-gatherer groups were composed of two or three kinship clusters or extended families, and relations among these families could produce friction—a factor that would also show up in some of the more serious punishments. And, as noted above, we do know that there were murders in some groups, and probably fights and injuries were a greater problem. On the other hand, there were some probable limits to violence. Studies of contemporary hunter-gatherer groups reveal little violence over possessions, which parallels the low level of theft. Some individuals could, of course, be psychologically unhinged: there is at least one modern case of a serial killer in a small hunting group in Africa. Lower-level personal clashes more likely led to blows than to murder, but of course they could escalate. Overall, however, the motivations for serious violence seem rather limited. The big exception involves male crimes of sexual jealousy or over access to women. Even here, violence might be limited by the fact that many huntergatherer groups were rather permissive, tolerating various sexual contacts before marriage and in some cases even arranging opportunities for adultery after marriage took place. Some contemporary groups, keenly aware of possible problems, confine their membership to close kin, where other taboos limit sexual rivalry. But there are other cases—all based on contemporary data—where sexual issues undoubtedly intrude. Studies of some contemporary groups, including Australian Aboriginals, detail cases of violent jealousy, particularly around adultery, and also sexual offenses such as gang rape. There is no way of knowing whether similar tensions prevailed when hunting and gathering was the dominant system, but it is certainly possible. There is certainly no question that some early hunter-gatherer groups did have to contend with acts of violence, though it does seem likely that the situations were infrequent.

Punishment in Hunter-Gatherer Societies  23 Furthermore, for a long period, hunter-gatherers also possessed no weapons that were specifically designed for use against other humans. This is another difference between the long hunter-gatherer period and the small groups that survive today. The first explicit instrument, in all probability, was a small stone mace, or primitive battle club, which was not useful for hunting; but evidence suggests this was only introduced around 12,000 BCE, or toward the end of the full hunter-gatherer period. A few examples of these weapons have been discovered from that period, but not before— though the numbers then increase over time if only because war became somewhat more common. To be sure, there were other weapons used for hunting such as spears, which could be turned against people. And rocks and tree branches were plentiful—the probable source of some of the bashedskull skeletons that had been found. But there is some belief that without explicit weapons, major deadly violence was inhibited (and by the same token, that when weapons improved—as with the introduction of bows and arrows—interpersonal violence would go up). Another factor to consider, though with its own debate attached: Women enjoyed a strong voice in hunter-gatherer groups, as they contributed about as much to the group economy as men did. They participated in most of the informal councils that existed. And while women can display tensions of their own, their violence levels are characteristically lower than those of men, particularly young men. Their voice could on balance have had a pacifying effect. What crime there was in these societies was disproportionately a male issue, and men may have played a disproportionate role in trying to handle it; but women’s influence may have had real effect. But the main point is that hunter-gatherer operations depended on close group cohesion, often in hostile or demanding natural environments. People had to work together to defend against predators and to provide the necessary food supply. The loss of an able-bodied adult, through either crime or harsh punishment, would be hard to manage, and groups were eager to avoid the challenge whenever possible. In some cases even today, as we have seen, this factor can generate elaborate cultures designed to minimize aggression. Further, the groups moved around, changing location at least once every two years in order to improve food access. Their mobility undoubtedly helps explain why war was uncommon: groups simply decamped rather than confronting hostility. But mobility could reduce internal tension as well. In some larger groups, one segment might actually move away if internal tension surfaced, before any overt crime or hostility. Here was another feature, along with the more fundamental need to maintain collective ties, which tended to limit crimes and other offenses. Putting the case simply: there was probably less crime per capita in early hunter-gatherer societies than in the types of social organizations humans would form later on, and certainly a more limited range in the variety of

24  Early Human Societies crimes committed. As a result, there was less need for elaborate punishments, though many groups undoubtedly had to make occasional decisions about handling violence. This said, and with a reminder of the caveats about inadequate data, two other issues warrant attention, both feeding into the patterns of punishment these societies did establish. First: if crime did occur, and particularly if it involved some kind of violence, it could easily trigger a desire for revenge. This was particularly true in contexts in which several different family groups were present, each eager to maintain its own honor and boundaries. Concern about the revenge factor shows up strongly in the ways punishment was arranged. Second: while major crimes were probably less common than would be the case later on, tightly-knit groups normally generated elaborate social rules to identify other kinds of bad behavior—not crimes, but offenses against group order that required some kind of punishment in return. Thus, most societies tried to uphold certain standards of dress—most commonly reproving public nudity. Many tried to enforce a certain degree of shyness in public behaviors, particularly for young people, while reproving boastfulness. Bullying was another problem that drew attention—it is important to remember that not everyone in groups of this sort got along well. In short, most hunter-gatherer societies were highly conformist and careful to watch out for deviations in behavior. Little sense of privacy was expected or provided. For most group members this cohesion, while it might not prevent some tension, would inhibit outright bad behavior, but it did require some enforcement mechanisms, which in turn would feed into the larger approach to punishment. One final point: when offenses were committed, particularly in major cases such as acts of violence, it was usually not hard to figure out who was responsible. The lack of any kind of police force was compensated by the close contacts and mutual observations among group members. To be sure, minor offenses might go unobserved. In some hunter-gatherer bands today, individuals speculate that if they do something wrong but no one notices, perhaps they have no reason to feel bad about it. But if a major disruption occurs the group is likely to be pretty sure who the culprit is, and even if they are wrong, they are unlikely to feel much uncertainty about it—or about where to direct a punishment. Certainly, there was no clear mechanism to handle disputes over evidence. Punishments—Basic Characteristics At least two features of punishment in hunter-gatherer societies mark them off from more modern patterns, quite apart from the differing characteristics of crime.

Punishment in Hunter-Gatherer Societies  25 In the first place, punishments in hunter-gatherer societies had to be lowcost, in two respects—economic and social. On the economic side, there were obviously no resources for elaborate apparatus or any kind of incarceration beyond temporary restraints. Nor was any kind of specialized personnel available to administer penalties. Punishments had to be rather simple and direct. But they also aimed at social equilibrium, reflecting the obvious need to choose punishments that limited group disruption. While there was some variety in approach, just as there were various levels of crime from one society to the next, in general, these societies aimed at minimal social costs. They sought punishments that would limit internal antagonisms and, often, restore equilibrium as quickly as possible. This could lead to a variety of deals between victims and offenders, and probably a fairly high rate of forgiveness after a brief period of tension. In a few cases, major crimes might be explicitly overlooked for the larger social good. In some traditional African bands, for example, if one family member killed another, it might be regarded as the family’s affair—not for the group to intervene. In one instance, a leader argued “One life has been destroyed. We cannot lose two men from the clan. The deceased was a bad man and deserved to be killed.” The second distinctive feature of early forms of punishment reflects the absence of any government or official body. Groups had to decide on punishment on their own. Often some kind of informal council was involved, but in other cases punishment seemed to reflect a larger group dynamic, with no identifiable leadership guiding the process. In contemporary hunter-gatherer groups, when a decision body can be identified that decides on punishment, it is often largely male, in contrast to greater gender overlap in other areas of policy. The lack of government shows even more clearly in tensions over who was going to carry out a punishment, particularly when severity was called for. There was always the risk that an enforcer would be blamed by others in the group—most obviously, relatives of the accused—prompting further possible violence. And many people, even when they agreed that punishment was justified, hesitated to do the dirty work; a factor still present in the implementation of punishment today. With no official designees, the task of finding and persuading a willing agent could be particularly difficult, and this helps explain some of the punishment strategies that were put in place. The Layers of Punishment As in more modern societies, hunter-gatherer groups developed a hierarchy of disciplinary approaches. A first set of moderate measures applied to minor infractions, often with hopes that they would deter more serious breaches and also prevent the need for more formal action. But there was a gradation after this point, however informal, up to the strategies used to address the most serious offenses.

26  Early Human Societies Gossip and Rumor

All the studies of social discipline in contemporary hunter-gatherer groups stress the importance of gossip as a first step in denoting individuals who seemed a bit out of line—too boastful, a bit too aggressive, or in some other way violating group norms. Gossip and rumor, unfortunately, normally leave few records, so there is no way to chart their incidence in the early huntergatherer periods, but it is safe to assume they were widely utilized. They were far less costly than formal punishment, and again they might prompt the targeted individual to pull back before doing anything more offensive. From the group standpoint, aside from low cost, gossip and rumor had the advantage of being anonymous, with no one person clearly responsible—thus avoiding any major risk of retaliation by the targeted offender. This was a powerful tool, particularly in these small, tightly-knit communities. Shaming

Shading off from gossip was more formal shaming, where the group explicitly made its disapproval known and conveyed that an individual had at least temporarily lost good standing. Here was an emotional mechanism that pervaded virtually all the disciplinary measures undertaken by hunter-gatherer groups. It reflected the tight coordination that was essential for survival, for a shamed and unrepentant individual might jeopardize the smooth functioning of the group economy. But it also reflected the fact that, for most people, good standing in the group was an emotional necessity as well. Children were readily shamed as part of basic discipline, including discipline of early sexual behavior, and could learn how painful it was to be held apart. Individuals who did not display appropriate shame—they are called “thickeared” in one contemporary Indonesian community—were simply not trusted. And while the most obvious feature of traditional shaming centered on the reproval of the offender, as a type of retribution, it is vital to remember that the larger purpose was to warn others not to risk behaviors that would provoke this kind of withdrawal of group approval—the deterrent effect that is central to most forms of punishment. Shame-based societies generate a lot of people who are eager not to call attention to themselves in the first place. And they are willing, when necessary, to inflict serious emotional pain. Here’s how shame could work when directed at a specific offense. The case is modern, from the mid-20th century among the Mbuti people—a huntergatherer group in what is now Zaire and the Republic of Congo—but there is considerable agreement among interested anthropologists that this approach is probably fairly typical of the ways early people sought to use shaming punishments to restore harmony.

Punishment in Hunter-Gatherer Societies  27 A man in the group named Cephu is not widely liked, and during the group hunt he is usually put in a position where he cannot make the initial kill and so have first choice of meat. Annoyed, he cheats the system by sneaking into a better spot as the group corners the animal, and he does indeed kill it and picks out his preferred slice—including the liver, valued for nutritional benefit. Though not exactly a crime, this is clearly a disruption that could, if repeated or imitated, undermine the conventions that held the group together. Hence, a need for punishment. The other hunters, returned to camp, begin criticizing Cephu among themselves, and this leads some of the younger men to tease him openly. Cephu’s relatives, normally loyal to their kin, do not join in the ridicule, but they also fail to support him, a sure sign of trouble. Cephu realizes he is being shamed, and heads home in disgrace, soon returning with profuse apologies while giving the meat he had claimed back to the group. After a bit, annoyance cools and the group partially relent, sending some meat over to Cephu’s family after all—though not the prime cut. Punishment has been administered but then modified in ways that allow the group, Cephu ultimately included, to return to normal. Shaming, with varying degrees of formality, could be applied to a range of offenses, beyond the kind of economic violation that Cephu committed. It could be deployed against inappropriate sexual behavior or at least minor violence. Like gossip, it had the advantage of emanating from the group, without any particular individual taking the lead—so it was unlikely to provoke retaliation. This does not mean it was cost-free. Precisely because it is so powerful in small communities, many people in hunter-gatherer bands today report their own discomfort at seeing people shamed—they know how unpleasant this is, and many people dislike unpleasantness even when it is deserved. But there is no question that shaming was a powerful tool, both in punishment and as warning to others in the group. Finally, shaming offered possibilities of later reintegration: it did not have to be a permanent condition. Most shaming societies recognize that, with the passage of time and if the targeted individual appropriately recognizes the burden of shame, the offender might be allowed to return to the group’s emotional good graces, at least if the infraction was not too dire. Some distrust might linger, but basic harmony could be restored. In this sense, shaming could serve the function of rehabilitation, while easing the burden on groups that needed all their adult members to be functional whenever possible. Ostracism

Without much question, hunter-gatherer groups, when forced to deal with a really serious offense, preferred to expel the offender rather than undertake more direct measures. There is no record of how frequently ostracism

28  Early Human Societies occurred, but the punishment had obvious advantages: it did not require any group member to do anything directly to the offender and it would emanate from some kind of collective decision. It thus minimized possible retaliation and implicitly acknowledged the fact that more direct action—like a physical punishment—could be painful to those required to implement it. And the punishment was serious. In societies that depended on groups to generate food, most obviously in the hunt, and to protect against predators, leaving an individual on his own could often be a death sentence. At the least, it could force the individual to undertake the very difficult task of gaining membership in another group, which might justly be suspicious. In some cases, ostracism meant forcing the individual to move away, but in other instances groups themselves simply decamped, in the mobile pattern of hunter-gatherer more generally, leaving the individual alone. Ostracism could be employed against very serious crimes. Among Plains Indians in what became the United States, murderers were banished for four years: the murderer could only live on the fringes of camp with no contact with anyone save immediate family, who would provide him with food. Even here, however, the punishment might be shortened if the victim’s family agreed. For, quite generally, ostracism might be rescinded after a period of time— sometimes a rather brief period—precisely because it was such a rigorous measure. Anger at an offense might cool. Sympathy for the individual might regain the upper hand. Ostracism could be painful for those who imposed it, so they might be eager to modify. Just as rates of ostracism leave no record, so there is no way to determine how frequently the punishment was reversed. For a tightly-knit and interdependent community, it may have been particularly important to emphasize a punishment that was serious but revocable. Violence Against Violence

Finally, mainly in cases of a serious physical offense, including murder and sometimes rape, hunter-gatherer societies could punish more directly. On the whole, the appetite of “an eye for an eye” was not front and center for hunter-gatherers, but it could surface. People, mainly men, who hurt or killed others might have to be hurt or killed. In many cases this kind of punishment was decided upon by some kind of group council. The question, in absence of formal courts of law or official government agents, was who and how. The decision to punish physically might encounter resistance from individuals who questioned whether a person was guilty, and particularly from family members who resented the attack on one of their own. As a result, many hunter-gatherer societies preferred either to let victims do the job directly, to administer revenge, or, more subtly, to get a family member of the accused carry out the verdict. Among some Aborigines in Australia, this involved letting the victim or a family member throw a spear

Punishment in Hunter-Gatherer Societies  29 at the perpetrator: since they were usually quite accurate, the enforcers themselves could decide whether this should kill or merely wound. In many instances, the group prevailed on a male relative of the criminal to do the task, often while the individual was asleep—with the clear goal of avoiding some ongoing interfamily feud. Finally, communities might ask several people to do the job, so that no one executioner could be singled out. This approach could, of course, backfire: in one case the relatives of the man who had been executed believed it was unjustified and killed the young men who had been entrusted with the task. Imposing this kind of punishment was difficult for a host of reasons. Granting the lack of systematic data, there is every indication that most hunter-gatherer groups imposed these most dramatic punishments rarely— even aside from the probability that, in many cases, major crimes were relatively uncommon. In one contemporary case involving a group in Africa, only 6 of 124 serious crimes drew strong retaliatory punishments (all carried out by several people). The rest were handled through ostracism or rigorous shaming. The economic and emotional needs of normally cohesive groups shaped punishment choices just as clearly as they determined the nature and rate of crime. Conclusion The most striking features of crime and punishment in early human societies—insofar as can be determined—highlight how different conditions were from what would come later. More modern societies deal probably with more crime and certainly a wider variety of crimes. They have agencies dedicated to making decisions about punishment and administering it, reducing the direct burdens on most members of society. They have a wider range of punishment possibilities. In many cases—though not all—they seem more comfortable than hunter-gatherers in imposing more unpleasant penalties (physically unpleasant at least; the emotional aspect is harder to compare because of the pain basic shaming can cause). These differences, in turn, raise a host of questions, which the next chapter will begin to address. Why did the range of punishments expand and, at least in extreme cases, become nastier? What are the advantages and disadvantages of having official agents to decide about punishments as judges or in extreme cases carry them out, as professional executioners? Change, however, is not the whole story. Some of the key themes of punishment in early human societies do carry over, at least in part. Shame and shaming remain vital components of punishment in many cases today, particularly in certain societies. The emotional cost of punishment to the punisher remains a factor, even if modified by the intermediary role of state officials. A balance between punishment and reintegration is still often sought.

30  Early Human Societies Even when change occurred, it often long combined with punishment features passed down from the earlier groups. Agricultural villages frequently used shaming techniques in ways very similar to their hunter-gatherer forbears, though they usually made them a bit more formal. Many societies continued sometimes to let victims themselves do the punishment, and even today this theme has not entirely disappeared. Using a brief and inevitably somewhat tentative account of punishment in early human societies as a baseline thus highlights two opportunities for subsequent history: most obviously, to trace and explain how different the patterns of punishment would become, often fairly soon after agricultural civilizations came into play; but also, more subtly, to be highlight some of the human constants that punishment has involved, from hunter-gatherer into the present day. Hunter-gatherers would be amazed and probably somewhat appalled at punishment methods used by more modern societies, but they would also recognize some of the motives and problems involved. Further Reading On “primitive” societies themselves, Colin Turnbull, The Forest People (New York, 1961) (on the Mbuti); Jean Briggs, Never in Anger: Portrait of an Eskimo family (Cambridge, MA, 1970); Christopher Boehm, Hierarchy in the Forest: The Evolution of Egalitarian Behavior (Cambridge, MA, 1999); Robert Dentan, The Semai: A Nonviolent People of Malaya (New York, 1968); M.J. Meggitt, Desert People: A Study of the Walbiri Aborigines of Central Australia (Chicago, 1962); Napoleon Chagnon, Yanomemo: The Last Days of Eden (San Diego, 1992), on a comparatively warlike group in the Amazon. The journal Behavioural Brain Science set aside a 2012 issue, v. 35/1, for a variety of articles on punishment, mixing theory with data about a number of hunter-gatherer societies, including a lead article by Francesco Guala. On shame, Daniel Fessler, “From Appeasement to Conformity: evolutionary perspectives on shame, competition and cooperation,” in Jessica Tracy, Richard Robbins and June Tangney, eds., The Self-Conscious Emotions: Theory and Research (New York, 2007); Richard Shweder, “Toward a Deep Cultural Psychology of Shame,” Social Research 70 (2003) Peter N. Stearns, Shame: A Brief History (Urbana, IL, 2017). On the reintegrative aspect of shaming, John Braithwaite, Crime, Shame, and Reintegration (Cambridge, UK, 1989). Studies of early war (and its limits) are useful: Raymond Kelly, Warless Societies and the Origins of War (Ann Arbor, MI, 2000); Jean Guiliane and Jean Zammit, Origins of War: Violence in Prehistory (Oxford, 2005). For crime, Ronald Hutton, Bodies in the Bog and the Archeological Imagination (New Haven, Chicago, 2009) and Ian Armit, “Violence and Society in the Deep Human Past,” British Journal of Criminology 51 (2011).

3

Early Civilizations and a Transformation of Punishment

Early civilizations introduced a number of fundamental innovations in punishment, some of which would prove quite durable. Innovation begins with the increasing assumption that major rules and penalties should be codified in writing, though this is not always as revealing as one might assume. It extends to the striking fact that punishments became a great deal more rigorous than seems to have been the normal pattern in hunter-gatherer societies, and in extreme cases quite brutal. This is the development that most obviously commands attention, presenting a serious challenge in discussing causation: why did virtually all the early civilizations feel this need to crack down? At the same time, the most extreme sanctions should not detract from attention to a broader range of more standard punishments, where other crucial innovations occurred, beginning with the widespread introduction of fines. Clearly, civilizations, even in early stages of organization, were very different constructs from the more informal societies that had preceded them, and the new range of punishments offers one of the most dramatic illustrations available, with very real consequences both to convicted offenders and to larger populations eager to stay out of harm’s way. The themes of retribution and prevention stood out strongly, and authorities took advantage of new ways to drive them home. Another distinguishing mark of the early civilizations, in obvious contrast with their predecessors, was the introduction of massive social and economic inequality, and this generated another set of innovations in punishment that societies still grapple with today. Punishments for crimes against the wealthy counted for more than those against ordinary folk. Even more ominously, whether one was punished at all often depended on social position, with many opportunities for evasion for those at the top. Heightened gender differentiation was another feature of the early civilizations, but its impact on punishment was arguably more subtle—though there was no question that men had advantages in getting away with a few types of crime. Many points continue to invite speculation. The codes that spelled out major punishments did not offer explanations about the reasons behind DOI: 10.4324/9781003427261-4

32  Early Human Societies them. Further, there is no way to determine how frequently the most vicious punishments were carried out, and this proves to be a truly crucial limitation in going from written records to real life. It is not even clear exactly when societies began to turn away from the more traditional patterns discussed in the previous chapter. There were many centuries between the introduction of agriculture and the first law codes; recent work has also emphasized that a number of agricultural societies underwent a variety of changes before the advent of fully organized states. In the interim many rural communities— home to the bulk of the population—developed their own approaches to punishment, many of which would long coexist with the official approach and some of which clearly carried forward patterns from the hunter-gatherer age. But again, there is no record of how punishment was actually handled during this long transition period. Finally, there is no way to determine why the early civilizations varied in their approach to punishment. Most obviously, China began to establish an unusually rigorous approach that would prove surprisingly durable—some would argue, still wielding influence today—but the causes are not clear. At the same time, regional differences should not be pressed too far at this point: all the early civilizations felt they had to toughen up in dealing with crime, and each developed its particular set of harsh penalties on its own; there was no imitation. The result was a real turning point in this aspect of world history. An Eye-for-an-eye—or More Three early civilizations left particularly clear records about the ways they intended to deal with serious crimes. Mesopotamian civilization, in the Middle East, was especially explicit, through written laws such as the famous Code of the emperor Hammurabi (1755–1750 BCE), which built on codes developed by earlier city states in the region but added more extreme sanctions. The Egyptian approach to punishment was also fairly clear, and the same holds true for the early kingdoms of Northern China, where some claimed that the new approach began to emerge as early as 2500 BCE. Other cases can be added, most notably from the first major states in Central America, though from a later starting point. While it is important to emphasize that the official rules do not tell the whole story of the civilizational approach to punishment, they form a vital starting point. China’s Five Punishments

China’s early kingdoms emphasized five extreme physical punishments for a variety of major crimes; this included the Xia dynasty, which ruled a major state from 2070 to 1600 BCE, though the basic approach had originated

Early Civilizations and a Transformation of Punishment  33 earlier. Specifics varied, but they normally included the death penalty, which could be accomplished by boiling alive; quartering, where the body was cut into four pieces or pulled apart by horses; strangulation; slow slicing; or beheading, after which the offender’s body was abandoned in the public market. Since this was the most extreme sanction, it was listed as number five. Short of execution, the fourth punishment featured removal of the reproductive organs for male offenders, after which the victims, now eunuchs, were put to work in the royal palace (where they could be relied upon not to molest the wives and concubines of the ruler); this penalty was imposed in cases of adultery or other licentious behavior. Number three was amputation of one or both feet. Two consisted of cutting off the nose of the offender. And the first punishment involved tattooing the face or forehead of the offender with indelible ink. This list was officially maintained until the Han dynasty, when it was significantly modified. A number of issues surround the five punishments, quite apart from the basic challenge of explaining why such drastic measures seemed necessary at all. First, it was not always clear that they applied to all offenders; sometimes they were referred to as the five punishments of slaves (and since slavery later largely died out, this would help explain why the list was ultimately modified). Equally important, they were definitely not always imposed, though we know, from skeletal evidence revealing foot amputations, that they were not idle threats. Second, these were not the only punishments applicable: they centered on major crimes of violence or actions against the state plus sexual offenses, along with serious cases of theft. Third—and this was a significant feature shared by punishments in most early states—they obviously were intended to leave lasting, public marks, whether through physical mutilation or the imposition of tattooing. (And even beheaded bodies were thrust into public attention.) This approach was amplified by rules on what clothing convicted criminals had to wear, further making what today would be called a criminal record visible for all to see but also emphasizing the ongoing importance of shaming. Thus, a tattooed person could wear a scarf but not a hat, so his face could not be concealed; a castrated man had to wear a short gown, calling attention to the fact that he had been physically diminished. Mesopotamia

Hammurabi’s Code, and many later imitations, though less extreme than the five punishments, featured some similar measures, with a strong emphasis on retribution. The death penalty was mentioned thirty times, for a wide range of offenses. Not only might murderers be put to death; adulterous lovers who conspired against their spouses would be impaled, while incestuous

34  Early Human Societies lovers would be burned to death. Other adulterous couples would be thrown into the river (this common punishment makes it highly probable that most Mesopotamians could not swim). But death awaited crimes well beyond murder or sexual offenses. A woman who performed an abortion would be impaled. Many robberies were punished by death, including thefts from ordinary homes as well as religious temples. In some cases, this involved disembowelment on the spot. Military officers who failed to report to duty were another entry on the death penalty list. Death penalties also sought to enforce honesty in criminal accusations, displaying an interesting if rather bloody commitment to seeking the truth: if a man accused another of murder but could not prove it, the accuser himself would be put to death. Other apparently false accusations would be resolved by throwing the accuser in the river: if he or she survived, this was proof of innocence, and in some cases the accused would then be put to death. In a few cases, death might also be visited on offenders’ relatives: if a man struck a pregnant woman and her fetus died, he would pay a fine; but if the woman died, one of the man’s daughters would be killed in retribution. A builder who constructed a shoddy house that collapsed and led to the death of an occupant would be killed; but if it was the occupant’s son who was killed, then a son of the builder would be put to death, another interesting sign of the assumption of family responsibility. A tavern keeper (often a woman) who accepted grain in return for a drink, but watered down the drink, would be drowned. On top of this were a host of lesser physical penalties. A thief might have his hand cut off, with loss of the second hand for a repeat offense. A son who struck his father would have his hand cut off. Someone who broke another’s bone would have his bone broken; the same for gouging an eye (assuming the victim was a social equal). A physician who botched an operation would have his hand cut off. A number of crimes could lead to loss of an ear or tongue. A wetnurse who tried to kidnap another person’s baby could have her breast cut off. If a woman, fighting with a man, injured one testicle, one of her fingers would be cut off; but if both, she would be blinded. The Code’s physical punishments are often described as “an eye-for-aneye,” and in many cases, this is accurate enough. But obviously, particularly in the wide range of offenses subject to the death penalty, there was a broader effort to use extreme punishment as the response to crime, well beyond the simplest kind of retribution. And while the Code did not detail the sheer variety of tortures featured in China’s Five Punishments, it is clear that high degrees of pain were often involved. This was a Code that sought to regulate a variety of behaviors—control of property, sexual relations, professional practice, protection of religious temples, even honesty in accusations—but with heavy reliance on death or physical punishment to enforce the goals. It is also fairly clear that the Code

Early Civilizations and a Transformation of Punishment  35 extended the range of physical punishments beyond the levels stipulated in the regulations of earlier city states in the region. The Code can be seen as an effort at justice, not only with the eye-for-an-eye approach, but also with the real interest in trying to enforce honesty in accusations; however, the reliance on brute force was equally obvious. Egypt

Egypt may have developed the most elaborate judicial system of any of the early societies, but its reliance on death penalties and physical punishments easily fell within the common range. Distinctive religious beliefs increased the severity of some death penalties, by preventing the burial of the body and therefore access to a life after death: some criminals who were burned to death and others whose bodies were tossed into the Nile fell into that category. Anyone convicted of treason received no burial. Capital punishment itself could be administered in various ways; probably the most agonizing was impalement on a stake, which would lead to a lingering death. Crimes against parents warranted severe retribution—as was common in this period. An offending son or daughter might be buried alive, or rolled naked in thorns before being burned to death, or simply skinned alive. Theft from burial sites was already a problem in ancient Egypt (as remains the case in more modern times), given the elaborate furnishings placed in tombs: grave robbers might be impaled or thrown to the crocodiles. Death also awaited someone who deliberately killed an animal that had religious significance, or who withheld information in a murder trial. As in the other early societies, adultery could be punished by death. Beyond the death penalty, Egyptian authorities administered a variety of physical punishments, often featuring removal of nose or ears: this had the advantage of causing pain but not preventing future labor, while making the offender visible for the rest of his life. Flogging was also common: this was the penalty for giving false accusations (a bit milder here than the Mesopotamian approach). Flogging was also used to induce confessions; administration of “100 blows” was another common tactic. Egypt also imposed exile or confinement to hard labor camps, sometimes after one of the facial mutilations. Other Early Cases

A survey of punishments in other early civilizations yields broadly similar findings: extensive reliance on death penalties and other physical punishments. In the Laws of Manu, a compilation of early law in India developed by Brahmin priests during the centuries after about 200 BCE and influential not only in India, but also in other parts of Southeast Asia, a variety of death penalties were featured: beheading; stoning, drowning, burning,

36  Early Human Societies or—uniquely—being thrown at the feet of elephants. Someone who attacked with a stick might have his hand cut off; if by kicking, the foot. Urinating on a superior could result in amputation of the penis. Early Hinduism also promoted frequent reliance on facial markings or other mutilations, sometimes followed by exile (for who would want to see these damaged bodies around?). Penalties in early Jewish law also strike a familiar chord. Property crimes were treated less severely than in the other early societies, in the sense of fewer physical penalties—indeed, no death penalty at all. But death for any kind of murder was usually rigorously enforced. Death by stoning was a common punishment for crimes affecting a locality: the witnesses who attested to the crime were supposed to cast the first stones—it was hoped that this obligation would deter false accusations; but otherwise this approach was favored because it drew the whole community into the process. The book of Exodus described the approach taken for crimes ranging from murder to other acts of physical violence: “Life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” Exile was another punitive option for certain crimes, sometimes with possibilities of later remission. Early societies in Central America, though developing at a later date than their counterparts in Asia and North Africa, took a broadly predictable approach. The death penalty was imposed in cases of murder, rape, incest, treachery, arson, or actions that offended the gods. A person who entered a home to cause damage was also sentenced to death—Mayan homes did not have doors and so needed particular protection. If a child killed someone, however, he was sent into slavery. Adultery was another capital crime: a married woman would be publicly shamed, and her lover stoned to death; a married man in an adulterous relationship could also be put to death unless his partner was unmarried. Thefts normally resulted in at least temporary enslavement (and this might also be imposed on the thief’s family members). Lesser criminals frequently had their hair cut short, so that everyone would know of their guilt until the hair grew out again. Causation Variations among the early societies deserve real attention—the Jewish avoidance of capital punishment for theft may for example have followed from the religious belief that humans were created in God’s image and so should not be sacrificed unnecessarily; and China did seem to develop unusual variety in its methods for putting someone to death—but the more obvious point is the virtually uniform reliance on wide use of the death penalty and physical punishments. This kind of punitive response clearly seemed natural to the leaders of the early civilizations, and possibly to many of their subjects as well—so much so that there was no explicit effort to explain or justify.

Early Civilizations and a Transformation of Punishment  37 Further, the drastic punishments stand out all the more if indeed the earlier versions of human society, and particularly the hunter-gatherers, had tried for the most part to avoid this approach in favor of fewer and milder punishments (though again there is room for dispute over this claim). The harsh approach also offends a good bit of modern sensibility, though certainly there are people in many societies today who still argue for frequent use of the death penalty and even physical torture. For a variety of reasons, then, there is no getting around the challenge of causation. The fascination with death penalties and pain is not an automatic human response; it seems to have been new, at least to some extent; and yet it was strikingly common in societies that had no connection with each other. At the same time, unfortunately, analysis of causation must be somewhat tentative: evidence is indirect at best—again, the leaders involved felt no need to explain themselves—and there is ample room for debate. What follows—aimed most explicitly at accounting for the contrast between hunter-gatherer and the early civilizations—is meant to encourage questioning and discussion. Social Change

The early civilizations differed from earlier, simpler societies in several respects that could be relevant both to crime and to retribution. Communities were larger than the hunting bands had been. There were a few cities, with 10,000 people or more—and a good bit of the apparatus of justice applied particularly to urban situations. More commonly, in societies where most people had to produce food, people lived in villages, but even these were easily five times as large as the hunting bands. More people, in other words, lived in communities where they did not all know each other well—where a number of different family groups coexisted—and this could be a source of greater conflict and greater suspicion, on the one hand, and a greater willingness to punish on the other. Furthermore, early civilizations were marked by significant inequality, in possessions and social position alike, and this had huge effects on the incidence of crime and punishment. It provided new motivations for certain kinds of crimes but also for a new eagerness to punish—as a means of enforcing the boundaries of status and wealth. It might seem particularly easy, and necessary, to go hard on ordinary people, and many of the physical punishments had this target whether the goal was openly expressed or not. Crime

Almost certainly, crime rates tended to go up in these societies, compared again to their simpler predecessors. The “almost” is a vital qualifier, given the debates particularly over levels of violence in the earlier past. But it is

38  Early Human Societies probable that harsher punishments, and their wide acceptance, resulted from a greater crime problem. There is no question that several large categories of crime were now commonly defined that had not been marked off before, at least with this degree of rigor. Property crime surely went up simply because property now existed. People had houses, lands, possessions that they owned, that all needed to be defended. Punishment to respond to theft, and deter its frequency, was essential, in ways that would have seemed entirely strange to earlier human groups. And while physical penalties were not in fact the only response, they certainly provided part of the arsenal, even up to death for certain kinds of theft. Sexual crimes were not new, but they were more rigorously defined in agricultural societies, and they clearly figured strongly in the lists of major punishments. As feminist historians have pointed out, civilizations imposed greater restrictions on female sexuality than earlier societies had done, probably to assure husbands that their wives were producing offspring that were theirs and not those of another. Temptations to infidelity may have been no greater than before, but they unquestionably caused wider concern; this added to the ways crime seemed to increase. Correspondingly, they were often rigorously punished. Did violence also go up, amid larger groups of relative strangers, greater inequality, and less emphasis on tight community bonds? Certainly it loomed large in the targets of death penalties and eye-for-an-eye retributions, but at most, given inadequate comparative evidence, it can be listed as a possibility. Overall, however, it is clear that harsher punishments responded in part to a greater variety and rate of crime. The State

The early civilizations, whether in northern China, Egypt, or Central America, were for the most part headed by rulers who claimed great power, in what was after all a new form of human organization. The claims clearly contributed to the felt need for rigorous punishments. Most obviously, it was now essential to define crimes against the state, a new category that, everywhere, drew some of the most dramatic forms of retribution. Torture and often agonizing death penalties seemed essential in protecting the state, and its leader, a theme that, at least in modified form, clearly persists today. The result could help set the tone for the approach to punishment more generally. At least in some of the early societies, defense of state was joined with a new need to defend the apparatus of religion. For religion now had its own more elaborate arrangements, with temples (and their possessions) and priests. Not only did they need protection—another addition to the list of

Early Civilizations and a Transformation of Punishment  39 possible crimes—but their protection might be defined in terms of defense of the gods themselves. Surely, offenses against the gods needed the most severe kind of reprimand. State defense and religious defense aside, the new governments and leaders surely had to justify themselves in terms of a commitment to defending good order—else why bother with formal organization in the first place? One of the reasons for insistence on rigorous punishment may have rested on the need to justify state authority itself—particularly if, at the same time, the rate and definition of crime threatened to expand. In some cases, finally, governments may have been motivated by particular cultural beliefs, beyond the widespread notion that certain crimes were offensive to the gods and required a harsh response. In China, particularly, it has been argued that the emergence of dire punishments, including frequent recourse to the death penalty, followed from the emphasis on the balance of nature. Major crime disrupted the natural order and required comparable penalty to restore that order. Hence, most obviously, a death must be counterbalanced by a death. Available Apparatus

In dealing with crime, early states had relatively few options at their disposal—and here, if indirectly, was almost certainly a basic factor in the reliance on physical punishments. Despite assertions of authority and, often, claims to support from the gods, these were governments with limited financial resources. They had no physical facilities to retain prisoners over any long term. Police forces were minimal at best. Egypt did employ some guards, but they served mainly to protect temples and public events, with little role in dealing with a range of more ordinary crimes. Limited apparatus showed in a number of ways. The Hammurabic Code suggested an admirable concern to make sure people who accused others of crime were telling the truth, but there was no investigative force to provide information; so harsh punishments were put in to punish false charges—if of course they could be found out. Also in the Code: some interesting measures aimed at repaying people who had been robbed, when the perpetrator could not be found. This suggests some concern for restorative justice, but also an admission that it was really hard to catch the crooks. Even more obviously, the early states found it absolutely essential to publicize punishments as brutally as possible, to maximize deterrent effect in absence of many other means of combating crime. Thus executions and whippings were characteristically public, with mutilated bodies also displayed for the same purpose. The branding of criminals by maiming or tattoos, or by special haircuts, aimed at a similar purpose, to provide graphic warning in a society that lacked other methods of official information or control.

40  Early Human Societies And the same surely applies, if more speculatively, to the severity of punishments themselves. Extensive use of the death penalty and the variety of physical tortures, including the many agonies linked to the administration of death itself, were obviously designed to frighten, again in absence of many other forms of prevention. The combination of a need to combat crime and the limited means available surely sits at the root of the characteristic tenor of punishment in the early states. It is also vital to remember that these constrained states were claiming a need to regulate a growing range of behaviors: political and some religious crimes (“against the gods”), a variety of sexual behaviors, plus damage to people or property. It was a huge assignment, and harsh punishments probably seemed the only response that had any chance of success. Deliberate infliction of pain, in other words, must have seemed a vital component of deterrence. Beyond this, and aside from the probability that some of the harsh punishments reflected sadism on the part of individual rulers or agents, in many cases extreme responses seemed essential to react to the horror that certain crimes caused, plus a belief that there were evil forces involved that could not be contained merely by killing the criminal who was directly responsible. Here is a key reason that many societies were so often not satisfied with imposing death penalties, but needed to add agony to the process of death. What is unclear, inevitably, is how well this all worked. No records permit any estimation of the extent to which crime was deterred or criminals corrected, or even the degree to which the public was reassured. Many types of crime largely escaped state control: many early states faced problems with bands of rural brigands, particularly bent on plundering trade routes, and while the occasional capture and public execution of a thief might provide some sense of authority, the challenge remained acute. In some regions, long-standing and violent blood feuds among kinship groups were another source of disorder that largely escaped the state. These limitations might make authorities all the more eager to rely on the means they had available when they were able to catch a presumed criminal. Certainly the larger social and political context explains why there was scant energy available for other punishment options, including any explicit interest in rehabilitation. Basic social change along with some clear shifts in the nature and definition of crime, combine with the claims but also the limitations of the state in explaining the uniform interest in harsh punishments in the early civilizations. In some instances, the notion that the gods themselves were offended by certain kinds of wrongdoing added to the moral fervor involved. A final, specific causation question deserves attention, though it cannot be answered for this early period. Why were a few people now willing to carry out the most extreme punishments, particularly where torture or prolonged death were involved? Did early civilizations also tap a new level of human cruelty, at least in a few? We know from later societies that executioners

Early Civilizations and a Transformation of Punishment  41 sometimes could make a decent living, though in other cases they had to combine their trade with other occupations. They were often shunned by other people, an indication that harsh punishments did not always sit well with a wider public. In some cases, surely, the people involved simply felt they were carrying out orders, often as part of a military unit. Some may have felt they were dealing with offenders who were not fully human or that their exertions were enforcing a higher morality—both features of cruelty in more modern settings. But some may have been, or become, simply sadistic. It is also true, however, that we do not know how often the dubious skills of executioners and torturers were called upon, despite the official rigors of the law. Not only are there no official records from the period on the number of serious crimes, but also several factors mitigated against the routine application of the more rigorous punishments even when such crimes did occur. Precisely because they were so harsh, it is possible that the most dramatic punishments were imposed only sparingly. Complexities For though it might seem tempting to describe the gruesome punishments of the early civilizations, with a brief effort at explanation, and then leave it at that, there is more to the story, and the complexities were arguably as significant as the headline fare. In the first place, the early states mixed harshness with forgiveness, plus offering a variety of ways to mitigate the most severe retribution. Second, they also left considerable scope for punishments by localities and families, where among other things some of the older approaches to punishment persisted. And finally, the whole punishment apparatus was conditioned by its relationship to social inequality: quite simply, some people were more punished than others for the same types of crime. All three of these complexities significantly modify the picture of bloody-minded regimes, though the official penalties remain an important part of the picture. Clemency and Other Options

In several early civilizations, rulers and sometimes other officials might simply grant clemency to a convicted criminal, sparing him the death penalty or reducing it to a lesser sanction. This seems to have been particularly common in China, as an exercise of absolute royal power, but it was not unknown elsewhere. The granting of pardon might respond to an appeal by the convicted offender or his family, but there seems to have been no pattern involved beyond a ruler’s whim. Some rulers might grant pardons because they themselves were taken aback at the severity of the official code, others simply wanted to demonstrate their personal power and beneficence.

42  Early Human Societies Whatever the case, the possibility adds to the difficulty of knowing how often the fiercest punishments were actually administered. More common still, in most of the early civilizations was an option for victims or their families themselves to grant clemency, often in return for some kind of payment (in money, goods, or property). Mesopotamian and Mayan law allowed for this explicitly, even in cases of murder, with the perpetrator spared any physical punishment as a result. More commonly still, adulterers might escape punishment if their spouses agreed to take them back. Crime victims might certainly find the forgiveness option attractive, either because they directly gained a payment as a result, or because they too found the official punishment excessive. The practice maintained the older impulse, so common in hunter-gatherer communities, of preferring measures that restored social harmony over any strict by-the-book punishment regimen. Punishments Outside the State

The hand of these early states did not reach as far as their claims implied. Many groups besides the state participated in determining punishments for a number of offenses, and on the whole—though there were exceptions— their approach did not emphasize the harshest kinds of physical measures. It goes without saying that families were largely responsible for the punishment of children. To be sure, families themselves emphasized strict discipline, probably with some reliance on beatings as well as shaming—so there were links to the official approach. But rarely were the punishments extreme. In Egypt, misbehaving schoolboys (in a society where going to school was a rare opportunity) were sometimes beaten severely or displayed in public cages for shaming. Jewish law even allowed for the possibility that parents of a “stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother” could be bring the youth before the community to be stoned to death, but this was an extreme situation. Overall, families imposed discipline on their own. The same largely applies to many communities, particularly in the countryside where the vast majority of the population lived. Agents of the state did not reach deeply into rural areas, and many communities largely defined their own approach to crimes and other social offenses. Occasionally this could lead to violent retribution when a village on its own singled out the culprits in a murder or sexual offense, and put them to death. More commonly, however, as in earlier human communities, punishment at this level was milder, aiming at a combination of retribution, warning, and restoration of order. The main emphasis was on shaming, with some new forms involved in response to the larger size of the communities involved. From childhood

Early Civilizations and a Transformation of Punishment  43 onward, people in most agricultural villages were keenly aware of the power of shaming, knowing that when a community discovered wrongdoing, the individual in question would “hurt to be seen.” As in hunter-gatherer communities, shaming could take the form of jokes and insults, but might expand to the point of systematic isolation of the individual—occasionally driving the offender to the point of suicide. In Mesopotamia, a miscreant might be publicly slapped in order to induce shame, for example when a mother wanted to shame an adult son who had been mistreating her. In some communities, offenders might be at least temporarily branded, again to drive shame home, as in the partial shaving of a culprit’s hair. At some point—and there is no way to determine precise dates—many villages and urban neighborhoods began to introduce more elaborate shaming rituals. One practice featured placing an offender—often an adulterer, perhaps most commonly a woman—on a donkey, to be paraded around the community to highlight shame. In other instances, people were simply placed in some kind of public stocks or pillory, for the jeers and ridicule of passersby, as well as some physical discomfort. Ultimately, practices of this sort developed in rural societies in virtually every region of the world. The offenses involved were impressively varied. Most obviously, shaming was applied to sexual misbehavior, particularly adultery. But unfair business practices were another common target, as when a shopkeeper or peddler cheated on the weight of a product or tried to pass off spoiled goods. Additionally, in some cases theft was treated in the same way, not drawing the kind of physical retribution that the state officially required. Shaming was a widely preferred response for a variety of forms of disorder, including a number of behaviors that were clearly crimes. For shaming had huge advantages over physical retribution, though it is worth noting that placing someone in stocks or particularly the pillory caused some physical pain. It clearly punished, and could help prevent individuals or families from taking matters into their own hands. The emotional pain and isolation of shaming easily served deterrent purposes, warning others to keep their hands clean. Yet shaming did not usually prompt offenders or their families to seek retaliation, as physical punishments might; it was more compatible with keeping or restoring community order. And while some individuals or families might be targeted for long-term shame, even across generations, for the most part shaming could ultimately be eased, restoring the individual to the group. There is no way to determine the balance between community punishments and the apparatus of the state, but clearly the community approach offered a common alternative to the official reliance on more violent retribution. For many offenses, the community approach was less disruptive and less likely to seem excessive or cruel. Its importance certainly must be folded into the overall evaluation of punishment in the early civilizations.

44  Early Human Societies Inequality

The final complication in assessing the actual nature of punishment in the early civilizations involves the effects of social, economic, and legal inequalities—themselves the seemingly inevitable products of this new form of human organization. The law was not the same for everyone, and many at the top were either exempt from some of the harshest punishments or able to arrange for modifications. Gender was a factor in this equation, though not the most important one. Punishments for sexual offenses were sometimes different for men and women, but the more important point was the fact that they were more likely to be implemented where women were concerned. Often, penalties for male adulterers were severe on paper, but then relaxed or evaded in fact. And women were more often punished—either formally or through shaming— for premarital sex. In other respects, however, gender was not overwhelmingly important in shaping official punishments, if only because women were more likely to be disciplined in the home, less likely to engage in other kinds of serious crime. In some instances, further, women might be shielded from some of the more severe punishments visited on men, on grounds that as the “inferior” sex they could not be expected to meet the same standards. If gender was a somewhat variable factor, social inequality was pervasive. The Hammurabic Code made it clear that the same action would draw different punishments depending on the social rank of the victim. Thus: “If a man knocks out the tooth of a man of his own rank, they shall knock out his tooth,” but if a noble knocked out the tooth of a commoner, he would simply pay a fine. A noble who hurt a pregnant woman in his own social class could be severely punished, but if the victim was a commoner, again a fine would suffice, and if a slave, an even smaller payment to the owner. Distinctions of this sort were fairly common, though not uniform, in the other early civilizations. But this was just the beginning. The fact was that many early civilizations did not punish the powerful for some acts that warranted harsh retribution for others and/or they allowed the powerful frequently to wiggle off the hook. India, with its emerging caste system, was particularly striking in this regard. Upper-caste Brahmins were rarely punished for many crimes, including murder, and banishment was the worst retribution they might expect; they were never put to death. But those in lower castes were punished severely for minor offenses, with hands or feet cut off if they even engaged in threatening behavior. And a crime directly against a Brahmin was particularly reprehensible, with simple defamation resulting in severing of a tongue. Somewhat similar gradations occurred in other societies such as China, though they were less dramatic. Most obviously, crimes of violence by members of the upper class, often including rape, were treated far more leniently

Early Civilizations and a Transformation of Punishment  45 than when perpetrated by commoners. At the other extreme, crimes against slaves resulted in fairly modest sentences, primarily aimed at compensating a slave’s owner. Law and punishment not only rewarded class status, but was actively used to protect the upper class against the lower. Finally, many early states established special punishments for slaves themselves, usually highlighting some forms of torture, if they defied their owners or sought to escape. This was a prominent feature in punishment in Mesopotamia and probably China, and a bit later in Central America. Exceptions existed in the overall correlation between hierarchy and punishment. In Mesopotamia a priestess caught in a wine shop would be executed, but this was not the case for ordinary women. Upper-class men were far more likely to be punished for real or concocted crimes against the state or the ruler, and sometimes brutally treated in response. Overall, however, gradations in punishment closely matched gradations in social rank. There was more. Not surprisingly, in many early societies, members of the upper class might bring gifts or other favors to judges, informally arranging lesser punishments. This seems to have happened periodically in Central America. Even more strikingly, some societies allowed people convicted of some crimes, which would normally result in execution or maiming, to pay a substantial fine instead, either to the state or to the victim. This was a recourse unavailable to the bulk of the population, which simply could not afford the freight. But it might be an attractive approach for the state, because it helped protect members of the upper class and might contribute to the treasury as physical punishments would not. Further, some crimes warranted enslavement as punishment—another measure almost never imposed on members of the upper class. In Mayan society a youth who committed murder was enslaved, rather than executed. In early Korean states, people convicted of treason, theft, or attacks on valuable animals were enslaved; in some of the early Chinese kingdoms the families of executed criminals were enslaved as punishment. Criminal convictions were the main source of slaves in Egypt, and convict labor may have been responsible for constructing many of the pyramids. In several early civilizations, enslavement served a role similar to that of prisons in more recent times, as an alternative to death or torture but also as a means of dealing with many convicted offenders primarily from the lower classes. And the result would not only remove the offender from normal society, but provide some benefit to the state or to private estates. But the whole approach usually exempted the privileged. Further Innovations: Fines and Prisons

Imprisonment was not a common response to crime, for this involved the substantial cost of constructing and staffing facilities; but some jails did

46  Early Human Societies exist. There is a record of a Chinese king building a prison as early as 2000 BCE. Rooms in some of the Egyptian pyramids were used as prisons, though probably more to hold prisoners before trial or prior to execution or enslavement than to serve as punishment destinations. Fines, on the other hand, were widely deployed. Less dramatic than the gory executions or maiming, they nevertheless constitute a major innovation in punishment. This was a penalty unknown in earlier societies: it depended on the development of property and money. Once available, however, fines had all sorts of advantages in dealing with all but the most serious crimes. They avoided the cruelty and possible public revulsion that the more striking punishments involved. They might bring direct benefit to the state, always eager for funding—though in many cases, fines went to the offended party rather than the government, as a means of restorative punishment. They did not involve the kind of economic disruption that physical punishments often entail, for they did not necessarily impede continued work. And they clearly reflected and enforced social inequality, for the rich were less burdened by payments than the poor. Indeed, in some cases, as in Egypt, fines to the state could drive the poor into debt—for which they might then be enslaved. The Hammurabic Code imposed fines less often than death or maiming, but fines were wide-ranging, nevertheless. Most commonly, they were exacted to punish physical violence short of murder, particularly if the victims were not upper-class. Thus, people convicted of fighting usually paid fines. Fines also responded to many property crimes; thus a person who did not maintain a small dam on his land, with resulting flooding that damaged his neighbors, had to compensate in money or goods. But certain sexual offenses brought fines as well. A man who arranged for a young woman to marry his son but then had intercourse with her had to pay her a fine in gold coins—after which she would be free to marry whomever she chose. Fines, though less striking than the other innovations in punishment during the early civilization period, nevertheless had real impact. They reflected the very different conditions of agricultural civilizations from those of previous human societies. And they demonstrated the eagerness of the early states to introduce a variety of new measures in response to crimes and other offenses, and not rely on physical brutality alone. Conclusion The early civilization period was a remarkable crucible in the history of punishment, though far less is known about motivation, incidence, and outcome than would be desirable. A great deal of imagination, and often some real cruelty, went into the various new penalties now mandated by law or custom. Deterrence and retribution clearly guided the basic approach. Punishments must be severe enough to limit the impulses of private individuals and

Early Civilizations and a Transformation of Punishment  47 families from taking matters into their own hands—though some of this kind of retribution still occurred. And they must be sufficiently harsh and visible to provide some hope that other potential offenders would be deterred, while the criminals themselves were excluded from society, permanently or temporarily, or, through maiming, less able to commit comparable crimes in the future. Other purposes of punishment, most notably rehabilitation, normally gained little or no explicit attention, though some restoration might result from fines or enslavement. Punishment systems also reflected and enforced the new kinds of social (and to an extent gender) inequalities that ultimately emerged in all the agricultural civilizations. The relationship seemed so obvious to the rulers that devised the new systems that it warranted no explicit comment. The claims but also the limitations of the early states also shaped the official approach to punishment. It was vital to seek penalties that did not strain limited resources, and if some of them brought labor or funding to the state directly, so much the better. At the same time, the state was in no position to monopolize the punishment field; families and communities continued to play a vital role, mixing some innovations with more traditional interests in preserving or restoring social order. Methods and goals of punishment in the early civilizations provided powerful precedents for later societies, though successor governments would quickly begin to modify some of the most glaring extremes. The notion of an eye or an eye, and some of the specific forms of execution and torture, survive in some cases even in modern times, as does the humbler popularity of fining offenders. The intimate relationship between punishment and social hierarchy, though also reconsidered by some later systems, was also a durable contribution, another link between this innovative early period and societies today. One final point: It is easy to emphasize horror stories about punishment in the ancient world, and this will remain true for the ensuing time periods we cover in the following chapters. Journalists and bloggers periodically like to do shock accounts of past atrocities, sometimes also linking them to current regimes as in Iran or China. This approach invariably presents only part of the story, and the authors rarely try to explain why some of the measures seemed necessary at the time. They certainly do not acknowledge that the harshest punishments were usually rather rare, or that the early states really tried to establish guilt or innocence, or that they also developed an array of other, milder penalties. Sometimes the shock approach may also imply that contemporary punishments are more benign, by contrast, than they actually are. The policies launched by the early states were different from many standards today, and they certainly warrant critical appraisal—but they also challenge a modern audience to appreciate the contexts and complexities of this past time.

48  Early Human Societies Further Reading Israel Drapkin, Crime and Punishment in the Ancient World (Lexington, MA, 1989); Joyce Tydlesley, Judgment of the Pharoah: Crime and Punishment in Ancient Egypt (London, 2002); Pierre Montet, Everyday Life in Egypt in the Days of Ramses the Great (New York, 1958); Edwin Good, “Capital Punishment and Its Alternatives in Ancient Near Eastern Law,” Stanford Law Review 19 (1967). On fines, Tomer Einat, “History of Fines,” in Gerben Bruinsma and David Weiburd, eds., Encyclopedia of Crime and Criminal Justice (New York, 2018). On Mayan patterns, Lynn Foster, Handbook of Life in the Ancient Maya World (New York, 2002); Lloyd Duhaime, “Law and Justice in the Mayan and Aztec Empires,” Law Museum (2009). On India, Ramaprasad Gupta, Crime and Punishment in Ancient India (Calcutta, 1930) and The Laws of Manu, Patrick Olivelle tr (Oxford, 2009). On the history of cruelty, Abdul-Ghalliq Lalkhen, The Anatomy of Pain: How the Body and Mind Experience and Endure Physical Suffering (New York, 2021) and Natan Sznaider, “Pain and Cruelty in Socio-Historical Perspective,” International Journal of Politics, History and Society 10 (1996). Bruce Trigger, Understanding Early Civilizations: A Comparative Study (Cambridge, 2007); Chris Scarre and Brian Fagan, Ancient Civilizations (New York, 2016); Merry Wiesner-Hanks, Gender in History (Oxford, 2001). Xiuhua Zhang, “Crime and Punishment in Ancient China and Its Relevance Today,” American Journal of Economics and Sociology 76 (2017); Zhengyuan Fu, The Autocratic Tradition and Chinese Politics (New York, 1996); Michael Loewe and E.L. Shaughnessy, eds., Cambridge History of Ancient China (Cambridge, UK, 1999).

Part II

The Classical and Postclassical Periods From about 800 BCE onward, in major regions such as China, India, and the Mediterranean and Middle East, the early civilizations began to be supplanted by larger civilizations, with more extensive internal trade routes, cultural systems, and political empires. The formation and operation of these larger civilizations form the central features of the Classical period in world history, that ran from approximately this point until about 500 BCE. The classical civilizations did not embrace the whole world, but they involved the most populous regions and the most sophisticated economies and states. They also had some spillover effect on neighboring regions, such as parts of Southeast Asia and northeastern Africa south of Egypt. Their focus was on the expansion of their regional governments and cultures and the greater integration of the territories involved, and the result was a series of traditions or precedents that continue to influence East Asia, South Asia, and to a lesser extent, the Mediterranean, even today. The classical civilizations did not introduce massive changes into their systems of punishment. They clearly retained many of the innovations already generated by the early governments that had operated in their regions. But they did modify, and the results, as well as the motivations for change, are worth attention. At the same time, the classical period also featured a variety of philosophers who began to ponder the nature and purpose of punishment; they may not have been the first to do so, but they are the first for whom records exist. The results did not necessarily alter the actual systems in effect—this was an interesting issue in China, for example—but they could generate new debate, both at the time and subsequently. The major classical systems collapsed between 200 and 600 CE, victim to internal disarray and external invasion. Their collapse was not complete or necessarily permanent; both in India and China, major classical features survived or were ultimately restored. But the unity of the Mediterranean was broken, opening the way to new forces, such as the religion of Islam, and in much of Europe to a prolonged period of political disunity.

DOI: 10.4324/9781003427261-5

50  The Classical and Postclassical Periods This in turn set the stage for what many world historians call the postclassical period, running from about 500 CE until the 15th century. The postclassical period was itself was marked by several key features:

• Organized civilizations spread to new regions, including new parts of sub-Saharan Africa, northern Europe, Japan, and additional areas in the Americas. Governments in most of these regions were characteristically rather weak, but they did work to establish basic political systems including some of the apparatus of punishment. • Transregional trade increased among much of Asia, key parts of Africa, and Europe. This led to a variety of other exchanges, including new technologies such as the compass, but the impact on approaches to crime and punishment was limited at best. • The importance of religion increased. This was not a new factor in human affairs, and Chapter 3 already suggested some connections particularly for Judaism and the religious system emerging in India. But relevance of religion expanded in the postclassical period, with the wider dissemination of existing religions like Buddhism and Christianity, and the dramatic origins and expansion of Islam as it spread not only in the Middle East and North Africa, but in several other parts of Asia and Africa as well. Correspondingly, the roles of religion in punishment gained greater prominence. This, along with the emergence of new or revived political systems, most obviously set the framework for the postclassical history of punishment. Combined, the Classical and Postclassical periods offer opportunities to explore the ways that further political change, new kinds of intellectual inquiry, and novel religious systems affected the nature of punishment, both confirming some of the features already established and introducing some novel elements.

4

The Classical Societies

The major classical civilizations continued to rely heavily on physical punishments, including the death penalty, along with fines or labor service. They did, however, modify the policies of their predecessors, generally, though not invariably, seeking to soften them slightly and emphasizing less brutal alternatives. The classical regimes also introduced the new kinds of debates about punishment, at least at the philosophical level, which may have had some influence at the time—particularly in China—and certainly established opportunities for further discussion later on. The precedents of the early civilizations persisted in many ways. The Persian Empire, for example, built on previous patterns in Mesopotamia and its successors, and if anything added further cruelty. This empire was established in 550 BCE and lasted about 200 years, extending through the Middle East and a bit beyond. Persian rulers developed an extensive system of judicial courts with fairly standard law codes, but they did retaliate for certain crimes with unusual ferocity. Death penalties were administered variously through impalements; burial alive; boiling; flaying, which involved removal of strips of skin; and crucifixion. (The practice of crucifixion may have originated in Persia, though it may have been introduced earlier in the region, in Phoenicia.) One particularly painful practice featured rubbing the convict’s body with milk and honey and then tying it to the ground, where it would be nibbled by insects for several days until death. Death by stoning was also common, solidifying this tradition in the region. Finally, the Persians frequently used torture to exact confessions from suspected criminals. Some of the tales of cruelty were exaggerated by Persia’s rivals, like the Greek historian Herodotus, which is interesting in itself as an early example of the role punishment styles could play in international relations. As before, most crimes were punished by amputations and fines. The harshest innovations applied to religious offenses and crimes against the state, often by rivalrous nobles but also by corrupt judges. Rulers often granted pardons. In other words, a few new brutalities aside, the Persian system was a fairly clear example of continuity from the earlier states. There was an unusual interest DOI: 10.4324/9781003427261-6

52  The Classical and Postclassical Periods in trying to prevent theft, in an empire devoted to commercial growth. Some thieves merely suffered whipping or amputations, but the death penalty was applied in some cases. Persian rulers were justly proud of their highway system, complete with hotels for commercial travelers. If caught, highway robbers were often quartered and the remains of their bodies hung up along the road as a warning to others—a classic illustration of the effort to use, and publicize, severe punishments as the only means available for keeping order in particularly important situations. Basically similar patterns can be found in the other classical civilizations, which also used precedents to guide their methods of punishment, with a few innovations tossed in. A certain amount of mutual influence may have been involved by this point as well. Thus, imitation may have popularized some punishments around the Middle East and Mediterranean, such as the practice of crucifixion. China followed a somewhat separate route, but definitely retained and utilized many of the methods and motives established by the Five Punishments. None of the great classical civilizations saw any reason to subject older methods and rationales to any systematic review. There was, however, some adjustment, with China and the Mediterranean providing interesting and significant examples that would have real impact going forward. The sections that follow summarize some of the principal modifications and also tackle the more difficult question of causation: why were previous patterns adjusted at all? The fact that punishment was now being discussed in intellectual circles played a role here, though the impact should not be exaggerated, but other factors were involved as well. China: New Debates and some Reform; the Classical Period and its Legacy Signs of Change

China’s Han dynasty (202 BCE–220 CE) is rightly known as the administration that stabilized the great empire, improving and regularizing its bureaucracy (including introducing the first efforts at explicit training) and providing precedents in many policy domains that later regimes would revive and follow. The stabilizing role definitely applies to the issue of punishment. The early Han emperors began to move away from the classic Five Punishments, particularly by reducing the practice of tattooing and, of even greater importance, working to replace the various forms of mutilation and amputation. The death penalty was retained, but the variety of methods was scaled back, and there was greater hesitancy in imposing it. Furthermore, the emperor himself increasingly tried to review death sentences before they were carried out—except in cases of rebels or brigands, who were killed without real judicial procedure—and in many cases commuted them to one of the milder categories.

The Classical Societies  53 The new list, as it gradually emerged, suggested the following new sequence, in ascending order of severity: whipping; flogging (with a light or heavy bamboo stick); hard labor; exile; and then capital punishment, mainly by strangulation or decapitation, though slicing was still on the list for extreme cases. This was a new and rather different set of five. There was also an interesting moderate punishment involving a period of wearing a cangue, or wooden yoke apparatus that prevented the hands from reaching the face (thus depending on someone else for feeding—assuming someone else could be found). This obviously combined physical pain with elaborate public shaming.

Figure 4.1 The Chinese Cangue. This sketch shows a man (seated) in a cangue, being fed, while a guard with a whip stands by—a sign of how shaming and physical punishments were sometimes combined. The sketch itself is from the 19th century, a British engraving in 1843, showing how this device, introduced hundreds of years before, survived in Chinese practice. Credit: Engraving by G. Paterson after T. Allom after W. Varnham, 1843. Wellcome Collection. Public Domain Mark

While the new list might still seem rather heavy on the physical side, by some modern standards, it could on balance be considerably less brutal than the older system, most obviously by doing away with the genital mutilations

54  The Classical and Postclassical Periods and the lopping off of hands or feet. Evaluating the extent of change, however, is complicated, partly because it is not clear how quickly some of the changes were introduced, particularly during the Han period itself (more was done later on), but partly because various kinds of cruelty persisted, including widespread use of torture in forcing confessions to crime. Before venturing into a clearer balance sheet, it will help to pin down some of the probable causes of change—and their limitations. A Genuine Philosophical Debate

One popular myth holds that a young girl, Chunyn Tiying, petitioned one of the early Han emperors to replace the cruel Five Punishments with milder versions, and he was persuaded. This seems improbable, at least in terms of full motivation, though it is certainly possible that a number of emperors from this point onward had personal reservations about imposing too much brutality. This would show in the shifts in policy but also the frequent pardons and delays granted to some of the convicted offenders. But there were two other spurs, operating in tandem: the unpopularity of punishment policies in the prior Qin dynasty, and the complicated philosophical dispute that had unfolded over several previous centuries. Unquestionably the previous dynasty had been particularly heavy-handed, which might have motivated petitions to the new regime and certainly provided a welcoming context for change. The principal Qin emperor was a genius at warfare, uniting a large Chinese territory for the first time, but his internal policies tended to be as harsh as his military methods. Many accused criminals were executed or maimed. One story held that so many feet had been amputated that in the capital city it was easier to buy shoes than to find crutches. This was an exaggeration, but it was true that the regime’s harshness, and its high tax levies to pay for war, generated a level of unpopularity that helped explain the dynasty’s quick collapse, and gave the new, Han, successor a host of reasons to adopt and publicize a gentler approach. This impulse was clearly amplified by a long-standing dispute among major philosophical schools, about the nature and purpose of punishment, which fed into the features of regime change. One approach, the Legalists, continued to argue for the necessity of brutal rigor, and their popularity rode high during the Qin decades. Against them, for several centuries, the school of Confucius and his heirs took a very different view, helping to produce the first and one of the most sweeping debates over what punishment was all about. The Legalists were closely aligned with the punishment policies established by the early Chinese dynasties, but they provided a more sweeping rationale. The theory was established by writers from the 5th to 3rd centuries BCE (though there were earlier precedents), initially in response to a surge

The Classical Societies  55 in civil strife but ultimately in association with the rise of the Qin dynasty. Scholars legitimately worry that Legalist thought can be oversimplified, but the arguments on punishment were fairly clear. In the eyes of the Legalists, human beings by nature behaved badly, often with evil intent, and they could be restrained only by harsh laws and punishments. Only then could a strong, stable state and society—the highest political goal—be assured. As one Legalist scholar put it, “The object of reward is to encourage, that of punishment, to prevent. If rewards are high, then what the ruler wants will be quickly effected; if punishments are heavy, what he does not want will be quickly prevented.” Or again: “If you govern by fear, the people will fear. Being fearful, they will commit no villainies…If however you teach the people by righteousness, they will be lax, and if they are lax there will be disorder.” Not surprisingly, Legalism appealed not only to several rulers, but to members of the official bureaucracy. Confucian thinking, developing from the 6th century BCE onward (Confucius himself lived from c.551 to c.479) shared with the Legalists the priority of a strong and stable state, without which society could not function properly. However, Confucianists took a radically different approach to punishment, implicitly criticizing not only the Legalists but the kind of thinking that had generated the Five Punishments. Confucianists did not deny that punishments might keep people in line, but their vision of proper social order, and of basic human nature, was far more positive. They wanted nothing to do with punishments as retribution, and even more interestingly argued that their deterrence effect was narrow at best, doubtful at the worst. For Confucianists were convinced that people are basically good, though in need of guidance. Hence the best path toward social stability involved wise leadership that would set an example of good and just behavior, causing the general population to feel ashamed in straying from the right path. Too much emphasis on punishment, though it might restrain people temporarily, creates no lasting barrier to bad behavior in the future. It detracted from creating the kind of shame and remorse that would provide durable barriers to crime and disorder. Confucius put it this way: “Guide them by edicts, keep them in line with punishments, and the common people will stay out of trouble but will have no sense of shame. Guide them by virtue, keep them in line with (proper rituals), and they will, besides having a sense of shame, reform themselves.” Or again: “To govern is to correct. If you set an example by being correct, who would dare to be incorrect”—and therefore, what would be the need for punishment? Moral force, not penalties, offered the key to successful rule and social harmony, and punishment was only needed at the margins. For Confucius, rule by good men at the top (the emperor and a virtuous upper class, with people who had an active sense of shame) plus intense community pressure also buttressed by shame, easily took precedence over laws and negative enforcement. In practice,

56  The Classical and Postclassical Periods Confucianists argued not only against capital punishment, but against imprisonment and torture. This was a radical vision for any society, and it unquestionably challenged Chinese traditions as well as Legalist thought. And there is no question that the Confucian argument was appealing to many of the early rulers in the Han dynasty, and to their later successors. But a full conversion to the Confucian approach did not occur. Punishment still seemed essential; Legalism continued to exert great influence, though sometimes in private, not only at the top of the Chinese state but among lesser officials. And there were complexities in the Confucian approach as well. For example, Confucianists relied heavily on ideas of social inequality, hoping that those at the top would provide wise rule; but by the same token, they believed that the upper classes should be particularly shielded from penalties that might apply to ordinary folk. One Confucianist tract thus argued that “men and women with official titles” should never be put in prison, and relatives of the emperor should never be executed. Further, the Confucian approach placed heavy emphasis on the importance of obedience to parents (particularly fathers), as a crucial element in making the family the building block of the larger social order; Confucianists were often willing to accept severe punishments for offenses within the family—despite their theoretical aversion to this approach. There were further convolutions as well: a son who turned his father in to state officials for theft might be executed for his filial disloyalty—even though the father was in fact guilty. Overall, Confucianism, along with more general revulsion against the cruelties of the Qin regime, introduced an important tension in the Chinese approach to punishment from the Han dynasty onward, but only occasionally was there a full retreat from the patterns that had already been established. The milder version of the Five Punishments was an important change, but it continued to authorize a variety of harsh measures. Further, some of the older penalties persisted as well, though presumably at a reduced rate; tattooing of criminals, for example, though officially barred, continued to occur as late as the 19th century. Balance Sheet: The Han and Later Dynasties

The effort to cut back on drastic penalties undoubtedly continued, through the Han dynasty and then its successors. A law code issued by the Tang dynasty in 626 CE, early in its tenure, continued to try to control mutilations. The code gave greater emphasis to forced labor service as a punishment—the source of some of the manpower available for public works. Temporary or permanent exile became more common as well, facilitated by an expanded bureaucracy that could keep better records in enforcement. The older impulse to punish whole families for the deeds of one individual was also scaled back.

The Classical Societies  57 There were other clarifications. The death penalty was to be carried out by beheading or strangulation, with the extreme imposition of striping reserved for a few serious offenses such as treason or a son’s attack on his father, or a wife’s on her husband. Most people, given a choice, opted for strangulation even though it was more painful, because decapitation was a more shameful fate. According to official statistics, only 100–200 criminals were executed annually by the time of the Tang dynasty, probably a low figure compared to many other societies at the time. Many sentences were commuted by the emperor, who insisted on reviewing each case (a clear example of the influence of Confucian thought). The months in which executions could occur were also limited, meaning that many convicted criminals spent waiting time in jail, allowing them to petition for clemency. A person who spent three years in jail without a decision would have the death sentence converted to lifetime exile. One Tang emperor actually ended capital punishment altogether, though this proved temporary. Against this, however, many executions were carried out by lower officials and did not show up in the official tallies. Furthermore, the range of crimes for which the death penalty could be imposed remained formidable: 233 offenses under the Tang (and more later on). This included major crimes against people and property but also offenses such as failure to support older parents or (for a doctor) giving the wrong medicine to the emperor. Lesser punishments, like flogging, could also lead to death. The Tang code itself authorized extensive torture to elicit confessions– up to 200 blows with a standardized official implement, and many lower officials, eager to pad their enforcement record, clearly used torture to induce innocent people to admit to crimes. Private vendettas persisted as well, with some support from Confucian theory. Thus, an individual who killed to avenge the death of his father or grandfather could usually get off with a light sentence. Social inequality also continued to play a major role, in two senses. The same offense received different punishments depending on class status, and penalties were particularly severe for crimes by members of the lower classes against their superiors. Clearly, this was a complex pattern, not nearly as different from the earlier Chinese approach as some reformers hoped, but at the same time not uniformly harsh or predictable. Confucian impulses, themselves rather complicated, remained relevant, and might exercise considerable influence over some Chinese rulers. At the same time, most officials continued to rely heavily on physical punishments to maintain social and familial order. Classical Greece and Rome, and their Legacy As in classical China and its successors, governments in Greece tended to reduce the reliance on particularly cruel punishments, without, however, coming up with a full alternative approach; and the Romans proved

58  The Classical and Postclassical Periods imaginative in introducing a new set of brutalities against certain crimes— another indication of the difficulty in teasing out a consistent pattern in the classical civilizations. The impulse to codify punishments more clearly also showed through, particularly in Rome. No counterpart to the Confucian calculus emerged, but there was important philosophical debate about punishment which might have some impact either at the time or later on. Greece

The Greek city states, flourishing in the 6th and 5th centuries BCE, took an exceptionally mild approach to punishment, though early law codes, like that of Dracon in Athens in 621 BCE, officially greeted most crimes with the death penalty. But Athens reversed course later. The importance of preserving community solidarity increasingly took precedence over severity, and there was considerable reluctance to kill convicted criminals directly. As in China, social class probably entered the picture: citizens were treated with particular care, as opposed to women, foreigners and slaves (all of whom, as noncitizens, were obviously lower in rank); the citizen group was a minority, though not a small one, and it gained some special treatment. The overall result was distinctive among classical societies, though it did not leave a clear legacy. Even at their height, Greek city states did impose the death penalty, for crimes ranging from kidnapping to murder (though Greek law made distinctions between murder with intent and murder by accident). Religious offenses might also qualify: the philosopher Socrates was convicted of spreading doubt among the young people he instructed. Three methods of execution were used: a convicted criminal might be thrown onto a bed of spikes, called the Barathron; or he might be crucified, dying by exposure; or allowed to take the poison, hemlock. This last option, something of an anticipation of death by injection, was however available only to people who could afford to pay for the relatively expensive poison. As in other classical civilizations, social hierarchy played a clear role in the incidence of the death penalty, with slaves executed (and their owners fined) for several offenses. But there was clear preference for other punishment options, particularly for citizens. Some crimes merited only fines—this included not only theft but rape. Ostracism, or exile, was widely deployed—one of the oldest forms of exclusion. (Socrates was given a choice of death or exile, and chose hemlock.) In the tightly-knit city states, exile could seem a severe fate; an exile was described as a “beggar in a strange land, an old man without a city.” But the penalty helped heal wounds caused by the crime, restoring social harmony; and in some cases exiles themselves could establish a new life, even gaining citizenship elsewhere, so there was a potentially rehabilitative element. Even murderers were sometimes given the chance to choose exile

The Classical Societies  59 rather than death (but only if they were citizens), and prisoners awaiting execution were often expected to flee into exile as well. City states like Athens had jails, but for the most part only as holding facilities, not for formal sentencing. Interestingly, Socrates at one point did refer to the possibility of imprisonment, but he rejected that too on grounds that spending even a year in jail would make him a slave of government officials. Overall, the Greek approach to punishment did suggest a distinctive approach, combining familiar features including the impact of social stratification with a clear aversion to unnecessary harshness. Philosophers and Punishment

Classical Greece, and particularly Athens, also generated a large body of philosophical work directed at social and political issues, including punishment. And while the major thinkers largely approved of punishment—there was no Confucian-style hesitation—they suggested a variety of innovations about methods and goals. A range of thinkers, including dramatists, took up the theme of punishment, but the most elaborate statements appeared on works on law and political theory. Thus, Plato was noteworthy for the careful delineation of the purposes of punishment. He was vigorously opposed to punishment as retribution, and argued that the death penalty should be reserved for criminals who were completely incorrigible. He recognized the role of deterrence, “to prevent either the same individual, or by the spectacle of his punishment, someone else from doing wrong again.” But he was even more interested in punishments that provided some restoration for the victim of crime and, most distinctively, that presented opportunities for rehabilitating the criminal himself. In the Gorgias dialogue, Plato explicitly laid out punishment’s two goals: “he who is rightly punished ought either to become better and profit from it, or he ought to be made an example to his fellows, that he may see what he suffers, and fear to suffer the like, and become better.” Physical punishments might certainly have a role in a process of reform; “pain and suffering” were essential to deliver people “from their evil.” But Plato also emphasized the importance of imprisonment, urging governments to set up a variety of facilities for corrective incarceration. This highly original approach had no apparent impact at the time, but it created new opportunities for reconsidering both the nature and purpose of state action. Plato’s student Aristotle did not generate quite such sweeping statements on punishment, and there was some internal contradiction. Like Plato, however, Aristotle was eager to sort out the various purposes of punishment. He granted the importance of revenge, but tried to distinguish retribution from legal punishment, which should focus primarily on deterrence—restraining the criminal and, through fear, a wider public as well. While a virtuous elite

60  The Classical and Postclassical Periods might not require punishment to behave well, guided among other things by healthy shame, ordinary people, more vicious, undoubtedly needed restraint: “Punishment and penalties should be imposed on those who disobey and are of inferior nature.” Beyond deterrence, punishment was essential to restore balance—to return property, in the case of theft, but even in murder to provide moral compensation. Finally, though Aristotle was much more pessimistic than Plato about the possibility of rehabilitation, he did grant that punishment might gradually guide people toward a better path. “For the bad man, if led into better ways…would progress, if only a little, toward being better.” Greek thinking on punishment had less obvious impact on actual policy than Confucianism did in China, but the extent of interest in the subject, and the explicit effort to define purposes and for the most part to limit excessive indulgence in revenge paralleled the actual policies established by city states such as Athens. It also foreshadowed many of the distinctions about the goals of punishment emphasized in later theories of penology. Rome

The Roman approach to punishment, different from the Greek, highlighted more familiar themes, including a decided interest in varied forms of brutality. The bloodthirsty angle should not be exaggerated. Roman leaders also prided themselves on establishing clear legal codes, matching punishments to crimes and to social status, and avoiding random or arbitrary response (though some particularly cruel emperors, like Nero, had no interest in regular procedures). The range of death penalties does warrant attention, for execution by beheading was merciful compared to the other options developed—though it was the most common form. The Roman approach also emphasized the importance of public witness and display, both to frighten potential wrongdoers—a standard motive—but to an unusual extent to entertain large audiences. The notion of punishment as a spectator sport is not a modern theme (except in certain movies and television fare), but it deserves some attention in some earlier contexts—and Rome headed the list. Important caveats apply, as has been the case for all the early and classical civilizations. Social position counted massively. Slaves were killed for crimes like forgery, while free men received lesser sanctions; and there were major penalties for slaves who attacked their masters. Citizens were particularly privileged, compared to foreigners as well as slaves. Many were allowed to commit suicide, for example, rather than face a more gruesome death penalty. Exile was a common sentence, and for the lower classes so was labor service, often in grim mines. Fines were established for a variety of offenses. Rape could bring the death penalty, but this varied with

The Classical Societies  61 situation, and the penalty was enacted by the family involved, not the state. Other sexual offenses, however, were treated more lightly. Location was another variable. Rome developed an elaborate court system, even for foreigners; but in the provinces governors had great latitude, and could be particularly harsh—though for Roman citizens there were possibilities of appeal. Finally, while some convicts might be retained in prison for a considerable time, jails—usually grim affairs—were primarily designed to hold people in advance of other punishments; there was no official punishment by incarceration. A range of methods were available to carry out the death penalty, depending mainly on the nature of the crime and the status of the criminal. Most of them involved great pain as well as ultimate death. Crucifixion, usually along a public highway where it could serve as warning, might be imposed for theft or other crimes; it involved tying (not, in fact, nailing) the victim to a cross (usually after a severe beating), where asphyxiation would gradually bring death. Some convicted criminals were simply hurled off a cliff. Damage to farm animals might bring hanging, while someone who burned another’s crops would himself be burned to death. One upper-class traitor was killed by being pulled apart by three horse-drawn chariots, which the emperor said was a “warning to all mankind.” In Rome, many prisoners were put to death before an audience in the Colosseum: prisoners might be forced to kill each other, others were burned alive, others fed to wild animals. A person who killed a parent might be subject to the “penalty of the sack”: injured and then tied in a leather bag with a snake, a dog, a monkey, and a rooster, which was then tossed into a lake or river. While Rome was normally religiously tolerant, there were periods of attacks on Jews and Christians, leading to loss of property and exile or death, usually by crucifixion or burning. A few emperors, particularly cruel, also inflicted death or mutilation in their own palace; one, responding to critics of his bloodshed, said “Let them hate me as long as they fear me.” Legacy: The Byzantine Empire

Rome’s pattern of punishments perished with the Empire itself: no successor society retained such interest in varieties of administering death or such a range of public spectacles. In parts of the Balkans and the Middle East, the Byzantine Empire, which would last essentially for another thousand years from the 5th to the 15th centuries, maintained Rome’s interest in the careful codification of laws. Perhaps unexpectedly, however, it cut back on the focus on the death penalty. The penalty was certainly still applied, occasionally by dramatic means such as hurling the convict from a tall tower. And the eyefor-an-eye approach showed in tit-for-tat responses for offenders who blinded or castrated another person. But on the whole, the Byzantines

62  The Classical and Postclassical Periods

Figure 4.2 The Roman Use of Crucifixion. Crucifixion was a public form of capital punishment used particularly for thieves, but it was also imposed on Christ as a form of humiliation beyond the physical suffering. The illustration comes from 16th-century Italy, showing Jesus on the cross along with two thieves, Gestas and Dismas. Credit: The Elisha Whittelsey Collection, The Elisha, Metropolitan Museum of Art

illustrate the kind of tendency present in the postclassical dynasties in China, to seek a wider range of options. One revealing example was the strong reliance on exile for a variety of crimes, including religious heresy—crimes that in some other societies were punished more fiercely. There was a heavy emphasis as well on shaming, sometimes involving elaborate parades before a jeering public. Beyond this, Byzantine punishments revealed a decided penchant for mutilation—cruel and painful, but deliberately short of the death penalty. Thus, political offenders were frequently scarred or branded rather than killed; among other things, this disqualified them from any possible service as emperor, who was supposed to be physically sound. Corrupt officials might have their hands cut off in response to greed. Blinding a major offender was a common response. It was noteworthy that rebels against the government were more commonly blinded than killed. The range and cruelty involved can repel a modern observer, but the apparent effort to seek alternatives to death itself was interesting.

The Classical Societies  63 Conclusion During the classical period, leaders in a number of societies began to reduce their reliance on some of the harshest punishments that had been introduced in earlier civilizations. There was no revolution here: reliance on the death penalty, torture and maiming continued, and it applied to a wide range of crimes. The administration of the death penalty itself continued to feature gradations in cruelty, depending on the crime involved. In many cases also— as in China—official efforts to cut back on older punishments did not succeed in eliminating them, though rates of imposition probably declined. In China, but also the Byzantine Empire, policy revisions initiated in the classical period continued to guide punishments into the postclassical centuries, at least to some extent. At the same time, it is impossible to impose any formula: Rome’s range of cruelties, after the greater restraint of classical Greece, stands against any easy generalization. While the classical societies did not introduce an explicit replacement policy, there were indications that other kinds of punishment were being developed in order to reduce reliance on death. Most notably, there was a growing use of prisons, usually in structures built for other purposes but sometimes in specific containment buildings. To be sure, convicted criminals were not assigned jail terms—that level of innovation was not yet on the table. But many convicts were being held for longer periods of time—for example, in China, in the long months that often separated a judicial ruling from an actual execution (or possible pardon). This suggests some modest increase in state investments in punishment apparatus. In some cases also, classical societies clearly increased the use of banishment or ostracism, or outright labor service. Opportunities for suicide, rather than the pain and disgrace of other forms of punishment, also increased, particularly for the well-born. Other features of punishment clearly maintained earlier patterns, beyond the continued reliance on the possibility of the death penalty for a wide range of crimes. The officially undisputed gradation of punishment by social class position remained a striking feature. While there were some differences in the range of definition of serious crimes, classical societies retained the particular stress on treason (which could be broadly defined) and attacks on parents. Classical Rome and Greece did not emphasize a wide range of sexual crimes; China had a longer than average list of possible offenses within the family. But the overlaps arguably outweighed any major differences. Finally, the analysis of punishment in the classical civilizations continues to be bedeviled by issues of data. Methods of punishment are clear, but their incidence is not. Loopholes, the impact of social hierarchy, and impulses by individual rulers complicate any clear statement of the frequency of major penalties. It is clear, and important, that routine punishments like fines were

64  The Classical and Postclassical Periods far more significant, for more people, than the showy forms of cruelty; but the cruelties did exist. At least as tantalizing is the question of impact. How many people were as frightened as the authorities hoped? Did the standard approach to crime really have a great deterrent effect? Rome, for example, boasted of its laws and its social order, but the crime problem—particularly theft—remained severe. The philosophers who questioned some of the common assumptions about punishment, including its common neglect of much opportunity for rehabilitation, may have reflected limited effectiveness in the standard approach. Further Reading On China, Xiaoqun Xu, Heaven Has Eyes: Law and Justice in Chinese History (Oxford, 2020); Zhengyuan Fu, Chinese Legalists: The Earliest Totalitarians and Their Art of Ruling (London, 1996); Chin Kim and Theodore LeBlang, “ The Death Penalty in Traditional China,” Georgia Journal of International and Comparative Law 5 (1975); P. Chen, Law and Justice: The Legal System in China, 2400 B.C. to 1960 A.D. (New York, 1973); Terence Miethe and Hong Lu, “History of Punishment in China,” in Miethe and Lu, Punishment: A Comparative Historical Perspective, Ch 5 (Cambridge, UK, 2012); Brian McKnight, Law and Order in Sung China (Cambridge, UK, 1992). On Greece and Rome, Richard Bauman, Crime and Punishment in Ancient Rome (London, 1996); Douglas MacDowell, Athenian Homicide Law in the Age of the Orators (Manchester, 1999); O. F. Robinson, The Criminal Law of Ancient Rome (London, 1995); Sadakat Kadri, The Trial: A History from Socrates to O.J. Simpson (New York, 2006); S. C. Todd, The Shape of Athenian Law (Oxford, 1993); Barry Nicholas, Introduction to Roman Law (Oxford, 1974). On Persia, Matt Waters, Ancient Persia (Cambridge, UK, 2014); Mark Olsen, “Ancient Persian Punishments: beyond your worst nightmares,” Listverse, June 29, 2017. On philosophical contributions: Trevor Sanders, Plato’s Penal Code: Tradition, Controversy and Reform in Greek Penology (Oxford, 1991); Matthew Adams, “Plato’s Theory of Punishment and the Penal Code in the Laws,” Australasian Journal of Philosophy 97 (2019); Matthew Walker, “Punishment and Ethical Self-Cultivation,” Law and Literature (2019). On relevant philosophy in China, Yuri Pines, Envisioning Eternal Empire: The Political Thought of the Warring States Era (Honolulu, 2009); Justin Tiwald, “Punishment and Autonomous Shame in Confucian Thought,” Criminal Justice Ethics 36 (2917); Lee-Jan Jan, “Crime and Punishment: Chinese philosophies and perspectives,” American Journal of Criminal Justice 5 (1980). On the Byzantine Empire, Warren Treadgold, “The Persistence of Byzantium,” Wilson Quarterly 22 (1998); John Lascaratos and S. Marketos, “The Punishment of Blinding in Byzantine Times,” Documenta Ophthalmologica 81 (1992); John Lascaratos land P. Dalla-Vorgia, “The Punishment of Mutilation for Crimes in the Byzantine Empire,” Journal of Risk and Safety Medicine 10 (1997).

5

The Postclassical Period and the Role of Religion

The centuries after the fall of the great classical empires featured two major themes in the history of punishment. One was new by definition: additional regions began to establish formal governments, and the other apparatus of complex agricultural civilizations, including more rigid social hierarchies, and introduced or clarified an array of punishments in the process. The result was not fundamentally novel: new states in Japan or Russia featured approaches quite similar to those of other early civilizations, including a considerable emphasis on brutality. But the apparatus was new to the regions in question. The second theme, more complex, involved the impact of religion on punishment. This was not a new relationship: religion had influenced punishment in polytheistic civilizations like Greece and Rome, and played an even greater role with the early Jewish and Hindu religions. But as the missionary religions—Buddhism, Christianity, and Islam—spread to new regions in the postclassical period, and as religion gained a greater priority in many societies, the religious role in punishment commands greater attention. Most obviously, important punishment traditions were formed in both Christian and Muslim regions that would have durable influence. Many established patterns persisted in the postclassical period. Most obviously, the major Chinese dynasties continued to work on themes that had been established in the Five Punishments traditions and then with the Han dynasty’s reforms. The Byzantine empire also worked from Roman precedents. And earlier emphases and methods strongly shaped the punishment policies of Islamic states in the Middle East or the fractured political units in Western Europe, even as religious priorities introduced some significant change. The postclassical balance between change and continuity did not, on the whole, introduce revolutionary adjustments in punishment procedures or motives. More areas in the world had defined policies than had been the case before. New crimes were emphasized, particularly in light of the greater religious influence; and this could lead to some shifts in methods—as with the DOI: 10.4324/9781003427261-7

66  The Classical and Postclassical Periods striking innovations in torture devices in Western Europe. But there was no fundamental reconsideration of the ways punishments had been conceived by prior civilizations. New Regional States Japan

Law codes and punishment systems developed steadily from the 7th and 8th centuries (CE) onward. In 757, as Japan eagerly studied patterns in China, elements of the Five Punishments were introduced, with particular emphasis on light and heavy flogging for crimes such as theft and violence. More serious crimes led to the death penalty, most commonly by hanging. This was viewed as a punishment that also brought shame to the family of the convict; and to add to the public impact, the head or corpse of the hanged person was usually publicly displayed. In some cases, family members of the convict were sent into labor service, another of those interesting examples of collective responsibility for individual acts. More drastic but less common death penalties involved burning, decapitation, or even cutting the body in two at the waist. A person convicted of killing a parent, or a wife a husband, might be crucified. Women, if convicted, were treated similarly to men. The Japanese system was noteworthy for introducing yet another form of social differentiation in the nature and implementation of punishment. Law enforcement for the masses was overseen by the warrior, or samurai class, who might even employ some police to help keep order. Samurai officials ran the law courts, which were well distributed throughout the country. But the samurai themselves were not subject to this system. A samurai offense usually led to negotiations with other samurai, to resolve any dispute, or to outright battle. Samurai responsible for serious crimes were urged to commit a ritual form of suicide, seppuku, in which an individual disemboweled himself and then was partially decapitated by another (or in the case of women, took poison). Offenses by samurai against commoners might not be punished at all. Russia

Evidence on the early evolution of punishments in Russia is spotty, and there was a great deal of local variation. A law in 1398 in Moscow decreed branding for thieves, and this was later extended to counterfeiters; the marks were burned onto the face. Maiming was common: for thieves, amputation of two fingers of the left hand, or the left ear, for a first offense; the same on the right for a second. Anyone threatening the ruler might lose an arm. Removal of the nostrils was another approved form of mutilation.

The Postclassical Period and the Role of Religion  67 Punishment by scourging, with fearsome instruments, usually occurred in a market square. Training was required to do the job properly, and it was carried out over time to prolong the agony; not uncommonly, it led to death, but on occasion a victim was able to gain a milder version through bribes. A lighter form of whipping was probably even more common, imposed on serfs who defied their master, on offending clergy (who were exempt from scourging), and even students. Death might also be imposed, but Russia did not feature major public displays of executed criminals until later, when West European example and a general impulse to stiffen the punishment regime introduced further change—by the end of the 17th century. With all this, again in a familiar pattern, official sanctions were often modified by local officials who might grant various forms of leniency. West Africa

Punishment patterns in the great African kingdoms of Ghana and Mali are less clear than their counterparts elsewhere. The regimes did not keep elaborate records. Equally important, Western scholarship on Africa was long dominated by colonial assumptions about the inferiority and lawlessness of African people—an assumption that, prior to European empires, Africans must have lived in some form of anarchy. These racist prejudices not only led to massive distortions but limited efforts to probe more deeply. It is clear, however, that as monarchies developed in West Africa, rulers spent a great deal of time dealing with matters of justice. Traveler reports show that kings rode around their capital as often as twice a week, with officials in tow, listening to complaints about disorder and attempting to resolve disputes or issue appropriate punishments. Problems of theft, violence, and unpaid debts won considerable attention. Individual kings gained glowing reputations for their ability to restore order and their even-handedness. Less is known, however, about methods of punishment when they were necessary. One story holds that accused criminals were sometimes given a bitter concoction to drink: if they vomited it up, they were held to be innocent. But if not, they were punished. A later empire in the region, Songhai, which began its ascent in the 14th century, seems ultimately to have established some kind of prison system, possibly with stipulated jail time for certain offenses. But there were more brutal punishments also, as with an official (probably guilty of treason) who was sewn into a bull hide and left to suffocate. Anthropological evidence also shows that in some parts of West Africa various kinds of death penalties were developed at some point before European colonization; decapitation was the most common form, though those convicted might be able to offer payments toward a lesser punishment. Mutilation was also used, including cutting off the lips of someone who gave false testimony. Not surprisingly, great emphasis was placed on the

68  The Classical and Postclassical Periods power of shame to keep people in line and to discipline wrongdoers: one proverb held that “if it be a choice between disgrace and death, then death is preferable.” Here again, African patterns overlapped with some of the common themes of agricultural societies. Overall, early states in places like Japan, Russia, and West Africa replicated patterns familiar from other early civilizations, though the African example is particularly limited given problems of bias and evidence. Social stratification and considerable physical violence were crucial features in Russia and Japan, and both characteristics would actually deepen in the centuries after the postclassical period. In Russia, for example, amputations of hands or feet became more common by the 17th century, as governments intensified efforts to keep order and as social tensions mounted. Certainly, with the possible exception of the prison system in Songhai, there were no major innovations in basic methods or motives. Religion As religions became more elaborate and expanded their social role, their impact on punishment significantly increased, at least in several major regions. Polytheistic societies, like Egypt or classical Greece, had developed stiff penalties for thefts from temples or attacks on priests, viewed as offensive to the gods, but the religious role did not necessarily extend much beyond this. Greece and Rome, most notably, were widely tolerant of many different religions (though Romans made their periodic exceptions for Jews and Christians, seen as disloyal to the state), rather than trying to use punishment to enforce a single faith. The more elaborate religions went beyond this. Though their leaders might accept a range of punishments similar to those already introduced by early states, the rationale behind the punishment might change—but in several possible directions; and in a few cases, certain punishments themselves might be rejected. The major religions all gave spiritual credit for compassion and generosity, and this could lead to a search for milder reprimands or more pardons and forgiveness. Religious beliefs could, and did, pose major problems to the implementation in traditional punishments, at certain times and places. At the other extreme, however, religion could deepen the impulse to punish by seeing many crimes as offenses not just to humankind but to the divine order, requiring harsher responses and less compunction. Evil could be driven out only through violence and pain. Further, though there was variety here, some religions could also expand the range of behaviors viewed as criminal or sinful—for example, seeking punishments for a greater variety of sexual activities. Finally, many religions believed that wrongdoing would be further punished in an afterlife, which could have various implications for the punishments enacted on earth. There was no single formula.

The Postclassical Period and the Role of Religion  69 The religious approach to punishment would also change over time. Many religions today have modified traditional policies in major ways, redefining what is still a significant factor in approaches to penology. But the religious formulas worked out before or during the postclassical period did create a powerful legacy, helping to explain punishment patterns at the time and leaving a lingering imprint even in the contemporary world. Religions also, however, interacted with established political and social patterns. They did not alter punishments unilaterally, and the complexity of the interaction was a vital feature of the postclassical period. Further, not surprisingly, some religions had more influence over punishment than others, even in regions that otherwise seemed equally devout. Judaism

The distinction made in Jewish law between crimes of violence and those against property reflected Judaism’s religious approach to punishment, both because property crimes never led to death, given the sanctity of life in divine creation, and because murder was seen as an offense against God and required “impassioned action” to calm the creator’s “fierce anger.” “Who sheddeth man’s blood, by man shall blood be shed, for in the image of God made He man” The resulting punishments were familiar enough, depending on the type of murder: stoning, strangling, ingesting molten lead or beheading. Mosaic law also listed a variety of offenses that could lead to death besides murder, including adultery and homosexuality. With major crimes, punishment reflected both retribution and the need for deterrence. For maximum impact, the body of a person after execution was impaled on a stake for public view. The basic approach applied to crimes even when the death penalty was not involved: the severity of response would involve not only the nature of the crime, but whether it was becoming frequent—so needing greater deterrence—or easy to conceal. Repeat offenders deserved particular attention. Even if they were not killed, they might be flogged or otherwise treated in ways that might cause death. The religious basis for punishment in traditional Judaism generated distinctive arguments for punishments that were not otherwise particularly unusual. But Judaism did limit the role of social inequality in ways that were clearly atypical until much later in most other societies. Distinctions between genders still counted, and foreigners might be treated differently in law, but punishment for Jewish men in principle reflected the equality of God’s creation. Furthermore, while the emphasis on God’s wrath might justify the death penalty, the special quality of human life showed through as well. To be put to death, a person had to be tried in a court with 23 judges, the majority

70  The Classical and Postclassical Periods voting for death, and after testimony by at least two credible witnesses; these conditions were difficult to meet. And after the end of the Jewish state around 70 CE, as discussions of law evolved in Jewish communities, reluctance to put a person to death became even more prominent. Some scholars argued, in fact, that the death penalty was no longer valid at all. The philosopher Maimonides, writing in the postclassical period, urged that “it was better…to acquit a thousand guilty persons than to put a single innocent one to death.” Death sentences were still enacted by Jewish courts in the postclassical period, for a number of crimes in addition to murder, but they seem to have become extremely rare. Hinduism

During the classical and postclassical periods, the most obvious impact of the dominant Hindu religion on punishments in India centered on the purposes for which penalties were administered. There was little interest in outright retribution, in a religion that developed considerable focus on nonviolence. Exclusion and deterrence provided the main goals. Criminals might be prevented from repeating their crimes by execution, or exile, or amputations—as with the hands of thieves. And deterrence would be provided by making the punishments known, as in the recommendation in the Laws of Manu that “suffering and deformed” offenders should be displayed near public highways. Branding was also used to warn and deter. Hinduism also offered stories of the various levels of hell to which criminals might be sent in the next phase of their existence. Hinduism also encouraged criminals themselves to seek atonement. This was not part of the punishment process, which paid little explicit attention to rehabilitation, but it might operate in parallel. Indian courts also emphasized a variety of fines, to help compensate not only for theft but for some acts of violence or, for the lower castes, labor service in place of more brutal measures. There was some interest also in going easy on first offenders, simply admonishing or censuring. Further, if an individual confessed, the punishment could be lessened. It is possible, in other words, that Hinduism and its discomfort with violence discouraged the use of physical punishments compared to other comparable societies—but there is no way to be sure for this early period. And harsh measures were certainly on the books: even certain kinds of theft could result in a death penalty. Finally, Hinduism’s support for the caste system made the social gradations in punishment, and the exemption of the priestly Brahman class from physical punishments of any sort, unusually vivid. Exile was the worst fate likely to befall an offender from this class; even labor service could not be applied. However, particular caste duties also helped explain the acceptance of rigorous punishments, since most rulers came from the warrior caste

The Postclassical Period and the Role of Religion  71 which had been created, as one author put it, “for harsh deeds.” For a ruler, not to execute someone who should be killed was as great a fault as murdering an innocent person. Buddhism

Of all the major religions, Buddhism was the most uncomfortable with the process of punishment. For the religion amplified the nonviolent element in Hinduism, making physical punishments particularly distasteful. Further, with no caste system, no social gradation of punishment had any official place in the religion; nor was any particular group available with a special responsibility to be rigorous. Buddha himself did not establish any detailed guidelines for punishment, except within monastic communities. But the monastic approach itself illustrated some larger principles. An offending monk might be censured, or barred from certain kinds of speech, or demoted in rank for more serious offenses. At an extreme, a person might be banished, but only if the misdeed was serious and if the man refused to acknowledge wrongdoing. At no point, however, was physical punishment administered, and every penalty was temporary, rewarding personal reform. Even banishment could be revoked if a man repented and regained the trust of the community. Implications for a more general approach were clear. Punishment for revenge was absolutely wrong; compassion should rule at all points. A punishment should always be designed to cause the least possible pain to the community but also to the offender. Harshness damaged the person who inflicted the punishment as much as it damaged the wrongdoer. It was always important to keep the possibility of rehabilitation in mind. Buddhist views on punishment were also shaped by a larger belief that the natural process of the universe, or karma, would always punish misbehavior, limiting the need for human intervention. Further, in the next life, serious wrongdoers would be cast into some level of hell—as an example, someone who needlessly killed animals might come back as a chicken liable for slaughter. Even hell, however, was temporary: after expiation, a person could aspire to moral progress. A Buddhist philosopher in the first century CE put it this way: “Just as a son is punished out of a desire to make him worthy, so punishment should be inflicted with compassion and not through hatred or greed. Once you have judged angry murderers, you should banish them without killing them.” These general precepts could create real dilemmas for actual rulers, making it unclear what to do about crime without causing the ruler himself moral damage. Ideally, the ruler’s compassionate behavior would promote corresponding virtue among his subjects, making punishment unnecessary. If that failed, however, there was a problem. Reluctance to punish a thief, for example, might cause social damage, but harshness might promote bad

72  The Classical and Postclassical Periods behavior as well. Many stories told of rulers who realized that their response to crime might lead them to their own punishment—as one prince put it, “if I become king I will have to be born again in hell and suffer great pain there.” Another writer commented that punishment without empathy was clearly wrong—which meant no harsh punishments; but without harshness in society a ruler’s authority might be lost, with society descending into chaos. Another story told of a good Buddhist monarch who only pretended to put a group of rebels to death, but then the evildoers got together and killed the king himself. It was hard to know what was right. Other Buddhist writings, however, sought to lessen the tension by acknowledging that a ruler must punish, but can do so legitimately if he exercises compassion, always with an eye to treating criminals decently and working to help them improve their behavior. In some cases, to be sure, no punishment might be needed at all, when the wrongdoer seemed capable of reforming himself. In other cases, public shaming might be called for, or, in the case of more serious crimes, banishment (either temporary or permanent) might be essential. A few Buddhist texts even allowed for beating or imprisonment, or confiscation of property—though always with the ruler himself in a mental state of “friendliness and compassion.” Buddhism did offer various schools of thought, which might provide some leeway for rulers in practice. Whatever the variation in approach, however, it was quite clear that capital punishment, and probably mutilation, was unacceptable—incompatible with compassion and contradicting any opportunity for a wrongdoer to reform. And Buddhism did in fact lead a number of rulers to renounce executions. The Mauryan emperor Ashoka did so in 243 BCE, rejecting Indian practice, and several Buddhist emperors in Japan did the same in the 8th century CE. Overall, however, the practical impact of Buddhism on actual punishment—not only in the classical and postclassical periods, but even into modern times—was often quite limited. The standards and moral quandaries could seem simply incompatible with keeping order for many policymakers in predominantly Buddhist countries. Postclassical Thailand, for example, not only maintained the death penalty, but also developed a variety of torture devices not significantly different in basic function from similar contraptions in other regions of the world during the same period. The Buddhist impulse in punishment was real; it could have practical effects, and again this remains true today. But the historical limitations were significant as well. Islam and Christianity The two most aggressive missionary religions of the postclassical period, Christianity and Islam, brought a very different approach to punishment from that of Buddhism. For these religions, major crimes were offenses to

The Postclassical Period and the Role of Religion  73 God as well as to man, and they legitimately required severe response. Spreading in many regions where an array of physical punishments had already been established, the religions often provided further rationale for their use, and in some cases motivated additional measures as well. However, both religions also emphasized possibilities for forgiveness and compassion—not totally different from elements in Buddhism—that could suggest a different approach and could introduce some new debates into both motivation and practice. Finally, neither Christianity nor Islam definitively determined actual practices of punishment in the regions where they gained religious ascendancy: they influenced, they motivated some reforms, but secular officials often had their own ideas as well. Christianity and the Christian States in Europe

Early Christian writings did not establish an elaborate approach toward punishment, but there were important statements. Unlike the Old Testament, the books of the New Testament of the Bible did not specifically mention capital punishment. They did make it clear that God would judge the world and punish evildoers with eternal damnation. Earthly punishments paled compared to divine wrath: “Do not fear those who kill the body but are unable to kill the soul; but rather fear Him who is able to destroy both body and soul in hell.” In the final judgment, “those who commit lawlessness [will be thrown] into the furnace of fire. In that place there will be weeping and gnashing of teeth.” Some passages further suggested that earthly authorities might punish in God’s image: “Then the king said to his servants, ‘Bind him hand and foot and throw him into the outer darkness; in that place there will be weeping and gnashing of teeth.’” Against this, the most famous New Testament story about punishment, or lack thereof, featured the reaction of Jesus when he was presented with an adulteress and urged to condemn her to the traditional penalties of Jewish law. Instead, Jesus simply said, “He that Is without sin among you, let him first cast a stone at her.” Here, the emphasis was on the difficulty of certain judgment and the importance of forgiveness—for the adulteress was indeed allowed to depart without punishment. The tension between mercy and harshness was very clear in early Christianity, and never fully resolved. St. Paul’s contribution to the New Testament in the Book of Romans added a further element. On the one hand, Christians were urged not to spend too much time on punishment, but to wait for God to do the job “with his anger.” At the same time, however, Paul offered full support for the government’s right to punish. “The authorities are God’s servants, sent for your good. But if you are doing wrong, of course you should be afraid, for they have the power to punish you. They are God’s servants, sent for the very purpose of punishing those who do what is wrong.”

74  The Classical and Postclassical Periods On the whole, as Christianity gained ground, and particularly once it won the backing of the Roman state early in the 4th century, the major Christian thinkers, if they discussed earthly punishment at all, tended to accept the state’s right and duty to punish, and to do so rather harshly. St. Augustine, writing in the late 4th/early 5th centuries, made it clear that officials who “put to death a wicked man” were in no sense violating the commandment not to kill. For sin might increase if the wrongdoer was allowed to live—though he did add, with some contradiction, that it would be better if “justice could be satisfied without the taking of lives.” In one passage Augustine even justified the practice of using torture to gain confessions— if this led to death, the magistrate was not responsible for it; though in other writings, he worried about false confessions. Force must be employed not only against conventional crime, but against religious heresy. Augustine did note that perfect justice would never be possible in this world. Further, he added another interesting hesitation: punishment, even when fully justified, should give the offender a chance to try to make his peace with God before he was killed: a “criminal is supposed to be brought to a state of repentance.” And Augustine believed that the barbarity of Roman punishments prevented a convict from being in the right state of mind. The death penalty, in other words, might be necessary, but it was not optimal, and must at least be administered carefully, with the soul of the criminal taken into consideration. Writing in the 13th century, Thomas Aquinas was on the whole less hesitant than his great predecessor. Like Augustine, he talked of sin rather than crime, which was arguably an invitation to lean toward a harsh response. To be sure, the death penalty should apply only to sins that caused grave harm to others. And God’s judgment was what really counted, including his capacity to impose “eternal death” for sins. But earthly punishments were essential to bring criminals back to order, to serve justice, and to restore balance to the community. Governments had the full right to punish, though they could also decide to grant amnesty. The main goal should be restraint of sin, though an element of retribution might enter in as well. Thomas’s only plea was that the state not impose more pain than necessary, and never punish in anger—for “we should love all men.” Clearly, Christian leaders approached punishment as a necessity, linked to the larger struggle against sin, with reliance on the state and without great detail on the methods employed. The approach was complicated, however, by some concern about undue violence, the example of compassion offered by Jesus to the adulteress, and the inescapable fact that Christ himself had been unjustly and cruelly punished. In practice, as Western Europe converted to Christianity, from the late Roman empire onward, its governments had considerable latitude to develop a range of punishments, and they did so in fairly familiar fashion. To

The Postclassical Period and the Role of Religion  75 be sure, Roman spectacles were largely abandoned. The variety of death penalties also declined, and Christian beliefs may have played some role here. But penalties by death and mutilation remained common, new thinking went into instruments of torture, and the careful procedures of the Roman court system at its best were lost for several centuries. Indeed, in many parts of Europe, a new reliance on various trials by ordeal replaced more careful efforts to gather evidence. Governments in Western Europe—from monarchs to local nobles and town officials—developed a wide range of punishments. Fines and shaming continued to be the most widespread. Fines were imposed for some property crimes and business offenses, but also for minor assaults and offenses such as throwing excrement on someone’s face. Forgeries and selling shoddy goods or cheating on the weight of products usually resulted in stints in the public stocks, or pillories, where passing crowds could stare and jeer, and many communities also used the stocks to deal with various sexual offenses. Amputations responded to conviction for minor theft (fingers or hand), rape (castration) or slander (tongue). More violent measures applied to murders, major thefts, and other serious crimes. In England, hanging was the most common method for capital punishment, usually resulting in a slow death, but decapitation occurred as well, along with burning at the stake for arsonists. Simple execution, however, seemed inadequate to deal with treason or attacks by commoners on nobles and monarchs and their families. In response, a convict might be dragged through the streets before being hanged, and for treason or repeated murders, a man might be hanged but cut down before death, then disemboweled and quartered. Suspected traitors were also subject to torture to elicit confession: this could involve one of several devices, from thumb screws to suspension from a wall to subjection to the rack, which painfully stretched the body of the victim. As in other times and places, officials varied in their reliance on the most extreme approaches, and there were periods when executions eased in favor of amputations or other penalties. On the other hand, responses to real or imagined treason tended to get worse over time. A slightly more consistent change involved increasing reliance on jails. The English government began encouraging the construction of local jails from the 11th century onward, which is also when the famous Tower of London began to be built, in part to hold more distinguished prisoners as well as serving as a fortress. The Catholic Church was involved in the punishment system in several ways. In the first place, church officials were not subject to government penalties; they had their own courts. Monasteries developed a carefully graded set of punishments, which invite comparison with the Buddhist approach. Monks who misbehaved were first warned privately; then they might be exposed to public shame or excluded from meals and other common activities.

76  The Classical and Postclassical Periods

Figure 5.1 The Rack. The rack was introduced as a form of torture in postclassical Europe, used among other things during the Inquisition to elicit confessions. The illustration is from the 19th century, when the rack itself had dropped out of use. Credit: World History Archive/Alamy Stock Photo

More serious offenses or resistance could lead to excommunication from the church and banishment, though repentance was possible, and an errant monk could be allowed back three times. Whipping was also imposed for some offenses—but no more serious physical penalties. Excommunication from the church was also a powerful penalty for laypeople, even kings, who went against church teachings. All of this suggests a distinctive, and largely nonviolent, approach to punishment. Another tradition was also revealing: accused criminals might receive church sanctuary, protected from secular authorities. But this was not the whole story. Christianity and the church also extended the role of punishment in several ways. They introduced penalties for a wider array of sexual offenses than had been true in the pre-Christian Roman Empire—including homosexuality, and some of these could lead to death. Violent punishments were also established for people accused of

The Postclassical Period and the Role of Religion  77 straying from true doctrine. In the 12th century, concerned about heretical groups in parts of France and elsewhere, the church established the Inquisition, with a separate set of courts to root out religious deviants, including witches as well as heretics. These courts, operating for several centuries, could be ruthless in the use of torture, including the dreaded rack. Normally, punishment focused on requirements for penance, possibly a pilgrimage to a holy site. But more serious cases, including lack of repentance, could be turned over to a government (keeping the church free from direct administration of violence), where punishments could include death by burning. At the end of the postclassical period, and particularly in Spain and Portugal where there were new clashes with Jews and Muslims, the fierceness of the Inquisition increased. The practical contributions of Christianity to punishment were obviously varied. Deference to the state combined with some interest in curbing undue violence. The preferred penalties within the church stressed religious sanctions, shaming, and exclusion. But the concern for morality and the deep commitment to preserving doctrinal purity could lead to authorizations of torture and death. This was a complicated combination. A final ingredient was added in the 13th and 14th centuries, though it built on some trends that had already been occurring among some European governments (and also in other regions): a growing interest in the formal use of imprisonment. In 1215 the church held the Fourth Lateran Council, which paid considerable attention to issues of trial and punishment. Governments were urged to improve their own systems of justice, to be more careful in the use of evidence and testimony. The Council also stiffened the approach toward heresy and the punishment of moral offenses, while also insisting that no church official could directly administer a physical penalty. The result was something of a tension, for the church itself, between the interest in appropriate punishment and what its officials could do on their own account. Under Pope Boniface VIII, at the end of the 13th century, the church began to impose formal prison sentences for offenders under its jurisdiction—possibly the first official body in the world to do this, as opposed to using jails merely to hold offenders until some other punishment could be administered. Here was one way to reduce tensions over the administration of physical penalties while protecting the community. Islam and Islamic States

With 30 verses devoted to the subject, the Qur’an provided basic parameters for the Islamic ideas about punishment with the firm belief that God, not man, established the crucial rules of behavior. “These are the limits set by Allah, so approach them not. Thus, does Allah make his commandments clear to men so they may become secure against evil.”

78  The Classical and Postclassical Periods “Surely, He loves not the wrongdoers.” The most important laws against crime, in other words, ultimately have divine sanction, justifying severe punishments against infraction—even though they are in fact carried out by the state. Not only murder, but theft, slander, and adultery could draw the death penalty, as did the special religious crime of apostasy—abandoning the Islamic faith. “He who changes his religion, kill him”—though convicted men were given a few days to reconsider. Further, in the now-Islamic lands of the Middle East, executions continued to be carried out by traditional methods, notably stoning or beheading. For example, an adulterous couple would be given 100 lashes and banishment for one year if the woman was unmarried; but 100 lashes and then death by stoning if she was married. While some disagreement emerged among scholars about whether the Qur’an authorized beheading, there was overall consensus that strict punishments were essential to uphold religious principles and to defend against social disorder. Retribution was the most obvious goal in major punishments, justified through the belief in enforcing God’s commands. But deterrence gained attention as well, by administering most punishments in public, and in some cases, as with major theft, displaying the bodies of those executed. Minor crimes, however, including some commercial offenses, prompted greater interest in rehabilitating the offender, through more lenient sentences including fasting or giving alms; this also applied to involuntary manslaughter. The rigorous approach was modified most tellingly by other passages in the Qur’an, and subsequent interpretations from Islamic judicial scholars. Thus an eye for an eye approach might be justified—“and the recompense of an injury is an injury of the like thereof ”—but if a victim is able to forgive, and this brings about reformation of the offender, “his reward is with Allah.” This was more than an idle recommendation. Islamic communities worked hard, for example, to seek family reconciliation even in cases of adultery, where forgiveness of the sin and restoration of family harmony would make punishment unnecessary. Leniency might also be possible for a repentant person who confessed his crime before he was apprehended. Islamic legal writings frequently praised the capacity to forgive and the ability to forgo revenge, though they might also note that if punishment proves essential it is important not to be “squeamish,” for there was no question that deterrence was essential. Punishment might also lead to “spiritual rehabilitation” of the offender, another important goal. Overall, the Islamic approach to justice frequently mentioned God’s compassion: “And know that Allah is forgiving and merciful.” The result was an interesting tension, at least in principle, with the insistence on rigor. The support for compassion combined with serious concern about wrongful judgments. “If the Imam makes a mistake by forgiving, this would be better than making a mistake in punishment.” And Islamic jurists were

The Postclassical Period and the Role of Religion  79 vigorously opposed to the traditional practice of torturing suspects in order to induce confessions. It was important to have a fair trial, with guilt clearly established. Islamic courts insisted on testimony from a variety of witnesses—four men, in the case of adultery—and enhanced this by requiring all involved to swear an oath that their accounts were accurate; since God would punish a false oath, this was intended as a significant guarantee. Islam also discouraged gradations in punishment by social rank, and this too could put pressure on some regional traditions in the administration of justice. Indeed, for many offenses where the penalty was whipping, slaves received fewer lashes than free men. In practice, in the Middle East/North Africa, but also in India where an Islamic sultanate was established in the postclassical period, the nuances of the Islamic approach to crime were often lost on the political authorities, who actually took charge of the administration of justice. Islamic jurists advised and wrote, but they did not directly control the punishment process. The most obvious clash occurred over threats and beatings designed to elicit a confession. For the jurists, this was obviously wrong, likely to force clearly innocent people to claim responsibility simply to avoid pain. But for the regional administrators, there was no reason to reconsider this established tradition. “It is permitted to apply a discretionary beating to the accused […] to compel him to be truthful.” This telling disparity between principle and practice continued through the Middle East and India, and the jurists—who after all did believe in careful trials—were powerless to intervene. Other discrepancies occurred when local jurisdictions allowed some people who committed acts of violence, even murder, to avoid physical punishment through agreed-upon payments to the victim or his family. This clearly violated the idea of equal justice, for it was not a solution available to the poor, but it was widely accepted by the Islamic states where murder, though a crime, did not receive the same attention as religious and sexual offenses, or even major thefts. More generally, some Islamic jurists agreed that, for minor offenses, it was permissible to “forgive the mistakes of people of good rank.” The actual administration of justice in Islamic domains changed less than the new religious principles themselves suggested, even beyond the continued use of physical punishments including amputations as well as whipping. Jail sentencing may have increased: this was the punishment for some repeated thefts (in lieu of further amputations), and also for women who renounced Islam (in contrast to the more brutal treatment of men). Greater attention was given to punishments for crimes against religion—the issue of apostasy—and concern about sexual crimes probably increased, though it was not a new category. There was, however, some new tension about certain

80  The Classical and Postclassical Periods aspects of punishment, and the explicit encouragement to mercy might have had some real effect on individual rulers. Conclusion Motives for punishment and methods of punishment changed less in the postclassical period than one might expect, particularly given the increased role of religion and the tendency among many religious leaders to urge greater compassion. Indeed, the period could be a poster child for the general proposition that fundamental reform in punishment is very difficult—a theme that would recur in later periods as well, and even today. More was involved, however, than simple inertia. New states, in places like Japan or England, found harsh punishments essential in their effort to combat crime, and in some cases, they could copy from other societies as well. The belief that torture was a legitimate and essential way to establish guilt remained pervasive, though there were new objections. Many religions themselves were conflicted on the subject: impulses of compassion and some aversion to the death penalty warred with the belief in the importance of good order and with special venom for acts that seemed to attack the religion itself. Defense of social inequality also continued to motivate harsh reactions to offenses against society’s privileged classes. Overall, though with much variety and fluctuation, the postclassical period did suggest some effort to seek penalties that would reduce reliance on the frequency of violent punishments. While the alternative was not new, a number of societies added new details to the range of fines that could be levied for an assortment of crimes. Several governments built more jails, and while terms of imprisonment were not yet a well-established option, there were modest moves in that direction. For many communities, including rural villages, reliance on shaming procedures continued to be a major recourse, both to respond to a variety of offenses and to help deter antisocial behavior going forward. It was interesting that shame, along with possible banishment, were the principal punishment options for monastic movements both in Buddhism and in Christianity. Still, the lack of major change may be the most important conclusion about the postclassical period overall. In certain areas, some of the results of the more dramatic religious approaches would come to fruition later, rather than when they were first discussed. Tradition itself did not involve violent response alone: fines, shaming, banishments, and acts of compassion were part of the mix. But it is no accident that museums of punishment, when they cover the postclassical period, highlight instruments of death and torture—from Bangkok to London. The shock value encourages a degree of oversimplification, but it is not entirely off the mark: punishment and physical pain remained deeply intertwined.

The Postclassical Period and the Role of Religion  81 Further Reading On Buddhism, Damien Horigan, “Of compassion and capital punishment: A Buddhist perspective on the death penalty,” The American Journal of Jurisprudence 41 (1996); Leanne Alarid and Hsiao-Ming Wang, “Buddhism and the Death Penalty,” Social Justice 28 (2001); Michael Zimmermann, “Only a fool becomes a king: Buddhist views on punishment,” in Zimmermann, ed., Buddhism and Violence (Lumbini, 2006); Nandasena Ratnapala, Crime and Punishment in the Buddhist Tradition (New Delhi, 1993). On Christianity, John Bellamy, Crime and Public Order in England in the Later Middle Ages (London, 1978); Brian Innes, The History of Torture (London, 2017); Jeffrie G. Murphy, Getting Even: Forgiveness and Its Limits (Oxford, 2005), esp. Ch 9; Aiyana Willard and others, “Rewarding the good and punishing the bad: The role of karma and afterlife beliefs in shaping moral norms,” Evolution and Human Behavior 41 (2020); D.A. Hoekema, “Punishment, the criminal law, and Christian social ethics,” Criminal Justice Ethics 5 (1986); Gerard Watson, “Crime and punishment in Augustine and the philosophical tradition,” Maynooth Review 8 (1981); Henry Kamen, The Spanish Inquisition (New Haven, 1999); Norman Johnson, Forms of Constraint: A History of Prison Architecture (Urbana IL, 2000); Edward Peters, “Prisons before the Prisons: The ancient and medieval worlds,” in Norval Morris and David Rothman, eds., Oxford History of the Prison (New York, 1995). On Hinduism, Donald Davis, The Spirit of Hindu Law (Cambridge UK, 2010); Tarapada Lahri, Crime and Punishment in Ancient Hindu Society (New Delhi, 1986); Ramaprasad Gupta, Crime and Punishment in Ancient India (Calcutta, 1930); Terence Day, The Conception of Punishment in Early Indian Literature (Toronto, 1982). On Islam, Rudolph Peters, Crime and Yerushalmi, in Islamic Law (Cambridge UK, 2006); Mohammed El-Awa, Punishment in Islamic Law (Baltimore, 1993); Intisar Rabb, “Enforcement and Punishment in Medieval Islamic Law,” in Sarah McDougell and Karl Shoemaker, eds., Cultural History of Crime and Punishment in the Medieval Age (London, 2022); Christian Lange and Maribel Fierro, eds., Public Violence in Islamic Societies: Power, Discipline and the Construction of the Public Sphere, 7th–19th Centuries (Edinburgh, 2008); Matthew Lippmann, Sean McConville and Mordecai Yerushalmi, Islamic Criminal Law and Procedure (New York, 1998). On Japan, Jun Yoshino, “Law Enforcement in the Edo Period,” Japan Echo, June 3, 2004. On Russia, Nancy Kollmann, “Crime and Punishment in the Russian Empire,” Cambridge World History of Violence (Cambridge, UK, 2020). On Africa, David Dalgleish, “Pre-Colonial Criminal Justice in West Africa,” African Journal of Criminology and Justice Studies 1 (2005); R.S. Rattray, Ashanti Law and Constitution (London, 1911). On Jewish law, Victor Matthews and Don Benjamin Social World of Ancient Israel, 1250-587 BCE (Peabody MA, 1993); Haim Cohn, “Capital Punishment in the Bible and Talmudic Law,” Encyclopedia Judaica (Farmington Hills MI, 2009); Elliot Dorff, “Judaism as a Religious Legal System,” Hastings Law Journal 29 (1978).

Part III

The Early Modern Period, 1450–1800 Several major developments mark this new period in world history. The Americas were included in global trade and contact for the first time, as Europeans took control over a number of indigenous territories. The new connections also quickly emmeshed parts of Africa in the Atlantic slave trade. These changes accompanied growing initiatives by European navies and merchants in other parts of the world. Expanding levels of trade brought new profits to Western Europe, but also to the vibrant economies of China and India. This was an age of new empires. Spain and Portugal, then Britain, France, and the Netherlands, developed extensive overseas empires in the Americas and scattered parts of Africa and Asia—as with Spain in the Philippines, the Dutch in parts of Indonesia; and by the later 18th century Britain began to assert authority over parts of India. But new land-based empires also took shape, as Russia expanded, new Islamic empires—the Ottoman, Safavid and Mughal—gained control over much of the Middle East and (until the later 18th century) India, while China confirmed its imperial tradition. Rising international trade and new empires were only part of the story. Japan, which adopted a policy of considerable isolation, generated a more effective political system under the Tokugawa shogunate. Stronger monarchies emerged in key parts of Europe, where the outlines of a nation-state system began to take shape. And Europe was also profoundly affected by the growing emphasis on science and scientific discovery, and the broader cultural changes that would follow in the 18th-century Enlightenment. Many of these developments had substantial implications for punishment, though no single global pattern resulted. Rising trade generated new resources for many states, and some of these could be applied to the punishment system. New empires and stronger governments in Europe and Japan had to make decisions about punitive policies. In some cases, religious principles gained new expression as well. The expansion of empires, including the growing European colonial system, offered new opportunities for banishment. Particularly in the Americas, new colonies also imported European DOI: 10.4324/9781003427261-8

84  The Early Modern Period, 1450–1800 systems of punishment, with major impact both on indigenous populations and on imported African slaves. In Western Europe itself, new resources and new ideas generated massive though complex changes in the ways punishment was administered and discussed. The early modern period suggests the beginning of a transition from traditional to more modern systems of punishment. Leaders in many regions introduced significant changes, though they did not all point in a single direction. Discomfort with capital punishment increased in several places— though one of the most gripping images of the late 18th century, the guillotining of enemies of the French Revolution, made it clear that it was difficult to shake the hold of the death penalty. Interest in imprisonment, already hinted in the postclassical centuries, definitely expanded, though in various forms. Motives for punishment were also being rethought in some places—though, confusingly, some of the older motives gained new vitality as well. Change with complexity also applied to another established theme, the relationship between punishment and social inequality. Some new political theories attacked the notion of different punishments for different social classes, but many societies confirmed the traditional approach, while the new slave systems in the Americas began to link punishment with race.

6

The Empires of Asia and Eastern Europe

None of the governments of the major states in Asia or Eastern Europe shook off the punishment patterns they inherited from the past, though Russia made an interesting move in the 18th century. For the most part, the death penalty remained a lively option, usually enhanced by the public display of some of the corpses. Peter the Great in Russia, for example, had the heads or skeletons of executed criminals displayed, complete with signs explaining their crimes, and the Safavid Empire in Persia did much the same. Despite some ongoing concerns, the use of torture to elicit confessions remained common as well. Ironically, some states required confessions before determining punishment, in principle to guard against convicting the innocent; but the requirement could lead to brutal treatment before a trial. On the other hand, there were no major innovations in the ways the death penalty was administered, nor any great changes in the instruments of torture. This surely reflected the extent to which previous approaches already offered a range of choice, but it also suggested some shift in emphasis away from physical penalties—while still relying on them extensively. Suggesting a common theme for these varied states is risky, but it does seem true that a number of them began to devote greater attention to less violent approaches, including a new emphasis on fines, labor service, or banishment. Several governments also began to tighten central controls over decisions about capital punishment, reducing the flexibility of local officials—along lines that had already been suggested in China. Mughal emperors in India, for example, tried to make sure that capital cases were referred to the imperial court directly. A number of individual rulers, again including several of the Mughal emperors, also took pride in granting clemencies as a sign of their benevolent power. Several factors might have prompted this modest reorientation. While many of the empires were new, they built on achievements of prior regimes in the same regions; they may not have felt the need to emphasize cruelty to demonstrate control. New resources from trade and manufacturing created some wider options, such as greater investment in jails; but at the same time DOI: 10.4324/9781003427261-9

86  The Early Modern Period, 1450–1800 there was clearly an interest in taking new advantage of labor options, where criminals could be separated from normal society—the exclusion function— but contribute economically. The Ottoman Empire, for example, imposed labor service penalties—as opposed to mutilations—most frequently when they needed more sailors for their navies. Religious or personal inclinations may have influenced some individual rulers toward greater clemency—this was clearly the case in 18th-century Russia. Some officials may also have realized that too much harshness might alienate the population, rather than simply intimidate it. The notion that punishment should restore social order—not a new idea—might call for some new restraint. Again, there was no revolutionary redefinition of punishment, and each regional regime had its own style; but there were some interesting shifts in emphasis. During the postclassical period, growing Western trade brought a number of European visitors to the great states of Russia and Asia, and some took a real interest in punishment. Not uncommonly, they seized on examples of brutality, feeding a nascent and self-satisfied European belief in the cruelty of other parts of the world. But a few visitors, who paid more careful attention, reported on greater complexity, noting that many of these regions ­devoted serious attention to their systems of justice and actually limited the use of brute force. Thus, one French visitor to the Safavid empire wrote back that the emperor “cut off heads for the slightest offense.” But another, who stayed longer and was more observant, came to realize that the government was actually rather adept at keeping order; he witnessed only one execution and noted further that only the emperor could authorize the death penalty. This did little to curb European bias—it was easier to believe in barbarism— but it was almost certainly a more accurate approach. China Early modern China continued to work within the framework well established by previous dynasties, including the modified Five Punishments. In 1740, the Qing dynasty capped almost a century of work by issuing a new Great Code, trying to make sure that a punishment fit the offense that had been committed. Different levels of whipping were clarified; penal servitude might be imposed for a set period, but more serious offenses might entail exile for life—up to 1,000 miles away. The Code listed about 4,000 possible crimes, of which over 800 might result in the death penalty. However, no death penalty could normally be imposed without permission of the emperor at his autumn court, and in fact many grants of clemency resulted. No major innovation was involved, but the Code worked particularly to clarify what local magistrates could and could not do in applying punishment to the seriousness of the crime. They had great latitude to impose whippings to respond to “what which ought not to be done”—but even here, Qing

The Empires of Asia and Eastern Europe  87 authorities noted that the whips currently in use were lighter than had been the case in the past, and this was true for other instruments as well. Agents were sought with enough experience to avoid accidentally killing a suspect who was being tortured. Beyond this, most magistrates were conscientious about clarifying the facts about any criminal case. The law also sought to limit false accusations—often, imposing the same penalty on the accuser as would have been imposed had the accused been found guilty. Another interesting innovation was the imposition of house arrest for some offenders (during which they would often be handcuffed), for a set period of time. As before, it is impossible to get at the balance between frequent references to the death penalty (mainly by beheading or strangling) for a variety of property crimes as well as crimes of violence, and actual implementation. Some visitors claimed that several hundred people were executed each year, in several provincial centers as well as the capital in Beijing, but it seems likely that this was a lower rate than was common in Europe at the time. Interest in the imposition of fines (sometimes along with a whipping) and recourse to penal servitude were clearly increasing. To be sure, the most extreme form of the death penalty in China—death by slicing—was still being used, about 4.5 times a year on average under the Qing dynasty. The penalty was directed against rebellion—to try to restore order through fear at the harsh response; against anyone responsible for multiple murders (three or more); and against the murder of a superior family member—a reminder of the importance of this category in the official value system. Almost a fifth of the people killed in this way were women, a substantial rate comparatively that reflects the emphasis on family order. But at the high point of the Qing dynasty, around 1700, the punishment was in fact rarely administered, and though its use increased slightly later in the 18th century, it was still far less common than the most vicious implementation of the death penalty in Europe (death by stretching on the wheel) during the same period. Clearly, no punishment breakthrough occurred in early modern China, but the Confucian tradition of caution plus some focus on alternatives to violence kept extreme punitive reactions to a minimum. Japan Early modern Japan, not an empire but operating under the new and somewhat more centralized government of the Tokugawa shogunate, featured a more dramatic mix of old and new than was the case in China. A variety of death penalties continued to be administered, on several sites around the country, for crimes ranging from arson and murder to some serious thefts. Particularly heinous cases involved a variety of slow deaths, often in public and sometimes preceded by shame parades. More simple capital punishments occurred privately—in part in case the victims might have gained public

88  The Early Modern Period, 1450–1800 sympathy. Floggings remained common, though as before, priests and samurai were exempt; a 1720 code regularized the number of lashes and limited the total to no more than one hundred. Women, however, were sent to prison rather than being flogged. Punishments through labor service and banishment did become more popular during the early modern period. Several islands served as penal colonies, with prisoners tattooed so they could not easily escape. More serious crimes could lead to service in the gold mines. Women were sometimes forced into prostitution as their labor service. In 1603, the government established a small jail, holding 300–900 people in crowded conditions—socially segregated so the lowest classes had the most cramped locations. For the most part, the jail aimed at holding people whose cases were being investigated or who were awaiting punishment, but a small number of offenders were sentenced for various periods of time, or even life. These were people convicted of crime but who deserved some special consideration—though the government worked to keep the numbers low because of the cost of upkeep. In the 18th century the government also set up detention centers for the growing number of homeless people, and instituted rehabilitation efforts for those who could rejoin the labor force. These experiences, though not involving prisons in the modern sense, provided precedents that would later facilitate a fuller system. Finally, at the end of the 18th century, a number of Japanese writers began advocating punishment reform in Japan, urging against using crucifixion and boiling oil in the administration of the death penalty as well as suggesting more spacious prison conditions. Ottoman Empire Several patterns were noteworthy in this vast new empire, including considerable internal variety and substantial tolerance for separate religious court systems for the Christian and Jewish minorities. Commitment to capital punishment was one clear theme, though it could easily be exaggerated by foreign observers. At least as important was an interest in modifying the strictness of Islamic law and in placing greater reliance on fines and labor service. Capital punishment, mainly—though not exclusively—by beheading, and often with public displays of victims to intimidate a wider public, applied to a number of situations. The sultan’s court was one setting. Sultans frequently faced rivalries with younger brothers (a result of a father’s multiple wives and concubines), and it was tempting to simplify the situation by killing them off. One new sultan, late in the 16th century, had 19 infant brothers killed. Acts of this sort did create a public backlash, and many later sultans sought to replace execution with secluding their rivals. (It was also noteworthy that

The Empires of Asia and Eastern Europe  89 executioners were shunned as well as feared by the public, and not allowed to be buried in the normal cemeteries.) But the use of capital punishment remained an ongoing issue. Executions might also be implemented to discipline corrupt or ineffective officials. Finally, capital punishment might respond to a particularly heinous crime of violence or theft. In one case, an attack by a gang of non-Muslim vagrants that left a Muslim family dead led to the execution of 800 people. Endemic problems of highway robbery, piracy or brigandage also prompted periodic executions; so did some cases of heresy or apostasy. Finally, the use of jail time or torture to elicit confessions in advance of any formal punishment remained widely accepted. However, the use of brutality might easily be exaggerated, as it was by some hostile European visitors, and it almost certainly declined over time. In the mid-18th century a British visitor, aware of the Ottoman reputation for bloodthirst, wrote that he had witnessed very few executions, and that these were “performed…in the least cruel manner.” Particularly after the early decades of the empire, sultans became eager to burnish their reputations as providers of justice—one was proudly known as “the Lawgiver”—and many worked hard to live up to their aspirations. While they could still justify harsh punishments “to protect society from persons whose acts constitute a danger to law and order,” this was not the main focus. Considerable effort went into limiting abuses by lower officials: only sultans and their immediate subordinates could authorize the most serious penalties; other officials were restricted to mandating fines, whippings, or labor service. The sultan also received various petitions for leniency. With rare exceptions, imperial officials were not inclined to levy harsh punishments for sexual offenses, though a man who raped or abducted a woman could be castrated. Islamic law itself, while punitive in this area, already established limits on official action through the need for abundant witnesses and confessions, but Ottoman authorities went further. Prostitution was rarely punished, nor was lesbianism. Acts of adultery led to fines, and sometimes a requirement that the offender divorce his partner. In an interesting twist, a man who wanted to stay with an adulterous wife had to pay a fine. While punishment by stoning may still have occurred, it was quite rare. Both officials and communities also relied extensively on public shaming, for thefts and business fraud as well as sexual transgressions. From its early days, Ottoman officials were eager to increase the utilization of fines—for many kinds of theft, acts of violence (sometimes even murder), as well as sexual offenses and alcohol use. In some cases, fines were imposed along with whipping. But the main goal was to “inflict discretionary punishment by taking money.” The result provided an important stream of revenue, though it also lined the pockets of corrupt officials. Indeed, abuses of the fine system led to limitations by the 18th century. But the option continued to reduce the need to depend on fiercer penalties.

90  The Early Modern Period, 1450–1800 Labor service was another viable option, and became the most common punishment for theft. Imposition of labor service—often in the navy—increased in the early 18th century both because theft rates seem to have risen, and because of heightened labor needs. Here was another contribution to the apparent decline of reliance on outright corporal punishment after about 1700. The Ottoman interest in developing a number of punishment options, without renouncing more extreme measures, created a distinctive mixture, clearly at odds with the reputation Western critics sought to construct. The mixture was also consistent with some subtle changes over time. Russia Two trends in early modern Russia encouraged new rigor in punishment: the efforts of the czars to solidify their authority at the top, and the increasing control many landowners wielded over their serfs. Almost certainly, the harshness of punishments increased during the 16th and (particularly) 17th centuries, with public displays intended to discourage further wrongdoing. Many Russian executioners were former criminals, spared in return for training for this grim profession. A law code of 1649 clarified the application of the death penalty for crimes ranging from treason to heresy to witchcraft, usually by beheading; but witches and heretics were burned. Punishment might also include banishment, branding, and bodily mutilation. Use of the knout—an unusually thick and painful whip, which removed bits of flesh with every administration—was a Russian specialty, and it often killed even when no death penalty had been pronounced. This was the fate of Peter the Great’s eldest son, tortured on his father’s order. Peter the Great also imported some new torture equipment from Western Europe at the end of the 17th century, including the wheel, as new ways to administer death. A new set of rules in 1715 enhanced the use of torture and corporal punishment. Landlords were also given substantial powers to punish errant serfs, and in some cases, they imposed death. The situation was compounded by the fact that Russia did not develop a legal profession, complicating defense of those accused of crime, while the court system itself was not entirely independent of government administrators. Law was intended primarily to serve the state and the upper class. The system was not changeless, however, which is where Russian patterns (by the mid-18th century) made some contact with the hesitations common in some of the other early modern empires. A new and pious empress Elizabeth (daughter of Peter the Great) (empress 1741–62) effectively abolished the death penalty, through a vow “before the image of the Savior.” Her move was largely confirmed by the next major ruler, Catherine II (the Great), after a few executions for rebellions against the state—acts which she said were

The Empires of Asia and Eastern Europe  91 not only crimes, but “disgraces abominable to God.” Two rebels who drew short straws were killed, but the rest were subjected to the knout or sentences of hard labor. In continuing to regulate punishment, Catherine frequently referred to religious principles and clearly sought to win public favor through piety and clemency: one announcement stressed the “unprecedented mercy of our sovereign, exceeding all mortals’ and resembling the one God’s in the effusion of its bounties.” Instead of the death penalty, Catherine emphasized branding thieves or having their nostrils slit or beating with the knout followed by labor service. The empress also clarified that the knout was not to be used on nobles or priests. Again, her professed policy emphasized “mercy, not sacrifices,” and there was some effort also to limit the penalties which landlords could impose on serfs, particularly with regard to death penalties. Imperial officials sometimes investigated the treatment of serfs where a death had resulted. To supplement the punitive approach the government began emphasizing the importance of religious penance. Catherine, for example, ordered one woman, who had probably committed murder, to spend a year in a convent, permitted only to talk with her priest. A number of women accused of sex offenses were sent to convents, and many male prisoners were dispatched to monasteries—often in distant places like Siberia—where they were put to hard labor, sometimes on bread and water rations. In effect, the government made use of monasteries and convents as though they were prisons, hoping that an inmate would “feel the crime in his heart and thoroughly mend his ways” through fear of God. The idea of redemption, or in modern terms rehabilitation, was an important addition to the punitive approach. Not surprisingly, many religious officials complained about this unexpected, and expensive, burden that this shift imposed. In addition to the use of monasteries and convents, the Russian state also exiled many prisoners directly to labor service in Siberia, where their work was meant both to remove offenders from normal society and to further the settlement and the mining economy of the Far East. The practice began tentatively in the mid-17th century, but accelerated steadily after 1700. Exiles included both serious criminals and people convicted, sometimes by their local village, of more minor offenses such as fortune telling, illegal cutting of trees, or family violence. Growing use of exile helped reduce the frequency of severe corporal punishments—though a fair number of exiles died in their new setting. This was a somewhat unusual moment in the history of Russian punishment in the latter part of early modern period, though the reminder of religious concerns and the effort to use mercy to gain popular acclaim were not uniquely Russian themes. There was no full reconsideration of physical punishments, and although Catherine contemplated a sweeping abolition of the

92  The Early Modern Period, 1450–1800 death penalty this did not occur. The episode does serve as a reminder of the mixture of motives and policies that contributed a sense of flux to punishments in many early modern states. Conclusion The combination of emphasis on severe physical punishments with frequent mitigations and alternatives was not new to the early modern period, but it arguably became more complex in the centuries before 1800 in many of the great states of Asia and Eastern Europe. Growing exploration of fines, labor service, and outright imprisonment showed real interest in a greater range of options. Motives varied, from simply wanting to earn money or provide manpower (as with the Ottomans) to a real desire to gain credit with the public by displaying a merciful justice (Russia, the Ottomans again). The impulse to limit the rights of lower officials to exact the most severe punishments was also widespread, even in China where it built on earlier precedents. Many early modern societies may also have been reacting to some new issues resulting from increasing commercial activity and some population growth (though these factors applied less to Russia at this point). More trade created new resources but also may have displaced some people from the countryside, leading to more property crime (as the Ottomans experienced) or a growing number of vagabonds (the problem to which Japan responded). These factors may have served as a further stimulus to begin thinking about new approaches, at least to supplement established methods of punishment. The results were not entirely coherent, and they certainly varied from one region to the next. But, along with some new interest in reconsidering the bases for punishment, as in Japan, they do suggest a new openness to change and limited experimentation. Arguably, the same pattern also applies to Western Europe in the same period—the subject of the following chapter. European historians have long emphasized the innovations in the institutions and ideas applied to punishment in the early modern centuries, and there were certainly a number of important developments. But was the European pattern distinctive, or a variant of the themes visible in a number of other societies in the same centuries? There is room for debate. Further Reading On China: D. Bodde and C. Morris, Law in Imperial China (Philadelphia, 1973); Jonathan Spence, Death of Woman Wang (New York, 1979); Jerome Bourgon and Julie Erismann, “Figures of Deterrence in Late Imperial China,” Crime, History, and Societies 18 (2014).

The Empires of Asia and Eastern Europe  93 On Japan: David Botsman, “Punishment and Power in the Tokugawa Period,” East Asian History 3 (1992); Jun Yoshimo, “Law Enforcement in the Edo Period,” Japan Echo, June 3, 2004. On Russia: Nancy Kollmann, Crime and Punishment in Early Modern Russia (Cambridge UK, 2012); Elena Marasmova, “Punishment by Penance in EighteenthCentury Russia,” Kritika: Explorations in Russian and Eurasian History 17 (2016). On the Ottoman Empire: Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (Cambridge UK, 2005); Baki Terzcan, The Second Ottoman Empire: Political and Social Transformation in the Early Modern World (New ork, 2010); Fariba Zarinebaf, Ottoman Punishments: From Oars to Prisons (Berkeley, 2011) and Crime and Punishment In Istanbul, 1700–1800 (Berkeley, 2019); Metin Cosgel and others, “Crime and punishment in ottoman times: Corruption and fines,” Journal of Interdisciplinary History 43 (2013).

7

New Prisons and New Ideas in Western Europe

Between 1700 and 1900, major changes in punishment occurred in almost every part of Western Europe. In many regions these changes were arguably greater than anything that had happened in this domain since the creation of organized states. While some of the shifts built on factors that had also emerged in places like Japan and Russia during the 16th and 17th centuries, all of them were partly spurred by developments that first occurred in Western Europe. For Western Europe, in turn, the seedbed for change was the early modern period itself, though many of the reforms themselves would be more fully realized after 1800. A combination of new problems and new resources— not totally different from factors in other parts of the world; new institutions; and new ideas set the basis for a partial revolution in approaches to punishment. Yet European patterns in the early modern centuries were not clearcut, which helps explain why change, though real, would also be complicated. As late as 1750, and well beyond in many countries, Europeans were still using most of the punishment methods that had been developed earlier—the same ones, in broad outline, employed by other major states. New approaches were gradually added into the familiar mix, and ultimately created greater opportunities for more dramatic ideas. Only in the 18th century, linked to the broader intellectual currents of the Enlightenment, would the ideas themselves blossom, creating pressures for reform and rethinking that remain vigorous in the world today. The argument that a revolution in punishment was prepared by developments in the West by 1800—though not yet fully carried out—will be a complicated one. First, unsurprisingly, many old motives and methods lingered. A wide variety of punishment patterns coexisted during most of the early modern centuries. Second, while reformers truly believed that they were bringing progress, the claim must be carefully debated: undeniably new methods may have been worse than what they replaced. Third, Western actions in the wider world, particularly as Western imperialism expanded its DOI: 10.4324/9781003427261-10

New Prisons and New Ideas in Western Europe  95 reach, often contradicted the approaches being urged at home, creating problems and disparities that still leave their mark on the 21st century. Corporal Punishment Emphasis on brutal punishments in many ways increased in various parts of Europe during the 16th and early 17th centuries. A number of kings worked to expand their power. The Protestant Reformation introduced bitter new religious strife; civil wars killed millions, and the tensions spilled over into punishments as well. England’s Henry VIII introduced a number of new measures in the first decades of the 16th century. He allowed capital punishments to occur on Sundays, and he added boiling to death, hanging, and beheading as methods of execution. He sentenced several of his wives to death by beheading, after confinement in the Tower of London, and more generally he began to extend the death penalty to various kinds of robbery as well as abduction and murder. A Whipping Act in 1530 was applied to vagrants. Both in England and in Scotland, amputations and disfigurements were common for a variety of crimes, including failure to attend church. In some serious cases, family members were executed along with the accused criminal himself—in one instance, a father had to watch his son put to death before he himself was quartered. As in so many other societies, many punishments were carried out before a public audience, and indeed major executions served as a form of diversion before excited, jeering crowds—though punishment as spectacle was even more common on the European continent. Public hangings, however, were so common in London that in 1724 a new grandstand was constructed to provide better seats. The performance aspect of European punishment was most obviously intended to deter crime by others, but it also could take on religious significance in light of Christian veneration for the suffering of Christ; many historians have argued that witnessing public punishments helped create a sense of community, though the entertainment factor was present as well. Various European governments introduced new penalties for financial crimes, as the European economy became more commercial. Italian citystates performed amputations on counterfeiters, often followed by banishment and fines. Torture remained common as a means of inducing confessions, for a range of property crimes. Religious disputes directly inspired both death and torture. Eager to prevent the spread of Protestantism, the Spanish Inquisition put at least 3000 people to death between 1550 and 1800. Protestant courts could also viciously oppose what they saw as heresy. In a famous case in 1553, a Spanish doctor, Michael Servetus, who publicly proclaimed his disbelief in the Trinity as opposed to a single God, was sentenced to death by a court in Geneva.

96  The Early Modern Period, 1450–1800 John Calvin, the Protestant leader, supported the sentence but advocated a simple beheading, but the Geneva Council overruled him and had Servetus burned at the stake. A wave of witchcraft fears spread through many parts of Europe, the result of social tensions as well as religious strife. Mainly between the 16th and mid17th centuries, as many as 40,000 to 60,000 witches were put to death, mainly by burning. Of these, 80% were women, mainly older women as conceptions about the most likely sources of malevolent power shifted toward this group. Early modern Europe did not sponsor many novel methods of torture and execution, but there were ample opportunities for cruelty. Death by the wheel was one of the most awful forms, as a heavy wheel was dashed repeatedly against the victim, breaking leg bones and then moving up the body— after which the corpse might be publicly displayed. While most obviously used against murderers, death by the wheel was also applied to highwaymen and other robbers, particularly in the 18th century when these crimes were on the rise. Women convicted of murder, including infanticide, were often drowned. Treason or direct attacks on a monarch often led to quartering, sometimes preceded by disemboweling. The last instance of this sort occurred in France in the mid-18th century, in Britain in 1803. For lesser crimes, public floggings were common throughout Europe, sometimes administered in the same spots where executions occurred, sometimes elsewhere. In the Netherlands, executioners sometimes carried out a series of beheadings, whippings, and brandings on a single day, usually beginning—perhaps mercifully—with the executions. When crime surged, most European rulers continued to believe that the proper response was a corresponding increase in death penalties and corporal punishment. Between the late 17th century and 1800, the British government expanded the number of crimes subject to the death penalty from around 50 to over 200, in what has been collectively called the “Bloody Code.” Death penalties could now apply to: stealing from a shipwreck; going out at night with a blackened face; pickpocketing goods worth a shilling (in today’s money, about $40), stealing from a rabbit warren, wrecking a fishpond, cutting down trees without authorization, forgery, (for women) concealing the birth of a stillborn child—as well as murder or arson. In this case, at least, though the response is intriguing, it did not clearly lead to a surge in actual death sentences—for the rate may actually have declined. English courts and juries were actually reluctant to inflict death so cavalierly. In some cases, for example, they actually reduced the stated value of a theft so it would fall under the death penalty minimum. Some new hesitations seem to have been emerging, along with the more predictable impulse to punish in familiar ways. Yet, as if to remind that change was not straightforward, in 1751 the British also passed a new Murder Act, in principle requiring that the bodies of executed murderers be publicly dissected or displayed in chains.

New Prisons and New Ideas in Western Europe  97 But the traditional impulses were not confined to physical responses. Shaming practices remained vigorous throughout Western Europe, and here too may actually have intensified during the early modern centuries. Use of the public stocks and pillories continued, as did the practice of requiring some people to wear a distinctive item of dress, like a special letter, to denote a sexual offense like adultery. On top of this, many European villages began to encourage groups of youth to surround the house of a presumed offender, jeering or banging on drums or pots and pans to dramatize community shame—a practice known as charivari or “rough music.” Real or imagined sexual offenses were probably the most common target, but this could include attacks on a widow who seemed too eager to remarry or a man who married a much younger woman; but husbands who beat their wives could also be singled out. In Scotland the practice might include branding an offender. Clearly, many Europeans, from governments down to community leaders, believed that tightening the traditional network of punishments, with a few embellishments added in, was a vital means of responding to the tensions of a rapidly changing society. Corporal punishment was the most obvious, and arguably painful, manifestation, but other means of enforcing conformity were brought to bear as well. Penal Colonies Essentially traditional responses were increasingly supplemented by newer measures, seeking to address the kinds of crimes or social threats generated by rapid commercial and cultural change (and, by the 18th century, unprecedented population growth). Europe’s expanding global position created new opportunities, particularly to utilize one of the oldest impulses in punishment—the exile—at an unprecedented scale, but at the same time to connect it explicitly to labor service. European colonizers were not alone in this practice—the Japanese were experimenting as well with some of the offshore islands, for example—but they operated on an unusually wide scale. The option was complicated. It had the obvious merit of getting criminals out of the way, in some cases permanently—arguably the oldest punishment motive among human communities. It might seem less cruel than corporal punishment, though that could be debated—and this angle was particularly attractive by the 18th century. It met huge labor needs in many of the expanding colonial holdings—perhaps the most compelling incentive. But it also could be seen as a move toward rehabilitation, giving criminals and beggars a chance to perform productive service and, possibly, to return to more normal lives. Many of these motives were essentially contradictory, but the combination helps explain why the recourse was increasingly utilized in early modern Europe and then, sometimes on an even wider scale, in the 19th century.

98  The Early Modern Period, 1450–1800 There were downsides. Arranging transportation and managing penal settlements required some upfront investment, which is arguably why the option became possible only by the 15th–16th century when European prosperity began to increase. Local inhabitants might resist these dangerous interlopers; this was the reason that a French attempt to send prisoners to Louisiana in the 18th century fell through, because other colonists objected. Opportunities for escape or even collective resistance also factored in. Nevertheless, the option commanded growing attention in early modern Europe, explored to some extent by officials from Sweden to Spain. Overall, it has been estimated that at least a million convicts were exported, though this includes tallies after 1800 and some non-European countries as well; the actual numbers were quite probably higher. Spain began using prisoners for galley service in its navy from the 15th century onward—a sentence that meant death for many, given the harsh conditions involved. Then by the 16th century, sentences began to include work assignments in Spanish holdings in North Africa, the Americas, and the Philippines; here, convicts lived in closely guarded presidios and did construction and repair activities on fortifications, sometimes working in chain gangs. Concern about desertion and rebellion constrained the types of offenders who were sent out; most of the convicts involved at this point were smugglers or vagrants. The Spanish also began selling some prisoners to private owners in the Americas, where they worked in mines or factories— again, a function of the same need for cheap labor that motivated the slave trade. At the end of the 18th century, again desperate for workers to improve fortifications in Cuba and Puerto Rico, the Spanish expanded their export of convicts; several hundred were working in both of these locations at any given time, where their labor was often cheaper than that of outright slaves. Death rates were high given the hard work and confined, dirty housing. Some convicts were actually returned to Spain after completing their sentence, though results were haphazard. However, by this point, labor needs plus growing concern about the cruelty of standard punishments expanded the pool of potential assignees, even including some murderers whose sentences were commuted. By the later 18th century the Spanish also began talking of labor colonies for their potential in rehabilitating criminals. To this end, authorities began clarifying the duration of assignments, at one point agreeing to a maximum of 10, and then even 6 years—but this effort met with objections from colonial authorities who needed more workers. French policies were more hesitant in the early modern period—they would blossom in the 19th century—but there were some efforts, as in Spain branching out from the use of convicts on naval galleys. In 1543, 50 convicts were sent to Canada to aid in the colonization effort. In 1627, a trading company was allowed to capture vagrants and beggars for 6-year terms of

New Prisons and New Ideas in Western Europe  99 service in the colonies. A few decades later some female convicts were sent to Canada to marry local settlers. A 1763 law allowed parents to send rebellious children to a penal holding off the island of Guadalupe, to restore family tranquility; 57 had been assigned four years later. The plans to send some prisoners, migrants, and prostitutes to Louisiana did not materialize, but with the French Revolution, penal colonies gained new interest as a more humanitarian way of dealing with convicted criminals. A 1791 measure aimed at sending some repeat offenders to a penal colony in Madagascar, though naval warfare with Britain blocked this effort in the short run. Again, French interest would expand in the following century. Britain exploited the export of prisoners for labor service far more enthusiastically. Even more than with Spain, the practice clearly helped solidify colonial holdings by clearing forests, building infrastructure, and generally extending settlement. Rather than build penal colonies, however, the British initially focused on exporting convicts for sale to local landowners or others, for terms of service. The practice began in the 17th century, initially focused on holdings on the Atlantic coast of North America. It was regularized and encouraged by the Transportation Act of 1717, which established a 7-year sentence for a variety of petty crimes. Before the American Revolution, at least 52,000 convicts had been sent to Maryland and Virginia alone. An effort by Virginia colonists to block the practice was nullified by the king. Benjamin Franklin would later suggest that Americans should send rattlesnakes to Britain in retaliation. On the other hand, an 18th-century British novel, Moll Flanders, deliberately portrayed the policy of sending convicts to America as a humanitarian alternative, allowing criminals to construct a new life. The most obvious attraction of the policy of transporting convicts was its combination of removing criminals while offering vital service to a number of labor-starved colonists. The policy had varying results for the convicts themselves. Many were mistreated in the passage to America, for shipowners had scant motivation for careful handling; several thousand perished from smallpox and other diseases. Many were put to work clearing land; for example, along the Potomac and Rappahannock rivers in Virginia. Because their assignment was not permanent, they could, in principle, ultimately return to Britain, but many actually chose to stay. Most of the convicts had been involved in rather petty crimes—though it is vital to remember that England was not treating many crimes as minor at that point. Theft of a silk handkerchief, other petty theft, prostitution, or lewd behavior, or even for some women, going out after 10 at night, along with simple vagrancy, were characteristic offenses. However, some murderers were given the labor export option; one initially insisted that he would rather be killed than go to “No Man’s Land” in North America, but the British court finally persuaded him. One woman who had engaged in a

100  The Early Modern Period, 1450–1800 variety of deceptions in Britain managed to continue the practice once exported to the American colonies, socializing with high society in Boston. Obviously, a variety of patterns were involved, from grim to amusing. Aware of colonists’ objections in Virginia and Maryland, the British attempted a more systematic effort in Georgia. This, the last of the British colonies along the Atlantic coast, was established in 1732 expressly to receive people convicted of minor crimes and debts. In fact, relatively few offenders were actually sent, as the colony soon served a wider population. The American option was cut off, however, in 1782, after the successful revolution, at a point when minor crimes and imprisonments were increasing rapidly in the home country. This quickly led to a more massive effort directed toward Australia (from which a small number would later go to New Zealand), that would extend into the following century. Between 1788 and 1869, about 162,000 convicts would be sent to various penal colonies in Australia alone where, even more than in Maryland and Virginia, they would form a crucial part of the whole settlement effort. Indeed, the first fleet of British settlers to Australia included a substantial convict group, landing in Botany Bay in 1788, but soon shifting to a more promising location that would become Sydney. The British government had been casting about for an alternative to North America, and recent explorations of Australia plus eagerness to preempt possible French settlement prompted the decision to rely significantly on convict labor. Several features of the programs simply transferred from the American venture, including high rates of death and illness from the long voyage and poor conditions in the new settlements. Terms of service were usually for seven years, and the criminals involved had mainly been charged with relatively petty crimes, though some political dissidents were sent as well; about 15% of the convicts transported were women. Only after 1830 did criteria broaden to include some more serious crimes. Finally, as in North America, free settlers rather quickly began to object to the continuing import of convicts. There were however some distinctive features of the Australian venture. Rather than fanning out for labor service to others, convicts worked in designated penal colonies; in several parts of Australia, under military supervision. A number of the convict settlers proved recalcitrant, and stricter conditions were created in a few penal colonies, ultimately including an isolated part of the island of Tasmania. As in North America, however, once freed, many convicts stayed in Australia—it is estimated that about 20% of the current population has some convict background, which has become something of a point of perverse pride. The Australian penal colony process would continue into the 1860s, when the British finally yielded to pressure from the free Australian population and ended the operation. European use of penal colonies formed an important chapter in the history of punishment and of empire building alike. It utilized but transformed

New Prisons and New Ideas in Western Europe  101 more traditional reliance on exile, obviously reflecting new labor needs, new domestic pressures from rising petty crime, but also some new eagerness to find alternatives to traditional corporal discipline. The same combination went into another major innovation, the gradual introduction of formal imprisonment. Emergence of Modern Prisons Many societies had built structures to house prisoners, or had created dungeons within the walls of castles. This is where torture might take place, or where presumed criminals might be held before trial or awaiting penalty. In some cases, as in China, where the delays stretched on, the prison stay might itself be accepted as punishment. In Italy, the papacy had explicitly introduced the idea of prison terms in the territory it controlled around Rome. It was in Western Europe more generally, however, that the notion of building more substantial jails and using prison as a major punishment option developed most clearly. This was not, however, the result of a grand plan, though it did ultimately serve the interests of leaders who were uncomfortable with too much emphasis on bodily pain. Rather, the use of prisons emerged gradually from structures introduced to hold a growing number of vagrants and beggars—not outright criminals (though some thieves were involved as well), but potentially dependent on criminal activity for survival. In many places, prisons also held debtors—sometimes in separate facilities, sometimes mixed with convicted criminals—which added complexity to the purposes of imprisonment and often contributed to massive overcrowding as well. An early center emerged in Amsterdam at the end of the 16th century. Over the next several decades the Amsterdam facility actually attracted visitors from a number of other countries, suggesting that the problems it was trying to address were widely shared—along with a desire to get beyond some of the more established punishments. The basic motivation for the new efforts in Amsterdam and elsewhere was a combination of a growing population of vagrants entering the cities and a new concern about propertyless poor people as undesirable and dangerous. The sense of a rising threat to public order required a new response, for the more traditional impulse—shipping them to other localities—simply transferred the danger. Some kind of new institution seemed essential. The Amsterdam facility, a new kind of workhouse, was launched in 1596, soon matched by a similar structure for women. The center for men was called a rasp house, because the inmates were put to the arduous task of rasping wood into sawdust that was then used as an ingredient of paint. Heavy labor was a core component, distinguishing this institution from the holding jails that had existed previously. It also served to help defray

102  The Early Modern Period, 1450–1800 expenses. Inmates were mainly beggars (and in the case of women, prostitutes) who needed to be put to useful work. In the 18th century a secret room was added for prisoners who might have otherwise been put to death for crimes like sodomy. By the 17th century, assignment to the facility began to be regarded as a punishment more severe than a whipping, but less than exposure on the public pillory. It had the merit of preventing its inmates from committing crimes while they were institutionalized, the classic prevention goal, while contributing a useful product and, possibly, reforming some of the convicts as well (though an early impulse to have Protestant preachers talk with the inmates was abandoned). The cruelty of corporal punishment was largely avoided, though disorderly inmates might be whipped—custodians sometimes referred to them as “wild people.” Incarceration also reduced the element of shame common in so many other punishments. Visitors could come to gawk, for a fee, but this was not a fully public punishment, another interesting new element. By the late 17th century 37–50% of all sentences handed down by the Amsterdam courts—aside from fines—involved incarceration for a set term. Five years or more was the most common duration, though in fact many inmates served shorter stints—an early example of time off for good behavior. Obviously, jail sentences continued to compete with more traditional corporal punishments, including executions; this was not a full conversion. But the innovation was striking. By the 17th century this kind of facility—initially a workhouse, then a prison—had been set up in other Dutch cities, and also in Austria, Germany, and Britain. France lagged a bit, because it still relied on labor service in naval galleys and dock work, but by the 18th century the galleys had been retired, and local governments began investing in prisons. Other kinds of holding institutions persisted in many places as well. The palace of the ruler of Venice had seven rooms used to hold well-born prisoners convicted of political or sexual crimes. Newgate Prison in London, the largest in the city with 300 inmates, mainly contained prisoners waiting to be shipped abroad or simply put to death in the prison courtyard; it had two main sections, one for inmates who could pay for better treatment, the other for commoners crowded in conditions so bad doctors would not enter the premises. Again, the process of change was messy and uneven. But the future rested with the newer kind of prison and with the idea of using jail time itself as a major punishment option. By the late 18th century, in fact, discussions of prisons spread in a variety of circles, forming part of a larger current of punishment reform. British authorities, for example, began debating the possibility of playing down the hard labor aspect and any kind of public viewing in favor of greater isolation, which would encourage offenders to confront their inner selves with

New Prisons and New Ideas in Western Europe  103 the goal of personal reform. In 1779 parliament passed the Penitentiary Act, which envisaged constructing two large buildings “in which convicted felons would be imprisoned at hard labor.” While the labor reference was telling, the choice of the word penitentiary was revealing as well. The term had been introduced to the English language several centuries earlier to refer to religious structures where people—not criminals—could reconsider their lives and repent from sin. The idea of applying the term to the treatment of convicts suggested a new interest in personal reform and rehabilitation. (In the long run, the penitentiary term and its new implications would be taken up most eagerly in the new United States. In one of those history-ofwords ironies, in the federal prison system today, the penitentiary level applies to the most hardened and high-risk convicts, who are not in fact given much opportunity to rehabilitate. But that is part of a later story.) The British measure was not carried out. It remained more attractive to send convicts to other places or to hold them in prison ships (the Hulks) in Britain, or in one case the West Indies. Existing prisons were often haphazard affairs, with jailers depending on what they could extort from prisoners to support themselves. But local officials did begin working on improving some facilities in the 1770s, addressing sanitary conditions and promoting visits by clergymen; and the pace of local prison construction accelerated as well. To be sure, authorities still referred to the importance of “labor of the hardest and most servile kind” to punish “the more enormous offenders,” in the interests of retribution and deterrence. Food should be inexpensive, and inmates made to wear distinctive clothing that would humiliate them and facilitate discovery should they try to escape. But the notion that moral advice might provide correction became more popular as well, in what was clearly a mixture of motives. And the use of jails was increasingly touted as a way to avoid the “cruelty of capital punishment.” The Philosophers Weigh In Punishment had long been a topic for political philosophers, as the interest from classic figures like Confucius and Plato suggested. But in the 17th and 18th century, attention ratcheted up in a number of West European countries, ultimately generating some striking innovations. The basic spur was the chaos of over a century of religious warfare, which prompted new philosophical concerns about the nature of political and social order. Thomas Hobbes, writing in England in the aftermath of the 17thcentury civil war, was eager to defend the right of the state and its sovereign. Accordingly, punishment was essential, “an Evill inflicted by publique authority.” Further, it was vital that the punishment be sufficiently severe that it outweighed any benefit of breaking the law; and it must be public, to provide deterrent effect. This said, however, Hobbes also insisted that the state had no

104  The Early Modern Period, 1450–1800 right to inflict “cruel and unusual” punishment, nor was private retribution lawful. The whole issue of punishment was being held up for new scrutiny. Discussion continued in the late 17th and early 18th centuries. John Locke agreed with Hobbes that governments had the right to punish, because individuals, in forming the state, had given over to it their punitive rights. The state’s range of legitimate punishments was considerable, aimed at deterrence but also reparation. At the same time, punishment could not violate the natural rights of individuals; because it inflicted pain, it was always morally troubling. It must be administered carefully, not “according to the passionate heat or boundless extravagancy” of any official. It should be crafted “so far as calm reason and conscience dictate” and according to the nature of the transgression. Writing decades later in the 1740s, the French Baron de Montesquieu pressed further, with more concern about limiting punishments than in defending the rights of the state. For him, “the citizen’s liberty depends principally on the goodness of the criminal law.” To be sure, punishment was essential to combat crime, but its severity should be carefully considered lest it infringe on the natural rights of individuals: contemporary punishments were clearly excessive. Montesquieu barely granted the legitimacy of a death penalty, seeing it as a remedy “for a sick society.” More specifically, the French philosopher disputed the idea of punishing for religious offenses of any sort, and argued against the use of torture to elicit confessions. The greatest Enlightenment treatise on punishment, building on these kinds of precedents, came from the Italian jurist Cesare Beccaria, whose work, widely translated, captured immediate attention throughout the Western world. His 1764 book On Crimes and Punishments, written when he was just 26, quickly became a bible for punishment reform, the origin as well of the disciplines of penology and criminology. It was initially published anonymously, for fear of attack, and indeed the Catholic Church quickly condemned it, but Beccaria quickly became known as the leader in this vital facet of Enlightenment thought. The book’s starting premise was by this point standard reformer fare: “If every individual is bound to society, society is equally bound to him, a contact which from its nature equally binds both parties.” Punishment, in consequence, must take both social and individual rights into account, and any penalty that is the slightest bit beyond a level necessary to deter further crime is tyrannical and illegitimate. If any degree of severity could not be shown to be useful in preventing crime, it was contrary to “enlightened reason and justice.” Several conclusions followed. Punishments must be determined by laws, not the whims of individual rulers or judges. They must be clearly spelled out, so people know what the rules are. Judgments should be rendered quickly, for maximum effect—swiftness is more important than severity. Three findings were particularly telling. First, laws and punishments must apply equally to everyone. There must be no special privilege. Enlightenment

New Prisons and New Ideas in Western Europe  105 thinkers, particularly in France, increasingly turned against the separate standing of the aristocracy, and Beccaria showed how basic social and legal equality related to the need for punishment reform. Next, the severity of current penalties must be moderated—they were needlessly cruel and did no good. Of course punishment had to hurt, but reliance on torture and death was both contrary to people’s rights and ineffective. It was the certainty of punishment, “though it be moderate,” that did the trick. Using pain to elicit confessions was wrong and led to convictions of the innocent. Even more strongly: the death penalty was never justified. Its deterrent effects were transitory, and its cruelty caused more harm than good. Punishments that were too harsh “led men to commit further crimes, to escape punishment.” “As punishment becomes more cruel and more severe, the minds of men become more hardened and callous.” Finally, “it is better to prevent crimes than to punish them.” Governments should be spending more time educating people and rewarding good behavior, less on the punitive approach. Beccaria even warned against putting thieves in some obscure jail, for no one was likely to notice and so the deterrent effect was negligible. In all this, Beccaria combined two kinds of arguments. The first centered on the basic natural rights of individuals, and followed from what had become standard principles in recent political philosophy. But the second was pragmatic, the claim that certain kinds of punishments, including the death penalty, had no measurable deterrent effect and might make matters worse. This suggested a standard for evaluating punishments beyond existing theories about retribution and deterrence, highlighting the need actually to study practical impact. Theorists in many countries continued to write about punishment in the late 18th and early 19th century, mainly embellishing and refining Beccaria’s approach. In England, for example, Jeremy Bentham, known as a founder of utilitarian philosophy, wrote extensively on the importance of measuring the infliction of pain. Appropriate punishment should never be based on retribution, and never exceed the boundaries needed for effective deterrence. Bentham increasingly turned against the death penalty and primary reliance on corporal punishment, and for several decades emphasized the potential in a carefully designed type of prison he named the panopticon. Later, however, he moved away from imprisonment in favor of fines and banishment. By this point, elements of the Enlightenment approach went beyond the steady stream of reformist literature, entering mainstream legal works such as that of William Blackstone, whose Commentaries on the Laws of England were influential throughout the English-speaking world. Reconsidering the nature and specifics of punishment became an increasingly standard feature of any leader or movement claiming to be “enlightened.” The result was a unique moment in the overall history of punishment, first throughout the Western world and later well beyond.

106  The Early Modern Period, 1450–1800 A New Context for Punishment The late 18th century would see a variety of gestures toward serious punishment reform, by a number of European rulers and by revolutionary regimes in France and the United States. What had started out as an intellectual project in the aftermath of political and religious disruption began to move into actual policy. This development added to existing trends such as the growing interest in labor service, prisons, and transporting convicts elsewhere. The impact of philosophy combined, however, with other developments, creating a larger context for reconsideration and change. Determining the causation of a major shift is never an easy task, and there is no question that the intellectual component from the Enlightenment is the easiest to pin down. There were, however, other factors involved, even if some are admittedly partially speculative.

• It is useful to remember that leaders in various societies, at different points in time, had evinced uneasiness about the cruelty of many traditional punishments. More was involved in the late 18th-century West, but some of the impulses were not new. • The nature of crime was changing, and while contemporaries may not have explicitly realized this, it clearly influenced the interest in new responses. Murder rates were going down, while it was obvious that various kinds of property crimes were rising. Murder rates had soared in England in the 16th century, but had dropped considerably by the 1700s. In Holland, the 15th century murder rate had been 47 for every 100,000 people annually, but by the early 19th century this was down to 1–1.5 per 100,000. More effective governments, the decline of personal feuds, and possibly new levels of self-discipline were involved. The shift away from personal violence might easily fuel the interest in a new balance of punishments. • At the same time, interest in prosecuting for religious crimes had waned since the excesses of the religious wars. Even more striking was the revulsion against the witchcraft trials, which had led to so many convictions of innocents and such blatant cruelty. Formal witchcraft accusations virtually ceased by the mid-18th century. In other words, some of the crimes that had once elicited the greatest fury were declining or even disappearing, while the focus shifted to a different and arguably less acute set of problems. • Pain was being reconsidered. This was a complex development—for on the surface, pain is pain; but it may have been a serious factor in prompting reevaluations of widely-accepted forms of torture. Doctors were becoming increasingly sensitive to patients’ pain by the 17th century, and new kinds of scientific studies were conducted as well. Increasingly physicians gave out opium to help curb pain (and then in the 19th century anesthetics would be introduced). The idea of one’s own pain, and possibly that of others, was arguably becoming more painful—which in turn

New Prisons and New Ideas in Western Europe  107 promoted interest in punishments that were less physical and helps explain why “cruelty” received new kinds of attention. Changes in religious attitudes also drew attention away from the physical sufferings of Christ. • The punishment reform movement was part of a wider series of cultural reconfigurations, directly linked to the Enlightenment, which attracted new levels of popular interest. For example, one historian has discussed the emergence of a new “humanitarian sensibility” in some sectors of the public by the mid-18th century, which would show up most obviously in campaigns against slavery and the slave trade. This same sentiment might apply to certain kinds of punishment situations. New kinds of compassion spurred not only the reformers, but the wider public response. Arguably, for some people, and not just the most vocal reformers, the emotional context for punishment was beginning to change, at least in part. • More broadly, the 18th century saw a new emphasis on individualism and individual dignity, which would be directed at various demeaning penalties. One commentator, Benjamin Rush, who would become one of the leading figures in the American Revolution, attacked the whole notion of putting individuals to shame, claiming in 1787 that shaming “is universally acknowledged to be a worse punishment than death…. All public punishments make bad men worse.” Re-evaluations of personal dignity easily played into the larger interest in taking a new look at the ways punishment was conducted. Intellectual promotion of major reform thus drew support from a variety of other shifts in crucial aspects of Western culture, crime patterns, even medical concerns. This in turn helps explain why so many new policies were introduced in the final decades of the 18th century. To many people, indeed, major reforms in punishment were a central part of the growing desire to unseat the whole traditional social and political regime. It was no accident that one of the early targets of the French revolutionary crowds, in 1789, was the Bastille prison in Paris as a symbol of royal injustice; ironically, almost no prisoners were being held, but the building was torn down anyway. Responses The most focused reform attack applied to torture, at least in principle. As early as 1740, Frederick the Great of Prussia acted against this practice: “Nothing is as cruel as torture…I venture to side with Humanity against a practice which is the shame of Christians and of all social people and, I may add, a practice as useless as it is cruel.” Frederick did leave himself a bit of wiggle room in cases of treason. Sweden abolished most torture even earlier, in 1734, except for serious crimes; but then moved to full abolition in 1772. Denmark made the move a year earlier, and Spain in 1790. The Austrian monarchy ended torture without outlawing it. The French king moved against torture in 1780, and this was then endorsed by the French Revolution which,

108  The Early Modern Period, 1450–1800 even amid excesses in other respects, did not torture accused criminals; then the subsequent law code under the emperor Napoleon established penalties for officials who used violence “without legitimate cause.” And the adoption of the guillotine for capital punishment, that hallmark of the Revolution and subsequent French policy, was intended to reduce cruelty and pain.

Figure 7.1 The Guillotine in the French Revolution. This contemporary cartoon caricatures the use of the guillotine in the radical phase of the revolution (1793–4), showing heads piled up with abandon as the image of the French Republic, Marianne, watches on. This kind of representation helps explain why the guillotine was not widely adopted outside of France. Credit: Rijksmuseum

New Prisons and New Ideas in Western Europe  109 A few measures were directed against the death penalty itself. The colony of Pennsylvania, under Quaker influence, introduced a measure in 1682 confining the death penalty to first degree murder, with all other crimes to be punished by fines or imprisonment. English law was restored early in the 18th century, but Pennsylvania would return to the charge after the American Revolution. Prison reform gained continued attention. In Britain, John Howard won public support in revealing the terrible material conditions in many jails, though of course the Penitentiary Act, which he helped inspire, went nowhere. Howard advocated improved sanitary conditions, though also hard labor, solitary confinement, and religious instruction—seeing the prison as an opportunity for rehabilitation and not just punishment. His principles inspired the construction of a new jail in Gloucester in 1784, with individual cells, separation of prisoners according to the nature of their crimes, exercise facilities, medical care, and religious advice. The jail inspired many visitors and imitations in a number of countries. Attacks on traditional punishments resonated strongly in the American Revolution. While opponents of the revolution were sometimes jailed, as in Connecticut, and New York passed a death penalty, in fact most of them were fairly well treated, as was true of other early protesters in the new republic. Most were allowed to apologize and pledge future allegiance, and few if any were deliberately killed. More sweepingly, the 8th article of the Bill of Rights added to the Constitution stipulated that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” Here was an explicit installation of the idea the intellectuals had long been urging: that even criminals had rights. The leaders of the new nation were determined, at least in principle, to avoid the mistakes of the “Old World” in this vital domain. Conclusion The most sweeping reform developments by the end of the century were proclamations on paper, not detailed implementation or carefully crafted alternatives—though a few of the model jails moved in this direction. The real test of the new ideas would occur in the 19th century: the Enlightenment was a gestation period at best. Not surprisingly, as with the American Bill of Rights, the promises were more sweeping than ultimate realities. Many old ideas and motivations persisted. To many observers, for example, physical suffering still seemed essential, like the British mid-18th-century writer who urged that male prisoners be castrated because this would provide a “suitable degree of pain.” If only because some of the new ideas were so radical, consistency would be a recurrent issue in the whole field of punishment reform, on the part of

110  The Early Modern Period, 1450–1800 policymakers and a wider public alike. The early modern period itself had tossed up such a mixture of approaches—old methods; the rise of jails; the impulse to send convicts away to penal colonies—that it would long be unclear what primary principles predominated. Reformers themselves sent conflicting signals. Was hard labor consistent with the new humanitarian emphasis? Was it possible to limit both physical punishments and shaming at the same time (a dilemma that remains vivid today)? What about the costs of some proposed measures, notably the most ambitious model prisons? Reform emphases also had some clear blind spots. The emphasis on dealing with physical pain was fully understandable in the traditional context. But issues of psychological pain received little or no attention, except perhaps in the concern about shaming. At the same time, the new ideas of the 18th century, and some of the limited experiments, had serious potential in motivating reconsideration of motives and policies alike. In a very real sense, punishment discussions today, in many parts of the world, continue to reflect some of the basic concerns generated in this period, including questions about the primary purpose of punishment and about how to measure its effectiveness. Further Reading Richard Evans, Rituals of Retribution: Capital Punishment in Germany, 1600–1987 (London, 1997); Joy Cameron, Prisons and Punishment in Scotland from the Middle Ages to the Present (Edinburgh, 1983); Gary Jensen, The Path of the Devil: Early Modern Witch Hunts (Plymouth, 2007); Brian Levack, The Witch Hunt in Early Modern Europe (2nd ed., London, 1995); Jacques Le Goff and J.C. Schmitt, eds., Le Charivari (Paris, 1981); Paul Friedland, Seeing Justice Done: The Age of Spectacular Capital Punishment in France (Oxford, 2012); Peter King, Punishing the Criminal Corpse: Aggravated Forms of the Death Penalty in England (London, 2017). On convict labor, Clare Anderson, Convicts: A Global History (Cambridge UK, 2022), is absolutely central. See also Ruth Pike, “Penal Servitude in the Spanish Empire: Presidio labor in the eighteenth century,” Hispanic American Historical Review 58 (1978); Alan Frost, Botany Bay: The Real Story (London, 2011). On the new outlook: Katie Barclay, “Compassion as an agent of historical change,” American Historical Review 127 (2022); Rob Boddice, Pain: A Very Short Introduction (Oxford, 2017). On the philosophers: Arthur Shuster, Punishment and the History of Political Philosophy; from Classical Republicanism to the Crisis of Modern Criminal Justice (Toronto, 2016); David Heyd, “Hobbes and Capital Punishment,” History of Philosophy Quarterly 8 (1991); Matthes Suess, “Punishment in the state of nature: John Locke and criminal punishment in the United States of America,” Washington University Jurisprudence 7 (2015); David Carruthers, “Montesquieu’s philosophy of punishment,” History of Political Thought 19 (1998); Alberto Cadoppi,

New Prisons and New Ideas in Western Europe  111 “Cesare Beccaria, John Bessler and the Birth of Modern Criminal Law,” University of Baltimore Journal of International Law 3 (2014–5). Three works by Pieter Spierenburg are major contributions: The Spectacle of Suffering: executions and the evolution of repression (Cambridge UK 1984); The Prison Experience: Disciplinary Institutions and Their Inmates in Early Modern Europe (repr. Amsterdam, 2007); and Violence and Punishment: Civilizing the Body Through Time (Cambridge UK 2013).

8

Punishment in the New European Colonies

As Europeans gained new overseas colonies during the early modern period, particularly in the Americas, they brought a number of punishment practices with them that were unfamiliar to native inhabitants. North American Indians, for example, were amazed and appalled at the frequency with which European settlers spanked their own children: local tradition emphasized positive rewards to guide children’s behavior, supplemented as necessary with shaming, but not corporal punishment. At the same time, Europeans did not try to import all the apparatus that had developed in their home countries: some approaches were simply too expensive for frontier regions that were struggling to establish basic government systems, while others risked needlessly offending local sentiment. The new settlers also took advantage of some local punishment traditions, particularly in Latin America. Finally, colonial situations might also demand some special punitive practices; this was most obviously true of the systems developed to regulate slave behavior in places like the West Indies, Brazil, and the English colonies in North America. The net result was a distinctive combination, new to the regions involved but differing as well from most European patterns. Latin America The Spanish government sought to maintain general oversight for the court systems and punishment standards in their new colonies, but inevitably local authorities, both public and private, often went their own way. The situation was further complicated by a rivalry between government and church courts, the latter claiming jurisdiction especially over spiritual crimes and often urging a certain degree of moderation in the treatment of native peoples. However, some overall rules may have had some effect, like a 1542 measure that sought to outlaw branding and enslavement of prisoners. Later, in the 18th century, there was a measurable impulse to reduce the reliance on the death penalty in favor of labor service.

DOI: 10.4324/9781003427261-11

Punishment in the New European Colonies  113 In the religious domain, a clear gap opened between the treatment of settlers of European origin and the native population. While Spanish authorities were eager to convert the latter to Catholicism, they relied heavily on native converts to provide leadership in the villages and tolerated a considerable mixture of traditional and Christian beliefs and practices. Thus, while a branch of the Inquisition was quickly established in Mexico City, and did occasionally execute a local witch doctor, it devoted the bulk of its attention to the settlers of European origin. In all, during the colonial period, the Inquisition put about 50 people to death, with particular focus on settlers convicted of harboring Jewish beliefs. Some executions were conducted in public, with considerable fanfare: here, the victim might be given a chance to recant, in which case punishment might be switched from burning to strangulation. Both government and church officials set up jails for the traditional purposes of holding people before trial or punishment, not as sentencing destinations. Monasteries had their own jails, mainly for native offenders, complete with shackles. Corporal punishment was widely utilized, both to induce confessions and after convictions, though Spanish regulations sought to ban more extreme forms of torture. Public whippings for “idolatry” were not uncommon, though the monks carefully used Indian agents to carry out the sentences, so they would not be directly involved in causing physical harm. Colonial authorities, and particularly the monks, were eager to take advantage of at least one tradition that extended opportunities for shaming in some parts of Mexico: shaving the heads of offenders, in regions where men customarily and proudly grew their hair long. As one official noted, “they (the natives) cannot conceive of any greater punishment than seeing their hair cut.” This approach did lose some force by the 18th century, when normal male hairstyles shifted to short length, but it was an interesting example of a fusion of approaches along with the characteristic interest in using shame both to punish offenders and to intimidate the population more generally. Sentences of work service became increasingly common, particularly for violent crimes (property crimes usually resulted in lesser and local punishments). This practice carried over directly from Spanish precedent, where galley service and then work assignments around fortifications had become a vital recourse, with many prisoners sent to the Americas directly. Colonial courts (including some monastic courts) joined in eagerly, often enforcing sentences of six years on both natives and settlers of European origin. Convicts were sent to some of the forts in places like Cuba and Puerto Rico, but were also assigned to other public works within the region (this was particularly true for native prisoners). Conditions were characteristically harsh, with poor diets and high death rates. On the other hand, the European

114  The Early Modern Period, 1450–1800 reform spirit of the 18th century had had some impact by the 1770s. A set of new measures ended a former practice of indeterminate sentences and placed greater emphasis on shorter periods of service. Labor sentences began to be discussed in terms of their potential for rehabilitation, rather than retribution. The tradition would carry over into the punishment practices of many Latin American countries after the wars of independence in the early 19th century. The British Colonies Punishments in the British colonies along the Atlantic coast involved local initiatives almost entirely. There was little direction from the mother country, except in providing precedents; limited resources focused attention on a rather narrow range of options. Many communities had jails, usually one or two cells run by a jailer who received no salary but charged inmates for food and lodging (indigent prisoners had to beg for funds). Little work was provided, and physical conditions were usually miserable; inmates were often shackled. However, wealthier individuals often bribed sheriffs and were allowed to stay in private houses rather than jails. Only in the 18th century did some communities, like Philadelphia, begin to build more substantial workhouses. Capital punishment was used for crimes of violence, some sexual offenses including adultery and bestiality, certain thefts, as well as witchcraft (mainly against women) and rebellion. Hanging was the most common method, from English precedent, but there was some burning. One tally suggests that at least 924 people were executed from 1608 (the first was in Virginia) to 1776; between 1760 and the mid-1770s 340 people were put to death, a rate far higher per capita than would be true by the early 20th century. Most victims were White and male, but there were a few Native Americans and some slaves. As in Latin America, elaborate torture seems to have been rare, but there are a few references to use of the rack, and flogging was common both before and after trial. Perhaps even more than in Latin America, given less elaborate punishment options, British colonial communities relied on shame and its deterrent effect. Some colonial authorities regarded shaming as preferable to the “barbarous and inhumane” methods of their English homeland. Most communities built stocks and pillories, as well as a public whipping post; specifics might be tailored to the crime, as when a man who stole a pair of trousers was required to spend some hours in the stocks with a pair of britches over his head. Often a sign denoted the offense: a man who had defiled the Sabbath had to stand on the pillory for two hours with a placard saying “an open and obstinate condemner of God’s Holy Ordinances.” Some thieves were branded or had an ear cut off. Offenders often had to wear distinctive letters, for a period of time: like T, for thief; AD for an adulterous couple; or

Punishment in the New European Colonies  115 B, for bawd. The goal, always, was a combination of punishment for the wrongdoer and a large public message, so that “the others may fear and be ashamed of breaking out into wickedness.” In fact, desire to avoid the trauma of shaming kept the actual rate of public shaming surprisingly low. Contrary to myth, relatively few people actually had to wear one of the letters denoting a sexual offense. Public apology might also be a vital part of the process, sometimes winning clemency, in other cases allowing reintegration into the community after a period of shaming. Thus, a New Haven couple in 1689, accused of premarital sex, “manifested much sorrow by words and tears,” and were readmitted to their religious congregation. Finally, shaming and a whipping might be combined, particularly for males, but it was clear that shaming was more painful. A Massachusetts man noted that whipping was just the “skip of a flea,” but it was public humiliation that really taught the lesson. Enslavement and Punishment With the exception of witches and major religious offenders, the fiercest punishments, through the Americas and the Caribbean, were reserved for offenses by enslaved people. Use of executions, mutilation, and flogging were far more extensive than for the rest of the colonial population. The most obvious targets were efforts at escape or attacks on the slaveowner or his family, but thefts, drunkenness, accusations of laziness and a variety of random acts could draw penalties aimed both at retribution and deterrence. Most punishments were administered by slave owners themselves, rather than established courts. Any official limitations were often flouted, but by the same token there are no precise data on the frequency of the major types of penalties. Cruelty was common, depending somewhat on the whims of the owners; religion might provide some constraint, and owners had an obvious stake in limiting physical damage to their labor force. The clearest effort at central guidance came from France, which issued a code, known at the Code Noir, or Black Code, in 1685. Though not well enforced, the measure sought to outlaw the most brutal punishments for enslaved people throughout French holdings, which centered particularly in the Caribbean. Slaves were even allowed in principle to complain about mistreatment to a local magistrate, though their statements were not given any more legal standing than those of a child. Major punishments were supposed to occur only with approval from a court of law, but this limitation was largely ignored. Gradations were clear in the Code: slaves who injured an owner or his family were executed, as were those who stole a horse or cow. Fugitive slaves would have their ears cut off and be branded; a third offense warranted the death penalty. A master who caused a slave to be killed by false testimony

116  The Early Modern Period, 1450–1800 would be fined. Slaves could be chained or beaten, but not tortured or mutilated; and whippings were authorized only when owners or authorities “believe that their slaves deserve it”—a vague standard at best. An even starker picture emerges from Latin America, including the fact that death might be administered in particularly painful ways. Even slave boys were sometimes burned alive for relatively minor offenses; some fugitive slaves were boiled. In Brazil, masters could in principle be fined for proven cruelty, even forced to sell their slaves—but as usual, this rarely occurred in fact. Escaped slaves were chased down whenever possible, then flogged and made to wear an identifying iron collar; for a second offense the slave might also be chained to a log which he would have to carry to his work. Slaves who drank too much might be forced to wear an iron mask. Large plantations had their own prisons, complete with shackles and also thumb screws, used to force confessions despite the rules on torture. Flogging sometimes occurred in public, as a warning, though this was regarded as severe. Similar patterns applied in the slaveholding areas of the British colonies in North America, and indeed local governments may have supported punishments more vigorously than in Latin America. A few, like North Carolina, had slave codes that made killing an enslaved person a punishable offense, but as elsewhere this was rarely enforced; and enslaved people could not initiate legal actions against Whites. Religion may also have been less of a mitigating factor than in Catholic regions. In Latin America and the French colonies slaves were encouraged to convert to Christianity, and priests sometimes sought to intervene to moderate punishments, but this was not the case in Protestant areas at this point. Flogging was at least as common as in the Spanish colonies, and more often public. One overseer told a visitor, “Some Negroes are determined never to let a white man whip them and will resist you…of course you must kill them in that case.” Special measures, like digging a special ditch to protect the unborn while a pregnant mother was lashed on the back, showed the effort to combine severity with protection of the investment in human “property.” Runaway slaves might be branded or have an ear cut off, both to inflict pain and to make them easier to find if they tried to flee again. Conclusion The European empires in the Americas resulted from superior weaponry, the ravages of new diseases on the native population, and no small amount of deceit. Once established, however, many of the punishment policies the colonies adopted were not particularly cruel by prevailing standards, and indeed some of the bizarre methods still current in Europe, particularly for certain executions, were not adopted. Even the witchcraft scare was modest by

Punishment in the New European Colonies  117 European standards. The use of vicious punishments to control the enslaved peoples, however, stood out as a glaring exception. These policies would continue into the 19th century, in some cases becoming more severe as slaveowners’ fears of desertion or rebellion grew. Even after slavery ended, some of the motives that had justified the special punishment regimes would persist. Further Reading Lawrence Friedman, Crime and Punishment in American History (New York, 1993); Thomas Blomberg and Karol Lucken, American Penology: A History of Control (New Brunswick NJ, 2010); Kathryn Preyer, “Penal Measures in the American Colonies: An Overview,” American Journal of Legal History 26 (1982); John Demos, “Shame and Guilt in Colonial New England,” in Carol Stearns and Peter Stearns, eds., Emotions and Social Change (New York, 1988). Vernon Palmer, “The origins and authors of the Code Noir,” Louisiana Law Review 56 (1996). Bianca Premo, The Enlightenment on Trial: Ordinary Litigants and Colonialism in the Spanish Empire (New York, 2017); Lewis Hanke, The Spanish Struggle for Justice in the Conquest of the Americas (Philadelphia, 1945); Liliana Obregon, “Punishment of slaves in colonial Latin America and the Caribbean,” in Kwame Appiah and Henry Lewis Gates Jr., eds., Africana: The Encyclopedia of the African and African American Experience (New York, 1999); Osvaldo Prado, “How to Punish Indians: Law and cultural change in early America,” Comparative Studies in Society and History 48 (2006).

Part IV

The 19th Century

Several major developments dominated world history during the decades between the end of the Napoleonic Wars in 1815, and the beginning of World War in 1914. The most important single transformation involved the Industrial Revolution and its spread through much of Western society on both sides of the Atlantic. The West’s industrial growth at this point helps explain the second major shift, the new imperialist expansion of Western countries in key parts of Asia, almost all of Africa, and Pacific Oceania. This was complicated, to be sure, by the new independence of most parts of the Americas and, increasingly, Canada, Australia, and New Zealand. Industrialization and Western global power also ushered in a new level of globalization, based on increasingly tight, though unequal. connections among major regions but also the establishment of a number of new international organizations. These shifts had major implications for punishment, along with the momentum from the new ideas and reform efforts of the 18th century. Industrialization created greater levels of wealth for the societies most fully engaged, a small part of which could be devoted to institutions of punishment and crime control. Urbanization invariably accompanied industrialization: Great Britain, the industrial pioneer, was half urban by 1851; a first in human history. Growing cities made certain crime problems more obvious, and everywhere (along with the expanded resources) encouraged the emergence of larger and more formal police forces, that would have their own complex impact on punishment. Western economic and imperialist expansion prompted a number of societies, still independent but under growing Western pressure, to undertake reform movements designed to enhance their vitality, appease Western critics, and hopefully keep the imperialist surge at bay. Russia, Japan, and the Ottoman Empire, though in various ways, all introduced a range of new measures, and reconsideration of traditional approaches to punishment was a key part of this pattern. At the same time, the new nations of Latin America, emerging from Spanish or Portuguese control, had to establish their own punishment policies. Here too, mutual contacts and Western example would play a role. DOI: 10.4324/9781003427261-12

120  The 19th Century Expanding Western empires in Africa, South Asia, and elsewhere had to develop their own punishment policies, which invariably differed from the values and procedures being touted in the home countries. The need to repress dissent and the painful belief that imperial subjects were inferior to the European races dominated the approach, one of the several darker chapters in the history of punishment during the 19th century. The explicit impact of globalization on punishment was tentative at best during this period, as opposed to the more general influence of Western example, but there were some interesting developments. Experts in penology began to conduct international (though mainly Western) conferences from the mid-19th century onward, and in 1872, the International Penal and Penitentiary Congress was established and began to sponsor periodic meetings. One, held in the United States in 1910, would tout new developments in incarceration, such as the emergence of formal probation procedures, and the increasing emphasis on developing separate and in principle less punitive measures for juvenile delinquents. The notion of exchanging ideas and, very tentatively, discussing global standards was launched, though its impact was dwarfed by larger forces such as urbanization and imperialism.

9

An Age of Reform and Its Limitations Western Europe and Beyond

If the early modern period, and particularly the 18th century, was a gestation period for major reforms in punishment, the 19th century saw new ideas translated to reality on a number of fronts. Both in Western Europe and in settler societies like the United States and Canada, a host of changes were introduced, some of which would also influence reform movements elsewhere. At the same time, important national differences complicated the picture, along with a number of novel issues including new authorizations for cruelty. Finally, more practices carried over from more traditional settings than might have been expected, given the overall reformist tone. Nevertheless, despite the complexities, punishment in 1900 was measurably different from its counterpart a hundred years before in all the Western nations. Rethinking Child Discipline In many traditional societies, assumptions about punishing children had long been linked to broader patterns of punishment, so it was not surprising that, in a period of reform, there was a serious effort to reconsider how parents and schools were handling disciplinary problems, in ways that could tie in with broader policy revisions. In many Western countries, manuals written to guide parents from the 1820s onward increasingly warned against older practices of discipline. Parents were urged not to punish in anger, and not to use fear in trying to keep their children in line. As one American author suggested, proper childrearing involved “great gentleness and patience.” Specifics were somewhat vague, but corporal punishment did gain new attention. Studies of American parents in the 19th century suggest a growing division between moderate Protestants, who were increasingly averse to spanking, and more conservative religious groups that retained the practice. Similar divisions opened up concerning corporal punishment in the schools. Poland in fact had banned the practice in schools as early as 1783, and Luxemburg followed suit in 1845.The state of New Jersey did the same DOI: 10.4324/9781003427261-13

122  The 19th Century in 1867, though it was long the only American state to do so. American teachers were increasingly urged to avoid spanking. However, caning or rapping student knuckles with a ruler remained common in most Western schools into the 20th century. On another front, a Society for the Prevention of Cruelty to Children was established in New York in 1874, initially over an incident in which a foster mother was beating her charge on a daily basis. The Society did not oppose physical discipline, and it turned its primary attention to other issues, but it did suggest growing interest in setting some boundaries to the physical abuse of the young. Traditional shaming practices also gained attention, though again with varied results. The new breed of family advice givers urged that children must not become “objects of ridicule or rebuke.” An American author, Lydia Child, writing in the 1830s, argued that “punishments which make the child ashamed should be avoided. A sense of degradation is not healthy for character.” Children should certainly learn to feel guilt over bad actions, but shame was contrary to sound development. Parents who criticized a child in front of others caused real damage to self-respect. By the later 19th century schoolteachers began to receive similar advice. Classrooms should be cheerful and positive, and traditional practices like making a poor or misbehaving student wear a dunce cap in front of his classmates needed to be reconsidered. Again, actual reform was gradual at best, in part because many teachers, often women, found it difficult to move against corporal punishment and shaming at the same time. However, the most blatant shaming, as with the use of a dunce cap, was dying out by the early 20th century. Adult authorities certainly remained divided over disciplinary approaches to children by 1900, and there were many parents and teachers who delighted in repeating aphorisms like “spare the rod and spoil the child.” Nevertheless, there were some signs of change at this most basic punishment level, and certainly a new sense of debate had opened up in many Western countries. By this point also, formal judicial policies increasingly distinguished between adults and children, seeking in principle to reform rather than punish youthful offenders. Public Shaming

Movements against traditional public shaming were far more clearcut than the effort to revise child discipline. Practices that were centuries-old now seemed cruel and degrading, at least in the eyes of official policy makers. Chronologies varied, but by 1900, most public shaming venues had been banned and dismantled throughout Western society.

An Age of Reform and its Limitations  123 Revolutionary France thus abolished the pillory in 1789 and replaced it with a milder and less physically painful exposure for offenders called “exposition,” and then this was abolished in turn in 1832 (after another revolution). British discussion followed similar lines, with a sense that public shaming was “barbarous,” unfair to the individual and morally harmful to jeering crowds as well. Not only liberals but also conservatives like Edmund Burke, in the late 18th century, argued that practices like the pillory could incite crowd violence totally out of proportion to the individual offense, even in cases of sodomy. In 1816 the United Kingdom limited use of the pillory to cases of perjury and insubordination, and then banned it outright in 1837. Only a few die-hards continued to lament that certain crimes were “so shocking to human nature” that they deserved this kind of reproof. American reformers largely agreed, and the United States Congress banned use of the pillory in 1839. Movements against milder forms of public shaming, like the stocks, were somewhat slower. Massachusetts abolished stocks as early as 1804, and Tennessee did so in 1839. In 1872 a county in North Carolina grandly tore down both the stocks and the old pillory, and used the wood to build a public privy on the same site. Delaware was the last American state to follow through, in 1905. Reform moves of this sort did cause debate, with some conservatives arguing that “there is at the present day…far too much sensibility manifested toward criminals.” “The public character of the punishment is its chief merit. The rascals who endure it care little for the pain, but they do not like to be seen.” Arguments like this help explain why the change took so long to gain a hold in some jurisdictions. But the general trend was clear. British patterns were similar, as use of the stocks gradually declined. In 1860 a man named John Gambles was publicly exposed in the town of Pudsey for gambling on the Sabbath. But the experience was now so rare that the passing crowd was more curious than anything else. The last known incidence of this kind of public shaming occurred in 1865, for drunkenness. By this point, many urban leaders were not only opposed to shaming, but also eager to make it clear that city centers were places for refinement and enjoyment, not coarse punishments. Ultimately, some towns would rebuild public stocks or pillories—for the entertainment of tourists, as in a number of New England towns today. Here was another photo op, with Dad sticking his hands and head through the holes for a minute or two. As a result, it became increasingly hard to imagine how pervasive and painful the threat of public shaming had been in the past, and how quietly revolutionary it was for the implementations of public shaming to be dismantled. Shaming, to be sure, did not end, but it would take more subtle forms, amid a widespread public and professional belief that it did far more harm than good.

124  The 19th Century Recalibrating Punishments

Along with the decline of classic public shaming, many Western governments also dramatically redefined the scale of punishments during the 19th century. The big change was the massive reduction in the crimes which warranted a death penalty, but there were other shifts as well. Thus, while adultery remained illegal in most cases, actual prosecutions declined (and in Britain, changes in the enforcement of religious rules further complicated the possibility of legal action after 1854). Increasingly, an offended party might seek a divorce—where legal opportunities expanded—as opposed to criminal punishment. The turn against the wholesale application of the death penalty and other traditional forms of corporal punishment followed directly from the promptings of the Enlightenment. Already many countries had moved against the use of torture, and this trend continued. Britain for example abolished chaining prisoners to the wall, in 1823. In 1874 the French author Victor Hugo proudly declared, “Torture has ceased to exist,” and he was probably right in terms of official, sanctioned use in most of Western Europe, though the continued sanction for whipping would raise questions about the definition of torture. The effort to reduce the application of the death penalty was at least as striking. In Prussia, a new legal code in 1794 not only ended corporal punishment, but also massively restricted the list of crimes where the death penalty could apply. This move, plus increased use of clemency, almost ended capital punishment in Germany by the mid-19th century; though it would pick up again after 1878. Many American states not only cut back the list of capital crimes—Pennsylvania once again confined execution to first degree murder, in 1796—but also increasingly made the death penalty optional rather than mandatory; a move designed to appease critics. This did result in a significant decline in actual rates of execution. Britain took a characteristically meandering approach, but the trend was clear after the huge expansion of the early modern Bloody Code. Actual juries moved faster than the government did, even in the 18th century increasingly unwilling to impose death sentences, even on lower-class criminals; they either acquitted or reduced the charge to a milder offense. But the government also began to step in. In 1808, pickpockets were exempted from possible execution. A larger Punishment of Death Act in 1832, at the height of reformist interest, removed theft, counterfeiting and forgery (except forgery of wills) from the list of capital crimes. In 1841, rape was dropped. A new effort in 1861 cut the number of capital crimes to four: murder, treason, espionage, arson in the royal dockyards, and piracy with violence; though the military could execute service personnel for a wider range of offenses. In 1908, juveniles under 16 could no longer be executed for any crime.

An Age of Reform and its Limitations  125 The reality of change was in one sense less substantial than the on-paper shifts. Many countries besides Britain had already cut back the use of the death penalty in fact, for a host of lesser crimes. But the official recognition was significant, nevertheless. Rates declined substantially: in the early decades of the century countries like Britain and France were still executing a hundred people or more each year, but this had dropped substantially even by the 1830s. Punishing by death was now acknowledged as a huge step, inappropriate for all but the most serious offenses, and never to be taken lightly. Even though the number of executions had already been declining, the unprecedented trimming of the capital punishment list accelerated the trend. Finally, though without formal legal change, application of the death penalty to certain categories of people began to be increasingly limited: another sign of changing attitudes; both to death and to gender. Notably, in many Western societies, judges and juries became less willing to sentence women to death. Women were, of course, less violent than men in the first place, but now even convicted murderesses might be spared. In Britain, by the early 20th century, only 15% of women accused of murder were sentenced to death, and only 10% of these were actually executed. Debating the Death Penalty Itself

Many reformers and elements of the public wanted more, mindful of the arguments about the excessive cruelty of capital punishment, the frequent mishaps in its application, the many chances for wrongful conviction and, often—as with Beccaria earlier—a belief that executions had no actual impact on the crime rate. Active debate over the death penalty intensified in the 19th century, though—not surprisingly given the long history involved—oscillation rather than abolition and often bitter disputes were the most common results at this point, with considerable passion on all sides of the discussion. Portugal was the first country to make a move. No civilian executions occurred there after 1846. During the 1850s, political crimes were exempted from capital punishment, and then a new constitution in 1911 abolished the death penalty even in the military (though a few exceptions may have occurred in World War I). Portuguese opinion has remained consistently committed to this dramatic reform. The Netherlands made its permanent shift in 1870. Several cantons in Switzerland did the same around that time. A number of American states joined in, and Michigan, which abolished the penalty in 1846, introduced what turned out to be a permanent ban, soon followed by Rhode Island and Wisconsin. Other northern states moved back and forth between abolition and restoration. The same was true for several other European countries at various points in the late 19th century.

126  The 19th Century With the obvious exceptions, commitment to a death penalty largely persisted, backed by worries about crime and conservative concerns about unruly passions. Fears of particular groups could enter in as well. In the United States, anxieties over immigrant behavior helped reduce debates over the death penalty around 1900, while southern states with large Black populations did not venture any moves in this direction. Overall, the issue of abolition gained new attention, a few durable changes occurred, but the debate would gain greater momentum later on. The manner of administering death was another matter, however, where there was wide agreement that many older methods had been excessively cruel. The British government thus abolished beheading and drawing and quartering in 1870, though in fact the practices had already fallen out of use. In Hamburg, Germany, several beheadings were botched early in the 19th century, requiring a second or even third blow of the axe to finish the job. In response the local government suspended executions entirely for a few years, and then decided to use the more reliable guillotine. Experimentation went farther in the United States. Here, the constitutional provision against “cruel and unusual” punishments motivated continued interest in methods that might be quicker and more reliable than the usual recourse to hanging. A national fascination with technology entered in as well. The result, at the end of the 19th century, was a radically new interest in the potential of the electric chair. The device had been invented by a New York dentist, and for a decade was used to dispose of stray dogs and other animals. A variety of supporters began to recommend it for human executions, particularly after a number of hangings went badly, leaving victims injured but not dead or clearly prolonging the agonies involved. New York State finally authorized the option, and appointed a “state electrician” in 1889. The first criminal candidate had his sentence commuted to life imprisonment, in part on grounds that the chair would be cruel and unusual. But another man, convicted for killing his wife with a hatchet, had his appeal denied. The New York Court of Appeals ruled that while “burning at the stake, breaking at the wheel etc.” would be contrary to the constitution, the electric chair was another matter: Although the mode of death is conceded to be unusual, there is no common knowledge or consent that it is cruel; it is a question of fact whether an electric current of sufficient intensity and skillfully applied will produce death without unnecessary suffering. The convict was put to death in the chair in 1890, though his agonies lasted for eight minutes. Though the New York Times editorialized, “far worse than hanging,” methods did improve, and one state after another followed New York’s lead from 1897 onward; by the 1920s making this the most common

An Age of Reform and its Limitations  127 method of execution in the United States. Almost no other county found the method attractive, however, though the Philippines used the chair for a time during and after American colonization. Other societies persisted in older methods; for example, the British with hanging, the French with the guillotine, until they finally moved against the death penalty itself later in the 20th century. In the long run, failure to find an agreed-upon measure that would satisfy growing concerns about cruelty and pain helps explain why the death penalty debate would be resumed later in the 20th century. Shielding the Public

One final blow to tradition gained more widespread approval than the efforts to end capital punishment altogether: removing executions from public view. The re-evaluation of public involvement was already occurring, of course, with the moves against customary forms of public shaming and the substantial abolition of torture. Increasingly, privatization applied to the death penalty as well. A new set of concerns now outweighed the longstanding belief that public measures were essential to spread fear and to assure, to the greatest possible extent, that punishment would serve its deterrent purpose. Several factors entered in. Aversion to the death penalty was one: if it could not be abolished, at least it should be somewhat concealed (particularly since it was hard to find a method that assured a quick and painless death). Policymakers increasingly worried that urban mobs might be tainted by watching this kind of violence, their emotions directed toward greater violence rather than away from it. The vision of French revolutionary crowds made bloodthirsty by watching the guillotine played a role here, though this was partly the stuff of fiction. And there was always the risk that a condemned criminal would make a speech arousing the crowd against the authorities before his death—which happened on occasion in places like Britain—again making public measures worse than useless. So, executions were moved increasingly to private venues. Hamburg did this when it restored executions, arguing that “old laws had to be enlightened with the torch of progress”; only a few wealthy, and male, citizens were allowed to attend. France hesitated, but in fact it increasingly kept crowds away from the guillotine. Britain publicly hanged its last victim, an Irish nationalist, in 1868, then passing the Capital Punishment Amendment Act 1868, requiring all prisoners sentenced to death to be executed within prison. British leaders now argued that public executions were a “disgrace not only to civilization but to our common humanity;” “barbarous and demoralizing,” and “not in accordance with the spirit of the age.” In the United States, the move to the electric chair seemed to necessitate a more private setting.

128  The 19th Century The impact of these developments on those executed might be debated. Arguably, a private setting would limit their shame or exposure of their fear; on the other hand, a few mavericks were denied a chance for a last act of bravado. In terms of a historical perspective, the widespread move to limit public involvement was a truly striking change, another indication of the unprecedented reevaluation of the nature, method, and purpose of punishment. The fact that it occurred so widely, in Western society and soon beyond, and without great dispute was fascinating, a clear sign of substantial agreement on this aspect of “enlightened” standards. What impact the change had on deterrence, if any, was less clear; and if executions no longer carried a public sting, still further questions might arouse about their role beyond sheer retribution. Whipping: A Holdover

The general movement against torture and painful executions faltered when it came to whipping certain kinds of criminals. As was the case in the schools, it was hard to abandon milder corporal punishment. Thus, while the Netherlands abolished torture in the 1840s, it did not move against whipping until 1870, and many countries were slower still. Britain did not fully end the practice until 1948, and even then, it could still be used against misbehaving prisoners; that option was terminated only in 1968 (with the last administration to a prisoner in 1962). Australia and New Zealand fully ceased formal sentences for whipping after 1940, and Canada in 1970. Many American states retained whipping well into the 20th century. Both Abraham Lincoln and Theodore Roosevelt endorsed the punishment for wife beaters, and the sanction was also used against African Americans—a holdover from slavery. Delaware was the last state to administer a whipping, in 1952, and fully abolished the option only twenty years later. Almost certainly, the practice did become less common amid the general reconsideration of corporal punishment, and the number of lashes was often reduced. Thus, a Delaware wife-beater received only ten lashes in a 1940s case; mild by traditional standards. But the hesitation to end the practice altogether was intriguing, and complicated claims that torture had ended. The Need for Alternatives

The huge changes in traditional approaches to punishment that were widely adopted in the 19th century, beginning with the declining application of the death penalty, virtually compelled new attention to alternatives. If fewer people were shamed, tortured, or executed, which obviously was the case, what was to be done to those who did commit disorder, or were convicted of doing so? Or were there other ways to address disorder besides punishments? There

An Age of Reform and its Limitations  129 was certainly no large sense that crime was declining, in this century of industrialization and urbanization, though it was true that fears of crime sometimes outpaced reality. A number of approaches were available, building out from the changes introduced in the early modern period, but almost all required innovative elaborations. In the process, the purpose of punishment, from removal to deterrence to rehabilitation, might be revisited as well. Attention focused both on additional means of crime prevention and on expanding the options for noncorporal punishment. Not surprisingly, the two approaches might generate mutual complications; crime prevention, most obviously, might promote some methods that looked very much like punishment in advance of any formal conviction. Policing

Some kind of police force had existed since the establishment of formal governments. Ancient Egypt had officials who were mainly responsible for guarding temples. Athens organized forces of slaves to patrol the city. Unsurprisingly, the Chinese government moved forward in this area, with officials responsible for investigating crimes as well as keeping order. The history of policing is a massive topic in itself, going well beyond its relationship to the history of punishment. On the whole, however, with some exceptions for cases like China, premodern policing focused mainly on protecting public spaces particularly when crowds assembled, sometimes along with some commitment to night patrols. Most premodern societies depended on the general public to help catch criminals as well as report crimes. It would be an oversimplification to say that premodern police had little to do with crime rates—the night patrols, for example, might have inhibited some thieves—but this was not seen as a major function. Most of the forces involved were small, and many were unreliable, particularly when they involved volunteers. In Europe, some moves toward the greater formalization and expansion of the police took shape in the 17th and 18th centuries. The French government improved the structure of the police force, particularly for Paris, which was the largest European city at that point, and for the first time gave it official uniforms. English authorities, though concerned about police forces as a foreign infringement on liberty, also stepped up efforts, particularly in London. It was in the 19th century, however, that “modern” police organization began to take clearer shape in many Western countries. Britain set up its modern police force from 1829 onward, and in the same year, 100 new, uniformed officers were placed on the streets of Paris. Boston formed the first modern force in the United States in 1838, quickly followed by other major cities; and a new kind of police unit emerged in Sidney, Australia, at around the same time.

130  The 19th Century Motives for the new forces varied, though urban growth was a key factor everywhere. French authorities worried about potential disorder among the lower classes, often called the “dangerous classes.” Property owners wanted more protection. But reformist themes were involved as well, with hopes that more formal policing would curtail crime levels and so limit the need to punish, thus reducing if not resolving the modern dilemma about how to punish without falling back on traditional levels of shaming and corporal pain. The linkage was particularly explicit in Britain, where Robert Peel, the inspiration behind the new force, was an ardent follower of Jeremy Bentham and the utilitarians. Bentham had written widely about a “preventive” force: “a general system of precaution, for the prevention…of crimes.” Peel, following this advice, emphasized that his new officers were not to be rewarded based on number of arrests, but rather for crimes prevented in the first place; though modern policing would also involve efforts at crime solving. Unsurprisingly, the results of the new infusion of uniformed police were complicated, with some national variations as well; and there is ample opportunity for debate given sometimes limited or confusing data. Three patterns emerged: First: having more police in the streets increased arrests for minor crimes, particularly in the early decades. In many cities, police were heavily involved in attempting to regulate popular recreational habits, leading to many arrests on charges such as “drunk and disorderly.” It has been estimated that about half of police time in the mid-19th century was devoted to this kind of target. The result might not be a huge burden on punishment resources; some of those arrested might spend a night or two in a local jail and then be dismissed. But there was potential for further complications, including additional crowding in the prisons, or more serious criminal charges. Rather than relieving the punishment burden, policing might have been increasing it. Second: there is fairly good evidence that, over time, greater police presence did contribute to a reduction in crimes of violence and major property offenses, at least in many countries, though there was some oscillation from one decade to the next. (Other developments, like massively improved streetlighting, also played a role.) In this sense, the desired reformist tactic seems to have worked, reducing—though not eliminating—the need for particularly serious punishments. Tavern brawling, for example, ultimately decreased in the cities, and murder rates went down—though other factors may have been involved. French crimes rates seem to have responded particularly clearly, in part because the French maintained larger urban forces, per capita, than their English-speaking counterparts. Third: the police themselves could generate new problems of violence and pre-emptive punishment, particularly in interacting with certain groups. National variations complicate this evaluation, and a great deal depended

An Age of Reform and its Limitations  131 on the personality of individual officers. British policing, for example, was aimed more clearly at crime prevention than was true in some other places. British officers were not armed, but carried clubs and wore distinctive uniforms, ultimately complemented by an oversize helmet to increase their physical presence; their patrols in the city streets were meant primarily as deterrents, and fairly strict national regulations aimed at inhibiting unnecessary threats or intimidation. This was not the norm in some other cases. In Australia, for several decades, the new police force was also responsible for carrying out sentences of beating or whipping, which obviously complicated any commitment to prevention. Police in the United States during the 19th century were notoriously poorly trained and often corrupt, sometimes defending organized criminal groups in return for support, other times using violence to bolster a “tough guy” image on the streets. And, in contrast to their British counterparts, they were armed. The decentralized American approach could have some advantages. Many officers knew their neighborhoods well and often came from the district they patrolled; they might participate in informal social networks that would inhibit crime, or manage to identify and deter individual troublemakers. But some officers were quick on the trigger and not reluctant to use force to elicit confessions or simply intimidate real or imaged offenders. Death by cop became a problem, with police shooting causing 5% of all homicides in Chicago in the decades around 1900. Beatings of suspects left no clear records, and they were no longer classified as torture, but did occur. Police–community tensions were particularly great with the influx of immigrants around 1900, widely suspected of crime, and then with the “Great Migration” of African Americans to northern cities in ensuing decades. The net result is hard to evaluate, particularly given substantial national differences. There is no question that modern policing was installed at least in part as preventive, to limit the need to punish. It clearly had that effect to some extent. But it also could create new problems, expanding the number of people convicted of crime and introducing new forms of violence against real or imagined offenders, weakening the effort to turn away from corporal harm. The interaction between policing and punishment became a vital feature of modern history, and ultimately throughout the world, but its dimensions are hard to sort out even in the present day. Transportation

In a number of countries, transporting convicted criminals to other sites continued to be a significant resource during at least much of the 19th century, forming part of the response to the decline of more traditional

132  The 19th Century punishment methods. In some cases, colonial settings also allowed greater cruelty to the offenders involved than was now possible on home turf. British shipment of convicts to Australia continued until 1868: in 1833 alone, 7,000 were sent. The British even established new penal colonies in Western Australia and around what is now Brisbane after midcentury. After that point, opposition from Australians, but also protests by anti-slavery groups and others at home, essentially ended this option for Britain itself. It would still be used in the British colonies, and particularly India, where punishment standards were different in many ways. France took a somewhat different route. Disappointed with the number of people who returned to crime after a prison sentence, the nation began setting up internal penal colonies in the 1840s, where convicts could do agricultural work and be kept away from cities. Then, in 1852, a new government established a colony on islands off the coast of French Guinea, in South America. Over time, both hardened criminals, including murderers, and people convicted of lesser crimes were sent out. At one point some prostitutes were shipped as well, in hopes this might encourage family formation. A number of political prisoners were sent to the harshest site in the complex: the notorious Devil’s Island. Hard work and tropical diseases took a fearsome toll on many prisoners. A series of rules delayed opportunities to return to France, even when a sentence had been completed. The French maintained this system into the 1950s, though no new prisoners were sent after 1938. In its heyday, however, the Devil’s Island complex was a substantial undertaking: 80,000 people were sent to that site alone. For most Western countries, the transportation option declined in feasibility at some point in the 20th century because of a variety of objections, and ultimately the retreat of Western imperialism. It might recur in special cases, however. In 2002, the United States built a facility on territory it controlled in Cuba at Guantanamo Bay, where it held suspected terrorists and treated them in ways that were illegal on home soil, including forms of torture and an absence of timely trials. Overall, however, increased reliance on prisons at home formed the most important response to the curtailment of more traditional forms of punishment. The Modern Prison Many Western countries had already discovered the advantages of prison sentences before 1800. At least on the surface they responded to the growing objections to corporal punishment; they could seem to represent a kinder option. They removed offenders from society for a time, and to that extent, served the basic exclusionary aspect of prevention. While they might not seem as fearsome as traditional public executions or mutilations—and this was an issue—they might make potential offenders think twice about

An Age of Reform and its Limitations  133 consequences, particularly if combined with more effective policing. There were drawbacks as well: the most obvious being the costs of building and maintaining the facilities. Enthusiasm for prisons was heightened by the reform thrust of the Enlightenment. Utilitarians, in particular, put forth a variety of prison designs as desirable alternatives to traditional cruelty. Sentences could be of varying durations, calibrating to the seriousness of the crime. Reformers often emphasized the orderliness of tying clear prison terms to each level of crime, as opposed to the haphazard mixture of severity and clemency in the old punishment system. The optimistic notion that prisons might also help regenerate many criminals, rehabilitating them for a more constructive life, added a further spur to the growing interest. It was in this spirit, by the 1780s and 1790s, that a growing number of model institutions began to be built in various places. Focus on the prison was further enhanced in many Western countries by ending or curtailing imprisonment for debt—a move several governments made by the 1860s. This further centered attention on using prisons to respond to crime. American Enthusiasm

The new United States took a lead in the adoption of prisons during the first half of the 19th century, and indeed the national attachment to prisons would prove unusually strong from this point onward. A number of attractions reached policymakers and elements of the wider American public alike. Leadership in prison development helped distinguish the nation from its Old-World counterparts. It highlighted American revulsion against the kinds of punishments most obviously seen as cruel and unusual. The notion of rehabilitation through a prison term attracted Americans imbued with Enlightenment optimism but it could also appeal to a Protestant belief in the religious importance and salutary potential of deep guilt. From this mix of motives several American jurisdictions began experimenting with new kinds of prisons, of two specific but overlapping types, which would long draw attention from foreign observers eager to explore the potential of this punishment option. Pennsylvania took the lead, with wide reformist concern about the cruelty of corporal punishments. An experiment using convicts on public works misfired, with disorderly conduct and public sympathy for the resultant mistreatment by local authorities. Reformers like Benjamin Rush now advocated a set of isolated prisons or “houses of repentance,” where inmates would experience hard work, solitude, and silence, along with cleanliness and a simple diet. By the 1790s, Philadelphia had converted an old jail into a model of what became known as the Pennsylvania system: prisoners in

134  The 19th Century solitary cells with nothing but religious reading, distinctive uniforms, and rules requiring absolute silence so the convicts could meditate on their wrongdoing. The same approach defined the newer Eastern State facility, built in 1829 with single cells measuring 2’ by 7’, where prisoners were led to their cells hooded, with subsequent contact only with the jailer. Soon after this, New York, after some daring escapes from less organized prisons, and also some drunken revelries on prison floors, developed a partial alternative to the Philadelphia model, first installed in the Auburn prison. Again, prisoners were placed in separate cells and prohibited from talking when eating or working together, but the element of solitary confinement was less rigidly emphasized. Fierce debates arose between Pennsylvania and New York supporters, despite the minor differences between the two designs, and the fact that both emphasized silence. Both systems were widely copied by other states from the 1820s onward, with a preference for the New York plan, if only because it was cheaper; and both drew the attention of many international visitors. Enthusiasm for the promise of the prison ran high. While the growing American commitment to the prison can be hailed as a humanitarian reform, the new approach was deliberately severe. It did allow for rehabilitation through contemplation and religious instruction, but the older motives of deterrence and even retribution were hardly absent. It proved difficult to reconcile the various goals involved. The new institutions followed an essentially military drill, leaving prisoners little time for activities like bathroom use, and imposing rigorous work requirements, with discipline maintained by liberal use of the whip. Further, over time, prison conditions steadily deteriorated. The basic pattern was shared by state prisons and county jails alike. From the 1850s onward, crowding worsened material conditions and detracted from any effort at rehabilitation. Punishments for infractions became more rigorous, sometimes including hanging by the thumbs. More and more violent offenders were incarcerated, which affected other prisoners as well. And the United States distinguished itself by the length of average prison sentences—two or three times longer than equivalents in Europe, and sometimes including incarceration for life. As one (of many) reform commissions noted, the prison did serve to remove criminals from society, but it was not clear what else it accomplished. Even major new initiatives tended to collapse. In 1876, for example, a new facility opened in Elmira, New York, with a strong emphasis on the education of inmates. Both vocational and academic subjects were offered, with good grades contributing to opportunities for parole. This was another model that was widely copied. But its rehabilitative success proved limited, partly because of overcrowding. Whipping and other harsh discipline proved essential to keep inmates in line. At the other extreme, conditions in prisons in the South, where 75% of all inmates were Black, suggested little pretense at rehabilitation. Many inmates were put to hard labor on road projects or

An Age of Reform and its Limitations  135 agricultural work in chain gangs. In many parts of the country, in women’s facilities as well as men’s, deplorable hygiene conditions added to the miseries of prison life. With all this, at least a vague idea of the reformative potential of the prison still lingered; if not in fact, at least in public relations. By the 1920s, major American prisons began to be called “correctional facilities,” which surely sounded better than jail. Prisons in Europe: Divergent Trends

Britain developed a commitment to prisons that was almost as fervent as that in the United States. Quaker reformers inspired a new Society for the Improvement of Prison Discipline, in 1816, aiming at standardizing prison design. A law in 1823 began to sketch a national system, and provided regular clergy visits and pay for jailers (so they would not have to extort the prisoners), while abolishing the use of manacles. The initial impact may have been limited, however, until a prison inspection service was launched thirty years later. A number of reformist criticisms of poor conditions in the more traditional jails, along with population growth and concern about the limited future of transportation to Australia, spurred major new construction, including a large new facility in Pentonville, built to hold 520 prisoners in individual cells measuring 13’ by 7’ (desperately overcrowded, today, Pentonville houses 1,200 men). By the 1840s, plans called for construction of one new facility per year for the next decade. As in the United States, jail terms became the most common form of punishment—aside from fines— throughout the United Kingdom. And a new breed of professional prison managers emerged as well. Many prison staffers were former military, eager to enforce rules but somewhat less adept at guiding moral reform. While the British never moved toward a reliance on solitary confinement, they did increasingly emphasize substantial prison enclosures that would not only inhibit escape, but also separate inmates from normal contact with nature; a separation that would be broken only by the visits of prison chaplains. By the middle of the 19th century, optimism about reforming prisoners tended to wane, and this brought increasing emphasis on the “more strictly penal” aspect of the system and its role in keeping criminals out of public circulation. To be sure, many prison sentences were relatively short, sometimes half a year or less, despite a wide belief among reformers that it would take more time to induce repentance. As in the United States, British prisons introduced rewards for good behavior, including the possibility of early release. On the other hand, more punitive national administration in the late 19th century increased the rigor of work requirements, in many cases including operating a treadwheel for six hours a day, while cutting back on the quality of food.

136  The 19th Century Prisons in other European countries were never as widely developed as proved to be the case in Britain and the United States, but they did become the main focus of punishment during much of the 19th century—along with the inevitable flurry of reform projects. Pentonville-style prisons were built in many countries, emphasizing isolation and confinement in single cells. Work requirements were severe. In Belgium, prisoners worked eleven and a half hours during the day, and then again for almost three hours additionally, after a thirty-minute dinner. Belief in the importance of rigor and a hope that prisons could be self-supporting combined in this approach. However, the place of the prison began to decline in the continental countries after 1880. In marked contrast to Britain and the United States, prison populations dropped. A variety of widely publicized reports emphasized the unjust harshness of prison life and the ineffectiveness of rehabilitation efforts. More and more first-time offenders were given suspended sentences or probation, confining the prison population increasingly to hardened recidivists. In France, for example, the number of prisoners dropped by half in the decades after 1880, and more and more countries moved toward a similar model. Private patrons were recruited to help supervise first offenders and find appropriate work. This approach involved considerable supervision and restriction—it was not a free pass—but it was a considerably different approach from that taken in Britain and the United States. Prisons and Problems

The rise of the modern prison brought two sorts of problems that would complicate their new role in punishment, particularly where they were most heavily used. The first involved humanitarian evaluation: was imprisonment a step forward compared to a more traditional approach? There was no question that advocates believed so, and fervently, but others have questioned this, at the time and since. The second was more practical: prisons were extremely expensive, and keeping pace with demand would be a recurrent challenge, often resulting in measurable deterioration of physical conditions, supervision, and even basic safety. Successive generations of reformers had ample basis for criticisms, but improvements were elusive. Publication of Michel Foucault’s Discipline and Punish in the 1970s prompted new attention to the humanitarian issue. Foucault saw the modern prison as part of a network of custodial institutions, including schools, factories, and asylums, that increasingly sought to regiment populations and control minds—replacing the older emphasis simply on punishing bodies. Many observers at the time raised similar questions. After a visit to the Philadelphia prison, for example, the novelist Charles Dickens emphasized the massive psychological damage caused by incarceration in the new conditions. Describing a prisoner, Dickens wrote:

An Age of Reform and its Limitations  137 He is a man buried alive, to be dug out in the slow round of years, and in the meantime dead to everything except torturing anxieties and horrible despair […] A helpless, crushed and broken man…better to have hanged him in the first place than to bring him to this pass. Comparison of prisons with earlier forms of torture does not yield easy conclusions about humanitarian progress. Crowding and deteriorating material standards were a recurrent problem, made worse by predominant attitudes among jailers that most inmates were hopeless reprobates that simply needed to be controlled. Small wonder that individual reformers and multiple commissions issued one shock report after another, from the early 19th century on through 2023 (and undoubtedly beyond). Small wonder as well that many prisoners, once released, would become repeat offenders. To be sure, reform efforts could yield temporary improvements, as was true for a time in places like Elmira. Prison conditions also generated a growing effort, both in Europe and the United States, to separate juvenile offenders from their adult counterparts, a major innovation. Gradually a network of reform schools developed that, at least in principle, devoted greater attention to the possibility of rehabilitation and training. Then in 1899, Chicago’s Cook County established the world’s first court of juvenile justice, treating offenders under 16 as people needing assistance rather than deserving punishment, and systematically keeping them out of the prison system. The innovation was widely copied in other countries: while ironically reflecting the failure of imprisonment for many adults, it did offer some alternative for the young. For adult offenders, the persistence of the prison system itself was striking, though European policymakers were beginning to raise important new questions. The system built on hopes that some alternative could be found to the older reliance on physical pain. The hopes did not entirely disappear, but the prison system also came to rely on older beliefs in the importance of rigor and removal. It was a powerful combination, despite the questionable results. Punishment Outside the Law In some places, social and racial tensions in the 19th century combined with frustration at the changing patterns of punishment—most obviously, the declining use of the death penalty—to generate punitive action by private groups. This was not a new phenomenon in history, but it was a striking development in societies where governments were normally seen as the only source of major punishment. “Vigilance committees” sprang up periodically in the United States from the 1830s to the 1920s, ostensibly to enforce the law when governments were

138  The 19th Century too disorganized to act. Often, they defended property owners against the poor and ethnic minorities. This was the tenor of a group in San Francisco in the 1850s, for example, in the wake of the Gold Rush. More troubling still was the surge of lynchings that crested in over half a century after the Civil War. Informal community groups seized individuals accused of murder, rape, or other crimes—often without a trial—and killed them, mainly by hanging. The goal was to express rage and hatred that would intimidate whole groups, reverting to types of public punishment that were otherwise increasingly banned. Between the 1880s and 1940s, almost 5,000 lynchings occurred, 80% of them directed against African Americans, mainly but not exclusively in the South; but several hundred Latinos were targeted, and a number of Whites as well, as when 11 Italian Americans were lynched in New Orleans. The last officially registered lynching occurred in 1955, as governments belatedly tried to crack down. The whole episode highlighted the role of racism after the end of slavery, but also the strange attractiveness of punishments that highlighted physical cruelty and public performance. Conclusion Reformers in Western societies tackled several basic features of punishment, during decades dominated by industrialization and political change. Each major step was vigorously debated, amid constant concerns about crime and deep attachments to older methods. There is no question, however, that a host of very real changes did occur. Indeed, by the end of the century Western policymakers were proudly advertising their new approach as a standard of enlightened civilization, and a number of other societies responded at least in part—the subject of the following chapter. The patterns of change also generated a series of nagging questions, beginning with the balance among goals of retribution, deterrence, or rehabilitation. Had the reforms gone far enough, particularly given stubborn continuities such as whipping? Was it sufficient to cut back the death penalty and perform it in private, or must more be done? The new role of the police was obvious, but its impact on punishment was not as clearcut as many had hoped. Huge questions surrounded the prison, from a humanitarian or strictly practical standpoint. Finally, the 19th century had also suggested crucial differences in regional approaches within Western society, and these too would linger, most obviously creating marked distinctions between American and European patterns that would persist into the 21st century. A reform commission in Cincinnati in 1870 reached a pessimistic conclusion: “Neither in the United States nor in Europe, as a general rule, has the problem of reforming the criminal yet been resolved.” The 19th century created a combination of hopes, problems, and commitments in the whole field of punishment that created a challenging context for the decades to come. Further change was inevitable, though it could take several different directions.

An Age of Reform and its Limitations  139 Further Reading Richard Evans, Rituals of Retribution: Capital Punishment in Germany (Oxford, 1996); Randall McGowen, “History, Culture and the Death Penalty: The British Debates, 1840–1870,” Historical Reflections 29 (2003); V.A.C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford, 1994); Austin Sarat and Christian Boulanger, eds., The Cultural Lives of Capital Punishment (Stanford, 2005); Pieter Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression (Cambridge UK, 1984); David Cooper, The Lesson of the Scaffold: The Public Execution Controversy in Victorian England (Athens OH, 1974). Laurence French, History of Policing in America (New York, 2018); David Churchill, Crime Control and Everyday Life in the Victorian City: The Police and the Public (London, 2017); Clive Elmsley, The English Police: A Political and Social History (London, 2014); Samuel Mitrani, The Rise of the Chicago Police Department (Urbana IL, 2017); A.R. Gillis, “Crime and State Surveillance in Nineteenth-Century France,” American Journal of Sociology 56 (1989). David Nash and Anne-Marie Kilday, Cultures of Shame: Exploring Crime and Morality in Britain 1600–1900 (London, 2010); Peter N. Stearns, Shame: A Brief History (Urbana IL 2017); John Demos, “Shame and Guilt in Early New England,” in C. Stearns and P. Stearns, eds., Emotions and Social Change (New York, 1988); Ute Frevert, The Politics of Humiliation: A Modern History (Oxford, 2020). Terence Finegan, A Deed So Cursed: lynching in Mississippi and South Carolina (Charlottesville VA, 2013); Michael Pfeifer, Rough Justice: lynching and American Society 1874–1847 (Urbana IL, 2004). David Wilson, Pain and Retribution: A Short History of British Prisons (London, 2014); W. David Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York (Ithaca NY, 2009); Rebecca McClennan, The Crisis of Imprisonment: Protest, Politics and the Making of the American Penal State, 1776–1941 (Cambridge UK, 20080; Thomas Blomberg and Karol Lucken, American Penology: A History of Control (2nd ed, New York, 2017); Norval Morris and David Rothman, Oxford History of the Prison: The Practice of Punishment in Western Societies (Oxford, 1998); Michel Foucault, Discipline and Punish: The Birth of the Prison (New York, 1979).

10 Reform Efforts in Asia, Russia, and Latin America

Independent societies outside the West undertook a variety of reform efforts during the 19th century, and particularly the second half. Awareness of Western patterns was a major prod: these countries, often pressed by European interference and criticism, sought to demonstrate their commitment to more enlightened standards. At the same time, the countries involved had their own concerns about some of the deficiencies of more traditional patterns, and they were also pressed by factors such as population growth and some degree of urbanization. The result was a combination of distinctive regional characteristics and some shared commitments to change that in several cases, as in Japan or Russia, would continue to influence punishment patterns from that point forward. In no case did reform discussions range as widely as occurred in the West: there was less interest for example in major reviews of childrearing or corporal punishment in the schools, though at the end of the 19th century, Russia did begin to revisit school discipline. Less industrial than the West at this point, these societies also had fewer resources to apply to innovation. But the measures that were undertaken were considerable, extending the centrality of the 19th century in marking a move away from a purely traditional approach to the treatment of offenders. Also, in some cases, regional societies suggested steps that went beyond prevailing Western patterns. Russia Reforms in Russia had already been launched in the 18th century, with the dramatic restrictions on capital punishments. Although these relaxed slightly in the decades after 1800, Russia continued to execute relatively few convicted criminals—far fewer than Britain in the first half of the 19th century. Russian opinion, at least in educated circles, turned strongly against the death penalty. A clear indication: after a significant rebellion in 1825, the czar commuted all but five of the capital sentences for the protest leaders. A law in 1845 ended the death penalty for most murders, replacing it with DOI: 10.4324/9781003427261-14

Reform Efforts in Asia, Russia, and Latin America  141 permanent exile to labor in the mines. (Peasants were flogged in addition; a reminder that inequality in punishments remained vivid in aristocratic societies, with convicted aristocrats merely stripped of their titles instead.) Military courts continued to impose the death sentence for some crimes, but the actual rates of execution in the late 19th century were well below levels in the West and particularly the United States. Amid growing social unrest, however, imposition of the death penalty went up dramatically after 1906. Even at this point, however, it remained at about 50% of the per capita rate in England and France and 20% of that in the United States. Russian officials in the main had turned away from the death penalty. In the great Russian novel, Crime and Punishment, by Feodor Dostoevsky (1866), the protagonist, a murderer, ultimately confesses, and partly because of this is sentenced to only eight years in penal servitude. The sentence, along with his sense of guilt and the love of a good woman, begins a process of personal redemption. The sentencing aspect, at least, was not unusual in the Russian context, nor was the continued connection between punishment and an active religious sense. Russia also moved forward with other changes, even in the first part of the 19th century when the regime was largely conservative, and then with a new burst in the 1860s as a reform period opened up. A new rule in 1817 ended the practice of removing the nostrils of thieves. The dreaded knout was abolished in principle in 1845 to be replaced by whipping, and then this too was limited as part of the reform surge in 1863, along with some of the more severe punishments in the army. Whipping was ended entirely in 1904— though as in the West an exception was made for prisoners. The old recourse to facial branding was also terminated in 1863. The most dramatic changes in the 1860s involved the installation of jury trials for major crimes, along with greater police efforts to investigate before making arrests. In ensuing decades, Russian juries proved remarkably reluctant to punish, granting acquittals in a full 40% of all cases tried. This unexpected trend seems to have resulted from a particular kind of Christian sentiment—religion had already strongly affected Russian punishment patterns. Many juries believed that only desperation could have driven people to crime, and therefore compassion rather than retribution should predominate. As a reformer put it—critical of the number of criminals who escaped conviction under the new arrangements—“religiosity had overwhelmed legality.” The government actually stepped in to remove political crimes from the list of jury trials, after a woman clearly involved in a terrorist assassination had been found innocent: here, the government turned to increasingly severe measures. Russia devoted relatively little attention to prison development, despite strong internal advocacy for reform and the example of the West. The nation constructed a few single-cell prisons, but cost considerations long

142  The 19th Century prevented wide implementation; most Russian prisons were located in converted castles or religious buildings, where material conditions were poor. As in the West, declining use of corporal punishment, plus population growth, steadily increased the prison population. However, toward the end of the century, a major construction spurt reduced overcrowding and introduced other improvements. In contrast, reliance on periods, or sometimes lifetimes, of exile to labor camps, particularly in Siberia, remained a vital Russian option. Sentences varied with the crime, from life to a period of a few years—the latter seen as a “corrective” approach to punishment. In some cases, a convict might be required to stay in Siberia even after release. Hard work, harsh climate, and poor health provisions generated considerable death and suffering, though recent research had modified some of the stereotypes, and a few exiles even regarded their sentences as a bit of vacation. Reformers nevertheless argued strenuously for an end to this system, but they made no real headway. About 2,000 people per year were being sentenced to the labor camps by the 1890s, most of them for crimes of violence or robbery, and very few for political crimes (though this too began to change after 1906). Here, along with the limited prison system, was a distinctive feature of the Russian approach, even as legal changes in other respects moved toward Western standards or even, given the leniency of juries, beyond. However, Russia was not alone in using exile—France may have sent a relatively higher number to the Devil’s Island complex, and all Western countries continued to insist in hard labor in prisons. Overall, by the early 20th century, Russia had a higher per capita percentage of its population in labor camps and prisons combined than its West European counterparts, though almost certainly a lower rate than that of the United States. One other striking feature of Russian punishment centered on a network of local peasant courts that coexisted with the more formal government operations into the early 20th century, with peasants often displaying a very distinctive sense of appropriate punishment. For them, fines and imprisonment—the modern options—were more burdensome than traditional remedies such as exile, shaming, beatings, and even death. Though not part of the official statistics, a number of peasant courts sentenced local murderers or other offenders to death—and sometimes a gruesome death, complete with premortem amputations and other tortures. Flogging was also frequently imposed, along with beatings that often led to death, and peasant courts also might mandate exile to Siberia. For lesser offenses, shaming normally involved a parade past taunting neighbors. Religion entered into to the peasant sense of justice, but through an emphasis on a vengeful God that conflated crime with sin. On the other hand, peasant justice exempted certain acts which the state regarded as crimes—stealing wood from the property of an aristocrat was not a crime in peasant eyes, and would not be

Reform Efforts in Asia, Russia, and Latin America  143 punished. Nor was a wife’s murderous retaliation against her husband for flagrant adultery. During the later 19th century also, rural violence by husbands against their wives increased, for a variety of assumed offenses; this could include beating but also being dragged by a horse-drawn wagon. A strong element of retribution clearly informed the peasant conception of punishment, along with a deep belief that the official courts were likely to be too lenient. In contrast to most West European countries (but not to the United States, where for different reasons, local ideas of justice often differed from official national standards), the Russian government at this point did not fully control the formal punishment process. The result was a striking mixture of reform, diverse religious impulse, and highly traditional approaches, all of which greatly complicate any comparative assessment. Deeply influenced by Western standards and autonomous motives for reform, Russia also maintained a distinctive regional profile. Ottoman Empire The Ottoman Empire had already developed a diverse approach to punishment, and this continued even amid reforms. Through the 19th century, the Empire maintained a mixed system of judicial courts; while the state system gained increasing prominence, religious courts continued to operate as well, giving considerable scope to Islamic judges. At the same time, Western pressure was undeniable. In midcentury, the British ambassador was particularly prominent in urging reform, arguing that “…in the present advanced state of human knowledge and public opinion, no government which respects itself and claims a position among civilized communities can shut its eyes to the abuses which prevail.” Following up, a British official conducted an inquiry into the state of prisons in the Empire in the 1850s, cataloging an abundance of horrors. Western criticism hit home, for a regime that wanted to claim a spot among the European great powers and sought to use punishment reform, among other categories, to win greater favor. Important changes did occur, though reforms were gradual, constrained by a lack of resources, and never aiming at a complete “Westernization” of the system. The Empire launched an overall reform process in 1839, and issued a new criminal code (known as the Bloody Code) in the following year. Prison terms gained some new attention, but other punishments were laid out including whipping, hard labor, and exile. A new measure in 1858 made a clearer move toward downgrading corporal punishment in favor of prison sentences or fines. The new code worked toward ending torture; at least in principle. “Corporal punishment shall not be administered, even in the prisons, except in conformity with the disciplinary regulations established by the

144  The 19th Century (Sultan), and everything that resembles torture shall be entirely abolished.” The criminal code was also clarified. At the same time, the government legitimized reform by claiming that it was in harmony with Islamic principles and practices. In fact, the standardization of the types of punishment did limit the discretion of local religious judges. Subsequent moves increasingly restricted capital punishment to major crimes such as premeditated murder or treason. Listed crimes included more attention to a variety of sexual offenses than was common in the West by this point, such as the “seduction and dishonoring of a virgin.” Another category, “vituperation, insulting and slandering” also recalled earlier emphases in Islamic and Ottoman law. The reformed Ottoman system remained a complex amalgam of traditional and Western principles, but the changes introduced during the Empire’s final century were unquestionably significant. While British reports had stirred some concern about prison conditions at midcentury, the subject received more attention after 1870. By this point, the Ottoman intelligentsia had some awareness of the problems involved, and pressed for reform. From the 1870s onward the government began sending representatives to international penology conferences, another impetus toward change. Also, thanks to the larger reform movement and the growing emphasis on incarceration, the Empire was now facing the usual problem of massive overcrowding, compounding existing inadequacies. Many prisons operated in segments of larger compounds, which facilitated escapes. Many had no regular work programs, with prisoners surviving only on what their families could bring them, often doing their own cooking on small stoves. In 1871 the government constructed a model prison, calling it a penitentiary. Grand plans to build similar structures throughout the Empire came to naught, but there were improvements. Clearer distinctions were drawn among types of crimes, with lesser offenses that warranted jail time of three months or less handled in local facilities, saving the larger institutions for more hardened criminals. New efforts also aimed at keeping children out of the system altogether, in favor of separate treatment for juveniles, and installing separate sections for women. Though limited, educational and rehabilitation programs expanded as well. New national regulations for prison administration were issued in 1880, leading to more formal training for prison personnel. A further measure in 1911 established the first national system for prison administration and aimed at modernizing and refurbishing a number of prisons and jails. A 1912 decree sought to create “Ottoman prison standards and health and hygiene conditions in line with the Laws of Civilization”—a revealing phrase. Conditions remained difficult, as recurrent wars and a halting economy limited available resources. British observers continued to belabor the inadequacy of the Ottoman system. A prison official noted in 1914 how his facilities were “narrow, dark, crowded and unhealthy.” Yet significant changes

Reform Efforts in Asia, Russia, and Latin America  145 had occurred, certainly in administrative structure and intent, and to some extent in the physical plant as well, as part of the larger redefinition of punishment in the final decades of the Empire. Japan Japan had been reconsidering punishment during the early modern period and into the early 19th century, before the new encounter with the West from 1853 onward. A new prison for vagrants and petty criminals was established in the capital in 1790, suggesting still further interest in institutional punishments. Brutal executions tended to decline; one writer noted that any death of that sort was “entirely the fault of the ruler.” Several intellectuals, including Nakai Riken, developed a number of reform ideas. But there is no question that interactions with the West convinced many Japanese that their punishment system was hopelessly outmoded and needed serious change. Even before the Meiji reform era that began in 1868, a number of Japanese had studied Western punishment systems, including American prisons, and recommended some imitation. Further, the abolition of the samurai class after 1868 forced major reconsideration of the system of keeping order, while rapid urban and industrial growth created further pressures for change. The Japanese would maintain a very distinctive approach to the spirit of punishment, but their legal and institutional systems quickly moved toward a more Western model, with significant French and then German influence. As with the Ottoman Empire, Western powers used the traditional punishment system in Japan as a sign of civilizational backwardness which could in turn justify a claim that their citizens, when in Japan, needed separate legal treatment, or “extraterritoriality”—a claim Japanese authorities deeply resented. Western stereotypes about Japanese brutality went well beyond the facts, but they added to reform pressures. The Japanese sought to respond through a set of surprisingly swift changes, with a decree in 1868 proclaiming that “penal laws are a matter of life and death for the multitudes and are thus in urgent need for correction.” Crucifixion and public display of executed bodies was severely limited, and burning alive completely abolished; any death sentence must be explicitly approved by the Emperor: “the lives of the people are of the greatest concern (to him).” Banishment was to be replaced with “penal servitude,” with a pledge of new facilities as soon as possible. Study missions were sent to examine British prisons in Hong Kong and Singapore, on grounds that facilities in Asia might be more feasible than the more expensive Western models. The visitors were deeply impressed with the differences from the old Japanese jails, and coined a new term, “surveillance jail,” which continues to be used today. Other changes followed fast. Flogging was limited, partly because it could cause too much damage, and replaced by hard labor. This had the advantage

146  The 19th Century of promoting rehabilitation, by providing a new way to make a living later in the outside world and by encouraging prisoners to “reject…their previous evil ways, thereby opening up a path to discipline and repentance.” The length of a sentence could be adjusted to the crime, all the way up to life at hard labor for some who did not deserve to be put to death. British-style gallows were introduced to make the administration of death less painful. Banishment was also abandoned, in favor of the focus on the prison. The old practice of allowing sons to take revenge directly for their father’s murder was dropped, as was the provision of special jail cells or distinctive opportunities for house arrest for upper-class prisoners. The state was now in full charge of punishment, and in principle all were to be treated equally depending on the crime involved. The new philosophy was summed up in the goals for a different kind of prison: “The purpose of the prison is to show people love and benevolence, and not to cause them pain. Punishments are applied because there is no other choice. Their purpose is to expel evil in the interests of the nation.” Grand plans for a prison that would offer a graded series of work tasks, rather like a factory floor, could not be realized because of costs, but in 1874, a new prison was constructed, essentially on Western lines, which differed markedly from the old-style holding pens, reducing crowding and promoting better health conditions. At the same time, separate reform schools took care of young offenders, keeping them away from more hardened criminals. Not only flogging, but other forms of torture were also progressively abandoned, including pretrial torture designed to elicit confessions—an essential move if Western authorities were to be persuaded to treat Japan as an equal. Above all, prisons themselves were rapidly expanded, since this was now the major focus for punishment: by 1882 the network held 33,000 inmates, and this would continue to grow. (By the 1890s, Japan had over 80,000 inmates: twice as many as the nation has today, despite a population that is four times larger.) For Japanese officials, reliance on modern prisons could be touted as signs of “civilization and enlightenment,” in contrast to older cruelties; but the inmates also provided vital work services for a rapidly growing economy, making the system part of the larger effort to serve the nation. By the late 1880s, prisons were producing bricks, leather goods, printed materials, textiles (from the women’s prisons), along with roadbuilding, agricultural, and mining work—all vital components of Japanese industrialization. This was a considerably different pattern from the more limited products of Western prisons, but helps explain why Japanese authorities converted to this new, and initially expensive, system of punishment with such enthusiasm. The toll on the prisoners, however, was high: about 44,000 died during the decade after 1884, now less from disease than from malnutrition and work accidents. In the process—as in the West itself—the rehabilitative aspects of imprisonment were increasingly played down in favor of a

Reform Efforts in Asia, Russia, and Latin America  147 punitive emphasis. As one police official put it, “the point of confining prisoners is to inflict pain…so that not only those who are inmates in prison but also other good citizens have a sense of how fearful it is to be a prisoner.” As in the West also, conditions in Japan’s modern prisons periodically drew attention from a new generation of reformers, along with continued sensitivity to Western opinion, and this led by the 1890s to some alleviation of the most brutal work contracts. Exercises designed simply to exhaust prisoners—like the treadmills in British jails—were scaled back. Emphasis on discipline remained high, but infliction of pain was restricted. Work projects outside the prison were also closed down. By this point Japan had its own group of expert penologists, and the sense of dependence on Western opinion gave way to a confidence that the nation had mastered the management of an effective modern punishment system—in just 30 years. Latin America The Latin American context was quite different from that of places like Russia or Japan: the region was dominated by new nations in the 19th century, where punishment policies had to be constructed as part of overall national development rather than in reaction to Western pressure. Discussions of penal reform had begun in the 18th century even before independence, as part of growing interest in the European Enlightenment. While punishment issues were not at the top of the agenda of the post-independence leaders in the 1820s. they certainly commanded attention—one Peruvian leader mentioned the subject in 1821. At the same time other factors, including limited economic growth and the stresses of social and ethnic divisions, complicated reformist impulses. In several regions, punishment approaches also reflected slavery and its legacies. A division opened between rural and urban approaches. In the cities, major countries moved toward a prison model, with eager attention to designs from Europe and the United States. Brazil began its first modern prison in 1834, Argentina in 1871, Mexico City in 1900. The field of penology blossomed, and Latin American delegates attended relevant international congresses from the initial 1872 meeting onward. A discussion in a 1900 gathering involved criticism of Mexican prison policy for not allowing visitation rights, but also a long discourse on the problem of recidivism and the need for extended sentences to reduce the likelihood of a return to crime. As in other regions, Latin American reformers were eager to experiment, but hampered by the lack of hard data on recidivism and other problems. Reliance on rural and island penal colonies rivaled and often surpassed the attention to urban penitentiaries. Many countries sent convicts to frontier presidios, where they cohabited with military personnel, clearing land and building infrastructure, and playing a key role in expanding settlements.

148  The 19th Century This option was less expensive than urban incarceration and had more obvious economic benefits. For the prisoners themselves, however, sentences to the frontier disrupted family ties and did not provide useful urban skills, hampering rehabilitation. Many countries also developed island colonies, such as Fernando de Noronha in Brazil; these mainly housed vagrants and petty criminals; largely male. By 1897, Brazil had 12,000 convicts in colonies compared to 10,000 in prisons. Many island convicts served short sentences, with the hope they would stay on as settlers, though again, rehabilitation patterns were less clearcut than reformers hoped. Most Latin American nations followed international standards in reducing the use of capital punishment and torture, in addition to building more modern facilities. Venezuela, for example, abolished the death penalty in 1863, followed soon by Costa Rica in 1882. But the region was also marked by options that had lower costs than prisons, creating another distinctive regional mixture. Conclusion Criticizing the backwardness, even the barbarity, of other societies’ systems of punishment became something of a parlor sport for Western commentators in the 19th century—a habit that has not entirely disappeared today. As early as 1801, a British author, George Henry Mason, wrote a book called Punishments in China that helped persuade a wider public of the cruelty of the Qing Empire. At the other end of the century, the Mikado (1885), one of the most popular operettas by the British duo Gilbert and Sullivan, featured a fictional Japanese emperor eager to discipline village officials because they had not beheaded anyone recently and delighting in considering punishments that would turn prisoners into “sources of innocent merriment.” Gilbert, the librettist, insisted that the Japanese theme was incidental, that he was really mocking British society; but it is fair to guess that the audiences often assumed that excessive punishment was indeed a Japanese trait. The premise behind this assumption of superior Western enlightenment was, at least, debatable, given the flaws in Western systems, and some of the redeeming features of other approaches. It was true, however, that the impact of Western punishment models in the 19th century offered an extraordinary example of outside influence, combined of course with regional traditions. There was no single pattern of punishment at the end of the 19th century. This was true even within the West, and certainly applied to global diversities in degrees of reliance on long prison terms, or exile to labor camps, or special methods of execution. But there had been a striking movement toward certain kinds of change, away from reliance on capital punishment and the most blatant kinds of torture, toward increasing use of incarceration. For better or worse, “modern” punishments emphasized some shared characteristics in many world regions.

Reform Efforts in Asia, Russia, and Latin America  149 Further Reading Jonathan Daly, “Criminal punishment and Europeanization in late imperial Russia,” Jahrbuch fuer Geschichte Osteuropas 48 (2000); Louise McReynolds, Murder Most Foul: True Crime and Punishment in Late Imperial Russia (Ithaca NY 2013); Cathy Frierson, “Crime and punishment in the Russian village: Rural concepts of criminality at the end of the nineteenth century,” Slavic Review 46 (1987). Daniel Foote, “The benevolent paternalism of Japanese criminal justice,” California Law Review 80 (1992); David Botsman, Punishment and Power in the Making of Modern Japan (Princeton, 2005). Kent Shull, Prisons in the Late Ottoman Empire: Microcosms of Modernity (Edinburgh, 2014) and “Criminal codes, crime and the transformation of punishment in the Late Ottoman empire,” Law Explorer, May 20, 2017. P. Vanderwood, Disorder and Progress: Bandits, Police and Mexican Development (Wilmington, 1992); Ryan Edwards, “Post-Colonial Latin America, since 1800,” in Clare Anderson, eds., A Global History of Convicts and Penal Colonies (London, 2018); Ricardo Salvatore, Carlos Aguirre, and Gilbert Joseph, Law and Society in Latin America (Durham NC, 2001); Ricardo Salvatore and Carlos Aguire, The Birth of the Penitentiary in Latin America (Austin, 1996).

11 Punishment in the New Empires From the 19th Century to the Mid-1950s

As Europe, and then the United States and even Japan, built or expanded empires in Asia, Africa, and Oceania, they brought with them punishment methods that they were increasingly abandoning or modifying back home. Harsher measures often seemed essential in situations where small numbers of officials attempted to keep order amid large local populations, but their use most obviously reflected beliefs that the colonial subjects were racially inferior, neither requiring nor deserving the more complex approaches to punishment that were being worked out in “enlightened” societies. The new empires faced some of the same issues that had shaped punishment in the American colonies, but in this case European rulers were dealing with far larger local populations and possibly even more rigid ideas about racial hierarchies. The punishment patterns that resulted would ultimately contribute to the tensions that promoted imperialism’s retreat, while adding yet another category to the retroactive condemnations of imperialism that have become such an important element in historical interpretation today. They also set up some challenging problems for the societies involved, once they regained independence and needed to reimagine an approach to punishment in the later 20th century. The overall pattern was complex. On the one hand, imperialist regimes simply revived some key features of “old regime” punishments, pushing the colonies in the opposite direction from trends in the West or the other independent states. On the other, while a few imperialist measures were familiar to some of the societies involved—like whipping in parts of Asia—many policies involved important innovations for the colonies themselves—particularly in Africa—where traditional punishments had not placed as much emphasis on death penalties or crowded prisons. Europeans reserved their fiercest reactions for cases of outright rebellion. Here, tens of thousands of people might be killed, as in the British response to the Mau Mau rebellion in Kenya in the 1950s. Bizarre methods could be introduced, as when Britain, again, shot some Indian rebels out of cannon after a mid-19th century rising. Some policies bordered on genocide, most DOI: 10.4324/9781003427261-15

Punishment in the New Empires  151 notably when Germans forced a whole tribe into the desert after agitation in Southeast Africa (now Namibia). Many colonial police routinely shot into crowds gathered for protest. Mass arrests also responded to protests, with prisoners languishing in detention camps without the benefit of any trial. Normal punishment policies were not so harsh, though they might reflect similar tensions particularly when political prisoners were involved—a challenge that would increase in the 20th century in many colonies. It is also important to note that judicial penalties were often debated, as some of the Europeans involved sought to align the colonies more closely with principles in effect in the home country. Nowhere, however, were the masses of colonial subjects treated to the same levels or forms of punishment there were being developed in Europe at the same time. The most predictable feature of the imperialist approach emphasized distinctions between Europeans and “natives” in the colonies themselves, with the former protected from the courts and many of the punishments applied to the latter. In India, for example, the British did introduce legislation from the 1850s onward that was in principle designed to ease racial disparities. In fact, however, the same rules made it clear that British people would be tried only by European judges, and never submitted to the local Indian-run courts to which most of the population was subject. Distinctions also applied to prisons, in Africa as well as India. Even in structures where Europeans and locals were housed together, Europeans were given superior quarters and a better diet, regardless of the crimes involved. Further, few Whites were subject to the death penalty; again, a marked contrast with the experience of others. The reform trend of applying punishments across the social spectrum was significantly modified in the colonies, though mainly on racial grounds. Differences in treatment affected punishment in other respects. Whites in many colonies, as employers or plantation owners, often committed violence against locals, mainly in the form of beatings or whippings, but occasionally outright murder. The gentler treatment they could expect from police and the courts, if they were arrested as all, simply perpetuated this larger violence. Capital Punishment For non-Whites, application of the death penalty tended to rise in many cases; the clear reverse of the pattern in the West (and elsewhere). Trends in British India were revealing. A law in 1898 specified that convicted murderers should be executed; any judge who commuted this sentence to life imprisonment must provide a specific reason. While data on the numbers of executions are unclear for the 19th century, there is no question that sentences went up between 1925 and 1945. In that period, almost 24,000 people were sentenced to death in British India, though 41% of these were commuted, and a few others managed to petition for mercy. The end result was

152  The 19th Century a total of 11,539 put to death, a much higher per capita total than in Britain itself in the same years. And whereas 346 were executed in 1925, the number had soared to 789 in 1945. The increase partly reflected a higher murder rate, but it also picked up on the growing tension between nationalist agitators and British authority; further, in some cases the list of capital crimes itself increased, for example, with a 1934 law that added “intent to murder.” The trend provoked resistance among local Indian leaders. Petitions to reduce or abolish the death penalty were offered fairly regularly after 1918, but while colonial authorities privately admitted this would not be a bad idea, adding that capital punishment “is not really a deterrent,” nothing was actually done. Interestingly, in many of the princely states not under such direct British rule, executions did decline in the same period, in some cases because of a revival of traditional constraints. Many Muslim states thus referred to sharia law, allowing a payment to relatives of a murder victim to substitute for execution. Some Hindu states maintained the tradition of exempting members of the Brahman caste, but now added women to the groups immune from capital sentences. One prince suggested that at least a person might be given chloroform before hanging, to reduce the pain. But none of this affected the territory under direct British control, where insistence on rather high levels of capital punishment remained the norm. Capital punishment became an important part of the colonial system in Africa as well. The French established the penalty quickly in places like Senegal (in 1824), though it began to be imposed extensively only at the end of the century. Here too the range of crimes for which the penalty might be applied expanded steadily, reflecting beliefs about the potential savagery of the African population. Methods of execution centered mainly on hanging in British territories, though there were reports that this was more sloppily done in the colonies than in Britain itself. In colonies like Nigeria, the British did cut back on older methods of execution, such as drowning or burial alive. But in French colonies in Africa, death sentences were mainly carried out by firing squad until after 1945, in contrast to the use of the more humane guillotine in France itself; only in the colony of Senegal was a guillotine brought to bear. Differences of this sort were less pronounced than the sheer rate of executions, but they reinforced the distinctiveness of the colonial approach. For the most part, colonial authorities avoided the use of amputation, which had been a common punishment method in several of the regions they took over. Their motives may have reflected some humanitarian sentiment, but they were also rooted in the understanding that amputated people had vastly reduced economic potential. However, if amputation was out of the question, other methods—short of death—became even more essential. Furthermore, in some colonies, such as British Hong Kong, branding was used as a means of identifying criminals even when their formal punishment had ended.

Punishment in the New Empires  153 Transportation

As part of the effort to find alternative methods of punishment, transportation of convicts was highly cherished by British authorities in India for several decades, from the 1790s onward, though it was finally phased out by the 1870s. Many thousands of Indian prisoners, including violent criminals and political offenders—primarily, but not exclusively, male—were sent from India to Indian ocean islands, Malaysia, Singapore, and elsewhere. Some were kept in prisons, but many were used essentially as slave labor on these British colonial outposts, building infrastructure and servicing other vital activities. Some were even put to work as barbers or tradespeople, depending in part of their caste of origin in India. Some outright penal colonies were established on islands off the Indian mainland as well. The pattern resembled contemporary British policies in sending convicts to Australia, or the many Latin American penal colonies, in some respects. However, the British regarded transportation as a particularly painful penalty for “Asiatics.” While banishment had sometimes been used as a punishment within India, the notion of sending Indians to Southeast Asia, across what were sometimes referred to as the “black waters,” was seen as particularly fearsome. Thus, British authorities believed that transportation was a “weapon of tremendous power” in keeping order. It obviously had the merit of removing criminals from their home turf, for periods of six years or more, and sometimes for life, plus providing a much-needed cheap labor force in other areas. But its fear factor went beyond removal: again, a British official referred to “the horror in which people regard transportation is a feeling born within (them),” which he did not fully understand, but intended to exploit for deterrent value. Some prisoners apparently begged the courts to sentence them to hanging in preference. The emotional and economic advantages of transportation easily overrode reformist objections to the practice for almost a century. Other colonial authorities relied heavily on the transportation of convicts, through the early part of the 20th century. This was the case with France (which also, of course, continued to transport some French convicts to Devil’s Island). The Portuguese empire also used transportation. Corporal Punishment

More pervasive and durable than transportation was the simple frequency of whipping and flogging, by colonial authorities directly, or by other European settlers in dealing with local labor. Here perhaps, along with the relatively high rate of capital punishment, was the most vivid distinction between colonial punishment and the practices normally adopted in the home countries. To be sure, whipping had a long life in Europe and the United States as

154  The 19th Century well, despite growing objections; but the frequency and severity of the practice in the colonies easily outstripped levels currently accepted back home, recalling patterns of earlier centuries. Revealingly, European colonials were exempted, though there were a few exceptions. At various points, reform advocates hoped that imprisonment could replace flogging, but in most colonies the authorities believed that both recourses were essential—including whipping as punishments within the prisons themselves. Some rules were introduced in certain regions. Thus, in Jamaica regulations in the later 19th century stipulated that a judge must set the number of lashes to be administered, depending on the crime, that the size of the whip must be standardized, and that a doctor must be present at each flogging. A British measure in 1933 specified the types of devices that could be used for whipping in the African colonies, presumably to limit the damage involved. On the other hand, recurrent efforts in many colonies to exempt women from flogging usually failed. In a number of cases official colonial policies and the actual practices of local officials and White settlers varied, and this could obviously affect the frequency and severity of whipping in practice. There is no way to quantify the frequency and severity of flogging overall, or how often it caused permanent impairment or death. Not uncommonly, individual colonists took matters into their own hands; whipping was not simply a resource for the judicial system. It is clear that it was a common response for an array of offenses. In the British colony of Kenya in the 1930s, for example, a man could be flogged for the crime of whipping his horse, a particularly bizarre result of the British value system at the time. In British Hong Kong, particularly between the 1840s and 1870s, flogging was unusually common, sometimes resulting in death. On a single day in 1846, 54 men were flogged, simply for lacking proper registration papers. Beggars and the elderly might be whipped. Both British and Chinese authorities tended to approve of the punishment as essential both to retribution and deterrence; one colonial official commented with some delight that “proper methods of dealing with outrageous Chinamen had at last been found.” Further, most whipping occurred in public, before an often enthralled audience; and shaming was increased by cutting off the distinctive hair queue after the punishment had been administered. Reforms later in the century, pressed by authorities in Britain, did reduce whipping in Hong Kong in favor of imprisonment—the situation was not changeless—but the practice continued, albeit in less severe fashion. As Japan expanded its empire, first in Korea and later in Taiwan, it too introduced whipping, even as the practice was being banned at home. The dynamic was similar to the common impulse in Western imperialism: a belief that severe discipline was essential, combined with a sense that the colonial subjects were racially inferior.

Punishment in the New Empires  155

Figure 11.1 Use of the Whip in British India. This image, from 1798, shows an Indian soldier (often called Sepoy) in British employ, flogging another Indian as a British officer watches on. Credit: Yale Center for British Art, Paul Mellon Collection.

Prisons and Labor Service In a number of colonies, some convicts were simply hired out to private entrepreneurs to bolster the supply of cheap labor. In French colonies like Senegal and Vietnam, for example, they might work in the mines, or even in schools. Emphasis on labor service normally eclipsed any interest in rehabilitation, reflecting the financial constraints in which most colonies operated.

156  The 19th Century At the same time, Europeans also normally built prisons, particularly in the larger cities, with sentences of varying durations. Here too, work obligations were essential. Female prisoners provided what cleaning services there were in Senegalese prisons. Sanitary conditions and food rations were often poor. Prison officials struggled with limited funding and also the belief that punishment should be severe, even as reformist reports recurrently criticized standard conditions. Colonial prisons could also serve as sites of medical experiments. British doctors experimented with vaccinations and treatments for malaria in Indian prisons. The bodies of prisoners who died were often subjected to autopsies for purposes of medical research (a practice that also occurred in prisons in the home countries). Medicine and punishment might as a result be closely associated in the minds of the prisoners themselves. Not infrequently, some prisoners became warders as a reward for good behavior, helping to keep order in the prison as a whole. Local warders were notorious for corrupt practices and cruelty, contributing to widespread violence within the institutions and, for female prisoners, adding sexual exploitation. In some cases, racial animosities among the prisoners added to tensions. In British Burma, for example, Indian prisoners were often used as warders, deeply resented by the Burmese inmates themselves. Prisons could also be sources of religious tension, when European or local officials of different faiths provided no opportunities for normal rituals for at least part of the inmate population. At the same time, prisons also became sites in which prisoners could organize resistance movements, particularly when some of the inmates had been arrested for protest activities. Nationalism spread among prisoners in many colonial jails, while in Vietnam, the communist movement gained ground in the same setting. Prisons thus mixed harsh conditions with a considerable level of ill-discipline, with varying results for the prisoners themselves and their later activities. The development or expansion of reliance on prisons was a crucial part of the colonial experience in the 19th and early 20th centuries, and a very new one in some of the colonies; but it only loosely paralleled the prison patterns in other areas, including the West. Material conditions tended to be far worse, amid inadequate funding, and the chances of internal violence or abuse greater. Growing reliance on prison sentences created levels of overcrowding far worse than patterns in the West during the same period. Work service was often more severe, gestures at rehabilitation, such as visits by religious authorities, far less likely. When reformist administrators tried to improve the situation, for example introducing treadmills and other devices on the home country model, they often simply made conditions worse, particularly when they also decided that food rations should be cut as a punitive measure. On the other hand, loose or corrupt supervision gave some prisoners opportunities that were less available in systems that were better organized. This was a mixed picture.

Punishment in the New Empires  157 The contrast between home country and colonial punishment reveals the hollowness of imperialist claims that Europeans were somehow on a civilizing mission in their extensions of empire. Racist beliefs in the inferiority and propensity to crime and violence of the local populations combined with the belief in the importance of harsh penalties to support minority rule. In addition to the greater severity of punishments, the theme of rehabilitation—widely discussed at least as part of penal policy in the West—was almost entirely absent in the colonial policy framework. It could occur: convicts transported to other areas, for example, sometimes managed to build successful lives in their new setting. But this was not a colonial goal, and the harshness of many of the most common measures more often impeded than furthered any constructive reaction. The result left a somewhat complex legacy for the regions involved, once they gained independence in the decades after World War II. On the one hand, it would seem obvious that colonial punishment policies must be dismantled as quickly as possible. Indian nationalists, for example, had been criticizing British use of capital punishment for years, picking up on other reformist sentiment, plus the fact that not a few nationalist leaders had themselves been hanged. Many nationalist leaders in South Asia and Africa had themselves served time in colonial jails; another impetus for change. Some colonial practices, however, proved harder to dismantle than reformers expected. Nationalist leaders, once in power, might find that some harsh punishments now seemed reasonable, as a means of keeping order and helping to maintain the new power structure. Further, certain kinds of reforms—for example, constructing more humane prisons—demanded resources that were in short supply. As a result, while some colonial policies were quickly terminated—whipping, most obviously, was quickly outlawed, at least in principle in independent nations like India—others persisted. Even whipping survived in some places, such as Singapore: the postcolonial reform spirit varied considerably. Many postcolonial regimes are still wrestling with key features of the colonial legacy even today. Further Reading Elizbabeth Kotsky, Colonial Justice in British India: White Violence and the Rule of Law (Cambridge, 2010) and “Codification of the rules of colonial difference: Criminal punishment in British India,” Law and History Review 23 (2005); Taylor Sherment, State Violence and Punishment in India (Abingdon UK, 2010). Alastair McClure, “Killing in the name of ?: Capital punishment in colonial and postcolonial India,” Law and History Review, Oct. 7, 2022; Anand Yang, Empire of Convicts: Indian Penal Labor in Colonial Southeast Asia (Berkeley, 2021); Clare Anderson, Convicts in the Indian Ocean: Transportation from South Asia to Mauritius, 1815–1853 (Houndsmills UK, 2000).

158  The 19th Century Steven Pierce and Anupama Rao, eds., Discipline and the Other Body: Correction, Corporeality, Colonialism (Durham NC, 2006); Sherman Taylor, “Tensions of colonial punishment: Perspectives on recent developments in the study of coercive networks in Asia, Africa and the Caribbean,” History Compass 7 (2009). Peter Zinoman, The Colonial Bastille: A History of Imprisonment in Vietnam, 1862– 1940 (Berkeley, 2001); Florence Bernault, ed., A History of Prison and Confinement in Africa (Portsmouth NH, 2003); Frank Dikoetter and Ian Brown, eds., Cultures of Confinement: A History of the Prison in Africa, Asia and Latin America (London, 2007); Stephen Pete and Anne Deverish, “Flogging, fear and food: Punishment and race in colonial Natal,” Journal of Southern African Studies 31 (2005); Robert Turrell, White Mercy: A Study of the Death Penalty in South Africa (London, 2004); Stephen Toth, Beyond Papillon: The French Overseas Prison Colonies (Lincoln NE, 2006).

Part V

The Contemporary Period

The past century has been marked by a host of developments, including two major world wars, the process of decolonization, and new technologies and institutions providing global linkages among all the major world regions. Industrialization and urbanization advanced in many countries outside the West and Japan, creating both new resources and new types of problems. Aristocracies and landlord classes declined almost everywhere, reducing the hold of traditional inequalities in law, but new inequalities developed based on differential access to wealth. Revolutions and wartime losses, as well as decolonization, unseated many established political institutions, including powerful monarchies. No single system arose to take their places. In many instances, novel forms of authoritarianism took hold, adept at using new technologies and developing other forms of social control. In other areas, democratic political systems gained ground. The popularity of democracy surged briefly after World War II, and even more between the 1970s and the early 21st century. Authoritarianism was the more obvious trend in the 1930s, the 1950s, and 1960s, and during the second decade of the 21st century. Some regions have alternated between democratic or authoritarian options, depending on the time period. Contemporary world history is often divided into three subperiods, not unrelated to the democratic-authoritarian tension. The decades between 1914 and 1945 were dominated by the two major wars and the intervening worldwide economic depression, and the political and social dislocations that resulted. Between 1945 and 1989, Cold War competition between the communist Soviet Union and its allies, and the United States and its allies, held center stage, but the process of decolonization in Africa, Asia, and elsewhere was arguably at least as significant. Between 1946 and the early 1990s, the Western empires were all almost entirely dismantled. The final subperiod, from about 1990 onward, has been marked by the end of the Cold War and the rise of powerful industrial societies in China, India, and elsewhere, creating new collaborations and competitions among a variety of major nations. DOI: 10.4324/9781003427261-16

160  The Contemporary Period Modern globalization, which had begun to take shape in the late 19th century, has added to the fabric of contemporary world history. Global arrangements faded somewhat after World War I, as a number of regions pulled away from international entanglements, though the creation of the new League of Nations was a major step. More concerted global coordination after World War II generated an unprecedented level of international contacts, including the formation of the United Nations in 1945; this was further enhanced by the Cold War’s end. However, tensions and rivalries since a major international economic recession in 2008, combined with the advance of more authoritarian political systems, have created new barriers to the globalization process, without yet reversing it. New technological developments, globalization, and the flux among different political systems all had huge implications for patterns of punishment, though they did not push in the same direction. Three trajectories command particular attention, combining in a fourth inescapable complexity:

• Punishment traditions inevitably continued to play a major role. These included legacies from the 19th century, including the emphasis on prisons, but in some cases earlier preferences as well, including the influence of different religious impulses. Decolonization freed some regions to reintroduce some earlier practices. • The reform impulse continued to burn bright, though particularly after 1945. It was strengthened by reactions to some of the horrors of the interwar period and then with the decline of imperialism. Reform discussions extended, applied not only to older staples like physical cruelty and capital punishment, but now to the downsides of more recent innovations such as extensive prison systems. Here too, religious traditions as well as new political ideologies could play a role. Many reform goals became attached to global organizations, including the important interest in defining and implementing international human rights standards. • Wartime tensions and some of the newer political regimes sponsored a renewed emphasis on various kinds of torture and imprisonment, some of them informed by new technologies and organizational capacity. Amid this mixture of trends, regional differences continued to loom large, though a few global trends could still be identified. Western example, such a powerful force in the 19th century, continued to play a role, but at a reduced level. And “the West” itself was split, when it came to punishment, particularly, because of distinctive patterns in the United States; this had already been suggested in the 19th century, but it became vivid after 1945. A quarter of the way through the 21st century, global patterns of punishment must be evaluated through the interaction between distinct regional preferences and some common global trends.

12 Major Changes

• “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”—article 5 of the Universal Charter of Human Rights, 1948, adopted by 192 members of the United Nations by the early 21st century. • The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1986, is a treaty under United Nations oversight, signed by 173 countries as of 2022. The treaty obliges members not only to prevent torture in their own territories, but also to not ship prisoners to other places where they might be tortured. The Convention defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.” While the wording is open to some interpretation, it was supplemented by article 16, which requires signatory nations to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1.” • In 1939 Joseph Stalin, the leader of the Soviet Union, wrote that the Central Committee of the Communist Party had, since 1937, permitted “the application of physical methods of persuasion” in interrogating prisoners. Stalin added that there was no reason that “socialist” security agencies should be more “humanitarian” than “bourgeois” agencies, which, he claimed, used these methods all the time. The Soviet Union would, however, ultimately subscribe to the Convention Against Torture (in 1985). • The United States signed the Convention Against Torture in 1988. However, amid the intense terrorist threat of the early 21st century, a division of the Justice Department issued an opinion approving a variety of forms of mistreatment, claiming that measures that hurt a prisoner physically or psychologically constituted torture only if the results were “equivalent in intensity to the pain accompanying serious physical injury, such as organ

DOI: 10.4324/9781003427261-17

162  The Contemporary Period failure, impairment of bodily functions, or even death.” Several highranking authorities, asked about measures being used in several secret locations, responded simply, “I have no problem if it achieves our objectives.” Two forces competed in spurring change during the past century, pushing in opposite directions in shaping the methods of punishment. One, the impulse to violence, was particularly prominent between the world wars, but it could and did recur throughout the period. The second, a renewed interest in reform, gained attention from leading international agencies and prompted a number of new efforts to moderate punishments at various levels, from school rooms to national policies. This was a century marked by major wars, recurrent violent revolutions and uprisings, political movements like Nazism dedicated to violence, and various forms of terrorism. The link between these forms of collective violence and more vicious punishment patterns was hardly surprising. Further, an interest in harsher punishment was fed as well by technological changes, which created new ways to administer death, but particularly a variety of new opportunities for torture. In a number of societies, psychologists were recruited to advise on effective means of inflicting subtle kinds of pain, another potential source of innovation. Against this, sometimes in shocked reaction, reformers of various sorts sought to bring punishment under greater control. These included many Western groups and, after World War II and the wave of decolonization, major governments. It included many nationalist leaders eager to push back against imperialist patterns. It embraced a variety of religious groups, returning to this issue with renewed enthusiasm. Targets would include the death penalty, already called into question in many societies, but also even moderate forms of torture and, with new momentum, the overreliance on imprisonment. The reform impulse might even extend to reimagining the discipline of children. It gained support from a host of international groups, both official and nongovernmental. The two forces that pushed for innovation could not be reconciled, which helps explain the many policy fluctuations in major regions such as Latin America and central Europe. They did, however, combine in one respect: a widespread eagerness to shroud the harshest punishments in new levels of secrecy and denial, an impulse furthered by some of the new technologies. With a few notable exceptions, blatant demonstrations of brutality gave way to new methods of concealment. And there was no return, in peacetime, to the goriest methods of execution or torture that had surfaced in earlier periods of world history. Instead of highlighting public demonstrations or mutilations, relevant officials now relied on rumor and word of mouth to spread the kind of fear that might deter crime or disorder.

Major Changes  163 The overall result is hard to assess. Except in periods of unusual stress, rates of capital punishment almost certainly declined—but there were many periods of stress, and there were also killings that did not make it into the official statistics. It is tempting to claim that rates of torture also declined, and they certainly did in some societies. But concealment, deliberate evasion, and the subtleties of some of the new methods of torture make a definitive evaluation impossible. Certainly there was no agreement, among major world regions, on appropriate punishment policies at any point, despite some willingness to sign high-sounding statements of principle. New Forms of Retribution or Deterrence Innovations in Torture

The most striking changes in the administration of torture—or physical chastisement, for acts that may not be regarded as torture—have involved applications of electricity which can cause great pain and psychological distress while leaving no visible marks after their administration. Many of these devices were first introduced by authoritarian regimes, for use primarily against political prisoners, but some of them have gained wider applicability in dealing with a variety of accused or convicted criminals. Thus, a Brazilian dictatorship during the 1960s devised a variety of electrical and mechanical instruments for use on political prisoners, which have since been sold to many prisons across the world. The administration of electric shock, particularly to the genitals, can serve many of the classic purposes of torture: to prompt confessions before a trial; to punish prisoners outside the formal judicial system; and to spread fear more widely; for example, to a larger prison population. Electric shocks were administered to a variety of prisoners in jails in the state of Arkansas during the 1960s, showing that their use was hardly confined to conventional political repression. During a conflict with Algerian rebels in the 1950s and 1960s, French authorities used a device called the gégène, where victims were tied down and electric shocks delivered to the genitalia. Experiments on tasers began in the same period, but these electric devices came into more common use from the early 1990s onward. They are not usually seen primarily in terms of torture, but as a means of stopping fleeing criminals or calming agitated suspects in jails or police stations. However, they have definitely been used for torture—for example, against mentally ill inmates in Pennsylvania prisons during the 21st century. As with many aspects of torture, it is not easy to distinguish between necessary restraints and deliberate administrations of pain. Electricity is also useful in the common technique of depriving suspects or criminals of sleep, for stretches of 48 hours or more, through the incessant

164  The Contemporary Period administration of bright lights. In a few cases this may be combined by painting the entire cell white, so the inmate has literally no opportunity to see any variation in color. Intimidation through incessant playing of loud noise is another technique. Here, the increasing interest in psychological rather than more purely physical torture shines through clearly. Noise bombardment can also focus on endless exposure to state-sponsored propaganda—most often directed at political prisoners. Here again, modern technology permits an intensity that earlier methods could not match. This is a common feature in some Russian prisons at the present time. Other contemporary tortures have involved water. During the 1980s and 1990s, members of a reproved religious sect in China, the Falun Gong, were reportedly subjected to immersion in filthy water, in pools with sharp edges that could not be approached. Water boarding may have been used as far back as the Catholic Inquisitions, but it certainly became more popular, and widely discussed, from the 1970s onward. Here, a prisoner is tied to a board and turned upside down. Nose and mouth are covered with cloth, and then water is poured for various intervals of time, giving the impression of drowning. Volunteers who have undergone this treatment can never stand more than 16 seconds, but in actual use, waterboarding can continue longer than this, and be repeated with varying frequencies. The punishment can cause physical damage to the lungs, and also psychological trauma—but, as with other preferred forms of modern torture, it leaves no marks. The United States used waterboarding against suspected terrorists in the early 21st century, until a presidential decision in 2009 declared this a form of torture. The technique was also used by an authoritarian regime in Chile in the 1970s, by the British during conflicts in Ireland, by a Cambodian dictator, and by South Africa during the Apartheid period. At various points, governments have worked together to share information on the latest methods of torture. American agencies have done this frequently, in dealing with what they saw as communist or terrorist threats. Authoritarian regimes in Latin America similarly coordinated during the 1960s and 1970s, headed by a particularly vicious regime in Chile. The United States offered manuals on torture to governments in Central America during the 1980s. A number of governments have explicitly established study units, like the government of North Vietnam during the wartime decade of the 1960s, where techniques from Russia, China, France, and elsewhere were amalgamated. Another interesting tactic has involved sending some prisoners to other countries where they could be tortured in secret sites without the restrictions applicable elsewhere. The United States had suspected terrorists tortured in sites in Eastern Europe and North Africa in the early 21st century. The goal

Major Changes  165 combined punishment with hopes that victims would reveal useful information—all before any formal trial—a typical torture cocktail. The American government also ran at least 20 prison ships, operating in international waters. New methods of torture have quite often combined with older techniques, and the latter almost certainly remain more common. Sexual intimidation or outright rape loom large in the contemporary arsenal, and not just with female prisoners. Suspected male terrorists were often held nude, ridiculed, with liquid matter inserted in the anus. Beatings—the most common form of torture—are still sometimes combined with tearing out finger- or toenails. Some African prisons have metal devices that squeeze the foot. Police are frequently responsible for beatings during or after arrests, sometimes justifying them as necessary to subdue the prisoner but often going beyond any reasonable bounds. During the 1990s, the French police were charged with a number of rapes and beatings in a suburb north of Paris with a high immigrant population. Deaths in police custody in India became a common problem in the 21st century: between 2000 and 2008, “custodial” deaths rose more than 41%. Police in the United States have been recurrently attacked for torture and unnecessary deaths in dealing with prisoners, particularly people of color. Since its 1979 revolution, the religious regime of Iran has been accused of widespread use of torture, again combining variety of techniques. According to one former prisoner, methods include whipping, particularly on the soles of the feet; sleep deprivation; suspension from the ceiling, or twisting arms until they break; crushing of fingers in metal presses; insertion of sharp objects under the fingernails; submersion under water; cigarette burns; mock executions; physical threats against family members. Whipping may have been preferred, since it was authorized by Sharia law, but the combination with other measures could be devastating. In 2023, faced with substantial popular unrest, authorities may have added the use of poison gas to the techniques available in dealing with suspects. It should be noted that the Iranian constitution, like many others, specifically bans “all forms of torture for the purpose of extracting confession or acquiring information.” Modern forms of torture, combining old and new, frequently involve one final component: the agony of listening to other people being tortured in nearby cells. Russians who managed to survive incarceration in the toughest political prisons in the Soviet Union frequently emphasized the sheer terror of hearing others being beaten, crying, and moaning, with guards shouting further threats like “Kick him in the balls, kick him in the balls.” Clearly, torture has remained a vivid part of the punishment repertoire in the past century, spurred by political tensions, but involving a broader range of presumed offenses and police tactics as well. While some older devices like the Chinese cangue or the medieval rack have been retired, a host of

166  The Contemporary Period outlets for cruelty remain. Opportunities to combine classic kinds of beating with newer physical and psychological devices are particularly revealing. The extent to which much of this operates under regimes that have solemnly renounced all forms of torture, or in police units that vehemently deny wrongdoing, adds another vital contemporary ingredient. Finally, the sharing of information about torture, during the past century, offers an ironic addition to the various facets of globalization. Capital Punishment

Far less innovation has been devoted to capital punishment than to torture during the contemporary period, and there has been no official effort to revive some of the more bizarre traditional techniques. Even modern inventions like the guillotine and the electric chair have gone out of fashion; but there were several interesting developments. A few preliminary efforts to kill groups of prisoners by poison gas go back to the 19th century, but the use of gas came into its heyday after World War I. The state of Nevada introduced a gas chamber, and a few American states still use the technique. Lithuania used gas to execute criminals during the 1930s. Nazi Germany built gas chambers beginning in 1939, initially to euthanize the disabled and other people deemed “unfit,” then spreading to the mass murder of Jews, Roma, and other groups during the Second World War. North Korea presumably uses some gas chambers today, particularly for people who have sought to escape the regime. Lethal injection as a means of execution was introduced in the United Sates in 1982, and has become the most common method in those states where capital punishment is still practiced (though five states now also allow the use of firing squads). Presumably, injection produces a more merciful death—the latest in a line of American experiments in this direction— though there has been a number of painfully botched operations, and also several instances where the necessary poisons have proved difficult to acquire. Following American example, some other countries have adopted lethal injections at least in part, including China, Guatemala, and Vietnam. North Korea has apparently killed a few political prisoners by firing an anti-aircraft cannon at them, in very public executions obviously designed, in classic fashion, to spread fear. Iran, which executes mainly by hanging, sometimes uses a short stool: pulled from under the victim’s legs the result does not break the neck, causing a more prolonged and painful death. Hanging of a more traditional sort and shooting (either by a shot to the head or by firing squad) remain the most common methods of execution, though Saudi Arabia and (now Taliban-controlled) Afghanistan use beheading with a sword. Stoning remains permissible in a number of Islamic countries or regions.

Major Changes  167 Again, as emphasis has shifted away from capital punishment overall, particularly after the horrors of the Nazi holocaust, innovation has not been a major priority. The recurrent American attempt to adjust methods in order to reconcile continued commitment with the obligation to avoid cruelty is the major recent impetus toward experimentation. Official records on capital punishment are of course complicated by the often more numerous deaths that occur as a result of torture or physical restraints in prisons or police stations. Both old and new methods of torture can cause deaths, either deliberately or unintentionally. For example, 449 people died each year in police custody in the United States between 2016 and 2019, while another 1,200 perished in local jails (77% before any trial). Some combination of suicides, natural causes, responses to efforts at escape, and the results of harsh treatment generated these results, which massively outstripped formal executions. While the American experience has drawn particular attention, because of concerns about racial disparities and aggressive police culture, many other societies grapple with similar problems. Finally, other methods of administering death have been devised, at various points in recent decades, by authoritarian regimes. During the 1970s and early 1980s, for example, the government of Argentina was in the hands of a rightwing group bent on exterminating political opponents—a process in which between 9,000 and 30,000 people were killed. Some were gunned down; others dropped from planes into the ocean. A number, sometimes held for a period in concentration camps, were simply “disappeared”— killed, often by being drugged and dumped into the Atlantic, but with no record and no notification of kin. Several other Latin American governments, such as one in Chile, also “disappeared” a number of opponents. On a more selective basis, both Russia and North Korea developed extremely potent nerve poisons in the 21st century that were used to attack, and often kill, political opponents abroad—though the regimes invariably denied their involvement. As with “disappearing,” none of this showed in official statistics on administration of the death penalty, another example of the kind of denial that is often attached to the punishment process in the contemporary era. Concentration Camps

New forms of mass internment of inmates—the concentration camp—constituted what was probably the most famous 20th-century addition to the roster of punishments. Labor camps had been used before, of course, as well as other camps containing military prisoners, so there was precedent—particularly in places like Russia. But the concentration camp highlighted the custody of large numbers of people who often had not been tried for crimes, but were being separated and punished even so. Many of the most vicious

168  The Contemporary Period camps were run by secret police. Even more than normal prisons, the existence of the camps and the threat of internment were intended to punish suspect groups and create fear in a larger population. An early use of the concentration camp term occurred in 1898 in the Spanish-Cuban war, when the Spanish rounded up a number of Cuban civilians and interned them to keep them out of the fight. Colonial authorities also established some camps, notably the Germans in Southwest Africa, and Ottoman authorities interned Armenians in the same turn-of-the-century period prior to deporting them into the Syrian desert. The British adopted a similar measure a few years later in the Boer war in South Africa, when they interned a number of Afrikaners (settlers of Dutch origin) to prevent them joining the other combatants. The United States took similar measures against Japanese Americans during World War II, placing 120,000 people in camps, where many lost property, and 1,200 would die. Indeed, while none of these camps was officially intended to kill (the German version in Africa came closest), death rates were frequently high amid crowding and limited medical care. The fuller, even more punitive versions of the modern camps, however, developed in the Soviet Union and the Nazi Germany between the world wars. German camps were established soon after the Nazi takeover in 1933, initially to contain members of opposition political parties like Communists and Socialists; as many as 100,000 may have been interned. Some were soon released, often after torture and humiliation, their condition designed to intimidate others. Camp intake soon enlarged to include suspect minority groups, notably homosexuals, Roma, and Jews, though people termed “habitual criminals” were involved as well. Organization of the camp system was revamped and rationalized by the mid-1930s, with a number of new sites constructed; inmates were now forced to wear uniforms and camp badges, rather than civilian clothes. By the late 1930s, numbers had risen again into the tens of thousands. While Nazi leaders claimed that the inmates were serious offenders, most were homeless, perpetrators of petty thefts, or mentally ill. By the end of the decade, many camps began to provide forced labor service, in quarry work and other activities. Arrests of Jews began to soar, as did the death rate in increasingly overcrowded facilities. As war broke out, the Nazis expanded the camp system further, ultimately creating over 1,000 sites, often in occupied territories. Inmates unable to work were deliberately killed: half of the 180,000 people interned between July and November 1942 had died by the end of the year. After 1943, Jews, arrested from all the occupied territories, were often killed on arrival at camps such as Dachau; others were tortured, sexually abused, or used in medical experiments. At the same time, labor service expanded, now including munitions manufacture; estimates suggest that as much as 3% of the German labor force consisted of essentially enslaved camp inmates. Over 700,000 people were being held in camps in 1944.

Major Changes  169 The Soviet Gulag system shared many features with the Nazi camps, including massive overall size, forced labor and the desire to intimidate other segments of the population; but their purpose and some of their impacts were arguably rather different. The system built on the precedent of earlier Russian labor camps, but the communists sought to emphasize their correctional as well as punitive purposes. The first camp was built in 1918, soon after the communist takeover, and legalized by a 1919 decree “on the creation of forced-labor camps.” Inmates ranged from petty criminals to political prisoners, often convicted by simplified procedures rather than formal trials. Labor service—seen by the communists as a “method of reeducation”—was a vital feature of the camps from the outset, building and operating many mining and factory centers in eastern Russia and producing a substantial percentage of many vital raw materials. As in Germany, inmate population soared: over 100,000 by the end of the 1920s, 1.5 million by 1945. Estimates of the total numbers sent to the camps range from 14 million to over 20 million, mixing a variety of criminals and political prisoners. By the 1940s there were over 400 camps in operation. Estimates suggest that 30–50% of all inmates died either in the camps or soon after release—totaling 1.7 million people between 1930 and 1953, though precise figures are disputed. Crowding, meager diets, and overwork accounted for the high death rate, along with minimal provisions for medical care. In contrast to the worst Nazi camps, however, there was no explicit intent to kill, and far more prisoners were released than died—providing some limited justification for the claim that the goal was “correction” of criminal or politically incorrect behavior. After the death of dictator Joseph Stalin in 1953, the camp system began to be dismantled—officially ended in 1960— though smaller camps continued to exist, and indeed have persisted into the 21st century. The sheer size and brutality of the Nazi and Soviet camps, and the arbitrary methods of arrest and assignment, hold a special place in the contemporary history of punishment. In one sense they represent severe forms of modern imprisonment more generally, including poor material conditions, frequently arbitrary treatment, and forced labor; but they pushed all these features to extremes. They expressed an unusual level of hatred for certain segments of the population and/or a belief that extreme measures were essential to protect the regime and intimidate the population as a whole. Fear of arbitrary arrest and assignment by the secret police was a very real feature of life under both the Nazi and Stalinist systems. Knowledge of the abuses in the concentration camp system, spreading after the defeat of the Nazis and then during the Cold War, helped motivate some efforts at prison reform in other societies, notably a reduction in the imposition of forced labor service. At the same time, the camps served as examples of the potential for this kind of organized imprisonment to limit

170  The Contemporary Period political opposition and, possibly, provide opportunities for compulsory reeducation of suspect groups. It was not surprising, as a result, that concentration camps sprang up in the later 20th century in support of a renewed surge in authoritarian systems. During the authoritarian period in 1970s Argentina, for example, over 500 “detention centers” were created that had much of the flavor of the Nazi camps, including arbitrary arrests and miserable material conditions; in addition, a specific “torture room” deliberately enhanced the level of pain and fear. Many inmates were ultimately “disappeared.” During the “Cultural Revolution” period in communist China, in the 1960s, many students and intellectuals were arbitrarily imprisoned within universities, or in makeshift jails called “cowsheds”; they had no freedom of movement, were forced to do manual labor, and were also exposed to regime propaganda. This was far less organized and systematic than the Soviet Gulag network, and it was relatively short-lived, but it had some similar goals and characteristics. The authoritarian regime of North Korea has created the most complete recent version of a concentration camp system, often called Gulags because of their overlap with patterns in communist Russia. By the later 20th century, the government had created two types of camps: one was for political prisoners to be held indefinitely, usually in large facilities with exceptionally poor conditions, including meager diets that leave some inmates scrambling for food remnants in animal dung. Sexual abuse and violence are common in these camps, apparently sometimes including infanticides; medical experiments, including attempts to see how inmates tolerate a variety of gasses, often lead to death. A second set of camps involve re-education, with inmates serving sentences of 5–20 years for a variety of infractions including economic violations; by the early 21st century, about 20 such camps existed, each holding up to 7,000 prisoners. Here, after a long workday, inmates are exposed to intense ideological instruction, including memorization of various passages from the ruling Kim family. Until 1994, family members of political prisoners were interned as well, but that practice has now stopped; however, the range of offenses which may lead to internment was expanded in 2007. The most recent addition to the concentration camp approach has emerged in northwestern China, since 2017. Here, the regime, concerned about the loyalty of the Muslim Uighur population and other minorities, has incarcerated well over a million people, according to most estimates, in what are officially called Vocational Education and Training Centers. Inmates, separated from their families, are required to do a range of manufacturing jobs and also attend indoctrination sessions designed to instill loyalty to the regime and a more secular, Chinese culture. Armed guards prevent unauthorized exits, and there are numerous reports of torture and some loss of life, though Chinese authorities vigorously dispute accounts of mistreatment.

Major Changes  171 The attraction of holding large numbers of people, usually without normal judicial proceedings, for a combination of work and either indoctrination or physical cruelty or both, has clearly been a recurrent element in punishment policies over the past century, primarily of course in authoritarian regimes. The motivations and organizational capacities involved are partly new, which helps explain why the phenomenon has no full analog before the 20th century. Material conditions in these facilities have typically been worse than those in more standard prison systems, and mortality rates higher—sometimes as a result of deliberate policy. Concentration camps also involve a wider range of offenses than is typical in a more conventional prison system, which helps explain the frequent recourse to intensive indoctrination. Extending the Reform Effort Motivations for punishment reform have remained very similar to the impulses that first developed in the 18th century around Beccaria and the utilitarians. The effort to reduce unnecessary cruelty and retribution has extended to a more inclusive definition of torture and to the huge flaws in the prison system itself, no longer regarded as a panacea. Interest in highlighting rehabilitation has intensified. Debates over the relationship between specific practices and recidivism and deterrence have amplified to include research by experts in newer specialties such as psychology, along with more elaborate efforts in penology: but agreement on data has remained elusive. Thanks to international human rights declarations and organizations, reform efforts have gained an increasingly global dimension, with support from a variety of different regions and cultural precedents, going well beyond any particular dependence on Western example. Above all, the practical impact of the reform impulse easily surpassed any previous level, at least by the final decades of the 20th century. The Death Penalty

Reform efforts during the 19th century had focused mainly on reducing the range of crimes eligible for capital punishment, and reining in the brutality and public display. With important exceptions, vigorous discussions of outright abolition had failed against the deep-seated belief that certain crimes simply demanded this ultimate response. After World War II, the focus turned more resolutely toward abolition (though there was wide approval for executing a number of Nazi and Japanese war criminals). Reactions against the massive slaughter of the Holocaust played a role in revived interest. So did increasing awareness of the many innocent people who had received the death sentence and

172  The Contemporary Period were often executed; improved forensic techniques like fingerprinting and DNA evidence produced a growing number of widely publicized cases where the wrong person had been put to death. In countries like the United States, attacks on the inequality of the death penalty added further concern: poor people were far more likely to be executed than rich, Black than White. Prejudice and unequal access to talented defense attorneys left a mark. Already in 1930, a warden of a major American prison had blasted the death penalty: “Not only does capital punishment fail in its justification, but no penalty could be invented with so many inherent defects…The defendant of wealth and position never goes to the chair or the gallows.” Famous cases, like the execution of seven Black youths in Virginia in 1951 for rape drew wide attention to the racial inequities of death penalty imposition. A supporter of a bill to abolish the penalty in Washington DC noted, “as it is now applied, the death penalty is nothing but an arbitrary discrimination against an occasional victim.” Growing international attacks on lynching, which finally drew government attention by the 1960s, might spill over into concerns about capital punishment as well. Other factors were added in. Because the death penalty was now administered in secret, reformers wondered about its deterrent effect. The even older argument, going back to Beccaria, resurfaced strongly: there was little evidence that the death penalty affected rates of serious crime. In the United States, states with the death penalty normally had higher murder rates than states without. Discussions in Europe and Latin America went further than their American counterparts. The British government suspended capital punishments in 1948, while a government commission studied the matter. This reflected major behind-the-scenes reform pressure during the interwar decades; a Church of England leader had declared, in 1935, “few public actions would at the present time so much demonstrate and secure an advance in the ethics of civilization as the abolition of the death penalty.” Government officials joined the chorus after the war, arguing that hunting down criminals for the purpose of killing them: cannot fail to lessen the respect for the sanctity of human life…It is absolutely no answer to say that a convicted man has himself taken human life, since by carrying out the act of execution society is rendering itself culpable of precisely the same act as that for which the condemned man has been convicted. Public opinion fluctuated still, but a new measure in 1957 reduced the type of homicides for which the death penalty could be sought—an interesting half-step that satisfied no one.

Major Changes  173 Scandinavian societies moved more decisively. Sweden and Denmark had abolished capital punishment already after World War I. Finland, and also Austria and Italy, made the change after World War II, as did Germany in the early 1950s. By the 1960s, all the nations in the European Common Market had taken the step, with varying degrees of public support: death penalty abolition was becoming a standard feature of the contemporary West European approach. As one official put it, “Member States…shared common ground—that of the inhumane, unnecessary and irreversible character of capital punishment, no matter how cruel the crime committed by the offender.” The chance of miscarriage of justice, the need to attempt rehabilitation even for the most hardened criminal, and the effort to preserve human dignity now took precedence: As a result, criminal policy programmes were internationally humanized in order to pursue the view under which the State’s actions should not have human beings as victims, but also that of the promotion of the human person as one of the major purposes of criminology. By 2003, a Protocol of the expanding European Union required abolition of the death penalty for all members or aspirant members. New Zealand and Australia took similar steps independently. Thanks in part to European pressure and their own experience under authoritarian rule, many now-democratic Latin American countries moved against the death penalty at the end of the 20th century. Brazil retained it for crimes against humanity, but its constitution disallowed it for any ordinary crimes. Mexico moved in stages, but finally abolished the measure entirely in 2005. Argentina, with its own dark history, set aside the death penalty for all ordinary crimes. And the move spread more widely, though with mixed regional response. A number of African countries, eager to shake off the punishment regime of the imperialist period, abolished the death penalty after 2000. The Philippines did so in 2004. The United States was bitterly divided over the issue, but a growing number of individual states made the move in this same period either officially or de facto, influenced by international opinion, the nation’s own reform history in this matter, and the widely publicized cases of innocent victims or the botched application of actual executions. Changes in the position of the Catholic Church played a vital role in the general movement, and reflected a fascinating evolution within the Church itself. Into the mid-20th century, the Church had officially supported the legality of the death penalty, while urging moderation in its use. But the 1970s introduced more debate on the subject, with more official recommendations that the penalty must be a last resort. A new pope in the 1990s moved the needle still further toward abolition, backed by most bishops in the United States as

174  The Contemporary Period well as Europe, and the papacy began attempting to intervene to prevent the death penalty in places like the United States. Then, in 2018, the Church officially came out against: the death penalty is “inadmissible because it is an attack on the inviolability and dignity of the person,” and vowed that the Church would work “for its abolition worldwide.” The United Nations moved, more cautiously, in a similar direction. As early as the 1980s, the organization issued voluntary protocols which members could sign, agreeing to abolition. More and more U.N. human rights leaders spoke out: “The reality remains that in practice it is almost impossible for States to impose capital punishment while meeting their obligations to respect the human rights of those convicted.” U.N. advisories called attention to the cruelty of holding convicts in death row isolation cells, often for years; they warned of the inhumanity of executing anyone with intellectual disabilities. A General Assembly resolution in 2007 captured the current majority sentiment: “There is no conclusive evidence of the death penalty’s deterrent value and…any miscarriage or failure of justice in the death penalty’s implementation is irreversible and irreparable.” Full international agreement, to be sure, remained a distant prospect. Many regions, for a variety of reasons including distinctive local traditions, held back. The United States, as the leading democratic exception, drew particularly adverse attention. It must also be noted that some nations that abolished the death penalty continued to see extra-legal killings by police and other officials; a problem in the Philippines for example. But even with the anomalies, it was clear that the move against the death penalty had gone farther than ever before, and that pressure for change might well continue. As of 2022, 109 nations had abolished capital punishment entirely, a huge increase over the handful that had done so just 50 years earlier; 31 more kept the death penalty on the books but were not actively using it—leaving 55 still committed to the practice. Whipping

Movements against whipping, though less dramatic than those against capital punishment, proved equally revealing. Whipping had been discussed in the 19th century as part of the wider movement against torture, but for the most part it survived as a practice. Some military forces abandoned whipping: the French did so in the Revolution of 1789, and the United States ended whipping for soldiers in 1861. The Netherlands ended whipping altogether in 1870. But the practice remained alive in most places, and was of course widely used in European colonies. As recently as 1923, the British reestablished whipping in Northern Ireland, amid agitation for independence, as part of a move to “take all steps and issue all such orders as may be necessary for preserving the peace and maintaining order.”

Major Changes  175 In fact, however, the practice was on its way out in many countries by the mid-20th century. New Zealand banned it in 1941, Britain in 1948, Canada in 1972, India in the 1980s, South Africa in 1995. Australia had its last prisoner whipped in a prison, in 1958. Most American states ended the practice in the 1970s and 1980s, though permission remains on the books in some states. As of 2021, 63 nations had abolished whipping, with the largest concentrations in Europe and Latin America. Here, clearly, is another reform that remains widely disputed at the international level. But the fact that many major countries have moved against one of the oldest and most readily available punishment practices in history is another sign of how far redefinitions of standards can go in the contemporary era. Spanking

Nothing suggests the expanding range of reformist concerns about punishment more than the effort to overturn traditional approaches to the discipline of children at school and even at home—or as a conservative might put it, to interfere with vital practices that had worked well for centuries. Family advice literature in the 19th century had cautioned against frequent spanking, and teachers had received similar promptings in places like Britain or the United States, but no formal movement had developed. Here was another late-20th century innovation, and like the others, one that gained international dimensions as part of additional human rights concerns. The extension clearly reflected the contemporary reformist belief that any physical pain administered in punishment was inhumane and, often, counterproductive. The notion that spanking was harmful emerged gradually among childrearing experts. Dr. Benjamin Spock, the most popular expert in the later 20th century, widely translated, expressed some concern in his manual’s first edition, in the late 1940s, but said it was better than prolonged parental disapproval of a child. But by the mid-80s he had turned against this, arguing that spanking actually promoted violence among children. Several European countries picked up the same signals, and acted officially. Sweden was the first country to ban spanking, in 1979, followed quickly by a few other European stalwarts. Several other countries moved against smacking in schools—as England did in 1986—though here some bans had occurred earlier. By the l980s child experts and their associations were actively urging against spanking or smacking in any venue, and the movement began to pick up steam. The international Convention on the Rights of the Child (1989), in addition to forbidding all capital punishment for children, stated that signatories must “protect the child from all forms of physical or mental violence.” This

176  The Contemporary Period did not explicitly include corporal punishment, but a later committee insisted that this plus “all other cruel or degrading forms of punishment of children” must be banned. While several nations disagreed with this (having signed the Convention), the movement toward abolition moved forward quickly. By 2021, 63 countries had banned all spanking or smacking in schools or in any other venue. Europe and Latin America were strongly represented, but a number of African countries had joined, as had Japan and South Korea. The Japanese statement, joining in 2020, was characteristic: “a person who exercises parental authority over a child shall not discipline the child by inflicting corporal punishment on him/her.” The measure referred to the research that showed the psychological and potential physical damage spanking did to a child, as it extended earlier measures that had banned all corporal punishment in schools or child guidance centers. As with the moves against capital punishment and whipping, the effort to eliminate any kind of physical punishment of children remained a contentious issue, with many nations holding back. Still, the range of agreement on adding this issue to the list of essential reforms was a striking recent demonstration of a commitment to review a range of established traditions. Prisons

Prison reform was high on the list of targets for those eager to improve the humanity and effectiveness of punishments, but specific goals were more diffuse than was the case with the movements to end physical violence— though of course the move to ban whipping in prisons showed how the reform impulses could coalesce. The sheer cost of prisons created greater divergences among world regions at different levels of economic development than was true concerning physical punishment—despite shared statements of goals. There were, however, some widely agreed-upon targets, besides the effort to reduce violence in discipline. United Nations proclamations and agencies set clear basic standards, in principle, beginning in I948, with a “Minimum Rules for the Treatment of Prisoners” issued in 1955. The International Covenant on Civil and Political Rights, developed in 1966 and ultimately signed by 173 countries, in addition to repeating the ban on torture, insisted that prisoners be “treated with humanity and with respect for the inherent dignity of the human person.” Jails should not mix juveniles and adults, or pretrial accused with convicted criminals. Prisoners should have the right to appeal their treatment. No one should be imprisoned for breach of contract. The basic goals of a prison system should center on “reformation and social rehabilitation,” not punishment. The ensuing Basic Principles for the Treatment of Prisoners (1990) and the United Nations Standard Minimum Rules

Major Changes  177 for the Treatment of Prisoners (2015, also known as the Mandela rules after the long-imprisoned South African president who had urged further reforms), offered more specific criteria. Solitary confinement should be phased out wherever possible, imposed only in extraordinary circumstances; prison systems should offer educational opportunities; civil and criminal prisoners should be separated; while labor exploitation should end, prisoners should have access to paying jobs which would allow them to contribute to their families’ support and facilitate later reentry to civilian life. A variety of UN agencies sought to implement these principles and offered expertise for reviewing prison systems in specific countries. India, which sponsored a series of reform inquiries, frequently called on UN officials. The Dominican Republic set up a “Center of Excellent on Prison Reform” (2016), again with UN backing, and several Latin American countries invited UN monitoring teams in the 1990s. UN monitors were also frequently invoked in Africa. A conference in Kampala in 1996 urged that the “human rights of prisoners should be safeguarded at all times,” so that convicts “do not lose their self-respect”—precisely along the lines the United Nations was recommending. Further, the UN set up an African Institute for the Prevention of Crime and the Treatment of Offenders. These official efforts were supplemented by global human rights agencies, like Amnesty International, which frequently reported on prison abuse not only in the poorer countries, but also places like Japan and the United States. Penal Reform International was a more focused agency, established in 1989 and staffed by a number of former political prisoners from places like Tunisia. It worked to improve prison conditions for women, but also assisted countries like Zimbabwe in setting up community monitoring programs as an alternative to incarceration for certain prisoners, to help relieve serious prison overcrowding. The importance of these declarations and agencies should not be exaggerated. Many countries ignored them (even though they might sign some documents)—they had little influence in China, Russia, North Korea, the United States. Even countries eager for change found it easier to set up study commissions than to implement significant reforms. Nevertheless, there were some clear directions for change in this new movement, that had real impact in a number of countries. It was clear to many officials, and elements of the wider public, that the prison movement, once hailed as the future of punishment reform, was itself in dire need of fundamental revision—with the rehabilitation and prisoner dignity goals at the forefront. Several approaches gained considerable traction. Within the prison, a number of countries made serious improvements in staff recruitment and training (including unionization of staff in some cases). This led to significant changes in the treatment and morale of prisoners, in places like the

178  The Contemporary Period United States and Turkey. Attention to medical care, including psychiatric care, was another priority, and here too some gains occurred. Prisons in a number of countries established hospital units, and facilities for regular exercise also improved in many cases. Criticisms of the harmful effects of solitary confinement had some impact as well, though some institutions, in places like the United States, held on to the practice. A few classic facilities, like the Eastern State Penitentiary, were finally closed. Educational opportunities for prisoners was another target, amid great variety depending both on reform interest and available resources. Here was a practical way to improve prisoners’ prospects after their sentence ended. The 19th-century preoccupation with providing access to religious guidance did not end, but concern with allowing interested prisoners to advance their education and adding prison libraries gained new attention. Japan, for example, began to provide opportunities for prisoners to take correspondence courses in 1952. France emphasized the importance of general and professional instruction in its postwar approach to prison reform. In the United States, thanks in part to the efforts of volunteers, a number of prisoners were able to complete high school or even college degrees from the later 20th century onward. The process of sorting different kinds of prisoners into different prison settings and structures made headway as well, though most obviously in the wealthier countries. Federal prisons in the United States, containing more white-collar offenders, were notoriously more spacious, with fuller amenities, than state institutions. A number of European countries went even farther in replacing prison walls with more open vistas. Finland boasted a number of prisons with no walls or locks at all, and no uniforms, where prisoners could freely go into the local town for errands or work. Improved connections with family was another common reform goal, from regularizing visiting opportunities to experiments (in some Scandinavian countries) with building family units in or adjacent to the prison. Russia did not go this far, but it did begin to locate some prisoners in facilities nearer their families, rather than shipping them to distant sites. Again, the goal aimed at improving reintegration possibilities after the sentence had been served. Emphasis on forced labor declined, though some systems, as in China or Russia, stood apart. In the United States both manufacturers and trade unions objected to prison production as unfair competition, so prisoners largely worked for the prison itself or making goods—like car licenses—for government agencies; for very low rates of pay, however. Concern about the similarities between low-paid prison labor, and slavery, motivated concerns in a number of regions. A number of countries moved away from any work requirement for short-term prisoners. Japan required eight hours a day, but gave prisoners a number of options for the work involved. Britain in 1964 mandated “purposeful activity,” but this could be work, job training, or education. Many European countries let a certain number of prisoners hold

Major Changes  179 jobs in the community, returning to prison at night. France and other countries offered prisoners a wage, but deducted part of this for restoration to victims and reserved a portion for a lump sum payment when the prisoner was released. Clearly, patterns varied considerably, but work requirements were significantly modified in a number of systems—yielding new concerns about prisoner idleness. The clearest reform emphasis, beyond improving conditions within prisons themselves, involved seeking a wider range of alternatives to imprisonment or prolonged imprisonment—a shift that had already emerged in Western Europe in the late 19th century but now expanded considerably in a number of regions. At the extreme end, this involved a move toward ending life sentences (which, after all, had no clear rehabilitative role). Portugal was the first to do this, in 1884. By the early 21st century, many Latin American and European countries had moved to this position. Germany and Sweden still referred to life sentences, but in Germany this meant 15 years maximum, in Sweden 10–18 (the upper end for murder). Opportunities for early release increased in many countries as well, through parole systems. By 2023, only 65 countries ever imposed life sentences with no chance of parole. Beyond this, many regions worked for shorter average sentences: in Sweden, by 1970, only 10% of all prisoners were serving a year or more. At the other end, many countries sought ways to sidestep imprisonment in the first place. Many countries worked to reduce the number of minor crimes that resulted in incarceration, or to avoid incarceration for first offenses. Sentences to house arrest expanded, aided by new technologies that allowed electronic surveillance through ankle bracelets or similar devices. Many countries experimented with community supervision as an alternative for many types of crime—particularly first offenses. Japanese courts increasingly suspended sentences, placing the criminal under the supervision of volunteer groups overseen by professional probation officers. By the early 21st century, China made growing use of home sentences; in 2009 it also introduced a community-correction systems for oversight of convicted offenders with suspended sentences of three years or less. African reformers, taking a slightly different tack, urged that many minor crimes could be settled by references to “customary practices”—most obviously involving agreements between the offender and the victim, often aided by a mediator—in lieu of jail. In the United States, by the late 20th century, some local courts gave certain offenders an opportunity to choose shaming over a prison term: thus, petty thieves might be required to stand in a shopping mall for a period of time holding a sign “I am a shoplifter”—another recognition that older types of punishment might be more effective than jail. Prison reform efforts over the past half-century, united by a greater respect for prisoner rights and the priority of rehabilitation, clearly took many forms, most obviously dividing between improvements in the prison

180  The Contemporary Period experience itself and the extensive efforts to develop alternatives. Massive regional variations in interest and resources complicate any evaluation. Miserable conditions persisted in many places, even in affluent countries; high prisoner suicide rates and not-infrequent prison riots called vivid attention to deficiencies in the system in all but a few high-reform countries. By the late 20th century, many countries, including some in Western Europe, were seeing a surge in prisoner numbers and overcrowding. In most countries also, imprisonment remained—aside from the imposition of fines—the most common modern punishment option. Despite high-sounding proclamations and significant change, this, clearly, was a reform glass still less than half full. Restorative Justice

A final reform thrust, with traditional overtones but gaining greater attention from the 1990s onward, involved getting victim and offender together so that the former could gain a greater sense of closure, the latter a new encouragement to personal reform. The result might replace more explicit punishment, but it was also attempted with some offenders who had been sentenced to prison. An experiment in Hawaii, for example, suggested that prisoners who were required to explore their offense with the victim were less likely to commit a crime after release. On the other hand, some critics worried that certain kinds of restorative justice, forcing criminals to hear the laments of victims, simply constituted an additional form of punishment. Restorative justice was applied on a grand scale in some societies where large numbers of people had been harmed, allowing some reconciliation with their tormenters without requiring explicit punishment and with greater opportunity for restoring social order. Thus, the Truth and Reconciliation commissions set up in South Africa in the 1990s addressed massive abuses by police and other authorities under the apartheid system, for the most part without additional penalties. Similar approaches have been used with indigenous groups in North America, Australia and New Zealand, and with victims of the authoritarian regime in Argentina. In cases of individual crimes, restorative justice, usually guided by a mediator, allows victims to discuss the harm they experienced, offenders to explain their situation and offer some kind of restitution, usually in money or community service, along with expressing contrition; though a prison sentence might be added as well. In 2018, a Council of Europe committee commended the option for its member states, highlighting the “potential benefits of using restorative justice with respect to criminal justice systems.” By this point, about 125 countries had expressed some interest in developing relevant programs, though obviously this was an approach still in its infancy in the field of crime and punishment.

Major Changes  181 Conclusion No region of the world was untouched by the tension between new opportunities for harsh punishments and the many opportunities for reform, from the mid-20th century onward. The tension mirrored the wider irreconcilability of the major motives for punishment in the first place: many countries were still torn between retribution and rehabilitation. There is no question that more ink was spilled on the reform side, thanks in part to the deep engagement of the United Nations and other global agencies. But the pressures to combine new and old ways to torture and imprison, and sometimes execute, were very real as well. Chapter 13, briefly summarizing major regional patterns in the contemporary era, helps locate the balance between change and continuity, retribution, and rehabilitation, more precisely. Further Reading Mark Berlin, “Does criminalizing torture deter police torture?” American Journal of Political Science (2021); Mirko Bagaric and Julie Clarke, Torture: When the Unthinkable is Morally Permissible (Binghamton NY 2007); Darius Rejali, Torture and Democracy (Princeton, 2007). David Jacobs and Jason Carmichael, “The political sociology of the death penalty,” American Sociological Review 67 (2002); Roger Hood and Carolyn Hoyle, The Death Penalty: A Worldwide Perspective (5th ed., Oxford, 2016); William Schabas, The Abolition of the Death Penalty in International Law (3rd ed, Cambridge UK, 2002). Daniel Mannix, History of Torture (London, 2003); Brian Innes, History of Torture (London, 2017); Rory Cox, “Historicizing waterboarding as a severe culture norm,” International Relations 32 (2018); Kristian Williams, American Methods: Culture and the Logic of Domination (Boston, 2006). S.P. Srivasteva, “Problems and priorities of prison reform in India,” Indian Journal of Criminology 6 (1978); “Correctional Practices in Japan,” Journal of Offender Counseling Services and Rehabilitation 14 (1989); Howard Zehr, Changing Lenses: A New Focus for Crime and Justice (3rd ed, Scottsdale AZ, 2005); Norval Morris and David Rothman, eds., The Oxford History of the Prison (Oxford UK, 1995), esp. Chs 7,8; Dirk van Zyl Smitt and Sonja Snacken, Principles or European Prison Law and Policy: Penology and Human Rights (Oxford, 2011). Dan Stone, Concentration Camps: A Very Short Introduction (Oxford, 2017); Anne Applebaum, Gulag: A History (New York, 2001); Steven Barnes, Death and Redemption: the Gulag and the Shaping of Soviet Society (Princeton, 2013); Antonius Bobben, Political Violence and Trauma in Argentina (Philadelphia, 2005); Wu Gao, “Outsourcing the state power: Extrajudicial incarceration during the cultural revolution,” China: An International Journal 15 (2017); Amnesty International, North Korea: Political Prison System, May 3, 2011; Michael Clark, “Xinjiang’s ‘transformation through education’ camps,” The Interpreter, May 25, 2018.

13 Regional Patterns in the Contemporary Period

By the early 21st century, no region in the world had retained the types of punishment that it had featured in earlier periods of world history. The Taliban regime in Afghanistan, regaining power in 2022, came closest, with renewed interest in public decapitations for murder and adultery, and amputations for theft; but it was an anomaly. For the most part, older regional traditions had been significantly modified. At the same time, major regions did characteristically reflect the lingering impact of some earlier traditions, from the use of (modified) labor camps in Russia to the frequent imposition of the death penalty in China to the stubborn reliance on imprisonment in the United States. When regional traditions were combined with dramatic differences in political systems— particularly, between authoritarian and more democratic regimes—the result was a striking, sometimes bewildering variety of actual punishment policies in the contemporary world. A glance at the top punishers in two categories—capital punishment and imprisonment—shows the challenge clearly. While most of the most frequent users of the death penalty are in Muslim-majority countries, two nations on the list do not fit that category at all, and many Muslim-majority countries are absent entirely (some, like Turkey, have actually abolished the death penalty). Top prison users are even more diverse, mixing authoritarian regimes and democracies, scattered regionally among the Americas, Africa, central Asia. Charts are not the only way to highlight regional diversities: stories make the same point from a different angle. In 1995, an American teenager was arrested in Singapore for vandalizing cars and road signs. He was sentenced to four months in jail, a fine, and six strokes of the cane—a standard reaction in the city-state, eager to preserve public order against vandalism. Western observers were outraged at what by their standards was the exceptional cruelty of whipping, and against a minor as well. American newspapers rallied against what they called an “archaic punishment.” Considerable

DOI: 10.4324/9781003427261-18

Regional Patterns in the Contemporary Period  183 Table 13.1 Capital Punishment in 2021 Country

Number of Executions in 2021

 1  2  3   4  5  6  7  8  9 10

1000s 314+ 83+ 65 24+ 21+ 17+ 14+ 11 9+

China Iran Egypt Saudi Arabia Syria Somalia Iraq Yemen USA South Sudan

Source: Amnesty International Death sentences and executions report 2021.

Table 13.2 Highest Per Capita Incarceration Rates Country

Rate of Incarceration per 100,000

  1  2  3   4  5   6  7   8  9 10

605 580 576 538 510 505 478 477 428 409

El Salvador Rwanda Turkmenistan American Samoa (USA) Cuba United States Panama Virgin Islands (United Kingdom) Palau Bahamas

Source: World Prison Brief online database, 2021.

diplomatic controversy erupted; ultimately, the caning was reduced to four strokes, administered along with the other penalties, after which the teenager returned to the United States. The episode was a dramatic reminder of the extent to which one region’s normal punishment response is another region’s anathema. Not surprisingly, mutual regional criticisms of punishment remain standard diplomatic fare, with many Western regimes and organizations looking for human rights violations in the policies of other areas, other regions pointing out the hypocrisy of this kind of self-righteousness. This chapter, centered on the inescapable fact of regional diversity, works to illustrate and explain some of the most striking variations. Two approaches combine. First, broad regional patterns and traditions continue to explain some key differences in punishment reactions (like the acceptability of caning). But second: within certain regions, individual nations stand out for defying larger patterns, and while not every deviation warrants attention, some—like the huge gap between the contemporary United States and other

184  The Contemporary Period “Western” nations—require comment. The regional punishment map is messier than one might like, but the challenge is inescapable. East and Southeast Asia This region retains some coherence given a long history of certain punishment preferences, linked in many instances to the ongoing, if modified, influence of Confucian culture. Two shared features are particularly striking—but they are complicated by important internal diversity as well. First, on the formal punishment side: almost all the countries in this broad region retain capital punishment, despite the global pressure for reform. Only the Philippines and Cambodia, of the major nations, have abolished the practice, though Hong Kong also ended the death penalty in 1993. Most East Asian regimes continue to believe that capital punishment is a vital weapon against crime, and the view seems to be shared by much of the general public as well. Japan is a particularly interesting case. The country has comparatively little crime. Since 1945 it has been deeply committed to most human rights platforms, and offers wide support to groups like Amnesty International. The postwar constitution did limit the death penalty substantially, applying it only in cases of particularly brutal crimes—a significant departure from earlier policies. However, the usually conservative government continues to insist that the Japanese public, deeply committed to social order, sees the death penalty as a vital if rarely used deterrent. In fact, skepticism about deterrent value has increased, and appeals for abolition have gained growing attention; a 2020 poll tallied 64% in support, but most of those said that, were they on a relevant jury, they could never recommend a death sentence. And in fact, given constitutional limits and low crime rates, the penalty is rarely applied. Further change is certainly possible. For the moment, however, Japan joins the many otherwise diverse East Asian nations in maintaining an important traditional policy. Even the most committed regimes are not locked in place, however. Both China and Singapore reduced their execution levels significantly after about 2000, though rates remained high. In an interesting echo of earlier traditions, China began allowing two-year “reprieves” for some convicts after which, assuming good behavior the penalty might be commuted to 25 years in prison. Substantial support for shaming remains a second link in the East-Southeast Asian approach to punishment, another vital legacy from earlier regional patterns. Polls suggest that about half of all parents in countries like Taiwan and South Korea fully approve of the shaming of children. Shaming continues to play an explicit role in school discipline. A televised episode

Regional Patterns in the Contemporary Period  185 from China in 2004 showed the commitment—along with some vital correctives. A schoolboy misbehaves, and is made to put on a ratty “shame sweater,” making it clear to his classmates and other teachers that he is being officially shamed for his actions. However, at the end of the day he is allowed to take the sweater off, also in public, as a sign that the punishment has been completed and he can be “reintegrated” into the group. Childhood acculturation in shaming easily continues into adulthood, with errant businessmen or politicians recurrently acknowledging shame in response to a misdeed. Against some common punishment reactions, however, the East/Southeast Asian region has also been divided revealingly on other key issues, with democracies in the region far more responsive to global standards than their authoritarian counterparts. The list of political crimes subject to penalties, vivid in countries like North Korea, is largely absent in the democratic societies, but the contrasts go beyond this obvious variable. Corporal punishment of children is a case in point. While both South Korea and Japan have banned the practice, in a significant departure from tradition, parents and schools in places like China and Singapore remain deeply invested. To be sure, China officially outlawed corporal punishment in schools in 1986, but slapping remains common, and is often actively recommended by parents. In the home, studies show 50–60% of children are subject to this kind of discipline, though there is some sign of growing concern. Imprisonment is another obvious divide. Japan has been a leader in seeking to reduce reliance on prisons and to modify prison conditions. The country has a low per capita imprisonment rate, and experienced a further rapid decline in the second decade of the 21st century. South Korea, similarly, has a per capita imprisonment rate only slightly over a half of the global average. The contrast with China or North Korea is obvious; China’s acknowledged per capita imprisonment rate is more than twice as high as that of Japan. Finally, while the official near-uniformity of commitment to capital punishment is interesting, actual application varies tremendously, with China almost certainly the global leader in execution rates as well as absolute numbers. Vietnam, though it dramatically scaled back the number of crimes subject to the death penalty in 2015, maintains a fairly high rate as well; like Singapore, it applies the punishment to drug possession. Again, the contrast with countries like South Korea and Japan is striking; South Korea in fact has maintained a de facto moratorium on capital punishment since 1998, though the penalty is still on the books, and officially, several prisoners remain on death row. The conclusion is both clear and complex: an “East Asian” approach to punishment retains some meaning, but with severe limitations given the huge national differences that have opened up in exploring reform options.

186  The Contemporary Period India Since independence in 1947, Indian courts and legislators have frequently discussed punishment policies, with many reviews and inquiries and with frequent reference to international standards. On paper, however, there has been less movement away from British colonial policies than many nationalist leaders had hoped and expected. Notably, capital punishment remains on the books despite vigorous discussion, though in one state a court has ruled it unconstitutional. Not only murder, but rebellion, terrorism, and kidnapping for ransom are on the list of capital crimes in most Indian states. As one policewoman put it early in the 21st century, “The death penalty is necessary in certain cases to do justice to society’s anger against the crime.” On the other hand, in part because of the strength of reform sentiment, the penalty is rarely imposed—only about 6% of convictions in the relevant crime categories actually lead to execution. The same tension between official rules and practical implementation applies to imprisonment. Jail sentences are listed for many crimes, and solitary confinement can be imposed for some offenses. But clear limits are stipulated for solitary confinement—no more than three months for any prisoner, and never for long durations at one time. Similar restrictions apply to life sentences, which can be commuted to 20- or even 14-year terms. Labor service is required for prisoners serving long terms, but not for those convicted of lesser crimes. In fact, on a per capita basis, India’s prison population is quite low—lower than that of Japan and most European countries, though under a more conservative government, the rate did creep up after 2015. Despite some disappointment on the reform front, Indian penologists urge that the nation seeks to combine public deterrence and opportunities for rehabilitation in its punishment policies. India has also worked to translate the legal abolition of the traditional caste system into its approach to punishment, with mixed success. Officially, punishment is applied without regard to caste heritage. In fact, caste still matters, for example, among prison inmates where caste hierarchies are often enforced. India also contends with extralegal punishments applied against members of lower castes or religious minorities. Attacks on Muslims for real or imagined violations of Hindu strictures became more common in the 21st century, sometimes with the connivance of police officials. Here was another complexity in what is clearly a mixed approach to punishment in contemporary India. The Middle East Interpretations of Islamic law continue to determine punishment policies in a number of Muslim-majority countries, sharply distinguishing them from patterns in other world regions. There are no other instances where earlier

Regional Patterns in the Contemporary Period  187 punishment traditions have such a substantial hold, shaping methods and motives alike. On the other hand it is also vital to remember that many governments in these regions—such as the Ottoman Empire—had moved away from these patterns well before the modern period, and that additional changes have occurred under the influence of global standards or other reform impulses. Finally, however, the region, while far from uniform, does tend to emphasize rigorous punishment, so while the hold of tradition should not be exaggerated, it helps explain an underlying theme. Countries particularly guided by more rigorous interpretations of Islamic law include Iran, Saudi Arabia, and the adjacent nations of Pakistan and Afghanistan. Islamic influence shows in the importance attributed to punishing religious and moral offenses, as well as other serious crimes; in the high rate of capital punishment (second only to China, per capita), and in the wide range of crimes for which the death penalty may be imposed; in the forms and public performance of executions; and, at least in many cases, in the use of some types of physical torture. Amputations for theft continue to occur in some Islamic regions (particularly in a few parts of sub-Saharan Africa and under the Taliban in Afghanistan), along with public lashings. Retribution and deterrence take precedence over other motivations. The Iranian revolution of 1979, shaped by a fundamentalist view of Islam, focused heavily on restoring a number of traditional punishments. Even stoning was reintroduced, as a response to certain cases of adultery. The penal code stipulated that “the size of the stone used in stoning shall not be too large to kill the convict by one or two throws and at the same time shall not be too small to be called a stone.” Estimates suggest that at least 150 people were stoned to death by the regime between 1980 and 2009. Stoning has also been occasionally practiced in some Islamic regions of Africa, but the Iranian case stands out. At the same time, other factors may intrude. Pakistan, seeking to balance strict Islamic law with some acknowledgment of global standards, ended capital punishment for several years in the 21st century, only to restore it in response to a terrorist incident. Iranian methods drew major public protest in 2022–23, after a young woman, arrested for not wearing her hijab properly, died in police custody; the protest challenged a range of punishment practices in the name of human rights, though it was brutally assailed by the state. By 2022, the powers of the religious police in Saudi Arabia were dramatically scaled back, reducing the number of arrests for moral offenses. More secular regimes in the region offer a number of important contrasts with their religious counterparts. Many have (at least officially) renounced not only stoning, but other forms of torture. Punishments are not applied to dress codes or many moral offenses. Turkey, seeking membership in the European Union, even abolished capital punishment outright in 1991, while also clarifying the rights of accused citizens to legal counsel.

188  The Contemporary Period On the other hand, considerable rigor persists, particularly under more authoritarian governments. Iraq, Syria, and Egypt join Iran and Saudi Arabia in maintaining unusually elevated rates of capital punishment. While imprisonment rates are not for the most part high, Turkey stands out as an exception, with levels over twice the global average; further, jail sentences often involve labor service, and a recidivist must endure a period of solitary confinement. Sub-Saharan Africa After decolonization, countries in the subcontinent faced a number of challenges in shaping punishment policies and dealing with the colonial legacy. Resources were often limited, as economic development proceeded slowly at least until the 21st century. Poverty and inequality promoted rising crime rates in many areas. Police forces were often accused of arbitrary behavior, in countries like Kenya and Nigeria, including the use of torture to elicit confessions or simply to administer punishment without a trial. While democratic political forms gained ground from the 1990s onward, many regimes were authoritarian, using prison sentences to silence political opponents. There were also important countervailing forces. Many countries were eager to revive precolonial traditions, in which imprisonment and even capital punishment had been less prominent, and where community mechanisms often worked to reconcile victims and offenders. United Nations agencies had considerable influence, and transnational agencies such as the African Union also worked to promote human rights. The African Charter on Human and Peoples Rights, adopted in 1998, assured fair trials and protection from cruel and inhumane punishments, and most national constitutions had similar language. The reform spirit showed strongly in a widespread movement away from capital punishment, particularly after 2000. Most sub-Saharan African nations either abolished the death penalty, as Rwanda did in 2007, Madagascar in 2015, or effectively abandoned its imposition. Nigeria, the most populous African nation, retained the penalty, with government backing and substantial support in public opinion, particularly from many active Muslims and Christians. The nation’s Supreme Court upheld the constitutionality of the death penalty on several occasions, arguing that it did not contravene the constitutional protections against cruelty or degrading treatment. However, reform sentiment grew, pushing the government to call for a national debate in 2003, though with inconclusive results. Most nations in the subcontinent had relatively low rates of imprisonment. Zambia was the major exception, where a brutal genocide in 1994 led to massive arrests and convictions; only after 2010 did the prison population begin to decline. South Africa also maintained a large prison population, in part because of an unusually high crime rate. And many African countries,

Regional Patterns in the Contemporary Period  189 even with lower rates, faced massive crowding thanks to inadequate facilities; South African prison populations reached almost 140% of capacity by 2020. Deliberate efforts to cut back were part of the growing reform sentiment in many countries, including some under authoritarian rule. In Uganda, for example, an “alternative dispute resolution” effort gained ground in the 21st century, recalling older community traditions of restorative justice but also aimed at prison overcrowding. Community courts were encouraged to insist on efforts at reconciliation, compensation and apology, in order to resolve crimes without recourse to formal punishment. Though the effort was flawed and underfunded, it did help reduce prison populations by as much as 5% in several years in the 21st century. Russia Punishment patterns in contemporary Russia reflect a variety of historical precedents, in what is regarded, overall, as a fairly harsh system—certainly when compared to most other parts of Europe. The long history of debate over capital punishment has in many ways continued. During the communist period, the regime oscillated between using and abolishing the death sentence, with massive numbers of executions during the height of the Stalinist era. After the fall of communism, discussion of the death penalty remained active, partly because of an interest in joining a number of European institutions where the practice had been outlawed. From the late 1990s onward, the death penalty remained on the books, but a moratorium was imposed in practice. (This left the neighboring authoritarian regime in Belarus the only European country actually employing capital punishment.) However, with an increasingly conservative regime under President Vladimir Putin, calls for return of the death penalty increased by 2019: about 50% of the public supported a return, with only about 12% favoring full abolition. Russia’s unusual prison system harked back to earlier patterns, and indeed most existing prisons had been built during the Soviet era. Urban prisons focused mainly on holding prisoners before trial, often in miserable conditions; there was little use of bail systems. Sentenced prisoners were usually sent to one of 869 rural facilities, most of them distant from family members, where they were kept in barracks rather than cells. Labor service was encouraged, though not available to all inmates; cases of torture were frequently reported, but so were the effects of bribes by wealthier prisoners who managed to improve their conditions. The Federal Penitentiary Service was a major operation, with a sizable official budget and massive earnings from prisoner labor, mainly in manufacturing and forestry work. By 2019, Russia ranked 17th globally in per capita imprisonment rates, and first in Europe by a considerable margin (though rates in Belarus were also high). Russian courts were notoriously tough, with a very high

190  The Contemporary Period conviction rate; many criminals received long sentences (including life). The prison population did decline by about 50% between 2009 and 2019, with greater use of community service or other options for more minor crimes. A number of Russian NGOs worked to improve prison conditions and prevent torture, though their influence was limited. Increased repression after the attack on Ukraine in 2022 caused another surge in imprisonment. Western Society and the American Exception Most of Western society has been marked by strong reformist tendencies since World War II, though there is some variation from one country to the next. Capital punishment has been abolished, and considerable effort has been directed toward reducing the prison population in favor of other corrective measures. Experiments with more open prisons in nations like Finland have not been uniformly adopted—Britain, particularly, continues to place more emphasis on imprisonment than many other European countries—but the movement toward shorter sentences has been widespread. These trends also apply to Canada, Australia, and New Zealand. The last execution in Canada took place in 1962, and the death penalty was legally abolished fourteen years later; efforts to revive it have met with fierce public opposition. Australian states ended capital punishment between 1922 and 1984, and a national measure passed in 2010. Imprisonment rates are also low, though Australia ranges slightly above European norms. In other words, it is possible to describe a distinctive hold of reformist sentiment in Western society, building up from the precedents established in the 18th and 19th centuries. Most of the countries involved have also devoted considerable resources toward crime prevention, most notably by improvements in the social welfare network. Many have also increased their investment in police training; police candidates in Norway, for example, undergo three years of preparation. They have also imposed fairly rigorous controls over gun ownership. The United States, however, has marched to the beat of a dramatically different drummer. Shared “Western” reform impulses have emerged, particularly in a considerable if belated American movement away from capital punishment in the 21st century and in a variety of efforts to encourage restorative justice or modify the reliance on imprisonment. But many core policies have remained fiercely distinctive, and the nation moved in opposite directions from key global trends in the last three decades of the 20th century. The result, among other things, has been a recurrent wave of criticism from European reformers—often including the papacy. Tradition helped prepare the rift. Even in the 19th century, when the reform spirit seemed clearly transatlantic, the United States was more deeply persuaded of the value of imprisonment, and of relatively long sentences of incarceration,

Regional Patterns in the Contemporary Period  191 than its European counterparts. Distinctive police behavior could also be identified. At least in the American South, the involvement of police in the repression of slaves arguably also established some durable impulses. But the gap opened far wider in the later 20th century. The United States did not participate in the movement to outlaw the spanking of children, which remains legal in all 50 states and supported by a majority of public opinion so long as it does not involve implements. Most states also held back from the repeal of capital punishment—except where this had already been established in the 19th century—despite some fierce debates. There was an important ­period of hesitation: in the 1960s and early 1970s the Supreme Court ruled that the way many states were applying the death penalty was a form of cruel and unusual punishment, citing the “evolving standards of decency that mark the progress of a maturing society” rather than literal precedent. However, after 1976, most states reinstated the penalty, though for a narrower range of crimes; from that point to the present, approximately 8,700 people have been sentenced to death, about 1,550 actually executed (and over 200 belatedly ­exonerated because they were proved innocent). To be sure, the movement against the death penalty resumed after about 2000, with many states rescinding capital punishment and others putting it on pause; at present only six states, mostly in the South, still put people to death. But the federal government briefly renewed executions in 2019, under President Trump. The United States is one of several nations where children can be tried for crimes as adults, but it is literally the only country where a child as young as 13 can be sentenced to life imprisonment without the possibility of parole. The nation was slow to remove children from possible death sentences, though the Supreme Court did so for children under 16; however, a number of children aged 16–18 have been sentenced, and a few executed in recent decades. Though comparisons are challenging, the United States has arguably devoted less attention to crime prevention than its Western counterparts. American welfare programs are less extensive, particularly in alleviating poverty. Police training also lags: the average American officer goes on patrol after 21 weeks. With guidance from criminologists, the United States did introduce some changes in the placement of police after the 1990s, having some impact on crime rates. On the other hand, the nation also maintained a distinctively tolerant approach to gun ownership. But it is with imprisonment where the United States most clearly stands out. With a mere 5% of the world’s population, the United States had 25% of all prisoners in the world by the 2020s. The nation had maintained relatively high rates since the early 19th century, but striking changes transformed the profile from the 1970s onward. Between 1970 and the early 2020s, the prison population quadrupled, from 500,000 to nearly 2 million, surging massively beyond population growth and also beyond any changes in crime

192  The Contemporary Period rates. Growth of this sort strained already-inadequate prisons, creating new problems of crowding, disease, mental illness, and internal violence. Many state governments turned to private contractors to build and operate prisons—an odd throwback to the earlier practice of relying on for-profit jailers, and this created further pressures for growth, and further opportunities for deterioration in conditions. Sheer size was only part of the story. Sentences expanded, which contributed to additional crowding. New rules limited the discretion of judges, mandating relatively long sentences for certain crimes. Half of all prisoners by the 2020s were serving ten years or more. The temporary end of the death penalty in the 1970s prompted many states to emphasize life sentences without parole, a new and rigid feature in the American system. The overall population of “lifers” quadrupled from 1984 to the early 2020s—to 160,000 people; 50,000 of them with no parole. Other features of American prison life drew comment. While there was some effort to reduce reliance on solitary confinement, the practice remained common—in some states, it was euphemistically called “restorative housing,” but prisoners knew it for what it was: the hole. Not surprisingly, problems of suicide and mental illness in American prisons increased; suicides in state prisons, for example, rose 85% in the twenty years after 2001. Most of the results of the intensification of punishment occurred with broad public support. An increase in crime rates and drug problems in the 1970s and 1980s helped trigger the trends, but American fears of crime persisted even after the actual rates began to fall dramatically. Politics contributed in a big way: Republicans increasingly campaigned on “law and order” platforms, promising an ever-tougher approach, and Democrats frequently responded with harsh measures of their own. Racial issues clearly factored in. Black Americans were more than four times more likely to be in prison than Whites, and they also held a disproportionate place among lifers and those sentenced to death; arrest rates and police violence were also racially skewed. After 2010, some efforts were made to attack the prison crisis by shortening sentences, developing alternative punishments and expanding parole; some states decriminalized certain forms of drug use. Prison populations, though still high, did drop slightly. New organizations like Black Lives Matter (2013) sprang up to combat racial inequalities in sentencing and policing. Change was halting, however, amid widespread attachment to a “war on crime” mentality and the deep partisan divide. For better or worse, the contemporary American approach to crime was in a category of its own. Latin America The democratization of Latin American politics after the 1970s, following an intense authoritarian period in many countries, brought growing interest in penal reform, which already had deep roots in earlier tradition. Many

Regional Patterns in the Contemporary Period  193 Latin American countries were attracted to some of the patterns developing in Western Europe, promoted as well by international agencies and the Catholic Church. However, crime rates were high in many cases, which prompted some distinctive compromises. Capital punishment has virtually disappeared, though it remains on the books in some countries, particularly in the Caribbean (where, amid high crimes rates, there is some public pressure for more severe sentencing). Several major countries had abolished the death penalty in the late 19th–early 20th century, such as Colombia, Venezuela, and Costa Rica. But a major reform wave developed elsewhere from the 1990s onward, with Mexico making the move in 2005, and Argentina in 2009. Several major countries, including Brazil and Argentina, also responded to the encouragement to abolish corporal punishment for children, though there is more variety on this point, and the practice remains particularly common in the Caribbean. Rates of imprisonment are for the most part moderate by global standards, but Uruguay and Brazil are in a higher category—well below the United States, but on a par with Russia. El Salvador also ranks high, partly because of struggles between the government and private gangs; a new, 40,000-inmate facility was opened in 2023. Even in other Latin American countries, prison crowding is a major issue, and significant riots are not infrequent. On the other hand, interest in restorative justice alternatives has grown in the 21st century. Colombia has highlighted the approach as a response to minor crimes, and several countries have established victim-offender mediation services. A Latin American Institute for Restorative Practices was founded in 2011, providing training for judges and police officers in a number of countries. Overall, efforts at punishment reform have increased steadily in Latin America over the past 40 years, qualified by pressures of high crime rates and funding constraints which impinge particularly on prisons. Conclusion Contemporary world history involves a complex interaction between global and regional impulses, and punishment trends offer vivid illustration. Global influences are real, but obviously regional factors, including prior historical experience, have shaped dramatically different policies in many of the basic punishment parameters. Societies vary greatly in how they evaluate crime and the extent to which they believe in tough responses—and while “actual” crime rates play a role in this, they are not the only factor involved. Policymakers and wider publics can be fiercely attached to very diverse attitudes toward imprisonment or corporal penalties, depending on assumptions about crime and criminals, social order, and justice. Addressing the causes of major regional or national variations is a vital component in any historical analysis.

194  The Contemporary Period The same regional variety raises an obvious challenge to comparative evaluation—another common issue in contemporary world history. Criticizing other regions for not measuring up to one’s own values has a long precedent in the history of punishment, and this clearly remains true today given the diversity of approaches to basic issues like the frequency and methods of capital punishment. One obvious assessment goal remains particularly elusive. It would be splendid to end a chapter on regional patterns with a definitive statement of which approaches are most effective in curbing crime. And a few tentative conclusions are possible. Societies that use the death penalty do not have measurably lower murder rates than societies than have abandoned it; in some cases, the reverse is true. Nations that emphasize imprisonment, with fairly long sentences, do not systematically generate lower recidivism rates than societies with more moderate policies. A few deeply reformist nations, like Finland, do feature far lower crime and recidivism rates than average, but the connections are not automatic; and some nations, like Japan, that offer a somewhat harsher approach in domains like prison administration also have low rates. It is hard to pinpoint success. On another front: incidence of suicide among prisoners varies regionally but somewhat unpredictably, where data are available at all. Crime rates respond to a variety of factors, and punishment patterns form only part of the picture. Differences in the ways crime is defined and huge variations in the accuracy of available data about phenomena like recidivism complicate any generalizations. All societies hope to deter crime, but the ways they define deterrence, as well as the policies they choose to accomplish it, differ greatly. Finally, regional patterns are not set in stone. Varying historical precedents do matter, but they can be overcome. Many societies in recent decades have been working hard to modify their approach, and the effort will surely continue in the future. The regional punishment map a few decades hence will almost certainly reflect some of the current differentials, but it will likely involve significant readjustments as well—just as the current map differs from what might have been predicted from the patterns of the 1970s. Further Reading Tom Head and David Wolcott, Crime and Punishment in America (New York, 2010); James Forman Jr., Locking Up Our Own: Crime and Punishment in Black America (New York, 2019); David Oshinsky, “Worse than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice (New York, 1996) and Capital Punishment on Trial: Furman v. Georgia and the death penalty in modern America (New York, 2010); Hugo Bedau and Paul Cassell, eds., Debating the Death Penalty: Should America

Regional Patterns in the Contemporary Period  195 Have Capital Punishment? (New York, 2004); Ian O’Donnell, Prison Life: Pain, Resistance, Purpose (New York, 2023). “Incarceration Rates by Country,” World Population Review, 2023; World Prison Brief, Institute for Crime and Justice Policy Research; Death Penalty Information Center, Annual Review. Tomiya Itaru, Capital Punishment in East Asia (Kyoto, 2007); David Johnson, “Asias declining death penalty,” Journal of Asian Studies 69 (2010); David Leheny and Sida Liu, “The politics of crime, punishment and the social order in East Asia,” Annual Review of Law and Social Science 6 (2010). A. Hasan, “Efficacy of punishment in India: A crucial analysis,” Social Defence 19 (1983). Annie ChikwanheDzenga, Theory and Practice of Criminal Justice in Africa (Tshwana, 2009). Alexandra Brovkina and others, “System of criminal penalties of Russian federation: Legal regulation and sentencing practices,” E3S Web of Conferences 135 (Jan., 2019). Riccardo Salvatore, Carloes Aquirre, and Gilbert Joseph, eds., Crime and Punishment in Latin America (Durham NC, 2001). Philip Reichel, Comparative Criminal Justice Systems: A Topical Approach (Upper Saddle River NJ, 2008); Peter Hodgkinson and William Schabas, Capital Punishment: Strategies for Abolition (Cambridge UK, 2004).

14 Conclusion

The history of punishment warrants exploration from a variety of vantage points. This book has emphasized major policies and practices, as they have evolved over time and as they have developed in different regional contexts. From this standpoint, punishments have responded, and continue to respond, to a variety of factors. The nature of government is a crucial variable: the list of crimes and appropriate responses often reflects particular political regimes. Technology plays a role in shaping what punishments are possible. Changes in the nature and rate of crime factor in. Cultural and religious values loom large. None of these factors stands alone. Similar political structures—like American and European democracies—can generate very different approaches to punishment because of the impact of other variables. Islamic or Christian legal traditions have been interpreted in a variety of ways, again because of interaction with other factors. It is the balance among several variables, not a single determinant, that explains major regional patterns or changes over time. Balance also applies to the complicated interactions among the major punishment goals, from retribution to prevention to restoration or rehabilitation. Deterrence is the most consistent theme, but it can take many different forms, particularly when other goals are pursued as well. No policy or practice has ever managed to prioritize all four goals equally, though some efforts at restorative justice may aim in that direction. The history of punishment should also be viewed in terms of the different audiences involved. For example, what might seem a more humane approach, considered with current global standards and prisoners’ rights in mind, might be judged very differently by the victims of major crime. Police forces have their own definition of appropriate punishment, often disagreeing with other policy perspectives. Offenders or those accused of crime would write yet another version of punishment’s history. It is always useful to think about how a major shift in punishment patterns would be variously interpreted by the principal audiences involved, particularly when they are wrapped in terms such as reform or human rights. The tensions involved DOI: 10.4324/9781003427261-19

Conclusion  197 spill over into today’s headlines, as conservatives attack reformers for being soft on crime, reformers claim conservatives are harsh or even racist, in the United States and elsewhere. Disagreements are inevitable. This book has clearly been sympathetic to modern reform efforts (while also noting that some reforms turn out to work better than others). Was this slant overdone? Did it pay too little attention to the need for closure for victims and their families, or to reasonable police expectations that known criminals should be kept off the streets? So many issues could be clarified if there were more accurate data on how particular punishment policies correlate with lower crime or recidivism rates, but at present, conflicting information in these categories simply generates more disputes: there are excellent studies showing that longer prison terms yield less recidivism, along with excellent studies that prove that shorter prison terms (at least for certain types of crimes) do the job better. Some plausible research suggests that the key variable for potential criminals is the degree of certainty about getting caught, not the severity of the penalty that ensues; but there is debate about this as well. There’s no escaping the need for some value judgments about what kinds of punishment are most appropriate. Other evaluations are more clear-cut. Major societies clearly become attached to particular methods and motives in punishment, which is why patterns today so often reflect at least some features initially established earlier—sometimes centuries before. Traditional attachments help explain why punishment policies sometimes fail to reflect the evidence that is available about impacts in domains such as crime rates or recidivism, and why societies deeply disagree about appropriate penalties at any given point. It can be hard to shift gears. At the same time, the history of punishment reflects periods of surprisingly sweeping change, most obviously with the rise of governments in agricultural societies and then more recently with the impact of modern ideas and contexts. Along with a grasp of the more traditional residues, the exploration of change is where historical analysis contributes most directly to an evaluation of patterns and issues in punishment today. Is the history of punishment, at least in modern times, also a history of progress? There’s little question that, to many contemporaries, some of the punishment practices in the past seem not only bizarre, but also deeply cruel. Museums of torture draw visitors mainly on the basis of shock value, leaving many with a sense of relief that at least we don’t do this anymore. Is this a valid response to earlier precedents? Clearly, punishment in the past was, at the least, more complicated than a display of torture implements can convey. Modern societies have dark passages of their own. And many well-intentioned reforms have turned out to have far more drawbacks than their advocates imagined, particularly as we become more aware of psychological as well as physical pain. Indeed, one of

198  The Contemporary Period the most intriguing aspects of the modern history of punishment is how reforms themselves have required reformation. And here, the process is ongoing. What are the probable trends for the future? Will global standards gain momentum, and will they also be revised by a new generation of reformers? Or will the global effort splinter, as different regimes pursue their own goals? Modern societies continue to experiment with their approaches to punishment, and this process will surely continue. Other factors—like the aging of many populations—may facilitate further innovations that we can only speculate about today. Or some new crime surge may call for a restoration of some older practices: many current trends, like the retreat of capital punishment, are still fairly new, and certainly not immune to reversion. The history of punishment hardly offers a formula for the future. It does provide a crucial basis for understanding what is happening today, and why so many societies have been adjusting their approaches in recent decades. The same history offers a rich store of human experience against which any observer can test their own beliefs about how the various goals of punishment should balance out—about how justice and cruelty should be defined. Punishing is one of the most important and complicated tasks of any society, and a grasp of historical patterns and trajectories is vital even as contemporary policies continue to evolve.

Index

Pages in italics refer to figures. abolition 171–74 adultery 22, 33, 35–6, 43, 69, 78–9, 89, 97, 114, 124, 143, 182, 187 Afghanistan 187 African Institute for the Prevention of Crime and the Treatment of Offenders 177 Afrikaners 168 alternatives, need for 128–29 Amazon 21 American exception 190–92 American Revolution 99, 109 Amnesty International 177 Amsterdam, prison in 101–3 Aquinas, Thomas 74 Aristotle 59 Ashoka, emperor 72 Asiatics 153 Augustine 73 Australia 173, 175; penal colonies and 100; policing in 129–31; regional patterns in 190–92; transportation and 131–32, 135, 153; restorative justice and 180; violence against violence in 28–9; whipping in 128 available apparatus 39–41 Basic Principles for the Treatment of Prisoners 176 Beccaria 171 Beccaria, Cesare 104–5 Bentham, Jeremy 105 Black Code 115–16 Blackstone, William 105 Bloody Code 96

Bonaparte, Napoleon 108 Boniface VIII, pope 77 Botany Bay 100 Brahmins 44–5 Britain: British colonies, punishment in 114–15; British Hong Kong 152, 154; British India 151–54; capital punishment and 151–54; expanding Bloody Code 124–25 Buddhism 65, 71–2 Burke, Edmund 123 Byzantine Empire 61–2, 65 Calvin, John 95 Cambodia 164, 184 Canada 99, 190–92 cangue 53, 165–66 capital punishment 2–5; abolishing 182–94; in British colonies 114; China and 56; in Egypt 35; guillotine 108; Jewish avoidance of 36; in new empires 150–54; new forms of torture and 166–67; in Ottoman Empire 88–9; public form of 62; punishment recalibration 124–25; reforms and 124–27, 140, 144, 148 Capital Punishment Amendment Act 127 Catherine II 90 Catholic Church 6, 75, 104, 173, 193 causation 36–7; available apparatus 39–41; crime 37–8; social change 37; state and 38–9 Center of Excellent on Prison Reform 177 Central Committee of the Communist Party 161

200 Index Cephu 27 charivari (rough music) 97 Chicago 137 Child, Lydia 122 children: rethinking discipline of 121–2; spanking and 175–76 China 1–2; balancing punishments in 56–7; classical society 52–7; concentration camps in 170; Confucianism in 54–6; as empire 86–7; Five Punishments in 32–3; regional patterns, contemporary period 184–85; signs of change in 52–4; water torture in 164 Christianity 3, 65, 72–7 classical period 49–50 classical societies, punishment in 63–4; Byzantine Empire 61–2; China debates/reform 52–7; Greece 57–60; introduction to 51–2; Rome 60–1 clemency 41–2 Code Noir 115–16 Code, Hammurabic 33–5, 46 Cold War 160 Commentaries on the Laws of England (Blackstone) 105 complexities, early punishment 46–8; clemency 41–2; fines and prisons 45–6; inequality 44–5; punishment outside state 42–3 concentration camps 167–71 Confucianism 54–6 contemporary period, punishment in 159–60; see also regional patterns, contemporary period Convention Against Torture 161 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 161 Convention on the Rights of the Child 175–76 corporal punishment 95–7; in new empires 153–54 costs 6–7 Council of Europe 180 crime: causation and 37–8; in huntergatherer societies 21–4; nature of 106 Crime and Punishment (Dostoevsky) 141 Cuba 2 customary practices 179

data 4 death penalty: debating 125–27; extending reform effort 171–74 debts, hunter-gatherer societies 20–1 deterrence, new forms of: capital punishment 166–67; concentration camps 167–71; torture innovations 163–66 deterrent 11 Devil’s Island 132, 142 Dickens, Charles 136–37 Discipline and Punish (Foucalt) 136 Dominican Republic 77 Dostoevsky, Feodor 141 early cases of physical penalties 35–6 early civilizations, punishment in: approaches 32–6; causation 36–41; complexities 41–6; overview of 31–2 early modern period 83–4 East Asia, punishment in 184–85 education, opportunities for 178 Egypt 35 El Salvador 2 electric chair 126–27, 166 electricity 163–64 emotions 7–8 Enlightenment 3, 94, 124, 147 enslavement 115–17 Europe: Christian states in 73–7; death penalty in 172–74; Eastern European empires 85–93; prisons in 135–36; punishment in new colonies 112–17; spanking in 176; Western Europe 94–111 European Common Market 173 European Union 173 exclusion 11 expiatory punishment 12 exposition 123 extraterritoriality 145 Falun Gong 164 Fernando de Noronha 148 fines 45–6 Finland 2 Five Punishments 32–3, 54, 65, 86 floggings 88, 96 forced labor 178–79 Foucault, Michel 9, 136 Fourth Lateran Council 77

Index  201 France 123, 178; policing in 129–31 Frederick the Great 107 French Revolution 84, 99, 107 Gambles, John 23 gégène 163 gender: hunter-gatherer societies and 23; in hunter-gatherer societies 22–3; inequality and 44–5; Japanese system 66; social structure 5 General Assembly 174 Geneva Council 95–6 Germany 169 Gorgias 59–60 gossip 26 Great Code 86 Greece, punishment in 58–60 Gross National Product (GNP) 6 Guantanamo Bay 132 Guillotin, Joseph-Ignace 9 guillotine 109 gulag 2, 169 Hammurabi, emperor 32 Han Dynasty, China 52–4 hangings 95, 126 Henry VIII 95 Hinduism 70–1 Hobbes, Thomas 103 homo sapiens 17 Howard, John 109 humanitarian sensibility 107 hunter-gatherer societies, punishment in: basic characteristics of punishment 24–5; crime 21–4; debates 20–1; layers of punishment 25–30; overview of 19–20 India: regional patterns, contemporary period 186 inequality 44–5 injections, lethal 166 International Covenant on Civil and Political Rights 176 Iran 187 Iranian revolution 187 Islam 65, 77–80 Japan: as empire 87–8; in postclassical period 66; punishment reforms in 145–47; regional patterns,

contemporary period 184–85; spanking in 176; whipping in 154 Jews, arresting 168 Judaism 69–70 labor service 155–57 Latin America: death penalty in 172–74; punishment in 112–14; punishment reforms in 147–49; regional patterns in 192–95; spanking in 176 law, punishment outside 137–39 Laws of Manu 35, 70 layers of punishment 25; gossip/rumor 26; ostracism 27–8; shaming 26–7; violence against violence 28–9 League of Nations 160 Legalism 56 lex talionis (law of retaliation) 10 Lockes, John 104 Luxemburg 121 maiming 66 major changes: extending reform effort 171–89; new forms of retribution/ deterrence 163–71; overview of 161–63 Malaysia 21 Mandela rules 176–77 Massachusetts 123, 129 Mbuti people 26 medical care 178 Mesopotamia, Code in 33–5 Mexico, punishment in 8, 112–14 Middle East: regional patterns, contemporary period 186–88 “Minimum Rules for the Treatment of Prisoners” 176 Moll Flanders 99 Montesquieu 104 Murder Act 97 Nazi Germany 3, 166–71 new empires, punishment in 150–58 New Testament 73 New York State, debating death penalty in 125–27 New York Times 126 New Zealand 100, 119, 128, 173,175, 190–92 Newgate Prison 102

202 Index nineteenth century, punishment in 119–20 noise bombardment 164 normalcy 4–5 North Korea 166–67, 170, 177, 185 On Crimes and Punishments (Beccaria) 104 ostracism 27–8, 58 Ottoman Empire 86, 88–90; punishment reform in 143–45 pain, reconsidering 106–7 Pakistan 187 Peel, Robert 130 penal colonies 97–101 Penitentiary Act 109 Persian Empire 51 Peter the Great 85, 90 Philippines 83, 98, 127, 173–74, 184 philosophers: discussions of 103–5; punishment and 59–60 Plato 59–60 Poland 121 policing 129–31 postclassical period, punishment in 49–50; introduction to 65–6; new regional states 66–8; religion 68–80 presidios 98 preventive punishment 11 prisons 45–6; American enthusiasm for 133–35; in Europe 135–36; extending reform efforts 176–80; labor service and 155–57; modern prisons 132–33; problems and 136–37 prisons, emergence of 101–3 prolonged imprisonment 179 property, in hunter-gatherer societies 22 Protestant Reformation 95 Prussia, legal code in 124 public shaming 122–23 public shielding 127–28 punishment 1–3, 13–6, 196–97; age of reform and 121–39; approaches to 9–13; in Asian/Eastern European empires 85–93; basic characteristics of 24–5; challenges in history of 4–8; costs 6–7; data 4; emotions 7–8; punishers 6; severity/normalcy 4–5; social structure 5; in classical

societies 51–64; in early human societies 17–8; enslavement and 115–17; historical/comparative perspective 8–9; in hunter-gatherer societies 19–30; layers of 25–30; major changes and 161–81; new context for 106–11; in new empires 150–58; in new European colonies 112–17; outside law 137–39; regional differences in 1–3; regional patterns and 182–95; role of religion in 65–81; transformation of 31–48; types of 9–13; in Western Europe 94–111; in Western Europe and beyond 121–39 Punishment of Death Act 124 Qing Dynasty, China 87 Qur’an 77–8 recalibration, punishment 124–25 reform movement 107–9 reforms, punishment: debating death penalty 125–27; extending efforts 171–89; in independent societies 140–49; in Japan 145–47; in Latin America 147–49; modern prisons 132–39; need for alternatives 128–29; in Ottoman Empire 143–45; policing 129–31; prisons 176–80; public shaming 122–23; recalibration 124–25; restorative justice 180–81; rethinking child discipline 121–22; in Russia 140–43; shielding public 127–28; spanking 175–76; transportation 131–32; whipping 128, 174–75 regional differences, punishment 1–2 regional patterns, contemporary period: in East/Southeast Asia 184–85; in India 186; introduction to 182–84; in Latin America 192–95; in Middle East 186–88; in Russia 189–90; in sub-Saharan Africa 188–89; in Western society 190–92 rehabilitative/reformative punishment 12–3 reintegration 12 religion 80–1; Buddhism 71–2; Christianity 72–7; Hinduism 70–1; introduction to 68–9; Islam 77–80; Judaism 69–70

Index  203 restorative justice 180–81 restorative punishment 12 retribution, new forms of: capital punishment 166–67; concentration camps 167–71; torture innovations 163–66 retributive punishment 10–1 Riken, Nakai 145 Rome 60–1 rumor 26 Rush, Benjamin 107, 133 Russia 2, 66–7; as empire 90–2; punishment reforms in 140–43; regional patterns in 189–90 Rwanda 2 Safavid Empire 85 Saudi Arabia 187 Scandinavia, death penalty in 173 Semai people 21 seppuku 66 Servetus, Michael 95 severity 4–5 shaming 26–7 Singapore 145, 153, 157, 182, 184–85 social structure 5 Society for the Prevention of Cruelty to Children 122 South Africa 164, 168, 175, 177, 180, 188–89 South Korea 184–85 Southeast Asia, punishment in 184–85 Soviet Union 3; concentration camps in 167–71 Spain 98 Spanish Inquisition 95 Spanish-Cuban War 168 spanking 175–76 Spock, Benjamin 175 St. Paul 73 Stalin, Joseph 161 state 38–9; Christian states 73–7; postclassical states 66–8; punishment outside of 42–3 sub-Saharan Africa 188–89 Taliban 1 Tiying, Chunyn 54

torture, innovations in 163–66 transportation 131–32 Transportation Act of 1717 99 Truth and Reconciliation Commission 180 Turkmenistan 2 United Nations 160, 161, 173, 176 United Nations Standard Minimum Rules for the Treatment of Prisoners 176–77 United States 2; and American exception 190–92; costs in 6–7; debating death penalty in 125–27; forced labor in 178–79; Japanese Americans in 168; New Jersey 121–22; Pennsylvania 133; policing in 131; prisons in 133–35; records of capital punishment in 167; Rhode Island 125; Tennessee 123; whipping in 128; Wisconsin 125 Universal Charter of Human Rights 161 vigilance committees 137–39 violence against violence 28–9 water, torture involving 164 West Africa 67–8 Western Europe, punishment in 74–5; and beyond 121–39; corporal punishment 95–7; introduction to 94–5; modern prisons 101–3; new context for punishment 106–11; penal colonies 97–101; political philosophers 103–5 Western society, regional patterns in 190–92 WesterSn 160 whipping 128; extending reform effort 174–75 Whipping Act 95 witchcraft 96 women see gender World War I 160, 173 World War II 162, 171, 173 Xia Dynasty, China 32 Yanomami people 21